SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12 (b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
_________________________
Citibank (South Dakota), N.A.
on behalf of
Citibank Credit Card Master Trust I
(Issuer in respect of the Citibank Credit Card Master Trust I,
Floating Rate Class A Credit Card Participation Certificates, Series 1996-6 and
Floating Rate Class B Credit Card Participation Certificates, Series 1996-6)
______________________________________________________________
(Exact name of registrant as specified in its charter)
United States of America 46-0358360
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
701 East 60th St., North
Sioux Falls, South Dakota 57117
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(Address of principal (Zip Code)
executive offices)
SECURITIES TO BE REGISTERED PURSUANT TO
SECTION 12 (b) OF THE ACT:
None.
SECURITIES TO BE REGISTERED PURSUANT TO
SECTION 12 (g) OF THE ACT:
$940,000,000 aggregate principal amount of the Citibank
Credit Card Master Trust I, Floating Rate Class A Credit
Card Participation Certificates, Series 1996-6 (the
"Class A Certificates") with an expected final payment
date of December 2006 and $60,000,000 aggregate
principal amount of the Citibank Credit Card Master
Trust I, Floating Rate Class B Credit Card Participation
Certificates, Series 1996-6 (the "Class B Certificates")
with an expected final payment date of December 2006.
<PAGE>
Item 1. Description of the Registrant's Securities to be Registered
1.1 For a description of the Class A Certificates and Class B
Certificates, reference is hereby made to the description of
the Class A Certificates and Class B Certificates contained in
the Prospectus relating to the Class A Certificates and Class
B Certificates filed with the Securities and Exchange
Commission (File No. 33-99328) and incorporated herein by
reference (see in particular "Series Provisions" therein).
Item 2. Exhibits
2.1 Form of Class A Certificate and Class B Certificate (included
within Exhibit 2.3).
2.2 Pooling and Servicing Agreement (incorporated by reference
from Exhibit 4.2 of the registrants' registration statements
on Form S-1 (File Nos. 33-41054 and 33-48148) and from Exhibit
4 of the registrants' registration statement on Form S-3 (File
No. 33-77802)).
2.3 Series 1996-6 Supplement.
2
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized.
CITIBANK (SOUTH DAKOTA), N.A.
By:/s/Eugene D. Rowenhorst
---------------------------
Eugene D. Rowenhorst
Senior Vice President
December 20, 1996
3
EXHIBIT 2.3
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CITIBANK (SOUTH DAKOTA), N.A.,
Seller and Servicer,
CITIBANK (NEVADA),
NATIONAL ASSOCIATION,
Seller,
and
YASUDA BANK AND TRUST COMPANY (U.S.A.),
Trustee
on behalf of the Certificateholders
SERIES 1996-6 SUPPLEMENT
Dated as of December 3, 1996
to
POOLING AND SERVICING AGREEMENT
Dated as of May 29, 1991
CITIBANK CREDIT CARD MASTER TRUST I
SERIES 1996-6
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
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Page
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ARTICLE I
Creation of the Series 1996-6 Certificates
Section 1.01. Designation .................................... 1
ARTICLE II
Definitions
Section 2.01. Definitions .................................... 2
Section 2.02. Amendment to Definition of "Series
Adjusted Invested Amount" ...................... 31
ARTICLE III
Servicer and Trustee
Section 3.01. Servicing Compensation ......................... 31
Section 3.02. Trustee Appointment of Agents .................. 34
ARTICLE IV
Rights of Series 1996-6 Certificateholders
and Allocation and
Application of Collections
Section 4.01. Allocations .................................... 34
Section 4.02. Determination of Monthly Interest .............. 35
Section 4.03. Determination of Monthly
Principal ...................................... 38
Section 4.04. Establishment of Funding Accounts .............. 38
Section 4.05. Required Amount ................................ 41
Section 4.06. Application of Reallocated Investor
Finance Charge Collections and
Available Investor Principal
Collections .................................... 41
Section 4.07. Distributions to Series 1996-6
Certificateholders ............................. 49
Section 4.08. Investor Charge-Offs ........................... 50
Section 4.09. Excess Finance Charge Collections .............. 52
Section 4.10. Subordinated Principal Collections ............. 55
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ii
TABLE OF CONTENTS
-----------------
(cont'd)
Page
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Section 4.11. Credit Enhancement ............................. 56
Section 4.12. Reallocated Investor Finance Charge
Collections .................................... 64
Section 4.13. Excess Principal Collections ................... 65
Section 4.14. Interest Rate Swaps............................. 66
ARTICLE V
Distributions and Reports to
Series 1996-6 Certificateholders
Section 5.01. Distributions .................................. 67
Section 5.02. Reports and Statements to
Series 1996-6 Certificateholders ............... 68
ARTICLE VI
Amortization Events
Section 6.01. Additional Amortization Events ................. 69
ARTICLE VII
Optional Repurchase; Additional Issuances;
Accumulation Period
Section 7.01. Optional Repurchase ............................ 70
Section 7.02. Additional Issuances of Series 1996-6
Certificates ................................... 71
Section 7.03. Accumulation Period Postponement ............... 74
ARTICLE VIII
Final Distributions
Section 8.01. Sale of Certificateholders' Interest
pursuant to Section 2.06 or 10.01 of the
Agreement ...................................... 76
Section 8.02. Distribution of Proceeds of Sale,
Disposition or Liquidation of the
Receivables Pursuant to Section 9.02
of the Agreement ............................... 78
<PAGE>
iii
TABLE OF CONTENTS
(cont'd)
Page
----
ARTICLE IX
Covenants
Section 9.01. Reduction in Portfolio Yield.................... 81
ARTICLE X
Miscellaneous Provisions
Section 10.01. Ratification of Agreement...................... 82
Section 10.02. Counterparts .................................. 82
Section 10.03. Governing Law ................................. 82
Section 10.04. Construction of Agreement...................... 82
EXHIBITS
Exhibit A-1 Form of Class A Certificate
Exhibit A-2 Form of Class B Certificate
Exhibit B-1 Form of Monthly Payment Instructions and
Notification to the Trustee and the Cash
Collateral Depositor
Exhibit B-2 Form of Monthly Payment Instructions and
Notification to the Trustee and the
Additional Cash Collateral Depositor
Exhibit C Form of Monthly Statement
Exhibit D Form of Monthly Servicer's Certificate
Exhibit E-1 Class A Interest Rate Swaps
Exhibit E-2 Class B Interest Rate Swaps
Schedule 1 List of dealers
<PAGE>
EXECUTION COPY
SERIES 1996-6 SUPPLEMENT dated as of December 3, 1996,
among CITIBANK (SOUTH DAKOTA), N.A., a national banking
association, Seller and Servicer; CITIBANK (NEVADA), NATIONAL
ASSOCIATION, a national banking association, Seller; and
YASUDA BANK AND TRUST COMPANY (U.S.A.), a New York trust
company, Trustee.
Pursuant to the Pooling and Servicing Agreement dated as of May 29,
1991 (as amended and supplemented, the "Agreement"), among the Sellers, the
Servicer and the Trustee, the Sellers have created Citibank Credit Card Master
Trust I (the "Trust"). Section 6.03 of the Agreement provides that the Sellers
may from time to time direct the Trustee to issue, on behalf of the Trust, one
or more new Series of Investor Certificates representing fractional undivided
interests in the Trust. The Principal Terms of any new Series are to be set
forth in a Supplement to the Agreement.
Pursuant to this Series Supplement, the Sellers and the Trustee
shall create a new Series of Investor Certificates and specify the Principal
Terms thereof.
ARTICLE I
Creation of the Series 1996-6 Certificates
Section 1.01. Designation. (a) There is hereby created a Series of
Investor Certificates to be issued pursuant to the Agreement and this Series
Supplement to be known as "Citibank Credit Card Master Trust I, Series 1996-6".
The Series 1996-6 Certificates shall be issued in two Classes, the first of
which shall be known as the "Floating Rate Class A Credit Card Participation
Certificates, Series 1996-6", and the second of which shall be known as the
"Floating Rate Class B Credit Card Participation Certificates, Series 1996-6".
(b) Series 1996-6 shall be included in Group One. Notwithstanding
any provision in the Agreement or in this Series Supplement, (i) the first
Distribution Date with respect to Series 1996-6 shall be the January 1997
Distribution Date and (ii) Group One Investor Monthly Interest and Certificate
Rate, as such terms are used in
<PAGE>
2
this Series Supplement, any other Series Supplement and in the Agreement, and
Insolvency Proceeds and Termination Proceeds allocable to Series 1996-6, shall
each be determined with reference to the Class A Swap Rate (in the place of the
Class A Certificate Rate) and the Class B Swap Rate (in the place of the Class B
Certificate Rate), calculated on the basis of a 360-day year of twelve 30-day
months.
(c) In the event that any term or provision contained herein shall
conflict with or be inconsistent with any term or provision contained in the
Agreement, the terms and provisions of this Series Supplement shall govern.
ARTICLE II
Definitions
Section 2.01. Definitions. (a) Whenever used in this Series
Supplement, the following words and phrases shall have the following meanings,
and the definitions of such terms are applicable to the singular as well as the
plural forms of such terms and to the masculine as well as to the feminine and
neuter genders of such terms.
"Accumulation Period" shall mean, unless an Amortization Event shall
have occurred prior thereto, the period commencing at the close of business on
the fourth-to- last Business Day of November 2005, or such later date as is
determined in accordance with Section 7.03, and ending upon the first to occur
of (a) the commencement of the Early Amortization Period and (b) the payment in
full to Class A Certificateholders and Class B Certificateholders of the Class A
Invested Amount and the Class B Invested Amount, respectively.
"Accumulation Period Amount" shall mean for each Monthly Period an
amount equal to the product of (i) Available Expected Principal for such Monthly
Period and (ii) a fraction, the numerator of which is the Initial Invested
Amount and the denominator of which is the sum of (a) the Initial Invested
Amount and (b) the initial invested amounts of all Variable Accumulation Series
which are not in their revolving periods as of such Monthly Period; provided
that, for purposes of this definition, the commencement date of the accumulation
period of each Variable Accumulation Series shall be deemed to have been
postponed to the latest
<PAGE>
3
permissible date, determined as if the provisions of Section 7.03 applied to
each such Series (applying such provisions first to the Variable Accumulation
Series with the latest expected final payment date and next to each Series with
the next preceding expected final payment date); provided further, that a
Variable Accumulation Series shall be deemed to be in its revolving period in
each Monthly Period in which the sum of the expected controlled accumulation or
amortization amounts for all subsequent monthly periods for such Series is equal
to the initial invested amount of such Series.
"Additional Cash Collateral Accounts" shall have the meaning
specified in Section 4.11(a.1).
"Additional Cash Collateral Depositor" shall mean the financial
institution or institutions which are a party to an Additional Loan Agreement,
such financial institution or institutions to be selected by the Sellers on or
prior to an Additional Issuance Date, or any successors or assigns thereto
appointed as provided in such Additional Loan Agreement.
"Additional Class A Certificates" shall have the meaning specified
in Section 7.02(a).
"Additional Class B Certificates" shall have the meaning specified
in Section 7.02(a).
"Additional Interest" shall mean, at any time of determination, the
sum of Class A Additional Interest and Class B Additional Interest.
"Additional Investor Certificates" shall mean any one of the
Additional Class A Certificates or the Additional Class B Certificates.
"Additional Issuance" shall have the meaning specified in Section
7.02(a).
"Additional Issuance Date" shall have the meaning specified in
Section 7.02(a).
"Additional Loan Agreement" shall mean an agreement among the Banks,
the Trustee and an Additional Cash Collateral Depositor, dated as of the related
Additional Issuance Date.
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4
"Adjusted Invested Amount" shall mean the Series Adjusted Invested
Amount with respect to Series 1996-6.
"Allocable Defaulted Amount" shall mean, with respect to any Due
Period, an amount equal to the product of (a) the Series 1996-6 Allocation
Percentage with respect to such Due Period, (b) the Floating Allocation
Percentage with respect to such Due Period and (c) the Defaulted Amount with
respect to such Due Period.
"Allocable Finance Charge Collections" shall mean, with respect to
any Deposit Date or Distribution Date, the product of (a) the Series 1996-6
Allocation Percentage for the related Due Period and (b) the aggregate amount of
Collections in respect of Finance Charge Receivables relating to any Deposit
Date or Distribution Date, as applicable.
"Allocable Miscellaneous Payments" shall mean, with respect to any
Distribution Date, the product of (a) the Series 1996-6 Allocation Percentage
for the related Due Period and (b) Miscellaneous Payments with respect to the
related Due Period.
"Allocable Principal Collections" shall mean, with respect to any
Deposit Date or Distribution Date, the product of (a) the Series 1996-6
Allocation Percentage for the related Due Period and (b) the aggregate amount of
Collections in respect of Principal Receivables relating to any Deposit Date or
Distribution Date, as applicable.
"Available Additional Cash Collateral Amount" shall mean, with
respect to any date of determination, the lesser of (a) the aggregate amount on
deposit in each Additional Cash Collateral Account and (b) the sum of the
Initial Additional Cash Collateral Amounts for each Additional Issuance on or
prior to such date of determination.
"Available Cash Collateral Amount" shall mean, with respect to any
date of determination, the lesser of (a) the aggregate amount on deposit in each
Cash Collateral Account and (b) the Initial Cash Collateral Amount.
"Available Enhancement Amount" shall mean, with respect to any date
of determination, the sum of the Available Cash Collateral Amount and the
Available Additional Cash Collateral Amount with respect to such date.
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5
"Available Expected Principal" for any date of determination with
respect to each Monthly Period shall be equal to the excess of (a) the Expected
Monthly Principal for such Monthly Period over (b) the sum of, without
duplication, (i) all scheduled amortizations or accumulations of principal,
including past due shortfalls as of such date of determination, for all Fixed
Accumulation Series which are not in their revolving periods as of such Monthly
Period and (ii) all principal collections projected by the Servicer to be
allocable to any other Series with respect to which an Amortization Event shall
have occurred on or prior to such date of determination.
"Available Investor Principal Collections" shall mean, with respect
to any Distribution Date, the sum of (a) an amount equal to (i) Investor
Principal Collections for such Distribution Date, minus (ii) the amount of
Subordinated Principal Collections with respect to such Distribution Date which
pursuant to Section 4.10(a) is required to fund any deficiency pursuant to
Section 4.06(a)(i) and (a)(iii) or (c)(i) and (c)(iii), as the case may be, for
such Distribution Date, plus (b) Allocable Miscellaneous Payments on deposit in
the Collection Account for such Distribution Date, plus (c) Series 1996-6 Excess
Principal Collections on deposit in the Collection Account for such Distribution
Date plus (d) Subordinated Series Reallocated Principal Collections on deposit
in the Collection Account for such Distribution Date.
"Available Shared Enhancement Amount" shall mean, with respect to
any date of determination, the lesser of (a) the Initial Shared Enhancement
Amount and (b) the excess, if any, of the Available Enhancement Amount on such
date over the Initial Class B Enhancement Amount.
"Cash Collateral Accounts" shall have the meaning specified in
Section 4.11(a).
"Cash Collateral Account Investments" shall mean Eligible
Investments.
"Cash Collateral Depositor" shall mean the financial institution or
institutions which are a party to a Loan Agreement, such financial institution
or institutions to be selected by the Sellers on or prior to the Closing Date to
make a deposit in a Cash Collateral Account on the Closing
<PAGE>
6
Date, or any successors or assigns thereto appointed as provided in the related
Loan Agreement.
"CCA Charge-Offs" shall have the meaning specified in Section
4.08(d).
"CCA Default Amount" shall mean, with respect to any Distribution
Date (commencing with the Distribution Date following the Distribution Date on
which the Class A Invested Amount and the Class B Invested Amount are paid in
full and provided that the Economic Special Payment Date has occurred), the
Allocable Defaulted Amount for the related Due Period.
"CCA Initial Invested Amount" shall mean the aggregate amount
withdrawn from each Cash Collateral Account and each Additional Cash Collateral
Account and applied to the payment of principal of the Series 1996-6
Certificates with respect to the Economic Special Payment Date, if any, pursuant
to Section 4.11(i)(D) and (E).
"CCA Invested Amount" shall mean, when used with respect to any
date, an amount equal to (a) the CCA Initial Invested Amount, minus (b) the
aggregate amount of principal payments made to each Cash Collateral Depositor
and each Additional Cash Collateral Depositor pursuant to Section 4.06(f)(iv)
prior to such date, minus (c) the aggregate amount of CCA Charge-Offs for all
prior Distribution Dates pursuant to Section 4.08(d), minus (d) the aggregate
amount of Subordinated Principal Collections allocated on all prior Distribution
Dates pursuant to Section 4.10(a) that have resulted in a reduction in the CCA
Invested Amount pursuant to Section 4.08(c), minus (e) an amount equal to the
amount by which the CCA Invested Amount has been reduced on all prior
Distribution Dates pursuant to Section 4.08(a) and (b), and plus (f) the sum of
(i) the aggregate amount of any Allocable Miscellaneous Payments allocated and
available on all prior Distribution Dates pursuant to Section 4.08(d) and (ii)
the amount of Excess Finance Charge Collections allocated and available on all
prior Distribution Dates pursuant to Section 4.09(i), for the purpose of
reimbursing amounts deducted pursuant to the foregoing clauses (c), (d) and (e);
provided, however, that (i) unless and until a withdrawal is made from the Cash
Collateral Accounts and each Additional Cash Collateral Account, and the
proceeds thereof are applied to the payment of principal of the Series 1996-6
Certificates, with respect to the Economic
<PAGE>
7
Special Payment Date pursuant to Section 4.11(i)(D) and (E), the CCA Invested
Amount shall be zero and (ii) the CCA Invested Amount may not be reduced below
zero.
"CCA Monthly Interest" shall mean, with respect to any Distribution
Date following the Economic Special Payment Date, an amount equal to one-twelfth
of the product of (a) the CCA Invested Amount as of the close of business on the
preceding Distribution Date (after giving effect to any distribution to each
Cash Collateral Depositor and each Additional Cash Collateral Depositor on such
preceding Distribution Date pursuant to Section 4.06(f)(iv)) and (b) a fraction,
the numerator of which is equal to the sum of (i) the product of (x) the Class A
Swap Rate and (y) the outstanding principal balance of the Class A Certificates
as of the close of business on such preceding Distribution Date (after giving
effect to any distribution of Class A Monthly Principal on such preceding
Distribution Date) and (ii) the product of (x) the Class B Swap Rate and (y) the
outstanding principal balance of the Class B Certificates as of the close of
business on such preceding Distribution Date (after giving effect to any
distribution of Class B Monthly Principal on such preceding Distribution Date),
and the denominator of which is the sum of the outstanding principal balances
referred to in clauses (i)(y) and (ii)(y) above; provided, however, that with
respect to each Distribution Date following the Distribution Date on which the
outstanding principal balance of the Class A Certificates has been reduced to
zero, "CCA Monthly Interest" shall mean, with respect to any Distribution Date,
an amount equal to one-twelfth of the product of (A) the CCA Invested Amount as
of the close of business on the preceding Distribution Date (after giving effect
to any distribution to each Cash Collateral Depositor and each Additional Cash
Collateral Depositor on such preceding Distribution Date pursuant to Section
4.06(f)(iv)) and (B) the Class B Swap Rate.
"CCA Monthly Principal" shall mean, for any Distribution Date with
respect to the Early Amortization Period, beginning with the Distribution Date
on which the Class A Invested Amount and the Class B Invested Amount are paid in
full and provided that the Economic Special Payment Date has occurred, the
Available Investor Principal Collections for such Distribution Date (minus the
portion of such Available Investor Principal Collections applied to Class A
Monthly Principal or Class B Monthly Principal on such Distribution Date);
provided, however, that the CCA Monthly Principal shall not exceed the CCA
Invested Amount.
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8
"CCA Monthly Servicing Fee" shall have the meaning specified in
Section 3.01.
"Class A Additional Interest" shall have the meaning specified in
Section 4.02(a).
"Class A Adjusted Net Swap Payment" shall mean, with respect to any
Transfer Date, the Class A Net Swap Payment for such Transfer Date minus the
Class A Funding Account Swap Payment for such Transfer Date.
"Class A Adjusted Net Swap Receipt" shall mean, with respect to any
Transfer Date, the Class A Net Swap Receipt for such Transfer Date minus the
Class A Funding Account Swap Receipt for such Transfer Date.
"Class A Allocable Share" shall mean, for each Distribution Date
with respect to a Monthly Period, the sum of (a) the product of (i) Reallocated
Investor Finance Charge Collections deposited in the Collection Account for such
Distribution Date and (ii) the Class A Invested Percentage for such Distribution
Date and (b) the Class A Funding Account Shortfall for such Distribution Date,
if any, and the amount of any Class A Funding Account Shortfall previously due
but not deposited into the Class A Interest Funding Account on a prior
Distribution Date.
"Class A Certificate Rate" shall mean, with respect to any Interest
Period, a per annum rate equal to LIBOR for such Interest Period plus 0.12%.
"Class A Certificateholder" shall mean the Person in whose name a
Class A Certificate is registered in the Certificate Register.
"Class A Certificateholders' Interest" shall mean that portion of
the Certificateholders' Interest evidenced by the Class A Certificates.
"Class A Certificates" shall mean any one of the certificates
executed by the Banks and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A-1. For the avoidance of doubt, when used
in this Series Supplement the term "Class A Certificates" shall include any
Additional Class A Certificates.
"Class A Covered Amount" shall mean, with respect to any Monthly
Period, (i) the product of (a) the Class A
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9
Certificate Rate in effect with respect to the applicable Interest Period, (b)
the Class A Principal Funding Account Balance, if any, for such Monthly Period
and (c) a fraction the numerator of which is the actual number of days from and
including the prior Distribution Date to but excluding such Distribution Date
and the denominator of which is 360, plus (ii) the Class A Funding Account Swap
Payment for the such Monthly Period, if any, minus (iii) the Class A Funding
Account Swap Receipt for the such Monthly Period, if any (to the extent that
such amount has been deposited in the Collection Account on the Transfer Date
relating to such Monthly Period).
"Class A Excess Investment Proceeds" shall mean, with respect to any
Monthly Period, an amount equal to the excess, if any, of (a) the Class A
Investment Proceeds for such Monthly Period over (b) the Class A Covered Amount
for such Monthly Period.
"Class A Expected Final Payment Date" shall mean the December 2006
Distribution Date.
"Class A Funding Account Shortfall" shall mean, with respect to any
Monthly Period, an amount equal to the excess, if any, of (a) the Class A
Covered Amount for such Monthly Period over (b) the Class A Investment Proceeds
for such Monthly Period; provided, however, that for the purpose of determining
Class A Funding Account Shortfall, as such term is used in Section 4.06(a)(i)
and 4.06(c)(i), Class A Covered Amount shall be determined without reference to
any Class A Funding Account Swap Payment or any Class A Funding Account Swap
Receipt.
"Class A Funding Account Swap Payment" shall mean, with respect to
any Transfer Date, the product of the Class A Net Swap Payment for such Transfer
Date and a fraction, the numerator of which is the Class A Principal Funding
Account Balance as of the close of business on the preceding Distribution Date
and the denominator of which is the outstanding principal balance of the Class A
Certificates as of the close of business on the preceding Distribution Date.
"Class A Funding Account Swap Receipt" shall mean, with respect to
any Transfer Date, the product of the Class A Net Swap Receipt for such Transfer
Date and a fraction, the numerator of which is the Class A Principal Funding
Account Balance as of the close of business on the preceding Distribution Date
and the denominator of which is the out-
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10
standing principal balance of the Class A Certificates as of the close of
business on the preceding Distribution Date.
"Class A Initial Invested Amount" shall mean the sum of the
aggregate initial principal amount of the Class A Certificates, which is
$940,000,000 on the Closing Date, and the aggregate initial principal amount of
any Additional Class A Certificates.
"Class A Interest Funding Account" shall have the meaning specified
in Section 4.04(a).
"Class A Interest Payment Date" shall mean the tenth day of each
March, June, September and December (or, if such day is not a Business Day, the
next succeeding Business Day) and the Class A Expected Final Payment Date,
commencing on the March 1997 Distribution Date.
"Class A Interest Rate Swaps" shall mean the interest rate swap
agreements dated the Closing Date, between the Trust and the Class A Swap
Counterparties, for the benefit of the Class A Certificateholders, copies of
which are attached hereto as Exhibit E-1, or any Replacement Interest Rate
Swaps.
"Class A Interest Shortfall" shall have the meaning specified in
Section 4.02(a).
"Class A Invested Amount" shall mean, when used with respect to any
date, an amount equal to (a) the Class A Initial Invested Amount, minus (b) the
aggregate amount of principal payments made to Class A Certificateholders prior
to such date, minus (c) the Class A Principal Funding Account Balance as of such
date and minus (d) the excess, if any, of the aggregate amount of Class A
Investor Charge-Offs over Class A Investor Charge-Offs reimbursed pursuant to
Section 4.08(a) prior to such date; provided, however, that the Class A Invested
Amount may not be reduced below zero.
"Class A Invested Percentage" shall mean, with respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is the Class A Invested Amount as of the last day of the second preceding
Due Period and the denominator of which is the Invested Amount as of such last
day.
"Class A Investment Fee" shall mean, for each Distribution Date
beginning with the January 2006
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11
Distribution Date and ending with the Distribution Date immediately preceding
the Class A Expected Final Payment Date, a fee in an amount equal to $778,343,
$711,368, $643,335, $574,915, $505,661, $435,892, $365,009, $293,575, $221,400,
$148,344, and $74,571, respectively; provided, however, after any Additional
Issuance Date, the Class A Investment Fee shall be the amounts specified on such
Additional Issuance Date.
"Class A Investment Proceeds" shall mean, with respect to any
Monthly Period, the aggregate amount of all interest and other investment income
(net of investment expenses) earned (and actually received by the Trustee on the
Distribution Date following such Monthly Period) on the Class A Principal
Funding Account Balance for such Monthly Period.
"Class A Investor Charge-Offs" shall have the meaning specified in
Section 4.08(a).
"Class A Investor Default Amount" shall mean, with respect to any
Distribution Date, an amount equal to the product of (a) the Allocable Defaulted
Amount for the related Due Period and (b) the Class A Invested Percentage for
such Distribution Date.
"Class A Monthly Interest" shall have the meaning specified in
Section 4.02(a).
"Class A Monthly Principal" shall have the meaning specified in
Section 4.03(a).
"Class A Monthly Servicing Fee" shall have the meaning specified in
Section 3.01.
"Class A Net Swap Payment" shall mean, with respect to any Transfer
Date, the net amount due the Class A Swap Counterparties for such Transfer Date,
if any, as determined pursuant to the Class A Interest Rate Swaps.
"Class A Net Swap Receipt" shall mean, with respect to any Transfer
Date, the net amount due from the Class A Swap Counterparties for such Transfer
Date, if any, as determined pursuant to the Class A Interest Rate Swaps.
"Class A Payment Date" shall mean any Class A Interest Payment Date
and any Special Payment Date.
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12
"Class A Principal Draw Amount" shall have the meaning specified in
Section 4.11(h).
"Class A Principal Funding Account" shall have the meaning specified
in Section 4.04(b).
"Class A Principal Funding Account Balance" shall mean, with respect
to any Monthly Period, the principal amount, if any, on deposit in the Class A
Principal Funding Account on the last day of such Monthly Period.
"Class A Swap Counterparties" shall mean Citibank (South Dakota) and
Citibank (Nevada), or any successors or assigns thereto appointed as provided in
the Class A Interest Rate Swaps, each in its individual capacity as swap
counterparty pursuant to the related Class A Interest Rate Swap.
"Class A Swap Rate" shall mean 6.4748% per annum.
"Class B Additional Interest" shall have the meaning specified in
Section 4.02(b).
"Class B Allocable Share" shall mean, for each Distribution Date
with respect to a Monthly Period, the product of (i) Reallocated Investor
Finance Charge Collections deposited in the Collection Account for such
Distribution Date and (ii) the Class B Invested Percentage for such Distribution
Date.
"Class B Certificate Rate" shall mean, with respect to any Interest
Period, a per annum rate equal to LIBOR for such Interest Period plus 0.32%.
"Class B Certificateholder" shall mean the Person in whose name a
Class B Certificate is registered in the Certificate Register.
"Class B Certificateholders' Interest" shall mean that portion of
the Certificateholders' Interest evidenced by the Class B Certificates.
"Class B Certificates" shall mean any one of the certificates
executed by the Banks and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A-2. For the avoidance of doubt, the term
"Class B Certificates" when used in this Series Supplement shall include any
Additional Class B Certificates.
<PAGE>
13
"Class B Expected Final Payment Date" shall mean the December 2006
Distribution Date.
"Class B Initial Invested Amount" shall mean the sum of the
aggregate initial principal amount of the Class B Certificates, which is
$60,000,000 on the Closing Date, and the aggregate initial principal amount of
any Additional Class B Certificates.
"Class B Interest Funding Account" shall have the meaning specified
in Section 4.04(a).
"Class B Interest Payment Date" shall mean the tenth day of each
March, June, September and December (or, if such day is not a Business Day, the
next succeeding Business Day) and the Class B Expected Final Payment Date,
commencing on the March 1997 Distribution Date.
"Class B Interest Rate Swaps" shall mean the interest rate swap
agreements dated the Closing Date, between the Trust and the Class B Swap
Counterparties, for the benefit of the Class B Certificateholders, copies of
which are attached hereto as Exhibit E-2, or any Replacement Interest Rate
Swaps.
"Class B Interest Shortfall" shall have the meaning specified in
Section 4.02(b).
"Class B Invested Amount" shall mean, when used with respect to any
date, an amount equal to (a) the Class B Initial Invested Amount, minus (b) the
aggregate amount of principal payments made to Class B Certificateholders prior
to such date (other than any principal payments made to Class B
Certificateholders from the proceeds of a Reimbursement Draw Amount pursuant to
Section 4.11(f)), minus (c) the aggregate amount of Class B Investor Charge-Offs
for all prior Distribution Dates pursuant to Section 4.08(b), minus (d) the
aggregate amount of Subordinated Principal Collections allocated on all prior
Distribution Dates pursuant to Section 4.10(a) (excluding any Subordinated
Principal Collections that have resulted in a reduction in the CCA Invested
Amount pursuant to Section 4.08(c)), minus (e) an amount equal to the amount by
which the Class B Invested Amount has been reduced on all prior Distribution
Dates pursuant to Section 4.08(a), and plus (f) the sum of (i) the aggregate
amount of any Allocable Miscellaneous Payments allocated and available on all
prior Distribution Dates pursuant to Section 4.08(b)(i)
<PAGE>
14
and (ii) the amount of Excess Finance Charge Collections allocated and available
on all prior Distribution Dates pursuant to Section 4.09(f), for the purpose of
reimbursing amounts deducted pursuant to the foregoing clauses (c), (d) and (e);
provided, however, that the Class B Invested Amount may not be reduced below
zero.
"Class B Invested Percentage" shall mean, with respect to any
Distribution Date, the percentage equivalent of a fraction, the numerator of
which is the Class B Invested Amount as of the last day of the second preceding
Due Period and the denominator of which is the Invested Amount as of such last
day.
"Class B Investor Charge-Offs" shall have the meaning specified in
Section 4.08(b).
"Class B Investor Default Amount" shall mean, with respect to any
Distribution Date, an amount equal to the product of (a) the Allocable Defaulted
Amount for the related Due Period and (b) the Class B Invested Percentage for
such Distribution Date.
"Class B Monthly Interest" shall have the meaning specified in
Section 4.02(b).
"Class B Monthly Principal" shall have the meaning specified in
Section 4.03(b).
"Class B Monthly Servicing Fee" shall have the meaning specified in
Section 3.01.
"Class B Net Swap Payment" shall mean, with respect to any Transfer
Date, the net amount due the Class B Swap Counterparties for such Transfer Date,
if any, as determined pursuant to the Class B Interest Rate Swaps.
"Class B Net Swap Receipt" shall mean, with respect to any Transfer
Date, the net amount due from the Class B Swap Counterparties for such Transfer
Date, if any, as determined pursuant to the Class B Interest Rate Swaps.
"Class B Payment Date" shall mean any Class B Interest Payment Date
and any Special Payment Date.
"Class B Principal Commencement Date" shall mean the Distribution
Date on which the Class A Invested Amount is to be paid in full.
<PAGE>
15
"Class B Principal Draw Amount" shall have the meaning specified in
Section 4.11(h).
"Class B Swap Counterparties" shall mean Citibank (South Dakota) and
Citibank (Nevada), or any successors or assigns thereto appointed as provided in
the Class B Interest Rate Swaps, each in its individual capacity as swap
counterparty pursuant to the related Class B Interest Rate Swap.
"Class B Swap Rate" shall mean 6.773% per annum.
"Closing Date" shall mean December 3, 1996.
"Controlled Amortization Amount" shall mean $85,454,545; provided
that after any Additional Issuance Date, or if the commencement of the
Accumulation Period is postponed pursuant to Section 7.03, the Controlled
Amortization Amount shall mean the amount to be specified on such Additional
Issuance Date or on the date on which the Accumulation Period is postponed, as
applicable; provided further, that if the commencement of the Accumulation
Period is postponed pursuant to Section 7.03, the Controlled Amortization Amount
for each Monthly Period shall be no greater than the Accumulation Period Amount
for such Monthly Period and no less than the lesser of (a) the Accumulation
Period Amount for such Monthly Period and (b) one-eleventh of the Class A
Initial Invested Amount; provided, however, that the sum of the Controlled
Amortization Amounts for all Monthly Periods during the postponed Accumulation
Period shall not be less than the Class A Initial Invested Amount.
"Controlled Distribution Amount" shall mean, for any Distribution
Date with respect to a Monthly Period, an amount equal to the sum of the
Controlled Amortization Amount and any existing Deficit Controlled Amortization
Amount.
"Cumulative Excess Interest Amount" shall mean, with respect to any
Distribution Date, an amount equal to the sum of (a) the Excess Interest Amount
with respect to such Distribution Date and (b) the aggregate Excess Interest
Amounts with respect to prior Distribution Dates which have not been deposited
in the Class B Interest Funding Account pursuant to Section 4.09(c) or 4.11(d);
provided, however, that with respect to the first Distribution Date, the
Cumulative Excess Interest Amount shall be zero.
<PAGE>
16
"Cut-Off Date" shall mean November 25, 1996.
"Default Draw Amount" shall have the meaning specified in Section
4.11(e).
"Deficit Controlled Amortization Amount" shall mean (a) on the first
Distribution Date with respect to the Accumulation Period, the excess, if any,
of the Controlled Amortization Amount over the amount distributed from the
Collection Account as Class A Monthly Principal for such Distribution Date and
(b) on each subsequent Distribution Date with respect to the Accumulation
Period, the excess, if any, of the Controlled Amortization Amount plus any then
existing Deficit Controlled Amortization Amount over the amount distributed from
the Collection Account as Class A Monthly Principal for such Distribution Date.
"Designated Maturity" shall mean, prior to the occurrence of an
Amortization Event, three months, and after the occurrence of an Amortization
Event, one month.
"Determination Date" shall mean the earlier of the fifth Business
Day and the eighth calendar day preceding the seventh day of each calendar month
(or, if such seventh day is not a Business Day, the next succeeding Business
Day).
"Distribution Date" shall mean the tenth day of each calendar month,
or if such tenth day is not a Business Day, the next succeeding Business Day,
commencing January 10, 1997.
"Early Amortization Period" shall mean the period beginning at the
close of business on the Business Day immediately preceding the day on which an
Amortization Event with respect to Series 1996-6 is deemed to have occurred, and
ending upon the earlier to occur of (i) the payment in full to the Class A
Certificateholders and the Class B Certificateholders of the Class A Invested
Amount and the Class B Invested Amount, respectively, and the payment in full to
the Cash Collateral Depositors and each Additional Cash Collateral Depositor of
the CCA Invested Amount, if any, and (ii) the Termination Date.
"Economic Amortization Event" shall mean an Amortization Event set
forth in Section 6.01(c) or (e).
"Economic Special Payment Date" shall mean the Special Payment Date
falling in the Due Period following the
<PAGE>
17
Due Period in which an Economic Amortization Event is deemed to have occurred.
"Excess Finance Charge Collections" shall mean, with respect to any
Distribution Date, the sum of the amounts, if any, specified pursuant to Section
4.06(a)(v) or (c)(v) and (b)(iii) or (d)(iii), as the case may be, with respect
to such Distribution Date.
"Excess Interest Amount" shall mean, with respect to any
Distribution Date, an amount equal to one-twelfth of the product of (a) (i) the
outstanding principal balance of the Class B Certificates as of the preceding
Distribution Date (after subtracting therefrom the aggregate amount of
distributions of Class B Monthly Principal made to the Class B
Certificateholders on or before such preceding Distribution Date) minus (ii) the
Class B Invested Amount as of such preceding Distribution Date (after giving
effect to any increase or decrease in the Class B Invested Amount on such
preceding Distribution Date) and (b) the Class B Certificate Rate; provided,
however, that with respect to the first Distribution Date, the Excess Interest
Amount shall be zero.
"Excluded Series" shall mean Series 1992-1, Series 1993-1, Series
1995-7 and any other Series designated in the related Supplement as an Excluded
Series.
"Expected Monthly Principal" shall be equal to the product of (i)
the lowest of the monthly principal payment rates expressed as a decimal for the
12 months preceding the date of such calculation and (ii) the initial invested
amounts of all outstanding Series, other than Excluded Series (except if an
Amortization Event has occurred with respect to such Excluded Series).
"Fixed Accumulation Series" shall mean each outstanding Series,
other than Excluded Series, for which, pursuant to the terms of the related
Supplement, the commencement date of the Accumulation Period may not be changed
at the option of the Servicer.
"Floating Allocation Percentage" shall mean, with respect to any Due
Period, the percentage equivalent (which percentage shall never exceed 100%) of
a fraction, the numerator of which is the sum of the Invested Amount and the CCA
Invested Amount, if any, as of the first day of such Due Period and the
denominator of which is the product of
<PAGE>
18
(a) the total amount of Principal Receivables in the Trust as of the last day of
the immediately preceding Due Period and (b) the Series 1996-6 Allocation
Percentage with respect to the Due Period in respect of which the Floating
Allocation Percentage is being determined; provided, however, that, with respect
to the first Due Period, the Floating Allocation Percentage shall mean the
percentage equivalent of a fraction, the numerator of which is the Initial
Invested Amount and the denominator of which is the product of (x) the total
amount of Principal Receivables in the Trust on the Cut-Off Date and (y) the
Series 1996-6 Allocation Percentage with respect to the Cut-Off Date; provided
further that, with respect to any Due Period in which a Lump Addition occurs or
a removal of Accounts pursuant to Section 2.10 of the Agreement occurs, the
amount referred to in clause (a) shall be the weighted average of the amount of
Principal Receivables in the Trust on the date on which such Lump Addition or
removal of Accounts occurs (after giving effect thereto) and the last day of the
immediately preceding Due Period.
"Gross Amount" shall mean, for each Distribution Date with respect
to a Monthly Period, the sum of (a) the Gross Amount Allocation Percentage of
Allocable Finance Charge Collections for the Due Period immediately preceding
such Distribution Date, (b) Reallocated Investor Finance Charge Collections for
such Distribution Date and (c) the Class A Excess Investment Proceeds for such
Distribution Date, if any.
"Gross Amount Allocation Percentage" shall mean 100% minus the
Floating Allocation Percentage.
"Group One" shall mean Series 1996-6 and each other Series specified
in the related Supplement to be included in Group One.
"Group One Investor Additional Amounts" shall mean, with respect to
any Distribution Date, the sum of (a) Series 1996-6 Additional Amounts for such
Distribution Date and (b) for all other Series included in Group One, the sum of
(i) the aggregate net amount by which the invested amounts of the Investor
Certificates of such Series have been reduced as a result of investor
charge-offs, subordination of principal collections and funding the investor
default amounts in respect of any Class of such Series as of such Distribution
Date and (ii) if the applicable Supplements so provide, the aggregate unpaid
amount of
<PAGE>
19
interest at the applicable certificate rates that has accrued on the amounts
described in the preceding clause (i) for such Distribution Date.
"Group One Investor Default Amount" shall mean, with respect to any
Distribution Date, the sum of (a) the Series 1996-6 Default Amount for such
Distribution Date and (b) the aggregate amount of the investor default amounts
for all other Series included in Group One for such Distribution Date.
"Group One Investor Finance Charge Collections" shall mean, with
respect to any Distribution Date, the sum of (a) Investor Finance Charge
Collections for such Distribution Date and (b) the aggregate amount of the
investor finance charge collections for all other Series included in Group One
for such Distribution Date.
"Group One Investor Monthly Fees" shall mean, with respect to any
Distribution Date, the sum of (a) Series 1996-6 Monthly Fees for such
Distribution Date and (b) the aggregate amount of the servicing fees, investor
fees, fees payable to any Series Enhancer and any other similar fees, which are
payable out of reallocated investor finance charge collections pursuant to the
related Supplements, for all other Series included in Group One for such
Distribution Date.
"Group One Investor Monthly Interest" shall mean, with respect to
any Distribution Date, the sum of (a) Series 1996-6 Monthly Interest for such
Distribution Date and (b) the aggregate amount of monthly interest, including
overdue monthly interest and interest on such overdue monthly interest, if
applicable, for all other Series included in Group One for such Distribution
Date.
"Initial Additional Cash Collateral Amount" shall mean the aggregate
amount of additional credit enhancement provided by one or more Additional Cash
Collateral Depositors for the benefit of the Series 1996-6 Certificates on a
related Additional Issuance Date.
"Initial Cash Collateral Amount" shall mean $70,000,000.
"Initial Class B Additional Collateral Amount" shall mean the
aggregate amount of any additional credit enhancement provided by one or more
Additional Cash
<PAGE>
20
Collateral Depositors solely for the Class B Certificates on a related
Additional Issuance Date.
"Initial Class B Collateral Amount" shall mean $20,000,000.
"Initial Class B Enhancement Amount" shall mean, with respect to any
date of determination, (a) the Initial Class B Collateral Amount plus (b) the
sum of the Initial Class B Additional Collateral Amounts for each Additional
Issuance on or prior to such date of determination.
"Initial Invested Amount" shall mean the sum of the Class A Initial
Invested Amount and the Class B Initial Invested Amount.
"Initial Shared Additional Collateral Amount" shall mean the
aggregate amount of any additional credit enhancement provided by one or more
Additional Cash Collateral Depositors to be shared by the Class A Certificates
and the Class B Certificates on a related Additional Issuance Date.
"Initial Shared Collateral Amount" shall mean $50,000,000.
"Initial Shared Enhancement Amount" shall mean, as of any date of
determination, (a) the Initial Shared Collateral Amount plus (b) the sum of the
Initial Shared Additional Collateral Amounts for each Additional Issuance on or
prior to such date of determination.
"Interest Draw Amount" shall have the meaning specified in Section
4.11(d).
"Interest Funding Accounts" shall mean the Class A Interest Funding
Account and the Class B Interest Funding Account.
"Interest Period" shall mean, (a) with respect to any Class A
Payment Date, the period from and including the Class A Payment Date immediately
preceding such Class A Payment Date (or, in the case of the first Class A
Payment Date, from and including the Closing Date) to but excluding such Class A
Payment Date, and (b) with respect to any Class B Payment Date, the period from
and including the Class B Payment Date immediately preceding such Class B
Payment Date (or, in the case of the first Class B Payment Date, from and
<PAGE>
21
including the Closing Date) to but excluding such Class B Payment Date.
"Interest Rate Swaps" shall mean the Class A Interest Rate Swaps and
the Class B Interest Rate Swaps.
"Invested Amount" shall mean, when used with respect to any date, an
amount equal to the sum of (a) the Class A Invested Amount as of such date and
(b) the Class B Invested Amount as of such date; provided, however, for purposes
of Section 4.12(c) and Section 7.01, "Invested Amount" shall mean, when used
with respect to any date, an amount equal to the sum of (i) the Class A Invested
Amount as of such date, (ii) the Class B Invested Amount as of such date and
(iii) the CCA Invested Amount, if any, as of such date.
"Investor Charge-Offs" shall mean, with respect to any Due Period,
the Class A Investor Charge-Offs for such Due Period and the Class B Investor
Charge-Offs for such Due Period.
"Investor Finance Charge Collections" shall mean, with respect to
any Distribution Date, an amount equal to (a) the product of (i) the Floating
Allocation Percentage for the related Due Period and (ii) Allocable Finance
Charge Collections deposited in the Collection Account for the related Due
Period, minus (b) the aggregate amount of Servicer Interchange for the related
Due Period.
"Investor Principal Collections" shall mean, with respect to any
Distribution Date, the sum of (a) the Floating Allocation Percentage, with
respect to the Revolving Period, or the Principal Allocation Percentage, with
respect to the Accumulation Period or the Early Amortization Period, of
Allocable Principal Collections deposited in the Collection Account for the
related Due Period (or any partial Due Period which occurs as the first Due
Period during the Early Amortization Period), (b) the amount, if any, of
Collections of Finance Charge Receivables and Excess Finance Charge Collections
to be distributed pursuant to Section 4.06(a)(ii) or (c)(ii), as the case may
be, on such Distribution Date and (c) the amount, if any, of Excess Finance
Charge Collections to be distributed pursuant to Sections 4.09(b), (d), (f), (h)
or (i) on such Distribution Date.
<PAGE>
22
"LIBOR" shall mean, as of any LIBOR Determination Date, the rate for
deposits in United States dollars for a period of the Designated Maturity
commencing on the first day of the relevant Interest Period which appears on
Telerate Page 3750 as of 11:00 a.m., London time, on the day that is the LIBOR
Determination Date. If such rate does not appear on Telerate Page 3750, the rate
for that day will be determined on the basis of the rates at which deposits in
United States dollars are offered by the Reference Banks at approximately 11:00
a.m., London time, on that day to prime banks in the London interbank market for
a period of the Designated Maturity commencing on the first day of the relevant
Interest Period. The Servicer will request the principal London office of each
of the Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that day will be the arithmetic mean of
the quotations. If fewer than two quotations are provided as requested, the rate
for that day will be the arithmetic mean of the rates quoted by major banks in
New York City, selected by the Servicer, at approximately 11:00 a.m., New York
City time, on that day for loans in United States dollars to leading European
banks for the Designated Maturity commencing on the first day of the relevant
Interest Period.
"LIBOR Determination Date" shall mean, with respect to any Interest
Period, the second London Business Day prior to the commencement of such
Interest Period.
"Loan Agreement" shall mean an agreement among the Banks, the
Trustee and a Cash Collateral Depositor, dated as of the date hereof, and as may
be amended from time to time.
"London Business Day" shall mean, a business day on which dealings
in deposits in United States dollars are transacted in the London interbank
market.
"Monthly Period" shall mean each period beginning on and including a
Distribution Date and ending on and including the day preceding the following
Distribution Date; provided that the first Monthly Period shall begin on the
first Distribution Date with respect to the Accumulation Period and the last
Monthly Period shall end on the day preceding the last Distribution Date with
respect to the Accumulation Period.
"Net Servicing Fee Rate" shall mean (i) so long as Citibank (South
Dakota) or an Affiliate of Citibank (South
<PAGE>
23
Dakota) is the Servicer, 0.37% per annum and (ii) if Citibank (South Dakota) or
an Affiliate of Citibank (South Dakota) is no longer the Servicer, 0.77% per
annum.
"Principal Allocation Percentage" shall mean, with respect to any
Due Period, the percentage equivalent (which percentage shall never exceed 100%)
of a fraction, the numerator of which is the Adjusted Invested Amount as of the
last day of the Revolving Period and the denominator of which is the product of
(a) the total amount of Principal Receivables in the Trust as of the last day of
the immediately preceding Due Period and (b) the Series 1996-6 Allocation
Percentage with respect to the Due Period in respect of which the Principal
Allocation Percentage is being determined; provided, however, that, with respect
to any Due Period in which a Lump Addition occurs or a removal of Accounts
pursuant to Section 2.10 of the Agreement occurs, the amount referred to in
clause (a) shall be the weighted average of the amount of Principal Receivables
in the Trust on the date on which such Lump Addition or removal of Accounts
occurs (after giving effect thereto) and the last day of the immediately
preceding Due Period.
"Reallocated Investor Finance Charge Collections" shall mean that
portion of Group One Investor Finance Charge Collections allocated to Series
1996-6 pursuant to Section 4.12.
"Reassignment Amount" shall mean, with respect to any Distribution
Date, after giving effect to any deposits and distributions otherwise to be made
on such Distribution Date, the sum of (i) the Invested Amount on such
Distribution Date, plus (ii) the CCA Invested Amount, if any, on such
Distribution Date, plus (iii) accrued and unpaid interest on the unpaid balance
of the Series 1996-6 Certificates (calculated on the basis of the outstanding
principal balance of the Class A Certificates and the Class B Certificates at
the Class A Certificate Rate and the Class B Certificate Rate, respectively)
through the day preceding such Distribution Date, plus (iv) the amount of
Additional Interest, if any, for such Distribution Date and any Additional
Interest previously due but not deposited into the Class A Interest Funding
Account or the Class B Interest Funding Account, as applicable, on a prior
Distribution Date, plus (v) the amount of any Class A Net Swap Payments and any
Class B Net Swap Payments previously due but not distributed to the Swap
Counterparties as of such Distribution Date.
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24
"Reimbursement Draw Amount" shall have the meaning specified in
Section 4.11(f).
"Reference Banks" shall mean four major banks in the London
interbank market selected by the Servicer.
"Replacement Interest Rate Swap" shall mean any replacement interest
rate swap having substantially similar terms and conditions as the Interest Rate
Swap which it replaces.
"Required Amount" shall have the meaning specified in Section 4.05.
"Required Credit Enhancement Amount" shall have the meaning
specified in Section 7.02(a).
"Required Draw Amount" shall have the meaning specified in Section
4.11(c).
"Required Surplus Finance Charge Amount" shall mean, with respect to
any Due Period, an amount equal to one-twelfth of the product of (a) the
Invested Amount as of the last day of the immediately preceding Due Period and
(b) a decimal to be set by the Sellers, which shall initially equal zero (and
which shall never be less than zero); provided, however, that for purposes of
Section 2.01(b) such decimal shall at all times be deemed to be the decimal as
set by the Sellers plus 0.01. The Sellers may, from time to time, change the
decimal to be set for purposes of clause (b) upon notice to the Trustee, each
Rating Agency, each Cash Collateral Depositor and each Additional Cash
Collateral Depositor and, if such decimal is to be increased, upon delivery by
each Seller to the Trustee, each Cash Collateral Depositor and each Additional
Cash Collateral Depositor of a certificate of a Vice President or more senior
officer to the effect that such Seller reasonably believes that such increase
will not have an Adverse Effect and is not reasonably expected to have an
Adverse Effect at any time in the future.
"Revolving Period" shall mean the period beginning at the close of
business on the Business Day immediately preceding the Cut-Off Date and ending
on the earlier of (a) the close of business on the day the Accumulation Period
commences and (b) the close of business on the day the Early Amortization Period
commences.
<PAGE>
25
"Sellers' Allocable Share" shall mean, for each Distribution Date
with respect to a Monthly Period, the Gross Amount for such Distribution Date
less the sum of (a) the Class A Allocable Share for such Distribution Date and
(b) the Class B Allocable Share for such Distribution Date.
"Sellers' Percentage" shall mean 100% minus (a) the Floating
Allocation Percentage, when used with respect to Finance Charge Receivables and
Defaulted Receivables and Principal Receivables during the Revolving Period, and
(b) the Principal Allocation Percentage, when used with respect to Principal
Receivables during the Accumulation Period and the Early Amortization Period.
"Series 1996-6" or "Series 1996-6 Certificates" shall mean the
Series of Investor Certificates (including any Additional Investor
Certificates), the terms of which are specified in this Series Supplement.
"Series 1996-6 Accounts" shall have the meaning set forth in Section
4.04(c).
"Series 1996-6 Additional Amounts" shall mean, with respect to any
Distribution Date, the sum of the amounts determined pursuant to Sections
4.09(b), (c)(ii), (f) and (i) for such Distribution Date.
"Series 1996-6 Allocation Percentage" shall mean the Series
Allocation Percentage with respect to Series 1996-6.
"Series 1996-6 Certificateholders" shall mean the Holders of Series
1996-6 Certificates.
"Series 1996-6 Certificateholders' Interest" shall mean the Class A
Certificateholders' Interest and the Class B Certificateholders' Interest.
"Series 1996-6 Default Amount" shall mean, with respect to any
Distribution Date, an amount equal to the Allocable Defaulted Amount for the
related Due Period.
"Series 1996-6 Excess Principal Collections" shall mean that portion
of Excess Principal Collections allocated to Series 1996-6 pursuant to Section
4.13.
<PAGE>
26
"Series 1996-6 Monthly Fees" shall mean, with respect to any
Distribution Date, the sum of (a) the amount determined pursuant to Section
4.09(g) and (b) (i) for any Distribution Date with respect to the Revolving
Period or the Early Amortization Period, the amounts determined pursuant to
Section 4.06(a)(iii), Section 4.06(b)(ii) and Section 4.09(e), (ii) for any
Distribution Date with respect to any Monthly Period, the amounts determined
pursuant to Section 4.06(c)(iii) and Section 4.06(d)(ii), or (iii) for any
Distribution Date from and including the January 2006 Distribution Date, to and
including the Distribution Date immediately preceding the Class A Expected Final
Payment Date, the amounts determined pursuant to Section 4.06(a)(iv) and Section
4.06(c)(iv).
"Series 1996-6 Monthly Interest" shall mean (a) for any Distribution
Date with respect to the Revolving Period or the Early Amortization Period, the
amounts determined pursuant to Section 4.06(a)(i)(A) and (b)(i)(A) and any CCA
Monthly Interest for such Distribution Date or (b) for any Distribution Date
with respect to any Monthly Period, the amounts determined pursuant to Section
4.06(c)(i)(A) and (d)(i)(A) (excluding any amounts relating to the Class A
Funding Account Shortfall); provided, however, that Series 1996-6 Monthly
Interest shall be determined with reference to the Class A Swap Rate and the
Class B Swap Rate instead of the Class A Certificate Rate and the Class B
Certificate Rate, respectively, calculated on the basis of a 360-day year of
twelve 30-day months.
"Series 1996-6 Principal Shortfall" shall have the meaning specified
in Section 4.13.
"Series Supplement" shall mean this Series Supplement as amended and
supplemented from time to time, including without limitation, pursuant to
Section 7.02.
"Servicer Interchange" shall mean, for any Due Period, the product
of (a) the Floating Allocation Percentage for such Due Period and (b) the
portion of Allocable Finance Charge Collections deposited in the Collection
Account for such Due Period that is attributable to Interchange; provided,
however, that Servicer Interchange for a Due Period shall not exceed one-twelfth
of the product of (i) the sum of the Invested Amount and the CCA Invested
Amount, if any, as of the last day of the preceding Due Period and (ii) 1.50%.
<PAGE>
27
"Servicing Fee" shall have the meaning specified in Section 3.01.
"Servicing Fee Rate" shall mean 2.27% per annum.
"Special Draw Amount" shall have the meaning specified in Section
4.11(g).
"Special Payment Date" shall mean each Distribution Date with
respect to the Early Amortization Period.
"Subordinated Principal Collections" shall mean, with respect to
each Distribution Date, the product of (a) the Floating Allocation Percentage,
with respect to the Revolving Period, or the Principal Allocation Percentage,
with respect to the Accumulation Period or the Early Amortization Period, of
Allocable Principal Collections deposited in the Collection Account for the
related Due Period (or any partial Due Period which occurs as the first Due
Period during the Early Amortization Period) and (b) the Class B Invested
Percentage for such Distribution Date.
"Subordinated Series" shall mean any Series which, pursuant to the
terms of the related Supplement, is subordinated in any manner to the Series
1996-6 Certificates.
"Subordinated Series Reallocated Principal Collections" shall mean,
with respect to any Distribution Date, that portion of Collections of Principal
Receivables allocable to a Subordinated Series which, pursuant to the terms of
the related Supplement, are to be reallocated to Series 1996-6 and treated as a
portion of Available Investor Principal Collections for such Distribution Date.
"Surplus Finance Charge Collections" shall mean, with respect to any
Due Period, the amount of (a) Reallocated Investor Finance Charge Collections
for the related Distribution Date plus the Class A Adjusted Net Swap Receipt, if
any, for the related Transfer Date plus the Class B Net Swap Receipt, if any,
for the related Transfer Date minus (b) the sum of the amounts (but not
including any amounts relating to any Class A Funding Account Shortfall and any
Class A Funding Account Swap Payment in any such case), without duplication,
determined pursuant to (x) Section 4.06(a)(i), (ii), (iii) and (iv) or Section
4.06(c)(i), (ii), (iii) and (iv), as applicable, (y) Section 4.06(b)(i) and (ii)
or Section 4.06(d)(i) and (ii), as applicable, and (z) Section 4.09(a), (b),
(c), (d),
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28
(e), (f), (g), (h) and (i) (which determination shall be made without regard to
whether such amounts are actually paid pursuant to Section 4.06 or Section
4.09).
"Swap Counterparties" shall mean the Class A Swap Counterparties and
the Class B Swap Counterparties.
"Telerate Page 3750" shall mean the display page so designated on
the Dow Jones Telerate Service (or such other page as may replace that page on
the service for the purpose of displaying comparable rates or prices).
"Termination Date" shall mean the December 2008 Distribution Date.
"Termination Proceeds" shall mean any Termination Proceeds arising
out of a sale of Receivables (or interests therein) pursuant to Section 12.02(c)
of the Agreement with respect to Series 1996-6.
"Total Draw Amount" shall have the meaning speci- fied in Section
4.11(i).
"U.S. dollar" or "United States dollar" shall mean the lawful
currency of the United States of America.
"Variable Accumulation Series" shall mean each outstanding Series,
other than Series 1996-6 and Excluded Series, which is not a Fixed Accumulation
Series.
(b) Notwithstanding anything to the contrary in this Series
Supplement or the Agreement, the term "Adverse Effect" shall mean whenever used
in this Series Supplement or the Agreement with respect to Series 1996-6 with
respect to any action, that such action will (i) at the time of its occurrence
or at any future date result in the occurrence of an Amortization Event, (ii)
adversely affect the amount of distributions to be made to the Class A
Certificateholders or the Class B Certificateholders or with respect to the CCA
Invested Amount, if any, pursuant to this Series Supplement or the timing of
such distributions or (iii) result at any time in the future in the amount of
Surplus Finance Charge Collections averaged over any three consecutive Due
Periods not being in excess of the Required Surplus Finance Charge Amount for
the last of such three consecutive Due Periods.
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29
(c) Notwithstanding anything to the contrary in this Series
Supplement or the Agreement, the term "Rating Agency" shall mean, whenever used
in this Series Supplement or the Agreement with respect to Series 1996-6,
Moody's and Standard & Poor's. As used in this Series Supplement and in the
Agreement with respect to Series 1996-6 (including, without limitation, for
purposes of the investment of funds in the Cash Collateral Accounts and any
Additional Cash Collateral Accounts up to the Available Shared Enhancement
Amount on any date), "highest investment category" shall mean (i) in the case of
Standard & Poor's, A-1+ or AAA, as applicable, and (ii) in the case of Moody's,
P-1 or Aaa, as applicable; provided, however, notwithstanding any provision of
the Agreement or this Series Supplement, for purposes of the investment of funds
in a Cash Collateral Account or Additional Cash Collateral Account (but only to
the extent such funds exceed the Available Shared Enhancement Amount on any
date) and the Class B Interest Funding Account, "highest investment category" as
used in the definition of "Eligible Investments" shall mean (i) in the case of
Standard & Poor's, A-1, A-1+ or AAA, as applicable, and (ii) in the case of
Moody's, P-1 or Aaa, as applicable.
(d) All capitalized terms used herein and not otherwise defined
herein have the meanings ascribed to them in the Agreement.
(e) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Series Supplement shall refer to this Series
Supplement as a whole and not to any particular provision of this Series
Supplement; references to any Article, Section or Exhibit are references to
Articles, Sections and Exhibits in or to this Series Supplement unless otherwise
specified; and the term "including" means "including without limitation".
(f) The term "pro rata" when used in this Series Supplement with
respect to each Cash Collateral Depositor (or each Cash Collateral Account)
shall mean proportionately according to a share or interest in favor of each
Cash Collateral Depositor (or each Cash Collateral Account) equal to the share
of the Initial Cash Collateral Amount attributable to such Cash Collateral
Depositor, and following an Additional Issuance, such share expressed as a
fraction multiplied by the percentage equivalent of a fraction, the numerator of
which is the Invested Amount (before giving effect to any Additional Issuance
with
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30
respect to which such Cash Collateral Depositor has not provided additional
Series Enhancement) and the denominator of which is the Invested Amount (after
giving effect to all Additional Issuances through such date of determination).
The term "pro rata" when used in this Series Supplement with respect to each
Additional Cash Collateral Depositor (or each Additional Cash Collateral
Account), shall mean proportionately according to a share or interest in favor
of each Additional Cash Collateral Depositor (or the related Additional Cash
Collateral Account) equal to the share of the additional credit enhancement
provided by such Additional Cash Collateral Depositor in connection with the
related Additional Issuance expressed a fraction multiplied by the percentage
equivalent of a fraction, the numerator of which is the increase in the Invested
Amount with respect to which such Additional Cash Collateral Depositor has
provided additional Series Enhancement as a result of the related Additional
Issuance and the denominator of which is the Invested Amount (after giving
effect to all Additional Issuances through such date of determination).
(g) Notwithstanding any provision of the Agreement or this Series
Supplement, the term "Eligible Institution", when used in the Agreement with
respect to Series 1996-6 shall mean, a depository institution organized under
the laws of the United States or any one of the states thereof, including the
District of Columbia (or a domestic branch of a foreign bank), which at all
times (a) has (i) a long-term unsecured debt rating of A2 or better by Moody's
and (ii) a certificate of deposit rating of P-1 by Moody's and (b) has (i) in
the case of the Collection Account, if such depository institution is an
Affiliate of Citicorp, a certificate of deposit rating of A-1 or better by
Standard & Poor's or (ii) for any other depository institution (or for any
Affiliate of Citicorp, in the case of any Series Account), either (x) a
long-term unsecured debt rating of AAA by Standard & Poor's or (y) a certificate
of deposit rating of A-1+ by Standard & Poor's; provided, however, that
"Eligible Institution" as such term is applied to a separate deposit account
established exclusively for the deposit of all or a portion of the Initial Class
B Collateral Amount shall have the meaning stated above except that such
institution is required, with respect to Standard & Poor's, to have either a
long-term unsecured debt rating of at least A or a certificate of deposit rating
of at least A-1. However, any deposit account established exclusively for the
deposit of all or a portion of the Initial Class B
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31
Collateral Amount shall not otherwise be considered to be separate from the
deposit account containing the related amount of the Initial Shared Collateral
Amount and the two together shall constitute one Cash Collateral Account for the
purposes of this Supplement.
Section 2.02. Amendment to Definition of "Series Adjusted Invested
Amount". (a) Notwithstanding any provision of the Agreement or this Series
Supplement, the term "Series Adjusted Invested Amount" or "Adjusted Invested
Amount", when used in the Agreement or this Series Supplement with respect to
Series 1996-6, shall mean, for any Due Period, the initial principal amount of
the Series 1996-6 Certificates (including the initial principal amount of any
Additional Investor Certificates issued through such Due Period) after
subtracting therefrom the excess, if any, of the cumulative amount of Investor
Charge-Offs as of the last day of the immediately preceding Due Period over the
aggregate reimbursement of Investor Charge-Offs as of such last day.
(b) Each of the Sellers hereby represents and warrants to the
Trustee as of the date of this Series Supplement that, on or prior to the date
of this Series Supplement, the conditions set forth in Section 13.01(a) of the
Agreement have been satisfied with respect to the amendment set forth in Section
2.02(a).
ARTICLE III
Servicer and Trustee
Section 3.01. Servicing Compensation. A monthly servicing fee (the
"Servicing Fee") shall be payable to the Servicer, in arrears, on each
Distribution Date in respect of any Due Period (or portion thereof) occurring
prior to the earlier of the first Distribution Date following the Termination
Date and the first Distribution Date on which the Invested Amount and the CCA
Invested Amount, if any, are zero, in the aggregate amount specified below.
On each Distribution Date, Servicer Interchange with respect to the
related Due Period that is on deposit in the Collection Account shall be
withdrawn from the Collection Account and paid to the Servicer in payment of a
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32
portion of the Servicing Fee payable by the Series 1996-6 Certificateholders
with respect to such Due Period.
The share of the Servicing Fee allocable to the Class A
Certificateholders (after giving effect to the distribution of Servicer
Interchange, if any, to the Servicer) with respect to any Distribution Date (the
"Class A Monthly Servicing Fee") shall be equal to one-twelfth of the product of
(a) the Net Servicing Fee Rate, (b) the sum of the Invested Amount and the CCA
Invested Amount, if any, as of the last day of the Due Period second preceding
such Distribution Date and (c) the Class A Invested Percentage with respect to
such Distribution Date; provided, however, with respect to the first
Distribution Date, the Class A Monthly Servicing Fee shall be equal to the
Servicing Fee accrued on the Class A Initial Invested Amount at the Net
Servicing Fee Rate for the period from the Closing Date to but excluding the
first Distribution Date, calculated on the basis of a 360-day year of twelve
30-day months and provided further, that with respect to the first Distribution
Date of the related Due Period in which an Additional Issuance Date occurs the
Class A Monthly Servicing Fee shall be increased by an amount equal to the
product of (a) the Net Servicing Fee Rate, (b) a fraction, the numerator of
which is 30 minus the actual number of days in the period from and including the
seventh day of the calendar month in which such Additional Issuance Date occurs
to but excluding such Additional Issuance Date and the denominator of which is
360, times (c) the increase in the Invested Amount after giving effect to the
related Additional Issuance and (d) the Class A Invested Percentage with respect
to such Distribution Date. The share of the Servicing Fee allocable to the Class
B Certificateholders (after giving effect to the distribution of Servicer
Interchange, if any, to the Servicer) with respect to any Distribution Date (the
"Class B Monthly Servicing Fee") shall be equal to one-twelfth of the product of
(a) the Net Servicing Fee Rate, (b) the sum of the Invested Amount and the CCA
Invested Amount, if any, as of the last day of the Due Period second preceding
such Distribution Date and (c) the Class B Invested Percentage with respect to
such Distribution Date; provided, however, with respect to the first
Distribution Date, the Class B Monthly Servicing Fee shall be equal to the
Servicing Fee accrued on the Class B Initial Invested Amount at the Net
Servicing Fee Rate for the period from the Closing Date to but excluding the
first Distribution Date, calculated on the basis of a 360-day year
<PAGE>
33
of twelve 30-day months and provided further, that with respect to the first
Distribution Date of the related Due Period in which an Additional Issuance Date
occurs, the Class B Monthly Servicing Fee shall be increased by an amount equal
to the product of (a) the Net Servicing Fee Rate, (b) a fraction, the numerator
of which is 30 minus the actual number of days in the period from and including
the seventh day of the calendar month in which such Additional Issuance Date
occurs to but excluding such Additional Issuance Date and the denominator of
which is 360, times (c) the increase in the Invested Amount after giving effect
to the related Additional Issuance and (d) the Class B Invested Percentage with
respect to such Distribution Date. The share of the Servicing Fee allocable, on
a pro rata basis, to each Cash Collateral Depositor and each Additional Cash
Collateral Depositor (after giving effect to the distribution of Servicer
Interchange, if any, to the Servicer) with respect to any Distribution Date
relating to the Early Amortization Period, following the Distribution Date on
which the Class A Invested Amount and the Class B Invested Amount are paid in
full (the "CCA Monthly Servicing Fee"), shall be equal to one-twelfth of the
product of (a) the Net Servicing Fee Rate and (b) the CCA Invested Amount, if
any, as of the last day of the Due Period second preceding such Distribution
Date.
On each Distribution Date, the Sellers shall pay a portion of the
Servicing Fee with respect to the related Due Period in an amount equal to
one-twelfth of the product of (a) the Servicing Fee Rate, (b) the Sellers'
Participation Amount as of the last day of the Due Period second preceding such
Distribution Date (or, if a Lump Addition occurs or a removal of Accounts
pursuant to Section 2.10 of the Agreement occurs in the following Due Period,
the weighted average of the Sellers' Participation Amount on the date on which
such Lump Addition or removal of Accounts occurs (after giving effect thereto)
and the last day of the second preceding Due Period) and (c) the Series 1996-6
Allocation Percentage for the related Due Period. In no event shall the Trust,
the Trustee, the Series 1996-6 Certificate- holders, any Cash Collateral
Depositor or any Additional Cash Collateral Depositor be liable for the share of
the Servicing Fee to be paid by the Sellers.
The (i) Class A Monthly Servicing Fee shall be payable to the
Servicer solely to the extent amounts are available for distribution pursuant to
Section 4.06(a)(iii)
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34
or (c)(iii), as the case may be, (ii) Class B Monthly Servicing Fee shall be
payable to the Servicer solely to the extent amounts are available for
distribution pursuant to Section 4.06(b)(ii) or (d)(ii), as the case may be, and
(iii) CCA Monthly Servicing Fee shall be payable to the Servicer solely to the
extent amounts are available for distribution pursuant to Section 4.09(e).
Section 3.02. Trustee Appointment of Agents. The Trustee may appoint
one or more agents to perform any of the Trustee's duties, responsibilities or
obligations with respect to Series 1996-6; provided, however, that regardless of
the appointment of any agent pursuant to this Section 3.02, the Trustee shall
continue to be fully responsible for all of its duties, responsibilities and
obligations with respect to Series 1996-6.
ARTICLE IV
Rights of Series 1996-6 Certificateholders and
Allocation and Application of Collections
Section 4.01. Allocations. (a) Allocations. Collections of Finance
Charge Receivables and Principal Receivables, Defaulted Receivables and
Miscellaneous Payments allocated to Series 1996-6 pursuant to Article IV of the
Agreement (and, as described herein, Collections of Finance Charge Receivables
reallocated from other Series in Group One) shall be allocated and distributed
or reallocated as set forth in this Article.
(b) Payments to Sellers. The Servicer shall withdraw from the
Collection Account and pay to the Sellers on the dates set forth below the
following amounts:
(i) on Deposit Dates with respect to the Revolving Period and the
Early Amortization Period:
(A) an amount equal to the Sellers' Percentage for the related
Due Period of Allocable Finance Charge Collections, minus, if
Citibank (South Dakota) or an Affiliate of Citibank (South Dakota)
is no longer the Servicer, the portion of the Servicing Fee with
respect to the related Due Period that is required to be paid by the
Sellers (which shall be withdrawn from the Collection
<PAGE>
35
Account and paid to the Servicer on the related Distribution Date);
and
(B) an amount equal to the Sellers' Percentage for the related
Due Period of Allocable Principal Collections, if the Sellers'
Participation Amount (determined after giving effect to any
Principal Receivables transferred to the Trust on such Deposit Date)
exceeds zero; and
(ii) on Deposit Dates with respect to any Monthly Period:
(A) an amount equal to the Sellers' Allocable Share for the
related Distribution Date, minus, if Citibank (South Dakota) or an
Affiliate of Citibank (South Dakota) is no longer the Servicer, the
portion of the Servicing Fee with respect to the related Due Period
that is required to be paid by the Sellers (which shall be withdrawn
from the Collection Account and paid to the Servicer on the related
Distribution Date); and
(B) an amount equal to the Sellers' Percentage for the related
Due Period of Allocable Principal Collections, if the Sellers'
Participation Amount (determined after giving effect to any
Principal Receivables transferred to the Trust on such Deposit Date)
exceeds zero.
The withdrawals to be made from the Collection Account pursuant to
this Section 4.01(b) do not apply to deposits into the Collection Account that
do not represent Collections, including Transfer Deposit Amounts, Adjustment
Payments, payment of the purchase price for the Certificateholders' Interest
pursuant to Section 2.06 or 10.01 of the Agreement, payment of the purchase
price for the Series 1996-6 Certificateholders' Interest pursuant to Section
7.01 of this Series Supplement and proceeds from the sale, disposition or
liquidation of Receivables pursuant to Section 9.02 or 12.02 of the Agreement.
Section 4.02. Determination of Monthly Interest. (a) The amount of
monthly interest ("Class A Monthly Inter- est") distributable with respect to
the Class A Certificates on any Distribution Date shall be an amount equal to
the product of (i) the Class A Certificate Rate with respect to
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36
the applicable Interest Period, (ii) the outstanding principal balance of the
Class A Certificates as of the close of business on the preceding Distribution
Date (after giving effect to any distribution of Class A Monthly Principal on
such preceding Distribution Date), minus, for each Distribution Date with
respect to the Accumulation Period, the aggregate amount of all deposits of
Class A Monthly Principal previously made to the Class A Principal Funding
Account and (iii) a fraction the numerator of which is the actual number of days
from and including the prior Distribution Date to but excluding such
Distribution Date and the denominator of which is 360; provided, however, with
respect to the first Distribution Date, Class A Monthly Interest shall be equal
to $5,576,288.89; and provided further, that with respect to the first
Distribution Date of the related Due Period in which an Additional Issuance Date
occurs, Class A Monthly Interest shall be increased by the amount of interest
accrued and payable at the Class A Certificate Rate on the principal amount of
Additional Class A Certificates through but excluding such Distribution Date.
On the Transfer Date preceding each Class A Payment Date, the
Servicer shall determine the excess, if any (the "Class A Interest Shortfall")
of (x) the aggregate Class A Monthly Interest plus the aggregate Class A Covered
Amount (determined without reference to any Class A Funding Account Swap
Payments or any Class A Funding Account Swap Receipts) for the Interest Period
applicable to such Class A Payment Date over (y) the amount which will be on
deposit in the Class A Interest Funding Account on such Class A Payment Date. If
the Class A Interest Shortfall with respect to any Class A Payment Date is
greater than zero, an additional amount ("Class A Additional Interest") equal to
the product of (i) the Class A Certificate Rate, (ii) such Class A Interest
Shortfall (or the portion thereof which has not been paid to Class A
Certificateholders) and (iii) a fraction, the numerator of which is the actual
number of days from and including the prior Distribution Date to but excluding
such Distribution Date and the denominator of which is 360 shall be payable as
provided herein with respect to the Class A Certificates on each Distribution
Date following such Class A Payment Date to and including the Class A Payment
Date on which such Class A Interest Shortfall is paid to Class A
Certificateholders. Notwithstanding anything to the contrary herein, Class A
Additional Interest shall be payable or distributed to Class A
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37
Certificateholders only to the extent permitted by applicable law.
(b) The amount of monthly interest ("Class B Monthly Interest")
distributable with respect to the Class B Certificates on any Distribution Date
shall be an amount equal to the product of (i) the Class B Certificate Rate with
respect to the applicable Interest Period, (ii) the Class B Invested Amount as
of the close of business on the preceding Distribution Date (after giving effect
to any increase or decrease of the Class B Invested Amount on such preceding
Distribution Date) and (iii) a fraction the numerator of which is the actual
number of days from and including the prior Distribution Date to but excluding
such Distribution Date and the denominator of which is 360; provided, however,
with respect to the first Distribution Date, Class B Monthly Interest shall be
equal to $368,600.00; and provided further, that with respect to the first
Distribution Date of the related Due Period in which an Additional Issuance Date
occurs, Class B Monthly Interest shall be increased by the amount of interest
accrued and payable at the Class B Certificate Rate on the principal amount of
Additional Class B Certificates through but excluding such Distribution Date.
On the Transfer Date preceding each Class B Payment Date, the
Servicer shall determine the excess, if any (the "Class B Interest Shortfall"),
of (x) the aggregate Class B Monthly Interest for the Interest Period applicable
to such Class B Payment Date over (y) the amount which will be on deposit in the
Class B Interest Funding Account on such Class B Payment Date. If the Class B
Interest Shortfall with respect to any Class B Payment Date is greater than
zero, an additional amount ("Class B Additional Interest") equal to the product
of (i) the Class B Certificate Rate, (ii) such Class B Interest Shortfall (or
the portion thereof which has not been paid to Class B Certificateholders) and
(iii) a fraction, the numerator of which is the actual number of days from and
including the prior Distribution Date to but excluding such Distribution Date
and the denominator of which is 360, shall be payable as provided herein with
respect to the Class B Certificates on each Distribution Date following such
Class B Payment Date to and including the Class B Payment Date on which such
Class B Interest Shortfall is paid to Class B Certificateholders.
Notwithstanding anything to the contrary herein, Class B Additional Interest
shall be
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38
payable or distributed to Class B Certificateholders only to the extent
permitted by applicable law.
Section 4.03. Determination of Monthly Principal. (a) The amount of
monthly principal ("Class A Monthly Principal") distributable from the
Collection Account with respect to the Class A Certificates on each Distribution
Date beginning with the first to occur of (i) the first Special Payment Date, if
any, and (ii) the first Distribution Date to occur with respect to the
Accumulation Period, shall be equal to the Available Investor Principal
Collections on deposit in the Collection Account with respect to such
Distribution Date; provided, however, that for each Distribution Date with
respect to any Monthly Period, Class A Monthly Principal shall not exceed the
Controlled Distribution Amount for such Distribution Date; and provided further
that Class A Monthly Principal shall not exceed the Class A Invested Amount.
(b) The amount of monthly principal ("Class B Monthly Principal")
distributable from the Collection Account with respect to the Class B
Certificates on each Distribution Date beginning with the Class B Principal
Commencement Date, shall be equal to the Available Investor Principal
Collections on deposit in the Collection Account with respect to such
Distribution Date (minus the portion of such Available Investor Principal
Collections applied to Class A Monthly Principal on such Distribution Date);
provided, however, that Class B Monthly Principal shall not exceed the Class B
Invested Amount.
Section 4.04. Establishment of Funding Accounts. (a)(i) The
Servicer, for the benefit of the Class A Certificateholders, shall establish and
maintain in the name of the Trustee, on behalf of the Trust, an Eligible Deposit
Account (the "Class A Interest Funding Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Class A Certificateholders. The Class A Interest Funding Account shall initially
be established with Citibank, N.A.
(ii) The Servicer, for the benefit of the Class B
Certificateholders, shall establish and maintain in the name of the Trustee, on
behalf of the Trust, an Eligible Deposit Account (the "Class B Interest Funding
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Class B
<PAGE>
39
Certificateholders. The Class B Interest Funding Account shall initially be
established with Citibank, N.A.
(iii) At the direction of the Servicer, funds on deposit in the
Interest Funding Accounts shall be invested by the Trustee in Eligible
Investments selected by the Servicer. All such Eligible Investments shall be
held by the Trustee for the benefit of the Class A Certificate- holders or the
Class B Certificateholders, as applicable; provided that on each Distribution
Date, all interest and other investment earnings (net of losses and investment
expenses) on funds on deposit in the Interest Funding Accounts shall be paid to
the Sellers. Funds deposited in the Interest Funding Accounts on any
Distribution Date (which are not distributed to Class A Certificateholders or
Class B Certificateholders, as applicable, pursuant to Section 4.07 on such
Distribution Date) shall be invested in Eligible Investments that will mature so
that such funds will be available at the close of business on the Transfer Date
preceding the following Distribution Date. Funds deposited in either Interest
Funding Account on a Transfer Date (which immediately precedes a Class A Payment
Date or a Class B Payment Date) upon the maturity of any Eligible Investments
are not required to be invested overnight.
(b)(i) The Servicer, for the benefit of the Class A
Certificateholders, shall establish and maintain in the name of the Trustee, on
behalf of the Trust, an Eligible Deposit Account (the "Class A Principal Funding
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Class A Certificateholders. The Class A
Principal Funding Account shall initially be established with Citibank, N.A.
(ii) At the direction of the Servicer, funds on deposit in the Class
A Principal Funding Account shall be invested by the Trustee in Eligible
Investments selected by the Servicer. All such Eligible Investments shall be
held by the Trustee for the benefit of the Class A Certificate- holders;
provided that on each Distribution Date all interest and other investment income
(net of investment expenses) on funds on deposit therein shall be applied as set
forth in clause (iii) below. Funds on deposit in the Class A Principal Funding
Account shall be invested in Eligible Investments that will mature so that such
funds will be available at the close of business on the Transfer Date preceding
the following Distribution Date. Funds
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40
deposited in the Class A Principal Funding Account on a Transfer Date (which
immediately precedes a Distribution Date) upon the maturity of any Eligible
Investments are not required to be invested overnight.
(iii) On each Distribution Date with respect to the Accumulation
Period, the Servicer shall withdraw from the Class A Principal Funding Account
and deposit in the Class A Interest Funding Account all interest and other
investment income (net of investment expenses) on funds then on deposit in the
Class A Principal Funding Account; provided, however, that Class A Excess
Investment Proceeds, if any, with respect to any Distribution Date, shall be
deposited in the Collection Account and treated as a portion of the Gross
Amount.
(iv) Reinvested interest and other investment income on funds
deposited in the Class A Principal Funding Account shall not be considered to be
principal amounts on deposit therein for purposes of this Series Supplement.
(c)(i) The Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Interest Funding Accounts and the
Class A Principal Funding Account (collectively, the "Series 1996-6 Accounts")
and in all proceeds thereof. The Series 1996-6 Accounts shall be under the sole
dominion and control of the Trustee for the benefit of the Class A
Certificateholders or the Class B Certificateholders, as the case may be. If, at
any time, any of the Series 1996-6 Accounts ceases to be an Eligible Deposit
Account, the Trustee (or the Servicer on its behalf) shall within 10 Business
Days (or such longer period, not to exceed 30 calendar days, as to which each
Rating Agency may consent) establish a new Series 1996-6 Account meeting the
conditions specified in paragraph (a)(i) or (ii) or (b)(i) above, as applicable,
as an Eligible Deposit Account and shall transfer any cash and/or any
investments to such new Series 1996-6 Account.
(ii) Pursuant to the authority granted to the Servicer in Section
3.01(b) of the Agreement, the Servicer shall have the power, revocable by the
Trustee, to make withdrawals and payments or to instruct the Trustee to make
withdrawals and payments from the Series 1996-6 Accounts for the purposes of
carrying out the Servicer's or Trustee's duties hereunder. Pursuant to the
authority granted to the Paying Agent in Section 5.01 of this Series Supplement
and
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41
Section 6.07 of the Agreement, the Paying Agent shall have the power, revocable
by the Trustee, to withdraw funds from the Series 1996-6 Accounts for the
purpose of making distributions to the Series 1996-6 Certificateholders.
Section 4.05. Required Amount. With respect to each Distribution
Date, on the related Transfer Date, the Servicer shall determine the amount (the
"Required Amount"), if any, by which (a) the sum of (i) Class A Monthly Interest
for such Distribution Date, (ii) any Class A Monthly Interest previously due but
not deposited in the Class A Interest Funding Account on a prior Distribution
Date, (iii) Class A Additional Interest, if any, for such Distribution Date and
any Class A Additional Interest previously due but not deposited into the Class
A Interest Funding Account on a prior Distribution Date (but not including any
amount relating to any Class A Funding Account Shortfall), (iv) at such time as
Citibank (South Dakota) or an Affiliate of Citibank (South Dakota) is no longer
the Servicer, the Class A Monthly Servicing Fee for such Distribution Date, (v)
the Class A Investor Default Amount, if any, for such Distribution Date, (vi)
the Class A Adjusted Net Swap Payment, if any, for the Transfer Date relating to
such Distribution Date and (vii) any Class A Adjusted Net Swap Payments
previously due but not distributed to the Class A Swap Counterparties exceeds
(b)(i) the product of (x) Reallocated Investor Finance Charge Collections for
such Distribution Date and (y) the Class A Invested Percentage for such
Distribution Date, minus (ii) if Citibank (South Dakota) or an Affiliate of
Citibank (South Dakota) is the Servicer, the portion of the Class A Monthly
Servicing Fee for such Distribution Date that will be paid on such Distribution
Date pursuant to Section 4.06(a)(iii) or (c)(iii), as the case may be, out of
funds on deposit in the Collection Account available therefor, plus (iii) the
Class A Adjusted Net Swap Receipt, if any, for the Transfer Date relating to
such Distribution Date and any Class A Adjusted Net Swap Receipts previously due
but not deposited in the Collection Account (to the extent such amount has been
deposited in the Collection Account on such Transfer Date). The Servicer will
give the Trustee notice of the Required Amount on any Transfer Date on which the
Servicer determines that the Required Amount is greater than zero.
Section 4.06. Application of Reallocated Investor Finance Charge
Collections and Available Investor Principal
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42
Collections. The Servicer shall apply (if Citibank (South Dakota) is the
Servicer and the Collection Account is maintained with Citibank (South Dakota))
or shall cause the Trustee to apply, for each Distribution Date, Allocable
Finance Charge Collections (other than any portion thereof reallocated to other
Series in Group One), Collections of Finance Charge Receivables reallocated to
Series 1996-6 from other Series in Group One, any Class A Net Swap Receipts, any
Class B Net Swap Receipts and Available Investor Principal Collections on
deposit in the Collection Account with respect to such Distribution Date, to
make the following distributions:
(a) Subject to Section 4.06(c), for each Distribution Date, an
amount equal to the sum of (x) the product of Reallocated Investor Finance
Charge Collections with respect to such Distribution Date and the Class A
Invested Percentage for such Distribution Date and (y) the Class A Net Swap
Receipt, if any, for the Transfer Date relating to such Distribution Date, plus
any Class A Net Swap Receipts previously due but not deposited in the Collection
Account (to the extent such amounts have been deposited in the Collection
Account on the Transfer Date relating to such Distribution Date), will be
distributed in the following priority; provided, however, that if such funds on
deposit in the Collection Account available therefor are less than the sum of
the amounts specified in paragraphs (i), (ii) and (iii) below, such funds shall
be allocated among such paragraphs in proportion to the respective amounts
specified in each such paragraph; and provided further that funds allocated to
the Class A Certificateholders pursuant to paragraphs (i) and (ii) below will be
applied first to the amount specified under paragraph (i) below and second to
the amount specified under paragraph (ii) below:
(i) (A) an amount equal to Class A Monthly Interest for such
Distribution Date, plus the amount of any Class A Monthly Interest
previously due but not deposited into the Class A Interest Funding Account
on a prior Distribution Date, plus the amount of any Class A Additional
Interest for such Distribution Date and any Class A Additional Interest
previously due but not deposited into the Class A Interest Funding Account
on a prior Distribution Date, plus the amount of any Class A Funding
Account Shortfall previously due but not deposited into the Class A
Interest Funding Account
<PAGE>
43
on a prior Distribution Date shall be deposited by the Servicer or the
Trustee into the Class A Interest Funding Account on such Distribution
Date and (B) an amount equal to the Class A Adjusted Net Swap Payment, if
any, for the Transfer Date relating to such Distribution Date, plus the
amount of any Class A Adjusted Net Swap Payments previously due but not
distributed to the Class A Swap Counterparties, plus any Class A Funding
Account Swap Payments previously due but not distributed to the Class A
Swap Counterparties shall be distributed to the Class A Swap
Counterparties on the Transfer Date relating to such Distribution Date
pursuant to the Class A Interest Rate Swaps; provided, however, if the
funds available to pay the amounts due pursuant to clauses (A) and (B)
above are less than the sum of the amounts specified in clauses (A) and
(B) above, such funds shall be allocated between such amounts pro rata;
(ii) an amount equal to the Class A Investor Default Amount for such
Distribution Date shall be treated as a portion of Investor Principal
Collections for such Distribution Date;
(iii) an amount equal to the Class A Monthly Servicing Fee for such
Distribution Date shall be distributed to the Servicer (unless such amount
has been netted against deposits to the Collection Account);
(iv) on each Distribution Date beginning with the January 2006
Distribution Date to but excluding the Distribution Date with respect to
the first Monthly Period, an amount equal to the Class A Investment Fee,
if any, for such Distribution Date shall be distributed to the Sellers
(unless such amount has been netted against deposits to the Collection
Account); and
(v) the balance, if any, shall constitute Excess Finance Charge
Collections and shall be allocated and distributed as set forth in Section
4.09.
(b) Subject to Section 4.06(d), for each Distribution Date, an
amount equal to the sum of (x) the product of Reallocated Investor Finance
Charge Collections with respect to such Distribution Date and the Class B
Invested Percentage for such Distribution Date and (y) the
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44
Class B Net Swap Receipt, if any, for the Transfer Date relating to such
Distribution Date, plus any Class B Net Swap Receipts previously due but not
deposited in the Collection Account (to the extent such amounts have been
deposited in the Collection Account on the Transfer Date relating to such
Distribution Date), will be distributed in the following priority; provided,
however, that if such funds on deposit in the Collection Account available
therefor are less than the sum of the amounts specified in paragraphs (i) and
(ii) below, such funds shall be allocated between such paragraphs in proportion
to the respective amounts specified in each such paragraph:
(i) (A) an amount equal to Class B Monthly Interest for such
Distribution Date, plus the amount of any Class B Monthly Interest
previously due but not deposited into the Class B Interest Funding Account
on a prior Distribution Date, plus the amount of any Class B Additional
Interest for such Distribution Date and any Class B Additional Interest
previously due but not deposited into the Class B Interest Funding Account
on a prior Distribution Date, shall be deposited by the Servicer or the
Trustee into the Class B Interest Funding Account on such Distribution
Date and (B) an amount equal to the Class B Net Swap Payment, if any, for
the Transfer Date relating to such Distribution Date, plus the amount of
any Class B Net Swap Payments previously due but not distributed to the
Class B Swap Counterparties, shall be distributed to the Class B Swap
Counterparties on the Transfer Date relating to such Distribution Date
pursuant to the Class B Interest Rate Swaps; provided, however, if the
funds available to pay the amounts due pursuant to clauses (A) and (B)
above are less than the sum of the amounts specified in clauses (A) and
(B) above, such funds shall be allocated between such amounts pro rata;
(ii) an amount equal to the Class B Monthly Servicing Fee for such
Distribution Date shall be distributed to the Servicer (unless such amount
has been netted against deposits to the Collection Account); and
(iii) the balance, if any, shall constitute Excess Finance Charge
Collections and shall be allocated and distributed as set forth in Section
4.09.
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45
(c) For each Distribution Date with respect to a Monthly Period, an
amount equal to the sum of (x) the Class A Allocable Share with respect to such
Distribution Date and (y) the Class A Net Swap Receipt, if any, for the Transfer
Date relating to such Distribution Date, plus any Class A Net Swap Receipts
previously due but not deposited in the Collection Account (to the extent such
amounts have been deposited in the Collection Account on the Transfer Date
relating to such Distribution Date), will be distributed in the following
priority; provided, however, that if such funds on deposit in the Collection
Account available therefor are less than the sum of the amounts specified in
paragraphs (i), (ii) and (iii) below, such funds shall be allocated among such
paragraphs in proportion to the respective amounts specified in each such
paragraph; and provided further that funds allocated to the Class A
Certificateholders pursuant to paragraphs (i) and (ii) below will be applied
first to the amount specified under paragraph (i) below and second to the amount
specified under paragraph (ii) below:
(i) (A) an amount equal to Class A Monthly Interest for such
Distribution Date, plus the amount of any Class A Monthly Interest
previously due but not deposited into the Class A Interest Funding Account
on a prior Distribution Date, plus (without duplication) the amount of any
Class A Funding Account Shortfall for such Distribution Date and the
amount of any Class A Funding Account Shortfall previously due but not
deposited into the Class A Interest Funding Account on a prior
Distribution Date, plus the amount of any Class A Additional Interest for
such Distribution Date and any Class A Additional Interest previously due
but not deposited into the Class A Interest Funding Account on a prior
Distribution Date, shall be deposited by the Servicer or the Trustee into
the Class A Interest Funding Account on such Distribution Date and (B) an
amount equal to the Class A Adjusted Net Swap Payment, if any, for the
Transfer Date relating to such Distribution Date, plus the amount of any
Class A Adjusted Net Swap Payments previously due but not distributed to
the Class A Swap Counterparties, plus (without duplication) the amount of
any Class A Funding Account Swap Payment for the Transfer Date relating to
such Distribution Date, plus any Class A Funding Account Swap Payments
previously due but not distributed to the Class A Swap Counterparties,
shall
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46
be distributed to the Class A Swap Counterparties on the Transfer Date
relating to such Distribution Date pursuant to the Class A Interest Rate
Swaps; provided, however, if the funds available to pay the amounts due
pursuant to clauses (A) and (B) above are less than the sum of the amounts
specified in clauses (A) and (B) above, such funds shall be allocated
between such amounts pro rata;
(ii) an amount equal to the Class A Investor Default Amount for such
Distribution Date shall be treated as a portion of Investor Principal
Collections for such Distribution Date;
(iii) an amount equal to the Class A Monthly Servicing Fee for such
Distribution Date shall be distributed to the Servicer (unless such amount
has been netted against deposits to the Collection Account);
(iv) prior to and including the Distribution Date immediately
preceding the Class A Expected Final Payment Date, an amount equal to the
Class A Investment Fee, if any, for such Distribution Date shall be
distributed to the Sellers (unless such amount has been netted against
deposits to the Collection Account); and
(v) the balance, if any, shall constitute Excess Finance Charge
Collections and shall be allocated and distributed as set forth in Section
4.09.
(d) For each Distribution Date with respect to a Monthly Period, an
amount equal to the sum of (x) the Class B Allocable Share with respect to such
Distribution Date and (y) the Class B Net Swap Receipt, if any, for the Transfer
Date relating to such Distribution Date, plus any Class B Net Swap Receipts
previously due but not deposited in the Collection Account (to the extent such
amounts have been deposited in the Collection Account on the Transfer Date
relating to such Distribution Date), will be distributed in the following
priority; provided, however, that if such funds on deposit in the Collection
Account available therefor are less than the sum of the amounts specified in
paragraphs (i) and (ii) below, such funds shall be allocated
<PAGE>
47
between such paragraphs in proportion to the respective amounts specified in
each such paragraph:
(i) (A) an amount equal to Class B Monthly Interest for such
Distribution Date, plus the amount of any Class B Monthly Interest
previously due but not deposited into the Class B Interest Funding Account
on a prior Distribution Date, plus the amount of any Class B Additional
Interest for such Distribution Date and any Class B Additional Interest
previously due but not deposited into the Class B Interest Funding Account
on a prior Distribution Date, shall be deposited by the Servicer or the
Trustee into the Class B Interest Funding Account on such Distribution
Date and (B) an amount equal to the Class B Net Swap Payment, if any, for
the Transfer Date relating to such Distribution Date, plus the amount of
any Class B Net Swap Payments previously due but not distributed to the
Class B Swap Counterparties, shall be distributed to the Class B Swap
Counterparties on the Transfer Date relating to such Distribution Date
pursuant to the Class B Interest Rate Swaps; provided, however, if the
funds available to pay the amounts due pursuant to clauses (A) and (B)
above are less than the sum of the amounts specified in clauses (A) and
(B) above, such funds shall be allocated between such amounts pro rata;
(ii) an amount equal to the Class B Monthly Servicing Fee for such
Distribution Date shall be distributed to the Servicer (unless such amount
has been netted against deposits to the Collection Account); and
(iii) the balance, if any, shall constitute Excess Finance Charge
Collections and shall be allocated and distributed as set forth in Section
4.09.
(e) On each Distribution Date with respect to the Revolving Period,
an amount equal to the Available Investor Principal Collections deposited in the
Collection Account for the related Due Period shall be treated as Excess
Principal Collections and applied in accordance with Section 4.04 of the
Agreement.
(f) On each Distribution Date with respect to the Accumulation
Period or the Early Amortization Period, an amount equal to Available Investor
Principal Collections
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48
deposited in the Collection Account for the related Due Period will be
distributed in the following priority:
(i) an amount equal to Class A Monthly Principal for such
Distribution Date, up to the Class A Invested Amount, shall be deposited
by the Servicer or the Trustee into the Class A Principal Funding Account;
(ii) for each Distribution Date with respect to the Accumulation
Period prior to the Class B Principal Commencement Date, unless an
Amortization Event has occurred, after giving effect to the distribution
referred to in clause (i) above, an amount equal to the balance, if any,
of such Available Investor Principal Collections then on deposit in the
Collection Account shall be treated as Excess Principal Collections and
applied in accordance with Section 4.04 of the Agreement;
(iii) for each Distribution Date, beginning with the Class B
Principal Commencement Date, after giving effect to the distribution
referred to in clause (i) above, an amount equal to the balance, if any,
of such Available Investor Principal Collections then on deposit in the
Collection Account, to the extent of Class B Monthly Principal, shall be
distributed by the Servicer or the Trustee to the Class B
Certificateholders;
(iv) for each Distribution Date with respect to the Early
Amortization Period, beginning with the Distribution Date on which the
Class A Invested Amount and the Class B Invested Amount are paid in full,
after giving effect to the distributions referred to above, an amount
equal to the balance, if any, of such Available Investor Principal
Collections then on deposit in the Collection Account, to the extent of
CCA Monthly Principal, if any, shall be distributed, pro rata, by the
Servicer or the Trustee to each Cash Collateral Depositor and each
Additional Cash Collateral Depositor, in accordance with each Loan
Agreement and each Additional Loan Agreement, respectively; and
(v) for each Distribution Date, after giving effect to the
distributions referred to above, an amount equal to the balance, if any,
of such Available
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49
Investor Principal Collections then on deposit in the Collection Account
shall be treated as Excess Principal Collections and applied in accordance
with Section 4.04 of the Agreement.
Section 4.07. Distributions to Series 1996-6 Certificateholders. (a)
The Servicer shall make (if Citibank (South Dakota) is the Servicer and the
Collection Account is maintained with Citibank (South Dakota)) or shall cause
the Trustee to make the following distributions at the following times from the
Class A Interest Funding Account and the Class A Principal Funding Account:
(i) on each Class A Payment Date, all amounts on deposit in the
Class A Interest Funding Account shall be distributed to the Paying Agent
for payment to the Class A Certificateholders; and
(ii) on each Special Payment Date and on the Class A Expected Final
Payment Date, all amounts on deposit in the Class A Principal Funding
Account, to the extent of the Class A Invested Amount, shall be
distributed to the Paying Agent for payment to the Class A
Certificateholders.
(b) The Servicer shall make (if Citibank (South Dakota) is the
Servicer and the Collection Account is maintained with Citibank (South Dakota))
or shall cause the Trustee to make the following distributions at the following
times from the Class B Interest Funding Account and the Collection Account:
(i) on each Class B Payment Date, all amounts on deposit in the
Class B Interest Funding Account shall be distributed to the Paying Agent
for payment to the Class B Certificateholders; and
(ii) on each Special Payment Date and on the Class B Expected Final
Payment Date, all amounts on deposit in the Collection Account which are
to be distributed to the Class B Certificateholders pursuant to this
Series Supplement, to the extent of the principal amount of the Class B
Certificates, shall be distributed to the Paying Agent for payment to the
Class B Certificateholders.
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50
(c) The distributions to be made pursuant to this Section are
subject to the provisions of Sections 2.06, 9.02, 10.01 and 12.02 of the
Agreement and Sections 8.01 and 8.02 of this Series Supplement.
Section 4.08. Investor Charge-Offs. (a) If on any Distribution Date
the Required Amount for such Distribution Date exceeds the sum of (x) the amount
of Subordinated Principal Collections with respect to such Distribution Date,
(y) the amount of Excess Finance Charge Collections with respect to such
Distribution Date and (z) the Available Shared Enhancement Amount with respect
to such Distribution Date, the CCA Invested Amount shall be reduced by the
amount of such excess, but not by more than the Class A Investor Default Amount
for such Distribution Date. In the event that such reduction would cause the CCA
Invested Amount to be a negative number, the CCA Invested Amount shall be
reduced to zero, and the Class B Invested Amount shall be reduced by the amount
by which the CCA Invested Amount would have been reduced below zero, but not by
more than the excess, if any, of the Class A Investor Default Amount for such
Distribution Date over the amount of such reduction, if any, of the CCA Invested
Amount. In the event that such reduction would cause the Class B Invested Amount
to be a negative number, the Class B Invested Amount shall be reduced to zero,
and the Class A Invested Amount will be reduced by the amount by which the Class
B Invested Amount would have been reduced below zero, but not by more than the
excess, if any, of the Class A Investor Default Amount for such Distribution
Date over the aggregate amount of the reductions, if any, of the CCA Invested
Amount and the Class B Invested Amount for such Distribution Date pursuant to
this Section 4.08(a) (a "Class A Investor Charge-Off"). Class A Investor
Charge-Offs shall thereafter be reimbursed and the Class A Invested Amount
increased (but not by an amount in excess of the aggregate Class A Investor
Charge-Offs) on any Distribution Date by the sum of (i) Allocable Miscellaneous
Payments with respect to such Distribution Date and (ii) the amount of Excess
Finance Charge Collections allocated and available for that purpose pursuant to
Section 4.09(b).
(b) If on any Distribution Date the Class B Investor Default Amount
for such Distribution Date exceeds the sum of (x) the amount of Excess Finance
Charge Collections with respect to such Distribution Date which are allocated
and available to pay the Class B Investor Default
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51
Amount pursuant to Section 4.09(d) and (y) the portion, if any, of the Available
Shared Enhancement Amount with respect to such Distribution Date (after giving
effect to any withdrawals from the Cash Collateral Accounts and any Additional
Cash Collateral Accounts to fund the Required Draw Amount with respect to such
Distribution Date), then the CCA Invested Amount shall be reduced by the amount
of such excess. In the event that such reduction would cause the CCA Invested
Amount to be a negative number, the CCA Invested Amount shall be reduced to
zero, and the Class B Invested Amount shall be reduced by the amount by which
the CCA Invested Amount would have been reduced below zero (a "Class B Investor
Charge-Off"). Class B Investor Charge-Offs shall thereafter be reimbursed and
the Class B Invested Amount increased (but not by an amount in excess of the
aggregate Class B Investor Charge-Offs) on any Distribution Date by the sum of
(i) Allocable Miscellaneous Payments with respect to such Distribution Date (but
only to the extent such amount is not required to reimburse Class A Investor
Charge-Offs pursuant to paragraph (a) above) and (ii) the amount of Excess
Finance Charge Collections allocated and available for that purpose pursuant to
Section 4.09(f).
(c) If on any Distribution Date Subordinated Principal Collections
for such Distribution Date are allocated pursuant to Section 4.10(a), the CCA
Invested Amount shall be reduced by the amount of such Subordinated Principal
Collections. In the event that such reduction would cause the CCA Invested
Amount to be a negative number, the CCA Invested Amount shall be reduced to
zero, and the Class B Invested Amount shall be reduced by the amount by which
the CCA Invested Amount would have been reduced below zero.
(d) If on any Distribution Date the CCA Default Amount for such
Distribution Date exceeds the amount of Excess Finance Charge Collections with
respect to such Distribution Date which are allocated and available to pay the
CCA Default Amount pursuant to Section 4.09(h), then the CCA Invested Amount
shall be reduced by the amount of such excess (a "CCA Charge-Off"). CCA
Charge-Offs shall thereafter be reimbursed and the CCA Invested Amount increased
(but not by an amount in excess of the aggregate CCA Charge-Offs) on any
Distribution Date by the sum of (i) Allocable Miscellaneous Payments with
respect to such Distribution Date (but only to the extent such amount is not
required to reimburse Class A Investor Charge-Offs or
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52
Class B Investor Charge-Offs pursuant to paragraph (a) or (b) above) and (ii)
the amount of Excess Finance Charge Collections allocated and available for that
purpose pursuant to Section 4.09(i).
Section 4.09. Excess Finance Charge Collections. The Servicer shall
apply (if Citibank (South Dakota) is the Servicer and the Collection Account is
maintained with Citibank (South Dakota)) or shall cause the Trustee to apply, on
each Distribution Date, Excess Finance Charge Collections with respect to such
Distribution Date, to make the following distributions in the following
priority:
(a) an amount equal to the Required Amount, if any, with respect to
such Distribution Date shall be distributed first to fund any deficiency
pursuant to Section 4.06(a)(i) or (c)(i) (but not including any amount
relating to any Class A Funding Account Shortfall and any Class A Funding
Account Swap Payment) and second to pay the Class A Investor Default
Amount, if any, for such Distribution Date pursuant to Section 4.06(a)(ii)
or (c)(ii), as the case may be; provided, however, that at such time as
Citibank (South Dakota) or an Affiliate of Citibank (South Dakota) is no
longer the Servicer, such Excess Finance Charge Collections shall be
distributed second to fund any deficiency in the Class A Monthly Servicing
Fee for such Distribution Date and third to pay the Class A Investor
Default Amount, if any, for such Distribution Date;
(b) an amount equal to the aggregate amount of Class A Investor
Charge-Offs which have not been previously reimbursed (after giving effect
to the allocation on such Distribution Date of any amount for that purpose
pursuant to Section 4.08(a)(i)) shall be treated as a portion of Investor
Principal Collections with respect to such Distribution Date;
(c) (i) an amount equal to (A) Class B Monthly Interest due but not
deposited into the Class B Interest Funding Account on such Distribution
Date, plus the amount of any Class B Monthly Interest previously due but
not deposited into the Class B Interest Funding Account on a prior
Distribution Date, (B) the Cumulative Excess Interest Amount for such
Distribution Date and (C) the amount of any Class B
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53
Additional Interest due but not deposited into the Class B Interest
Funding Account on such Distribution Date and any Class B Additional
Interest previously due but not deposited into the Class B Interest
Funding Account on a prior Distribution Date, shall be deposited into the
Class B Interest Funding Account and (ii) an amount equal to the Class B
Net Swap Payment due but not distributed to the Class B Swap
Counterparties on the Transfer Date relating to such Distribution Date,
plus the amount of any Class B Net Swap Payments previously due but not
distributed to the Class B Swap Counterparties, shall be distributed to
the Class B Swap Counterparties; provided, however, if the funds available
to pay the amounts due pursuant to clauses (i) and (ii) above are less
than the sum of the amounts specified in clauses (i) and (ii) above, such
funds shall be allocated between such amounts pro rata;
(d) an amount equal to the Class B Investor Default Amount for such
Distribution Date shall be treated as a portion of Investor Principal
Collections with respect to such Distribution Date;
(e) with respect to each Distribution Date following the
Distribution Date on which the Class A Invested Amount and the Class B
Invested Amount are paid in full, provided an Economic Special Payment
Date has occurred, an amount equal to the CCA Monthly Servicing Fee for
such Distribution Date shall be distributed to the Servicer (unless such
amount has been netted against deposits to the Collection Account);
(f) an amount equal to the aggregate amount by which the Class B
Invested Amount has been reduced pursuant to clauses (c), (d) and (e) of
the definition of "Class B Invested Amount" (but not in excess of the
aggregate amount of such reductions which have not been previously
reimbursed) shall be treated as a portion of Investor Principal
Collections with respect to such Distribution Date;
(g) an amount equal to (i) the "Monthly Cash Collateral Fee" (as
defined in each Loan Agreement) and (ii) the "Monthly Additional Cash
Collateral Fee" (as defined in each Additional Loan Agreement) for such
Distribution Date shall be distributed to each Cash
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54
Collateral Depositor and each Additional Cash Collateral Depositor, in
accordance with the provisions of such Cash Collateral Depositor's Loan
Agreement and such Additional Cash Collateral Depositor's Additional Loan
Agreement, respectively; provided, however, if the amounts due pursuant to
this paragraph (g) are greater than the funds available to pay such
amounts, such funds shall be distributed, pro rata, to each Cash
Collateral Depositor and each Additional Cash Collateral Depositor;
(h) an amount equal to the CCA Default Amount for such Distribution
Date shall be treated as a portion of Investor Principal Collections with
respect to such Distribution Date;
(i) an amount equal to the aggregate amount by which the CCA
Invested Amount has been reduced pursuant to clauses (c), (d) and (e) of
the definition of "CCA Invested Amount" (but not in excess of the
aggregate amount of such reductions which have not been previously
reimbursed) shall be treated as a portion of Investor Principal
Collections with respect to such Distribution Date;
(j) with respect to each Distribution Date prior to the occurrence
of an Economic Amortization Event, an amount equal to the lesser of (i)
the balance of such Excess Finance Charge Collections and (ii) the sum of
(A) the excess, if any, of the Initial Cash Collateral Amount over the
aggregate amount of funds on deposit in the Cash Collateral Accounts
(without giving effect to any deposit made on such date hereunder) and (B)
the excess, if any, of the sum of the Initial Additional Cash Collateral
Amounts over the amount of funds on deposit in the Additional Cash
Collateral Accounts (without giving effect to any deposit made on such
date hereunder) shall be deposited, pro rata, into each Cash Collateral
Account and each Additional Cash Collateral Account, for application in
accordance with each Loan Agreement and each Additional Loan Agreement,
respectively; and
(k) the balance, if any, shall be distributed, pro rata, to each
Cash Collateral Depositor and each Additional Cash Collateral Depositor
for application in
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55
accordance with each Loan Agreement and each Additional Loan Agreement,
respectively.
Section 4.10. Subordinated Principal Collections. The Servicer shall
apply (if Citibank (South Dakota) is the Servicer and the Collection Account is
maintained with Citibank (South Dakota)) or shall cause the Trustee to apply, on
each Distribution Date, Subordinated Principal Collections with respect to such
Distribution Date to make the following distributions in the following priority:
(a) an amount equal to the excess, if any, of (i) the Required
Amount, if any, with respect to such Distribution Date over (ii) the sum
of (x) the amount of Excess Finance Charge Collections with respect to
such Distribution Date and (y) the Available Shared Enhancement Amount
with respect to such Distribution Date, shall be distributed by the
Servicer or the Trustee to fund any deficiency pursuant to Section
4.06(a)(i) and (a)(ii) or Section 4.06(c)(i) and (c)(ii), as the case may
be (but not including any amount relating to any Class A Funding Account
Shortfall and any Class A Funding Account Swap Payment), and, if Citibank
(South Dakota) or an Affiliate of Citibank (South Dakota) is no longer the
Servicer, Section 4.06(a)(iii) or (c)(iii), as the case may be; provided,
however, that in the event the Required Amount for such Distribution Date
exceeds the sum of the Available Shared Enhancement Amount for such
Distribution Date and the amount of Excess Finance Charge Collections and
Subordinated Principal Collections with respect to such Distribution Date,
the amount withdrawn from each Cash Collateral Account and each Additional
Cash Collateral Account with respect to such Required Amount and such
Excess Finance Charge Collections and Subordinated Principal Collections
shall be applied first to pay amounts due with respect to such
Distribution Date pursuant to Section 4.06(a)(i) or (c)(i), as the case
may be (but not including any amount relating to any Class A Funding
Account Shortfall and any Class A Funding Account Swap Payment), and
second to pay the Class A Investor Default Amount, if any, for such
Distribution Date pursuant to Section 4.06(a)(ii) or (c)(ii), as the case
may be; provided further that at such time as Citibank (South Dakota) or
an Affiliate of Citibank (South Dakota) is no longer the Servicer, the
amount withdrawn
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56
from each Cash Collateral Account and each Additional Cash Collateral
Account with respect to such Required Amount and such Excess Finance
Charge Collections and Subordinated Principal Collections shall be applied
second to fund any deficiency in the Class A Monthly Servicing Fee for
such Distribution Date and third to pay the Class A Investor Default
Amount, if any, for such Distribution Date; and
(b) the balance, if any, shall be treated as a portion of Investor
Principal Collections with respect to such Distribution Date.
Section 4.11. Credit Enhancement. (a) The Servicer shall establish
and maintain, in the name of the Trustee, on behalf of the Trust, for the
benefit of the Series 1996-6 Certificateholders and the Cash Collateral
Depositors, as their interests appear herein, the "Cash Collateral Accounts",
which shall be one or more Eligible Deposit Accounts, each bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Series 1996-6 Certificateholders and the applicable Cash Collateral
Depositor. The Trustee shall possess all right, title and interest in all funds
on deposit from time to time in each Cash Collateral Account and in all proceeds
thereof. Each Cash Collateral Account shall be under the sole dominion and
control of the Trustee for the benefit of the Series 1996-6 Certificateholders
and the applicable Cash Collateral Depositor. The interest of a Cash Collateral
Depositor in a Cash Collateral Account shall be subordinated to the interests of
the Series 1996-6 Certificateholders as provided herein and in the related Loan
Agreement. If at any time a Cash Collateral Account ceases to be an Eligible
Deposit Account, the Trustee (or the Servicer on its behalf) shall within 10
Business Days (or such longer period, not to exceed 30 calendar days, as to
which each Rating Agency may consent) establish a new Cash Collateral Account
meeting the conditions specified above as an Eligible Deposit Account, and shall
transfer any cash and/or any investments to such new Cash Collateral Account.
The Trustee, at the direction of the Servicer, shall (i) on the Closing Date,
deposit in each Cash Collateral Account the proceeds of the advance to be made
on such date by the applicable Cash Collateral Depositor under the related Loan
Agreement, (ii) make withdrawals from the Cash Collateral Accounts from time to
time in an amount up to the Available Cash Collateral Amount at such time, for
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the purposes and in the manner set forth in paragraphs (c) through (i) below,
and (iii) on each Distribution Date prior to the termination of the Cash
Collateral Accounts make a deposit into the Cash Collateral Accounts in the
amount specified in, and otherwise in accordance with, Section 4.09(j). All
withdrawals from the Cash Collateral Accounts shall be made in the priority and
in the manner set forth below. The Cash Collateral Depositors shall not be
entitled to reimbursement from the Trust Assets for any withdrawals from the
Cash Collateral Accounts except as specifically provided in this Series
Supplement.
(a.1) On each Additional Issuance Date, the Servicer shall establish
and maintain, in the name of the Trustee, on behalf of the Trust, for the
benefit of the Series 1996-6 Certificateholders and the related Additional Cash
Collateral Depositors, as their interests appear in this Series Supplement, the
"Additional Cash Collateral Accounts" which shall be one or more Eligible
Deposit Accounts, each bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Series 1996-6
Certificateholders and the applicable Additional Cash Collateral Depositor. The
Trustee shall possess all right, title and interest in all funds on deposit from
time to time in each Additional Cash Collateral Account and in all proceeds
thereof. Each Additional Cash Collateral Account shall be under the sole
dominion and control of the Trustee for the benefit of the Series 1996-6
Certificateholders and the applicable Additional Cash Collateral Depositor. The
interest of an Additional Cash Collateral Depositor in an Additional Cash
Collateral Account shall be subordinated to the interests of the Series 1996-6
Certificateholders as provided herein and in the related Additional Loan
Agreement. If at any time an Additional Cash Collateral Account ceases to be an
Eligible Deposit Account, the Trustee (or the Servicer on its behalf) shall
within 10 Business Days (or such longer period, not to exceed 30 calendar days,
as to which each Rating Agency may consent) establish a new Additional Cash
Collateral Account meeting the conditions specified above as an Eligible Deposit
Account, and shall transfer any cash and/or any investments to such new
Additional Cash Collateral Account. The Trustee, at the direction of the
Servicer, shall (i) on an Additional Issuance Date, deposit in each Additional
Cash Collateral Account the proceeds of the advance to be made on such date by
the applicable Additional Cash Collateral Depositor under the related Additional
Loan Agreement,
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(ii) make withdrawals from the Additional Cash Collateral Accounts from time to
time in an amount up to the Available Additional Cash Collateral Amount at such
time, for the purposes and in the manner set forth in paragraphs (c) through (i)
below, and (iii) on each Distribution Date prior to the termination of the
Additional Cash Collateral Accounts make a deposit into the Additional Cash
Collateral Accounts in the amount specified in, and otherwise in accordance
with, Section 4.09(j). All withdrawals from the Additional Cash Collateral
Accounts shall be made in the priority and in the manner set forth below. The
Additional Cash Collateral Depositors shall not be entitled to reimbursement
from the Trust Assets for any withdrawals from the Additional Cash Collateral
Accounts except as specifically provided in this Series Supplement.
(b) Funds on deposit in each Cash Collateral Account shall be
invested at the direction of the Servicer (or the related Cash Collateral
Depositor, as provided in the related Loan Agreement) by the Trustee in Cash
Collateral Account Investments. Funds on deposit in each Cash Collateral Account
on any Transfer Date, after giving effect to any withdrawals from such Cash
Collateral Account on such Transfer Date, shall be invested in such investments
that will mature so that such funds will be available for withdrawal on or prior
to the following Transfer Date. The proceeds of any such investments shall be
invested in such investments that will mature so that such funds will be
available for withdrawal on or prior to the Transfer Date immediately following
the date of such investment. The Trustee shall maintain for the benefit of the
Series 1996-6 Certificateholders and a Cash Collateral Depositor possession of
the negotiable instruments or securities, if any, evidencing the Cash Collateral
Account Investments in the related Cash Collateral Account. On each Transfer
Date, all interest and earnings (net of losses and investment expenses) accrued
since the preceding Transfer Date on funds on deposit in each Cash Collateral
Account shall be paid to the applicable Cash Collateral Depositor for
application in accordance with the related Loan Agreement. For purposes of
determining the availability of funds or the balances in each Cash Collateral
Account for any reason under this Series Supplement, all investment earnings on
such funds shall be deemed not to be available or on deposit.
(b.1) Funds on deposit in each Additional Cash Collateral Account
shall be invested at the direction of the
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59
Servicer (or the related Additional Cash Collateral Depositor, as provided in
the related Additional Loan Agreement) by the Trustee in Cash Collateral Account
Investments. Funds on deposit in each Additional Cash Collateral Account on any
Transfer Date, after giving effect to any withdrawals from such Additional Cash
Collateral Account on such Transfer Date, shall be invested in such investments
that will mature so that such funds will be available for withdrawal on or prior
to the following Transfer Date. The proceeds of any such investments shall be
invested in such investments that will mature so that such funds will be
available for withdrawal on or prior to the Transfer Date immediately following
the date of such investment. The Trustee shall maintain for the benefit of the
Series 1996-6 Certificateholders and an Additional Cash Collateral Depositor
possession of the negotiable instruments or securities, if any, evidencing the
Cash Collateral Account Investments in the related Additional Cash Collateral
Account. On each Transfer Date, all interest and earnings (net of losses and
investment expenses) accrued since the preceding Transfer Date on funds on
deposit in each Additional Cash Collateral Account shall be paid to the
applicable Additional Cash Collateral Depositor for application in accordance
with the related Additional Loan Agreement. For purposes of determining the
availability of funds or the balances in each Additional Cash Collateral Account
for any reason under this Series Supplement, all investment earnings on such
funds shall be deemed not to be available or on deposit.
(c) On each Transfer Date, the Servicer shall calculate the amount
(the "Required Draw Amount") (determined after giving effect to any distribution
to be made pursuant to Section 4.06(a)(i) or (c)(i), as the case may be, and
Section 4.06(a)(ii) or (c)(ii), as the case may be, and, if applicable, Section
4.06(a)(iii) or (c)(iii), as the case may be, on the related Distribution Date)
equal to the excess, if any, of (i) the Required Amount, if any, with respect to
such Distribution Date over (ii) the amount of Excess Finance Charge Collections
to be allocated and available pursuant to Section 4.09(a) to fund such Required
Amount on such Distribution Date.
(d) On each Transfer Date, the Servicer shall calculate the amount
(the "Interest Draw Amount") (determined after giving effect to any distribution
to be made pursuant to Section 4.06(b)(i) or (d)(i), as the case
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60
may be, and Section 4.09(c) on the related Distribution Date) of (i) (A) any
Class B Monthly Interest due but not to be deposited into the Class B Interest
Funding Account on such Distribution Date pursuant to Section 4.06(b)(i) or
(d)(i), as the case may be, or Section 4.09(c), (B) any Class B Monthly Interest
previously due but not deposited into the Class B Interest Funding Account on a
prior Distribution Date pursuant to Section 4.06(b)(i) or (d)(i), as the case
may be, or Section 4.09(c) or this paragraph (d), (C) any Class B Additional
Interest due but not to be deposited into the Class B Interest Funding Account
on such Distribution Date and any Class B Additional Interest previously due but
not deposited into the Class B Interest Funding Account on a prior Distribution
Date pursuant to Section 4.06(b)(i) or (d)(i), as the case may be, or Section
4.09(c) or this paragraph (d) and (D) any Cumulative Excess Interest Amount due
but not to be deposited into the Class B Interest Funding Account on such
Distribution Date pursuant to Section 4.09(c) plus (ii)(A) any Class B Net Swap
Payment due but not distributed to the Class B Swap Counterparties on the
Transfer Date relating to such Distribution Date pursuant to Section 4.06(b)(i)
or (d)(i), as the case may be, or Section 4.09(c) and (B) any Class B Net Swap
Payments previously due but not distributed to the Class B Swap Counterparties
pursuant to Section 4.06(b)(i) or (d)(i), as the case may be, or Section
4.09(c)or this paragraph (d).
(e) On each Transfer Date, the Servicer shall calculate the amount
(the "Default Draw Amount") equal to the excess, if any, of (i) the Class B
Investor Default Amount for the related Distribution Date over (ii) the amount
of Excess Finance Charge Collections to be allocated and available pursuant to
Section 4.09(d) to fund such Class B Investor Default Amount on such
Distribution Date.
(f) On each Transfer Date (commencing with the Transfer Date
preceding the Class B Principal Commencement Date), the Servicer shall calculate
the amount (the "Reimbursement Draw Amount") equal to the excess, if any, of (i)
the Class B Initial Invested Amount minus the sum of the aggregate amount of
principal payments previously distributed to Class B Certificateholders over
(ii) the Class B Invested Amount on the last day of the related Due Period
(determined after giving effect to any change to be made in the Class B Invested
Amount pursuant to para-
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graph (c), (d), (e) or (f) of the definition of "Class B Invested Amount"
on the following Distribution Date).
(g) Notwithstanding Section 4.11(f), if either (i) the
Certificateholders' Interest in the Receivables is reassigned to the Sellers
pursuant to Section 2.06 of the Agreement, (ii) Receivables are sold, disposed
of or otherwise liquidated pursuant to Section 9.02 or Section 12.02(c) of the
Agreement or (iii) the Certificateholders' Interest in the Receivables is
purchased by the Sellers pursuant to Section 10.01 of the Agreement or the
Series 1996-6 Certificateholders' Interest is purchased by the Sellers pursuant
to Section 7.01 of this Series Supplement, the Servicer shall not calculate the
Reimbursement Draw Amount with respect to the relevant Distribution Date, but
shall calculate the amount (the "Special Draw Amount") equal to the aggregate
amount of all reductions of the Class B Invested Amount occurring under clauses
(c), (d) or (e) of the definition of "Class B Invested Amount" which have not
been reimbursed prior to such Distribution Date under clause (f) thereof.
(h) Notwithstanding Section 4.11(f) and (g), on the Transfer Date
preceding the Economic Special Payment Date, the Servicer shall not calculate
the Reimbursement Draw Amount or the Special Draw Amount with respect to such
Special Payment Date, but shall calculate (i) the amount (the "Class A Principal
Draw Amount") (determined after giving effect to any distribution to be made
pursuant to Section 4.06(f)(i) and 4.07(a)(ii) on such Special Payment Date)
equal to the outstanding principal amount of the Class A Certificates and (ii)
the amount (the "Class B Principal Draw Amount") (determined after giving effect
to any distribution to be made pursuant to Section 4.06(f)(iii) and 4.07(b)(ii)
on such Special Payment Date) equal to the outstanding principal amount of the
Class B Certificates.
(i) In the event that for any Distribution Date, the sum of any
Required Draw Amount, Interest Draw Amount, Default Draw Amount, Reimbursement
Draw Amount, Special Draw Amount, Class A Principal Draw Amount and Class B
Principal Draw Amount (such sum being referred to as the "Total Draw Amount"),
is greater than zero, the Servicer shall give written notice to the Trustee,
each Cash Collateral Depositor and each Additional Cash Collateral Depositor, in
substantially the form of Exhibit B, of such positive Total Draw Amount on the
related Transfer Date. On the related
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Transfer Date, withdrawals will be made from each Cash Collateral Account and
each Additional Cash Collateral Account as follows:
(A) the portion of the Total Draw Amount allocable to the Required
Draw Amount, if any, up to the Available Shared Enhancement Amount, shall
be withdrawn, pro rata, from each Cash Collateral Account and each
Additional Cash Collateral Account, in each case, on the related Transfer
Date and distributed first to fund any deficiency pursuant to Section
4.06(a)(i) or (c)(i) (but not including any amount relating to any Class A
Funding Account Shortfall and any Class A Funding Account Swap Payment)
and second to pay the Class A Investor Default Amount, if any, for such
Distribution Date pursuant to Section 4.06(a)(ii) or (c)(ii), as the case
may be; provided, however, that at such time as Citibank (South Dakota) or
an Affiliate of Citibank (South Dakota) is no longer the Servicer, the
amount of such withdrawal from each Cash Collateral Account and each
Additional Cash Collateral Account shall be applied in accordance with
Section 4.10(a) second to fund any deficiency in the Class A Monthly
Servicing Fee for such Distribution Date and third to pay the Class A
Investor Default Amount, if any, for such Distribution Date;
(B) the portion of the Total Draw Amount allocable to the Interest
Draw Amount, if any, up to the Available Shared Enhancement Amount
(determined after giving effect to any withdrawal pursuant to clause (A)),
shall be withdrawn, pro rata, from each Cash Collateral Account and each
Additional Cash Collateral Account, in each case, on the related Transfer
Date and distributed pursuant to Section 4.11(d); provided, however, if
the Interest Draw Amount exceeds the Available Shared Enhancement Amount
(determined after giving effect to any withdrawal pursuant to clause (A))
the Available Shared Enhancement Amount shall be allocated between
4.11(d)(i) and (d)(ii) pro rata;
(C) the portion of the Total Draw Amount allocable to the Default
Draw Amount, if any, up to the Available Shared Enhancement Amount
(determined after giving effect to any withdrawal pursuant to clauses (A)
and (B)), shall be withdrawn, pro rata, from each Cash
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63
Collateral Account and each Additional Cash Collateral Account, in each
case, on the related Transfer Date and used to pay the Class B Investor
Default Amount for such Distribution Date pursuant to Section 4.09(d);
(D) the portion of the Total Draw Amount allocable to the Class A
Principal Draw Amount, if any, up to the Available Shared Enhancement
Amount (determined after giving effect to any withdrawal pursuant to
clauses (A), (B) and (C)), shall be withdrawn, pro rata, from each Cash
Collateral Account and each Additional Cash Collateral Account, in each
case, on the related Transfer Date and immediately deposited by the
Trustee into the Class A Principal Funding Account; and
(E) the remainder of the Total Draw Amount, if any, up to the
Available Enhancement Amount (determined after giving effect to any
withdrawal pursuant to clauses (A) through (D)), shall be withdrawn, pro
rata, from each Cash Collateral Account and each Additional Cash
Collateral Account, in each case, on the related Transfer Date and
immediately deposited by the Trustee into the Collection Account for
distribution to the Class B Certificateholders on such Distribution Date.
Notwithstanding anything to the contrary in this Series Supplement or in the
Agreement, no withdrawal may be made from any Cash Collateral Account or any
Additional Cash Collateral Account to fund any Class A Funding Account Shortfall
and any Class A Funding Account Swap Payment. For the avoidance of doubt, after
any Additional Issuance Date, no withdrawal shall be made from any Cash
Collateral Account or any Additional Cash Collateral Account on any basis other
than pro rata and no withdrawal shall be made from any Cash Collateral Account
or any Additional Cash Collateral Account to fund any amount which is required
to be withdrawn pursuant to this Series Supplement from any other cash
collateral account.
(j) Upon the earliest to occur of (i) the termination of the Trust
pursuant to Article XII of the Agreement, (ii) the Termination Date, (iii) the
day on which the Class A Invested Amount and the Class B Invested Amount are
paid in full to the Class A Certificateholders and the Class B
Certificateholders and (iv) all withdrawals from each Cash Collateral Account
and each Additional Cash
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Collateral Account pursuant to Section 4.11(i) with respect to the Economic
Special Payment Date having been made, the Trustee, acting in accordance with
the instructions of the Servicer, after the prior payment of all amounts owing
to the Class A Certificateholders and the Class B Certificateholders which are
payable from each Cash Collateral Account and each Additional Cash Collateral
Account as provided herein, shall withdraw from each Cash Collateral Account and
each Additional Cash Collateral Account, for application in accordance with the
related Loan Agreements and the related Additional Loan Agreements, respectively
all amounts, if any, on deposit in each Cash Collateral Account and each
Additional Cash Collateral Account and each Cash Collateral Account and each
Additional Cash Collateral Account shall be deemed to have terminated for
purposes of this Series Supplement.
Section 4.12. Reallocated Investor Finance Charge Collections. (a)
That portion of Group One Investor Finance Charge Collections for any
Distribution Date equal to the amount of Reallocated Investor Finance Charge
Collections for such Distribution Date will be allocated to Series 1996-6 and
will be distributed as set forth in this Series Supplement.
(b) Reallocated Investor Finance Charge Collections, with respect to
any Distribution Date, shall equal the sum of (i) the aggregate amount of Series
1996-6 Monthly Interest, Series 1996-6 Default Amount, Series 1996-6 Monthly
Fees and Series 1996-6 Additional Amounts for such Distribution Date and (ii)
that portion of excess Group One Investor Finance Charge Collections to be
included in Reallocated Investor Finance Charge Collections pursuant to Section
4.12(c); provided, however, that if the amount of Group One Investor Finance
Charge Collections for such Distribution Date is less than the sum of (w) Group
One Investor Monthly Interest, (x) Group One Investor Default Amount, (y) Group
One Investor Monthly Fees and (z) Group One Investor Additional Amounts, then
Reallocated Investor Finance Charge Collections shall equal the sum of the
following amounts for such Distribution Date:
(A) the product of (I) Group One Investor Finance Charge Collections
(up to the amount of Group One Investor Monthly Interest) and (II) a
fraction, the numerator of which is Series 1996-6 Monthly Interest
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and the denominator of which is Group One Investor Monthly Interest;
(B) the product of (I) Group One Investor Finance Charge Collections
less the amount of Group One Investor Monthly Interest (up to the Group
One Investor Default Amount) and (II) a fraction, the numerator of which
is the Series 1996-6 Default Amount and the denominator of which is the
Group One Investor Default Amount;
(C) the product of (I) Group One Investor Finance Charge Collections
less the amount of Group One Investor Monthly Interest and the Group One
Investor Default Amount (up to Group One Investor Monthly Fees) and (II) a
fraction, the numerator of which is Series 1996-6 Monthly Fees and the
denominator of which is Group One Investor Monthly Fees; and
(D) the product of (I) Group One Investor Finance Charge Collections
less the sum of (i) Group One Investor Monthly Interest, (ii) the Group
One Investor Default Amount and (iii) Group One Investor Monthly Fees and
(II) a fraction, the numerator of which is Series 1996-6 Additional
Amounts and the denominator of which is Group One Investor Additional
Amounts.
(c) If the amount of Group One Investor Finance Charge Collections
for such Distribution Date exceeds the sum of (i) Group One Investor Monthly
Interest, (ii) Group One Investor Default Amount, (iii) Group One Investor
Monthly Fees and (iv) Group One Investor Additional Amounts, then Reallocated
Investor Finance Charge Collections for such Distribution Date shall include an
amount equal to the product of (x) the amount of such excess and (y) a fraction,
the numerator of which is the Invested Amount as of the last day of the second
preceding Due Period and the denominator of which is the sum of such Invested
Amount and the aggregate invested amounts for all other Series included in Group
One as of such last day.
Section 4.13. Excess Principal Collections. (a) That portion of
Excess Principal Collections for any Distribution Date equal to the amount of
Series 1996-6 Excess Principal Collections for such Distribution Date will be
allocated to Series 1996-6 and will be distributed as set forth in this Series
Supplement.
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(b) Series 1996-6 Excess Principal Collections, for any Distribution
Date with respect to the Accumulation Period or the Early Amortization Period,
shall mean an amount equal to the Series 1996-6 Principal Shortfall for such
Distribution Date; provided, however, that if the aggregate amount of Excess
Principal Collections for all Series for such Distribution Date is less than the
aggregate amount of Principal Shortfalls for all Series for such Distribution
Date, then Series 1996-6 Excess Principal Collections for such Distribution Date
shall equal the product of (x) Excess Principal Collections for all Series for
such Distribution Date and (y) a fraction, the numerator of which is the Series
1996-6 Principal Shortfall for such Distribution Date and the denominator of
which is the aggregate amount of Principal Shortfalls for all Series for such
Distribution Date. The Series 1996-6 Principal Shortfall for any Distribution
Date shall equal the excess of (i) (x) for any Distribution Date with respect to
the Accumulation Period, (A) the Controlled Distribution Amount and (B) if such
Distribution Date is also the Class B Expected Final Payment Date, the Class B
Invested Amount, or (y) for any Distribution Date with respect to the Early
Amortization Period, the sum of the Invested Amount and the CCA Invested Amount,
if any, over (ii) Available Investor Principal Collections for such Distribution
Date (excluding any portion thereof attributable to Series 1996-6 Excess
Principal Collections).
Section 4.14. Interest Rate Swaps. (a) The Servicer hereby
represents that it has obtained the Class A Interest Rate Swaps in favor of the
Trust for the benefit of the Class A Certificateholders. The Class A Interest
Rate Swaps shall entitle the Trust to receive monthly Class A Net Swap Receipts,
if any, and shall obligate the Trust to make monthly Class A Net Swap Payments,
if any, as set forth in the Class A Interest Rate Swaps.
(b) The Servicer hereby represents that it has obtained the Class B
Interest Rate Swaps in favor of the Trust for the benefit of the Class B
Certificateholders. The Class B Interest Rate Swaps shall entitle the Trust to
receive monthly Class B Net Swap Receipts, if any, and shall obligate the Trust
to make monthly Class B Net Swap Payments, if any, as set forth in the Class B
Interest Rate Swaps.
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(c) Upon the effectiveness of any Replacement Interest Rate Swaps,
the Interest Rate Swap being replaced shall terminate and the Swap Counterparty
thereunder shall be released of all future obligations thereunder, provided that
such Swap Counterparty shall not be released from any obligations which have
previously accrued thereunder and shall continue to be obligated to perform such
obligations.
(d) The Trustee hereby appoints the Servicer to act as calculation
agent under the Interest Rate Swaps and the Servicer accepts such appointment.
ARTICLE V
Distributions and Reports to
Series 1996-6 Certificateholders
Section 5.01. Distributions. (a) On each Class A Payment Date, the
Paying Agent shall distribute to each Class A Certificateholder of record on the
related Record Date (other than as provided in Section 12.02 of the Agreement)
such Investor Certificateholder's pro rata share of the amounts on deposit in
the Class A Interest Funding Account.
(b) On each Special Payment Date and on the Class A Expected Final
Payment Date, the Paying Agent shall distribute to each Class A
Certificateholder of record on the related Record Date (other than as provided
in Section 12.02 of the Agreement) such Investor Certificateholder's pro rata
share of the amounts on deposit in the Class A Principal Funding Account that
are payable to the Class A Certificateholders pursuant to Section 4.07(a)(ii).
(c) On each Class B Payment Date, the Paying Agent shall distribute
to each Class B Certificateholder of record on the related Record Date (other
than as provided in Section 12.02 of the Agreement) such Investor
Certificateholder's pro rata share of the amounts on deposit in the Class B
Interest Funding Account.
(d) On each Special Payment Date and on the Class B Expected Final
Payment Date, the Paying Agent shall distribute to each Class B
Certificateholder of record on the related Record Date (other than as provided
in Section 12.02 of the Agreement) such Investor
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Certificateholder's pro rata share of the amounts on deposit in the Collection
Account that are payable to Class B Certificateholders pursuant to Section
4.07(b)(ii).
(e) Except as provided in Section 12.02 of the Agreement with
respect to a final distribution, distributions to Series 1996-6
Certificateholders hereunder shall be made by check mailed to each Series 1996-6
Certificateholder at such Certificateholder's address appearing in the
Certificate Register without presentation or surrender of any Series 1996-6
Certificate or the making of any notation thereon; provided, however, that with
respect to Series 1996-6 Certificates registered in the name of a Clearing
Agency, such distributions shall be made to such Clearing Agency in immediately
available funds.
Section 5.02. Reports and Statements to Series 1996-6
Certificateholders. (a) On each Distribution Date, the Paying Agent, on behalf
of the Trustee, shall forward to each Series 1996-6 Certificateholder a
statement substantially in the form of Exhibit C prepared by the Servicer. If
and so long as the Series 1996-6 Certificates are listed on the Luxembourg Stock
Exchange and the rules of such exchange shall so require, within two Business
Days following each Class A Payment Date and Class B Payment Date, the Servicer
shall publish or cause to be published in an Authorized Newspaper of general
circulation in Luxembourg a notice to the effect that the information set forth
in the statement forwarded by the Paying Agent to Series 1996-6
Certificateholders with respect to such Class A Payment Date and Class B Payment
Date will be available for review at the Luxembourg Stock Exchange and at the
main office of the listing agent in Luxembourg, Banque Internationale A
Luxembourg S.A.
(b) Not later than the Transfer Date, the Servicer shall deliver to
the Trustee, the Paying Agent, each Rating Agency and each Cash Collateral
Depositor and each Additional Cash Collateral Depositor (i) a statement
substantially in the form of Exhibit C prepared by the Servicer and (ii) a
certificate of a Servicing Officer substantially in the form of Exhibit D.
(c) A copy of each statement or certificate provided pursuant to
paragraph (a) or (b) may be obtained by any Series 1996-6 Certificateholder or
Certificate Owner by a request in writing to the Servicer.
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(d) On or before January 31 of each calendar year, beginning with
calendar year 1997, the Paying Agent, on behalf of the Trustee, shall furnish or
cause to be furnished to each Person who at any time during the preceding
calendar year was a Series 1996-6 Certificateholder, a statement prepared by the
Servicer containing the information which is required to be contained in the
statement to Series 1996-6 Certificateholders, as set forth in paragraph (a)
above, aggregated for such calendar year or the applicable portion thereof
during which such Person was a Series 1996-6 Certificateholder, together with
other information as is required to be provided by an issuer of indebtedness
under the Internal Revenue Code and such other customary information as is
necessary to enable the Series 1996-6 Certificateholders to prepare their tax
returns. Such obligation of the Servicer shall be deemed to have been satisfied
to the extent that substantially comparable information shall be provided by the
Paying Agent pursuant to any requirements of the Internal Revenue Code as from
time to time in effect.
ARTICLE VI
Amortization Events
Section 6.01. Additional Amortization Events. The occurrence of any
of the following events shall, immediately upon the occurrence thereof without
notice or other action on the part of the Trustee or the Series 1996-6
Certificateholders, be deemed to be an Amortization Event solely with respect to
Series 1996-6:
(a) on any Determination Date, the Class B Invested Amount on the
related Distribution Date will be reduced to less than 1% of the Initial
Invested Amount;
(b) on the last day of any Due Period during the Accumulation Period
the product of (i) the total amount of Principal Receivables as of such
last day, (ii) the Series 1996-6 Allocation Percentage (expressed as a
decimal) for such Due Period and (iii) the excess (expressed as a decimal)
of 100% over the Floating Allocation Percentage for such Due Period, shall
fail to equal at least 100% of the Class A Principal Funding Account
Balance on such day;
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(c) the Portfolio Yield for any Due Period during the Accumulation
Period shall be less than the weighted average of the Certificate Rates
for all outstanding Series included in Group One as of the last day of
such Due Period;
(d) the Class A Invested Amount shall not be paid in full on the
Class A Expected Final Payment Date or the Class B Invested Amount shall
not be paid in full on the Class B Expected Final Payment Date;
(e) the amount of Surplus Finance Charge Collections averaged over
any three consecutive Due Periods shall not be equal to or in excess of
the Required Surplus Finance Charge Amount for the last of such three
consecutive Due Periods;
(f) the failure on the part of a Swap Counterparty to make a Class A
Net Swap Receipt or a Class B Net Swap Receipt, as applicable, in full
within five calendar days of the Transfer Date on which such Class A Net
Swap Receipt or Class B Net Swap Receipt was due; and
(g) the failure on the part of the Servicer, within 30 calendar days
of withdrawal or reduction below A-1+ in the short-term debt rating of a
Swap Counterparty by Standard & Poor's or a withdrawal of or reduction
below Aa3 in the long-term debt rating of a Swap Counterparty by Moody's,
to (i) obtain a Replacement Interest Rate Swap with a replacement swap
counterparty having terms substantially the same as the replaced Interest
Rate Swap or (ii) enter into any other arrangement satisfactory to the
applicable Rating Agency, such that the rating of the Class A Certificates
and the Class B Certificates by the applicable Rating Agency will not be
withdrawn or reduced.
ARTICLE VII
Optional Repurchase; Additional Issuances;
Accumulation Period
Section 7.01 Optional Repurchase. (a) On the Distribution Date
occurring on or after the date on which
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71
the Invested Amount is reduced to 5% of the Initial Invested Amount or less, the
Sellers shall have the option to purchase the Series 1996-6 Certificateholders'
Interest, at a purchase price equal to the Reassignment Amount for such
Distribution Date.
(b) The Sellers shall give the Servicer and the Trustee at least 30
days prior written notice of the date on which the Sellers intend to exercise
such purchase option. Not later than 12:00 noon, New York City time, on such
Distribution Date the Sellers shall deposit the Reassignment Amount into the
Collection Account in immediately available funds. Such purchase option is
subject to payment in full of the Reassignment Amount. The Reassignment Amount
shall be distributed as set forth in Section 8.01(b).
(c) If any Loan Agreement or any Additional Loan Agreement so
provides, in the event the Sellers exercise such purchase option,
notwithstanding anything to the contrary contained in the Agreement or in this
Series Supplement, the Series 1996-6 Certificates shall be deemed to remain
outstanding as if such purchase option were not exercised and the terms of the
Agreement and this Series Supplement (other than Section 4.11(c) through (i) of
this Series Supplement and Section 12.02(c) of the Agreement) shall otherwise
remain in effect until the earlier of (i) one year and one day following the
Termination Date, (ii) the date on which the Trust terminates and (iii) the date
on which the Class A Invested Amount, the Class B Invested Amount and the CCA
Invested Amount, if any, would have been paid in full had such purchase option
not been exercised; provided that distributions which would otherwise have been
made to the Series 1996-6 Certificateholders shall be made to the Sellers.
Section 7.02. Additional Issuances of Series 1996-6 Certificates.
(a) Subject to Sections 7.02(b) and (c) of this Series Supplement, the Banks may
at any time, or from time to time, during the Revolving Period direct the
Trustee, on behalf of the Trust, to authenticate additional Class A Certificates
(the "Additional Class A Certificates") and additional Class B Certificates (the
"Additional Class B Certificates") on the first day of any Due Period (each such
day, an "Additional Issuance Date"). Any such issuance of Additional Investor
Certificates is referred to herein as an "Additional Issuance". The outstanding
Investor Certificates of each
<PAGE>
72
class and the Additional Investor Certificates of that class shall be equally
and ratably entitled as provided herein to the benefits of the Agreement and
this Series Supplement without preference, priority or distinction, all in
accordance with the terms and provisions of the Agreement and this Series
Supplement.
(b) The obligation of the Trustee to authenticate Additional
Investor Certificates is subject to the satisfaction of the following
conditions:
(i) on or before the fifth Business Day immediately preceding the
Additional Issuance Date, the Sellers shall have given the Trustee, the
Servicer, each Rating Agency, each Swap Counterparty and each Cash
Collateral Depositor written notice of such Additional Issuance and the
Additional Issuance Date;
(ii) the Sellers shall have delivered to the Trustee an amended
Series Supplement, in form satisfactory to the Trustee, executed by each
party hereto other than the Trustee;
(iii) after giving effect to the Additional Issuance, the total
amount of Principal Receivables shall be equal to, or greater than, the
Required Minimum Principal Balance;
(iv) the Sellers, the Trustee and one or more additional Series
Enhancers shall have entered into one or more additional series
enhancement agreements;
(v) the Sellers shall have delivered to the Trustee, each Rating
Agency and each Cash Collateral Depositor a Tax Opinion dated the
Additional Issuance Date, with respect to such Additional Issuance;
(vi) the Sellers shall have delivered to each Rating Agency (i)
Opinion(s) of Counsel with respect to the enforceability of the Additional
Loan Agreement(s), (ii) an Opinion of Counsel to the effect that such
Additional Issuance will not violate applicable Federal securities laws
and (iii) such other documents as the Rating Agencies may request;
(vii) the Rating Agency Condition shall have been satisfied with
respect to such Additional Issuance;
<PAGE>
73
(viii) such Additional Issuance shall not have an Adverse Effect and
is not reasonably expected to have an Adverse Effect at any time in the
future;
(ix) as of the Additional Issuance Date all amounts due and owing to
the Series 1996-6 Certificateholders on or prior to such date shall have
been paid to such Certificateholders and there shall not be any
unreimbursed Investor Charge-Offs;
(x) the excess of the principal amount of the Additional Investor
Certificates over the issue price of the Additional Investor Certificates
shall not exceed the maximum amount permitted under the Internal Revenue
Code without the creation of original issue discount (assuming that there
is no original issue discount on the Additional Investor Certificates for
any other reason);
(xi) the Banks' Interest shall not be less than 2% of the total
amount of Principal Receivables, in each case as of the Additional
Issuance Date, after giving effect to such Additional Issuance;
(xii) the ratio of the Controlled Amortization Amount (after giving
effect to such Additional Issuance) to the Invested Amount (after giving
effect to such Additional Issuance) shall be equal to the ratio of the
Controlled Amortization Amount (before giving effect to such Additional
Issuance) to the Invested Amount (before giving effect to such Additional
Issuance);
(xiii) the Sellers shall cause additional credit enhancement to be
provided by one or more Additional Cash Collateral Depositors or one or
more additional Series Enhancers for the exclusive benefit of the Investor
Certificateholders; provided that the ratio of the Available Enhancement
Amount (after giving effect to such increase) to the Invested Amount
(after giving effect to such Additional Issuance) shall be greater than or
equal to the ratio of the Available Enhancement Amount (before giving
effect to such increase) to the Invested Amount (before giving effect to
such Additional Issuance);
<PAGE>
74
(xiv) the ratio of the sum of the increase in the Class A Investment
Fees (as a result of such Additional Issuance) to the increase in the
Invested Amount (as a result of such Additional Issuance) shall be less
than or equal to 0.0071286195 which represents 150% times the ratio of the
sum of the Class A Investment Fees (as of the Closing Date) to the
Invested Amount (as of the Closing Date);
(xv) as of the Additional Issuance Date, the sum of the Notional
Amounts, as defined in the Class A Interest Rate Swaps, shall equal the
outstanding principal balance of the Class A Certificates (determined
after giving effect to such Additional Issuance) and the sum of the
Notional Amounts, as defined in the Class B Interest Rate Swaps, shall
equal the Class B Invested Amount (determined after giving effect to such
Additional Issuance); and
(xvi) the Sellers shall have delivered to the Trustee an Officer's
Certificate, dated the Additional Issuance Date, confirming that the
conditions referred to above have been satisfied.
Upon satisfaction of the above conditions, the Trustee shall authenticate the
Additional Investor Certificates upon execution thereof by the Sellers.
(c) Notwithstanding any provision of the Agreement or this Series
Supplement, this Series Supplement may be amended by the Servicer, the Sellers
and the Trustee, without the consent of any of the Certificateholders, to
provide for an Additional Issuance, provided that the conditions set forth in
Section 7.02(b) have been satisfied.
(d) Notwithstanding any provision of this Series Supplement, the
Sellers may cause additional Series Enhancement to be provided for the benefit
of the Investor Certificateholders in lieu of (or in addition to) an Additional
Cash Collateral Account provided in connection with an Additional Issuance;
provided that the conditions set forth in Section 7.02(b) will be satisfied.
Section 7.03. Accumulation Period Postponement. The Accumulation
Period is scheduled to commence at the close of business on the fourth-to-last
Business Day of November 2005; provided, however, that if the Accumulation
<PAGE>
75
Period Length (determined as described below) is less than twelve months, upon
notice to the Trustee, the Sellers, the Rating Agency and each Cash Collateral
Depositor, the Servicer, at its option, may elect to postpone the date on which
the Accumulation Period actually commences to the fourth-to-last Business Day of
any month that precedes the month that is the number of months prior to the
Class A Expected Final Payment Date equal to the Accumulation Period Length such
that the number of Monthly Periods in the Accumulation Period will equal or
exceed the Accumulation Period Length. On the Determination Date immediately
preceding the November 2005 Distribution Date, the Servicer will determine the
"Accumulation Period Length" which will equal the number of months such that the
sum of the Accumulation Period Amounts for each Monthly Period, beginning with
(and assigning the largest Accumulation Period Amount to) the Monthly Period
that ends on the day preceding the Class A Expected Final Payment Date, when
aggregated with the Accumulation Period Amounts for each preceding Monthly
Period will equal or exceed the Initial Invested Amount. If the Servicer elects
to postpone the commencement of the Accumulation Period pursuant to this Section
7.03, then on each Determination Date thereafter until the date the Accumulation
Period commences, the Servicer will recalculate the Accumulation Period Length;
provided, however, that (i) the length of the Accumulation Period shall not be
shorter than the period determined as of the first date of determination unless
an additional Series, other than an Excluded Series, shall have been issued
since such date and such Series is in its revolving period; (ii) the length of
the Accumulation Period will not be less than one month; and (iii) no election
to postpone, or further postpone, the commencement of the Accumulation Period
shall be made after an economic amortization event (as defined in the related
Supplement) shall have occurred and is continuing with respect to any other
Series. If the Accumulation Period Length as recalculated on any such
Determination Date exceeds the number of Monthly Periods then scheduled to be
included in the Accumulation Period, the commencement date of the Accumulation
Period will be changed to the later of (x) such Determination Date and (y) the
fourth-to-last Business Day of a month such that the number of Monthly Periods
in the Accumulation Period will equal the recalculated Accumulation Period
Length. Any notice by the Servicer electing to postpone (or further postpone)
the commencement of the Accumulation Period pursuant to this Section 7.03 shall
specify (i) the
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76
Accumulation Period Length, (ii) the commencement date of the Accumulation
Period and (iii) the Controlled Amortization Amount with respect to each Monthly
Period.
ARTICLE VIII
Final Distributions
Section 8.01. Sale of Certificateholders' Interest Pursuant to
Section 2.06 or 10.01 of the Agreement. (a) Purchase Price. (i) The amount to be
paid by the Sellers with respect to Series 1996-6 in connection with a
repurchase of the Certificateholders' Interest pursuant to Section 2.06 of the
Agreement shall equal the Reassignment Amount for the first Distribution Date
following the Due Period in which the reassignment obligation arises under the
Agreement.
(ii) The amount to be paid by the Sellers with respect to Series
1996-6 in connection with a repurchase of the Certificateholders' Interest
pursuant to Section 10.01 of the Agreement shall equal the sum of (x) the
Reassignment Amount for the Distribution Date of such repurchase and (y) the sum
of (A) the excess, if any, of (I) a price equivalent to the average of bids
quoted on the Record Date preceding the date of repurchase or, if not a Business
Day, on the next succeeding Business Day by at least two recognized dealers
selected by the Trustee (which may be selected from the list attached as
Schedule 1), for the purchase by such dealers of a security which is similar to
the Class A Certificates with a remaining maturity approximately equal to the
remaining maturity of the Class A Certificates and rated by each Rating Agency
in the rating category originally assigned to the Class A Certificates over (II)
the portion of the Reassignment Amount attributable to the Class A Certificates
and (B) the excess, if any, of (I) a price equivalent to the average of bids
quoted on such Record Date or, if not a Business Day, on the next succeeding
Business Day by at least two recognized dealers selected by the Trustee (which
may be selected from the list attached as Schedule 1), for the purchase by such
dealers of a security which is similar to the Class B Certificates with a
remaining maturity approximately equal to the remaining maturity of the Class B
Certificates and rated by each Rating Agency in the rating category originally
assigned to the Class B Certificates over (II) the portion of the
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77
Reassignment Amount attributable to the Class B Certificates.
(b) Distributions Pursuant to Section 7.01 of this Series Supplement
and Sections 2.06, 10.01 or 12.02(c) of the Agreement. With respect to the
Reassignment Amount deposited into the Collection Account pursuant to Section
7.01 or 8.01 or any Termination Proceeds from the sale of Receivables (or
interests therein) allocable to the Series 1996-6 Certificateholders' Interest
deposited into the Collection Account pursuant to Section 12.02(c) of the
Agreement, the Trustee shall, not later than 12:00 noon, New York City time, on
the date of deposit, make deposits or distributions of the following amounts (in
the priority set forth below and, in each case, after giving effect to any
deposits and distributions otherwise to be made on such date) in immediately
available funds: (i)(x) the Class A Invested Amount on such date will be
deposited into the Class A Principal Funding Account and (y) the amount of
accrued and unpaid interest on the unpaid balance of the Class A Certificates,
plus the amount of Class A Additional Interest, if any, for such Distribution
Date and any Class A Additional Interest previously due but not deposited into
the Class A Interest Funding Account on any prior Distribution Date, plus the
amount of any Class A Net Swap Payment with respect to such Distribution Date
and any Class A Net Swap Payments previously due but not distributed to the
Class A Interest Rate Swap Counterparties, will be distributed pursuant to
Section 4.06(a)(i) or (c)(i), as applicable, (ii)(x) the Class B Invested Amount
on such date will be retained in the Collection Account for distribution to the
Class B Certificateholders and (y) the amount of accrued and unpaid interest on
the unpaid balance of the Class B Certificates, plus the amount of Class B
Additional Interest, if any, for such Distribution Date and any Class B
Additional Interest previously due but not deposited into the Class B Interest
Funding Account on a prior Distribution Date, plus the amount of any Class B Net
Swap Payment with respect to such Distribution Date and any Class B Net Swap
Payments previously due but not distributed to the Class B Interest Rate Swap
Counterparties, will be distributed pursuant to Section 4.06(b)(i) or (d)(i), as
applicable, and (iii) the CCA Invested Amount, if any, on such date will be
distributed, pro rata, to each Cash Collateral Depositor and each Additional
Cash Collateral Depositor, for application in accordance with each Loan
Agreement and each Additional Loan Agreement, respectively. Notwithstanding
anything to
<PAGE>
78
the contrary contained in this Series Supplement or the Agreement, the amount of
any excess determined pursuant to paragraph (a)(ii)(y)(A) shall be distributed
to the Class A Certificateholders and the amount of any excess determined
pursuant to paragraph (a)(ii)(y)(B) shall be distributed to the Class B
Certificateholders. The remainder of any Termination Proceeds shall be
distributed, pro rata, to each Cash Collateral Depositor and each Additional
Cash Collateral Depositor for application in accordance with each Loan Agreement
and each Additional Loan Agreement, respectively.
(c) Notwithstanding anything to the contrary in this Series
Supplement or the Agreement, the entire amount deposited in the Class A
Principal Funding Account and the Interest Funding Accounts and the amount
retained in the Collection Account for distribution to the Class B
Certificateholders pursuant to Section 7.01 or 8.01 and all other amounts on
deposit therein for distribution to the Series 1996-6 Certificateholders shall
be distributed in full to the Series 1996-6 Certificateholders on such date and
shall be deemed to be a final distribution pursuant to Section 12.02 of the
Agreement.
Section 8.02. Distribution of Proceeds of Sale, Disposition or
Liquidation of the Receivables Pursuant to Section 9.02 of the Agreement. (a)
Not later than 12:00 noon, New York City time, on the Distribution Date
following the date on which the Insolvency Proceeds are deposited into the
Collection Account pursuant to Section 9.02(b) of the Agreement, the Trustee
shall (in the following priority and, in each case, after giving effect to any
deposits and distributions otherwise to be made on such Distribution Date) (i)
deduct an amount equal to the Class A Invested Amount on such Distribution Date
from the portion of the Insolvency Proceeds allocated to Allocable Principal
Collections and deposit such amount in the Class A Principal Funding Account,
provided that the amount of such deposit shall not exceed the product of (x) the
portion of the Insolvency Proceeds allocated to Allocable Principal Collections
and (y) the Principal Allocation Percentage with respect to the related Due
Period, (ii) deduct an amount equal to the Class B Invested Amount on such
Distribution Date from the portion of the Insolvency Proceeds allocated to
Allocable Principal Collections and retain such amount in the Collection Account
for distribution to the Class B Certificateholders, provided that such amount
shall not
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79
exceed (x) the product of the portion of the Insolvency Proceeds allocated to
Allocable Principal Collections and the Principal Allocation Percentage with
respect to such Due Period, minus (y) the amount deposited into the Class A
Principal Funding Account pursuant to clause (a)(i) of this sentence, and (iii)
deduct an amount equal to the CCA Invested Amount, if any, on such Distribution
Date from the portion of the Insolvency Proceeds allocated to Allocable
Principal Collections and distribute, pro rata, such amount to each Cash
Collateral Depositor and each Additional Cash Collateral Depositor for
application in accordance with each Loan Agreement and each Additional Loan
Agreement, respectively, provided that the amount of such distribution shall not
exceed (x) the product of the portion of the Insolvency Proceeds allocated to
Allocable Principal Collections and the Principal Allocation Percentage with
respect to such Due Period minus (y) the amount deposited in the Class A
Principal Funding Account pursuant to clause (a)(i) of this sentence and the
amount retained in the Collection Account pursuant to clause (a)(ii) of this
sentence. The remainder of the portion of the Insolvency Proceeds allocated to
Allocable Principal Collections shall be allocated to the Sellers' Interest and
shall be released to the Sellers on such Distribution Date.
(b) Not later than 12:00 noon, New York City time, on such
Distribution Date, the Trustee shall (in the following priority and, in each
case, after giving effect to any deposits and distributions otherwise to be made
on such Distribution Date) (i) deduct an amount equal to the sum of (w) Class A
Monthly Interest and the Class A Adjusted Net Swap Payment, if any, with respect
to such Distribution Date, (x) any Class A Monthly Interest previously due but
not deposited into Class A Interest Funding Account on a prior Distribution Date
and any Class A Adjusted Net Swap Payments previously due but not distributed to
the Class A Interest Rate Swap Counterparties, (y) the amount of Class A
Additional Interest, if any, for such Distribution Date and any Class A
Additional Interest previously due but not deposited into the Class A Interest
Funding Account on a prior Distribution Date, and (z) the amount of the Class A
Funding Account Shortfall and the Class A Funding Account Swap Payment with
respect to such Distribution Date, any Class A Funding Account Shortfall
previously due but not deposited into the Class A Interest Funding Account on a
prior Distribution Date and any Class A Funding Account Swap Payment previously
due but not distributed to the Class A
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80
Interest Rate Swap Counterparties, from the portion of the Insolvency Proceeds
allocated to Allocable Finance Charge Collections and distribute such amount
pursuant to Section 4.06(a)(i) or (c)(i), as applicable, provided that the
amount of such deposit shall not exceed the product of (x) the portion of the
Insolvency Proceeds allocated to Allocable Finance Charge Collections, (y) the
Floating Allocation Percentage with respect to such Due Period and (z) a
fraction, the numerator of which is the Class A Invested Amount with respect to
such Distribution Date and the denominator of which is the Invested Amount with
respect to such Distribution Date and (ii) deduct an amount equal to the sum of
(w) Class B Monthly Interest and the Class B Net Swap Payment, if any, with
respect to such Distribution Date, (x) any Class B Monthly Interest previously
due but not deposited into the Class B Interest Funding Account on a prior
Distribution Date and any Class B Net Swap Payments previously due but not
distributed to the Class B Interest Rate Swap Counterparties, (y) the Cumulative
Excess Interest Amount with respect to such Distribution Date, and (z) the
amount of Class B Additional Interest, if any, for such Distribution Date and
any Class B Additional Interest previously due but not deposited into the Class
B Interest Funding Account on a prior Distribution Date, from the portion of the
Insolvency Proceeds allocated to Allocable Finance Charge Collections and
distribute such amount pursuant to Section 4.06(b)(i) or (d)(i), as applicable,
provided that the amount of such deposit shall not exceed the product of (x) the
portion of the Insolvency Proceeds allocated to Allocable Finance Charge
Collections, (y) the Floating Allocation Percentage with respect to such Due
Period and (z) a fraction, the numerator of which is the Class B Invested Amount
with respect to such Distribution Date and the denominator of which is the
Invested Amount with respect to such Distribution Date. The remainder of the
Insolvency Proceeds allocated to Allocable Finance Charge Collections shall be
distributed, pro rata, to each Cash Collateral Depositor and each Additional
Cash Collateral Depositor for application in accordance with the provisions of
each Loan Agreement and each Additional Loan Agreement, respectively.
(c) Notwithstanding anything to the contrary in this Series
Supplement or the Agreement, the entire amount deposited in the Class A
Principal Funding Account and the Interest Funding Accounts and the amount
retained in the Collection Account for distribution to the Class B
<PAGE>
81
Certificateholders pursuant to this Section and all other amounts on deposit
therein for distribution to the Series 1996-6 Certificateholders shall be
distributed in full to the Series 1996-6 Certificateholders on the Distribution
Date on which funds are deposited pursuant to this Section (or, if not so
deposited on a Distribution Date, on the immediately following Distribution
Date) and shall be deemed to be a final distribution pursuant to Section 12.02
of the Agreement.
(d) Notwithstanding any provision of the Agreement or this Series
Supplement, for purposes of Section 9.02(a) of the Agreement, the Holders of the
Series 1996-6 Certificates shall not be deemed to have disapproved a liquidation
of the Receivables following an Insolvency Event with respect to any of the
Sellers unless (i) holders of more than 50% of the aggregate unpaid principal
amount of each of the Class A Certificates and the Class B Certificates and (ii)
each Cash Collateral Depositor and each Additional Cash Collateral Depositor
shall have disapproved of such liquidation (or, if the Cash Collateral
Depositors and any Additional Cash Collateral Depositors shall have assigned all
or part of their respective interests under such Loan Agreements and such
Additional Loan Agreements, respectively, to one or more Persons, then one or
more Persons holding more than 50% of such interest shall have disapproved of
such liquidation).
ARTICLE IX
Covenants
Section 9.01. Reduction in Portfolio Yield. Citibank (South Dakota),
in its capacity as a Seller, and each Additional Seller, hereby covenant that
upon the occurrence of an Amortization Event described in Section 6.01(e),
except as is otherwise required by any Requirements of Law, it will not reduce
the Periodic Rate Finance Charge applicable to any Account to a rate that would
result in the weighted average of the Periodic Rate Finance Charges applicable
to all the Accounts as of the last day of any Due Period being less than the sum
of the weighted average of the Certificate Rates of each outstanding Series as
of such last day and 6%.
<PAGE>
82
ARTICLE X
Miscellaneous Provisions
Section 10.01. Ratification of Agreement. As supplemented by this
Series Supplement, the Agreement is in all respects ratified and confirmed and
the Agreement as so supplemented by this Series Supplement shall be read, taken
and construed as one and the same instrument.
Section 10.02. Counterparts. This Series Supplement may be executed
in two or more counterparts, and by different parties on separate counterparts,
each of which shall be an original, but all of which shall constitute one and
the same instrument.
Section 10.03. Governing Law. THIS SERIES SUPPLEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 10.04. Construction of Agreement. The Sellers hereby confirm
that the security interest granted to the Trustee pursuant to Section 13.18 of
the Agreement is for the benefit of (a) the Investor Certificateholders and (b)
each Cash Collateral Depositor and each Additional Cash
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83
Collateral Depositor to the extent of the CCA Invested Amount.
IN WITNESS WHEREOF, the Sellers, the Servicer and the Trustee have
caused this Series Supplement to be duly executed by their respective officers
as of the day and year first above written.
CITIBANK (SOUTH DAKOTA), N.A.,
Seller and Servicer,
By /s/ Eugene D. Rowenhorst
--------------------------
Eugene D. Rowenhorst
Senior Vice President
CITIBANK (NEVADA), NATIONAL
ASSOCIATION, Seller,
By /s/ Robert G. Boyt
--------------------------
Robert G. Boyt
Vice President
YASUDA BANK AND TRUST COMPANY
(U.S.A.), Trustee,
By /s/ Anthony A. Bocchino
--------------------------
Anthony A. Bocchino
Vice President
<PAGE>
EXHIBIT A-1
REGISTERED
$____________ *
No. R- CUSIP No. [ ]
[Unless this Class A Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.]
CITIBANK CREDIT CARD MASTER TRUST I
SERIES 1996-6
FLOATING RATE CLASS A CREDIT CARD PARTICIPATION CERTIFICATE
Class A Expected Final Payment Date:
The December 2006 Distribution Date
Each $1,000 minimum denomination represents an
undivided interest in certain assets of the
CITIBANK CREDIT CARD MASTER TRUST I
the corpus of which consists primarily of receivables generated from time to
time in the ordinary course of business in a portfolio of revolving credit card
accounts by
CITIBANK (SOUTH DAKOTA), N.A.
and
CITIBANK (NEVADA),
NATIONAL ASSOCIATION
and, in certain circumstances, certain Additional Sellers (as defined in the
Pooling and Servicing Agreement referred to below).
<PAGE>
2
(Not an interest in or obligation of Citibank
(South Dakota), N.A., Citibank (Nevada),
National Association, any Additional Sellers or
any affiliate thereof)
- -------------------
* Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
<PAGE>
3
This certifies that __________ (the "Class A Certificateholder") is the
registered owner of a fractional undivided interest in certain assets of a trust
(the "Trust") created pursuant to the Pooling and Servicing Agreement dated as
of May 29, 1991 (as amended and supplemented, the "Agreement"), as supplemented
by the Series 1996-6 Supplement dated as of December 3, 1996 (as amended and
supplemented, the "Series Supplement"), among Citibank (South Dakota), N.A., a
national banking association, as Seller and Servicer, Citibank (Nevada),
National Association, a national banking association, as Seller, and Yasuda Bank
and Trust Company (U.S.A.), a New York trust company, as trustee (the
"Trustee"). The corpus of the Trust consists of (i) a portfolio of all
receivables (the "Receivables") existing in the revolving credit card accounts
identified under the Agreement from time to time (the "Accounts"), (ii) all
Receivables generated under the Accounts from time to time thereafter, (iii)
funds collected or to be collected from cardholders in respect of the
Receivables, (iv) all funds which are from time to time on deposit in the
Collection Account and in the Series Accounts, (v) the benefits of the Interest
Rate Swaps and the Cash Collateral Accounts and (vi) all other assets and
interests constituting the Trust. The Holder of this Certificate is entitled to
the benefit of funds on deposit in the Cash Collateral Accounts to the extent
provided in the Series Supplement. Although a summary of certain provisions of
the Agreement and the Series Supplement is set forth below and on the Summary of
Terms and Conditions attached hereto and made a part hereof, this Class A
Certificate does not purport to summarize the Agreement and the Series
Supplement and reference is made to the Agreement and the Series Supplement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Trustee. A copy of the Agreement and the Series Supplement (without
schedules) may be requested from the Trustee by writing to the Trustee at the
Corporate Trust Office. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to them in the Agreement or the Series
Supplement, as applicable.
This Class A Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement and the Series Supplement, to
which Agreement and Series Supplement, each as amended and supplemented from
time to time, the Class A Certificateholder by virtue of the acceptance hereof
assents and is bound.
<PAGE>
4
It is the intent of the Sellers and the Investor Certificateholders
that, for Federal, state and local income and franchise tax purposes only, the
Investor Certificates will qualify as indebtedness of the Sellers secured by the
Receivables. The Class A Certificateholder, by the acceptance of this Class A
Certificate, agrees to treat this Class A Certificate for Federal, state and
local income and franchise tax purposes as indebtedness of the Sellers.
In general, payments of principal with respect to the Class A
Certificates are limited to the Class A Invested Amount, which may be less than
the unpaid principal balance of the Class A Certificates. The Class A Expected
Final Payment Date is the December 2006 Distribution Date, but principal with
respect to the Class A Certificates may be paid earlier or later under certain
circumstances described in the Agreement and the Series Supplement. If for one
or more months during the Accumulation Period there are not sufficient funds to
pay the Controlled Amortization Amount, then to the extent that excess funds are
not available on subsequent Distribution Dates with respect to the Accumulation
Period to make up for such shortfalls, the final payment of principal of the
Class A Certificates will occur later than the Class A Expected Final Payment
Date. If the principal of the Class A Certificates and the Class B Certificates
is not paid in full on or prior to the Termination Date, the Trustee will sell
or cause to be sold on such Termination Date Principal Receivables (and the
related Finance Charge Receivables) (or interests therein) in an amount equal to
110% of the Invested Amount as of such Termination Date, subject to certain
limitations, and shall immediately deposit the Termination Proceeds allocable to
the Series 1996-6 Certificateholders' Interest in the Collection Account. The
Termination Proceeds shall be allocated and distributed to the Class A
Certificateholders and the Class B Certificateholders in accordance with the
Series Supplement.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual or facsimile signature, this Class A
Certificate shall not
<PAGE>
5
be entitled to any benefit under the Agreement or the Series Supplement or be
valid for any purpose.
IN WITNESS WHEREOF, the Banks have caused this Class A Certificate
to be duly executed.
CITIBANK (SOUTH DAKOTA), N.A.,
By: __________________________
Name:
Title:
CITIBANK (NEVADA),
NATIONAL ASSOCIATION,
By: __________________________
Name:
Title:
Dated:
<PAGE>
6
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates described in the within-mentioned
Agreement and Series Supplement.
YASUDA BANK AND TRUST COMPANY (U.S.A.),
as Trustee,
By: _________________________
Authorized Officer
or
By: CITIBANK, N.A.,
as Authenticating Agent
for the Trustee,
By: _________________________
Authorized Officer
<PAGE>
7
CITIBANK CREDIT CARD MASTER TRUST I
SERIES 1996-6
FLOATING RATE CLASS A CREDIT CARD PARTICIPATION CERTIFICATE
Summary of Terms and Conditions
The Receivables consist of Principal Receivables which arise
generally from the purchase of merchandise and services and amounts advanced to
cardholders as cash advances and Finance Charge Receivables which arise
generally from Periodic Rate Finance Charges, Cash Advance Fees, Late Payment
Fees and annual membership fees with respect to the Accounts. This Class A
Certificate is one of a series of Certificates entitled Citibank Credit Card
Master Trust I, Series 1996-6 (the "Series 1996-6 Certificates"), and one of a
class thereof entitled Floating Rate Class A Credit Card Participation
Certificates, Series 1996-6 (the "Class A Certificates"), each of which
represents a fractional undivided interest in certain assets of the Trust. The
Trust Assets are allocated in part to the certificateholders of all outstanding
Series (the "Certificateholders' Interest") with the remainder allocated to the
Sellers. The aggregate interest represented by the Class A Certificates at any
time in the Principal Receivables in the Trust shall not exceed an amount equal
to the Class A Invested Amount at such time. The Class A Initial Invested Amount
is $940,000,000. The Class A Invested Amount on any date will be an amount equal
to (a) the Class A Initial Invested Amount, minus (b) the aggregate amount of
principal payments made to Class A Certificateholders prior to such date, minus
(c) the Class A Principal Funding Account Balance as of such date and minus (d)
the excess, if any, of the aggregate amount of Class A Investor Charge-Offs over
Class A Investor Charge-Offs reimbursed pursuant to Section 4.08 of the Series
Supplement prior to such date. In addition to the Class A Certificates, a class
of the Series 1996-6 Certificates entitled Floating Rate Class B Credit Card
Participation Certificates, Series 1996-6 (the "Class B Certificates") will be
issued. Also, a Sellers' Certificate has been issued to the Sellers pursuant to
the Agreement which represents the Sellers' Interest.
Subject to the terms and conditions of the Agree- ment, the Sellers
may from time to time direct the Trustee,
<PAGE>
8
on behalf of the Trust, to issue one or more new Series of Investor
Certificates, which will represent fractional undivided interests in certain of
the Trust Assets.
On each Class A Payment Date, the Paying Agent shall distribute to
each Class A Certificateholder of record on the last day of the preceding
calendar month (each a "Record Date") such Class A Certificateholder's pro rata
share of such amounts on deposit in the Class A Interest Funding Account or the
Class A Principal Funding Account as are payable to the Class A
Certificateholders pursuant to the Agreement and the Series Supplement.
Distributions with respect to this Class A Certificate will be made by the
Paying Agent by check mailed to the address of the Class A Certificateholder of
record appearing in the Certificate Register without the presentation or
surrender of this Class A Certificate or the making of any notation thereon
(except for the final distribution in respect of this Class A Certificate)
except that with respect to Class A Certificates registered in the name of Cede
& Co., the nominee for The Depository Trust Company, distributions will be made
in the form of immediately available funds. Final payment of this Class A
Certificate will be made only upon presentation and surrender of this Class A
Certificate at the office or agency specified in the notice of final
distribution delivered by the Trustee to the Class A Certificateholders in
accordance with the Agreement and the Series Supplement.
On the Distribution Date occurring on or after the date on which the
Invested Amount is reduced to 5% of the Initial Invested Amount or less, the
Sellers have the option to repurchase the Series 1996-6 Certificateholders'
Interest in the Trust. The repurchase price (determined after giving effect to
any payment of principal and interest on such Distribution Date) will be equal
to the Reassignment Amount for such Distribution Date.
This Class A Certificate does not represent an obligation of, or an
interest in, the Sellers, the Servicer or any affiliate of any of them and is
not insured or guaranteed by the Federal Deposit Insurance Corporation or any
other governmental agency or instrumentality. This Class A Certificate is
limited in right of payment to certain Collections with respect to the
Receivables (and certain other amounts), all as more specifically set forth
hereinabove and in the Agreement and the Series Supplement.
<PAGE>
9
The Agreement or any Supplement may, subject to certain conditions,
be amended by the Sellers, the Servicer and the Trustee without Investor
Certificateholder consent. The Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Trustee's rights, duties or immunities
under the Agreement or otherwise.
The Agreement or any Supplement may also be amended from time to
time (including in connection with the issuance of a Supplemental Certificate)
by the Servicer, the Sellers and the Trustee, with the consent of the Holders of
Investor Certificates evidencing not less than 66-2/3% of the aggregate unpaid
principal amount of the Investor Certificates of all adversely affected Series,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Agreement or any Supplement or of
modifying in any manner the rights of the Investor Certificateholders; provided,
however, that no such amendment shall (i) reduce in any manner the amount of or
delay the timing of any distributions to be made to Investor Certificateholders
or deposits of amounts to be so distributed or the amount available under any
Series Enhancement without the consent of each affected Investor
Certificateholder, (ii) change the definition of or the manner of calculating
the interest of any Investor Certificateholder without the consent of each
affected Investor Certificateholder, (iii) reduce the aforesaid percentage
required to consent to any such amendment without the consent of each Investor
Certificateholder or (iv) adversely affect the rating of any Series or Class by
the Rating Agency without the consent of the Holders of Investor Certificates of
such Series or Class evidencing not less than 66-2/3% of the aggregate unpaid
principal amount of the Investor Certificates of such Series or Class. The
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Trustee's rights, duties or immunities under this Agreement or
otherwise.
The Class A Certificates are issuable only in minimum denominations
of $1,000 and integral multiples of $1,000. The transfer of this Class A
Certificate shall be registered in the Certificate Register upon surrender of
this Class A Certificate for registration of transfer at any office or agency
maintained by the Transfer Agent and Registrar accompanied by a written
instrument of transfer, in a form satisfactory to the Trustee or the Transfer
Agent and Registrar, duly executed by the Class A Certificateholder or such
Class A Certificateholder's attorney, and
<PAGE>
10
duly authorized in writing with such signature guaranteed, and thereupon one or
more new Class A Certificates of authorized denominations and for the same
aggregate fractional undivided interest will be issued to the designated
transferee or transferees.
As provided in the Series Supplement, the Banks may, from time to
time, during the Revolving Period, subject to certain conditions set forth in
the Series Supplement, cause the Trustee to issue Additional Class A
Certificates. When issued, the Additional Class A Certificates will be identical
in all respects to the other outstanding Class A Certificates and will be
equally and ratably entitled to the benefits of the Agreement and the Series
Supplement without preference, priority or distinction.
As provided in the Agreement and subject to certain limitations
therein set forth, Class A Certificates are exchangeable for new Class A
Certificates evidencing like aggregate fractional undivided interests as
requested by the Class A Certificateholder surrendering such Class A
Certificates. No service charge may be imposed for any such exchange but the
Servicer or Transfer Agent and Registrar may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
The Servicer, the Trustee, the Paying Agent and the Transfer Agent
and Registrar and any agent of any of them, may treat the person in whose name
this Class A Certificate is registered as the owner hereof for all purposes, and
neither the Servicer nor the Trustee, the Paying Agent, the Transfer Agent and
Registrar, nor any agent of any of them, shall be affected by notice to the
contrary except in certain circumstances described in the Agreement.
THIS CLASS A CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
<PAGE>
11
ASSIGNMENT
Social Security or other identifying number of assignee
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto __________________________________________________________
_________________________________________________________________________
(name and address of assignee)
the within certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
certificate on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ______________ _____________________*
Signature Guaranteed:
_____________________
_________________________
(*) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Certificate in every
particular, without alteration, enlargement or any change whatsoever.
<PAGE>
EXHIBIT A-2
REGISTERED
$__________*
No. R- CUSIP NO. [ ]
[Unless this Class B Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.]
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A BENEFIT PLAN (AS
DEFINED BELOW).
CITIBANK CREDIT CARD MASTER TRUST I
SERIES 1996-6
FLOATING RATE CLASS B CREDIT CARD PARTICIPATION CERTIFICATE
Class B Expected Final Payment Date:
The December 2006 Distribution Date
Each $1,000 minimum denomination represents an
undivided interest in certain assets of the
CITIBANK CREDIT CARD MASTER TRUST I
the corpus of which consists primarily of receivables generated from time to
time in the ordinary course of business in a portfolio of revolving credit card
accounts by
<PAGE>
2
CITIBANK (SOUTH DAKOTA), N.A.
and
CITIBANK (NEVADA),
NATIONAL ASSOCIATION
and, in certain circumstances, certain Additional Sellers (as defined in the
Pooling and Servicing Agreement referred to below).
(Not an interest in or obligation of Citibank
(South Dakota), N.A., Citibank (Nevada),
National Association, any Additional Sellers or
any affiliate thereof)
____________________
* Denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
<PAGE>
3
This certifies that __________ (the "Class B Certificateholder") is the
registered owner of a fractional undivided interest in certain assets of a trust
(the "Trust") created pursuant to the Pooling and Servicing Agreement dated as
of May 29, 1991 (as amended and supplemented, the "Agreement"), as supplemented
by the Series 1996-6 Supplement dated as of December 3, 1996 (as amended and
supplemented, the "Series Supplement"), among Citibank (South Dakota), N.A., a
national banking association, as Seller and Servicer, Citibank (Nevada),
National Association, a national banking association, as Seller, and Yasuda Bank
and Trust Company (U.S.A.), a New York trust company, as trustee (the
"Trustee"). The corpus of the Trust consists of (i) a portfolio of all
receivables (the "Receivables") existing in the revolving credit card accounts
identified under the Agreement from time to time (the "Accounts"), (ii) all
Receivables generated under the Accounts from time to time thereafter, (iii)
funds collected or to be collected from cardholders in respect of the
Receivables, (iv) all funds which are from time to time on deposit in the
Collection Account and in the Series Accounts, (v) the benefits of the Interest
Rate Swaps and the Cash Collateral Accounts and (vi) all other assets and
interests constituting the Trust. The Holder of this Certificate is entitled to
the benefit of funds on deposit in the Cash Collateral Accounts to the extent
provided in the Series Supplement. Although a summary of certain provisions of
the Agreement and the Series Supplement is set forth below and on the Summary of
Terms and Conditions attached hereto and made a part hereof, this Class B
Certificate does not purport to summarize the Agreement and the Series
Supplement and reference is made to the Agreement and the Series Supplement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Trustee. A copy of the Agreement and the Series Supplement (without
schedules) may be requested from the Trustee by writing to the Trustee at the
Corporate Trust Office. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to them in the Agreement or the Series
Supplement, as applicable.
This Class B Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement and the Series Supplement, to
which Agreement and Series Supplement, each as amended and supplemented from
time to time, the Class B Certificateholder by virtue of the acceptance hereof
assents and is bound.
<PAGE>
4
It is the intent of the Sellers and the Investor Certificateholders
that, for Federal, state and local income and franchise tax purposes only, the
Investor Certificates will qualify as indebtedness of the Sellers secured by the
Receivables. The Class B Certificateholder, by the acceptance of this Class B
Certificate, agrees to treat this Class B Certificate for Federal, state and
local income and franchise tax purposes as indebtedness of the Sellers.
In general, payments of principal with respect to the Class B
Certificates are limited to the Class B Invested Amount, which may be less than
the unpaid principal balance of the Class B Certificates, except that principal
payments may be made in excess of the Class B Invested Amount to the extent
amounts are available for that purpose in the Cash Collateral Accounts. The
Class B Expected Final Payment Date is the December 2006 Distribution Date, but
principal with respect to the Class B Certificates may be paid earlier or later
under certain circumstances described in the Agreement and the Series
Supplement. Principal payments with respect to the Class B Certificates will not
commence until the Class A Invested Amount is paid in full. In addition, the
final payment of principal of the Class B Certificates will occur later than the
Class B Expected Final Payment Date if Collections of Receivables allocable to
pay principal of the Class B Certificates are insufficient to pay the Class B
Invested Amount on or prior to such Distribution Date. If the principal of the
Class A Certificates and the Class B Certificates is not paid in full on or
prior to the Termination Date, the Trustee will sell or cause to be sold on such
Termination Date Principal Receivables (and the related Finance Charge
Receivables) (or interests therein) in an amount equal to 110% of the Invested
Amount as of such Termination Date, subject to certain limitations, and shall
immediately deposit the Termination Proceeds allocable to the Series 1996-6
Certificateholders' Interest in the Collection Account. The Termination Proceeds
shall be allocated and distributed to the Class A Certificateholders and the
Class B Certificateholders in accordance with the Series Supplement.
The Class B Certificates may not be acquired by or for the account
of any employee benefit plan, trust or account, including an individual
retirement account, that is subject to the Employee Retirement Income Security
Act of 1974 or that is described in Section 4975(e)(1) of the Internal Revenue
Code of 1986 or an entity whose underlying assets include plan assets by reason
of a plan's investment
<PAGE>
5
in such entity (a "Benefit Plan"). By accepting and holding this Class B
Certificate, the Holder hereof shall be deemed to have represented and warranted
that it is not a Benefit Plan. By acquiring any interest in this Class B
Certificate, the applicable Certificate Owner or Owners shall be deemed to have
represented and warranted that it or they are not Benefit Plans.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual or facsimile signature, this Class B
Certificate shall not
<PAGE>
6
be entitled to any benefit under the Agreement or the Series Supplement or be
valid for any purpose.
IN WITNESS WHEREOF, the Banks have caused this Class B Certificate
to be duly executed.
CITIBANK (SOUTH DAKOTA), N.A.,
By: __________________________
Name:
Title:
CITIBANK (NEVADA),
NATIONAL ASSOCIATION,
By: _________________________
Name:
Title:
Dated:
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates described in the within-mentioned
Agreement and Series Supplement.
YASUDA BANK AND TRUST COMPANY (U.S.A.),
as Trustee,
By: _________________________
Authorized Officer
or
By: CITIBANK, N.A.,
as Authenticating Agent
for the Trustee,
By: _________________________
Authorized Officer
<PAGE>
CITIBANK CREDIT CARD MASTER TRUST I
SERIES 1996-6
FLOATING RATE CLASS B CREDIT CARD PARTICIPATION CERTIFICATE
Summary of Terms and Conditions
The Receivables consist of Principal Receivables which arise
generally from the purchase of merchandise and services and amounts advanced to
cardholders as cash advances and Finance Charge Receivables which generally
arise from Periodic Rate Finance Charges, Cash Advance Fees, Late Payment Fees
and annual membership fees with respect to the Accounts. This Class B
Certificate is one of a series of Certificates entitled Citibank Credit Card
Master Trust I, Series 1996-6 (the "Series 1996-6 Certificates"), and one of a
class thereof entitled Floating Rate Class B Credit Card Participation
Certificates, Series 1996-6 (the "Class B Certificates"), each of which
represents a fractional undivided interest in certain assets of the Trust. The
Trust Assets are allocated in part to the certificateholders of all outstanding
Series (the "Certificateholders' Interest") with the remainder allocated to the
Sellers. The aggregate interest represented by the Class B Certificates at any
time in the Principal Receivables in the Trust shall not exceed an amount equal
to the Class B Invested Amount at such time. The Class B Initial Invested Amount
is $60,000,000. The Class B Invested Amount on any date will be an amount equal
to (a) the Class B Initial Invested Amount, minus (b) the aggregate amount of
principal payments made to Class B Certificateholders prior to such date (other
than any principal payments made to Class B Certificateholders from the proceeds
of a Reimbursement Draw Amount pursuant to Section 4.11(f) of the Series
Supplement), minus (c) the aggregate amount of Class B Investor Charge-Offs for
all prior Distribution Dates pursuant to Section 4.08(b) of the Series
Supplement, minus (d) the aggregate amount of Subordinated Principal Collections
allocated on all prior Distribution Dates pursuant to Section 4.10(a) of the
Series Supplement (excluding any Subordinated Principal Collections that have
resulted in a reduction in the CCA Invested Amount pursuant to Section 4.08(c)
of the Series Supplement), minus (e) an amount equal to the amount by which the
Class B Invested Amount has been reduced on all prior Distribution Dates
<PAGE>
2
pursuant to Section 4.08(a) of the Series Supplement, and plus (f) the sum of
(i) the aggregate amount of any Allocable Miscellaneous Payments allocated and
available on all prior Distribution Dates pursuant to Section 4.08(b)(i) of the
Series Supplement and (ii) the amount of Excess Finance Charge Collections
allocated and available on all prior Distribution Dates pursuant to Section
4.09(f) of the Series Supplement for the purpose of reimbursing amounts deducted
pursuant to the foregoing clauses (c), (d) and (e). In addition to the Class B
Certificates, a class of the Series 1996-6 Certificates entitled Floating Rate
Class A Credit Card Participation Certificates, Series 1996-6 (the "Class A
Certificates") will be issued. Also, a Sellers' Certificate has been issued to
the Sellers pursuant to the Agreement which represents the Sellers' Interest.
Subject to the terms and conditions of the Agreement, the Sellers
may from time to time direct the Trustee, on behalf of the Trust, to issue one
or more new Series of Investor Certificates, which will represent fractional
undivided interests in certain of the Trust Assets.
On each Class B Payment Date, the Paying Agent shall distribute to
each Class B Certificateholder of record on the last day of the preceding
calendar month (each a "Record Date") such Class B Certificateholder's pro rata
share of such amounts (including amounts on deposit in the Class B Interest
Funding Account or the Collection Account) as are payable to the Class B
Certificateholders pursuant to the Agreement and the Series Supplement.
Distributions with respect to this Class B Certificate will be made by the
Paying Agent by check mailed to the address of the Class B Certificateholder of
record appearing in the Certificate Register without the presentation or
surrender of this Class B Certificate or the making of any notation thereon
(except for the final distribution in respect of this Class B Certificate)
except that with respect to Class B Certificates registered in the name of Cede
& Co., the nominee for The Depository Trust Company, distributions will be made
in the form of immediately available funds. Final payment of this Class B
Certificate will be made only upon presentation and surrender of this Class B
Certificate at the office or agency specified in the notice of final
distribution delivered by the Trustee to the Class B Certificateholders in
accordance with the Agreement and the Series Supplement.
<PAGE>
3
On the Distribution Date occurring on or after the date on which the
Invested Amount is reduced to 5% of the Initial Invested Amount or less, the
Sellers have the option to repurchase the Series 1996-6 Certificateholders'
Interest in the Trust. The repurchase price (determined after giving effect to
any payment of principal and interest on such Distribution Date) will be equal
to the Reassignment Amount for such Distribution Date.
This Class B Certificate does not represent an obligation of, or an
interest in, the Sellers, the Servicer or any affiliate of any of them and is
not insured or guaranteed by the Federal Deposit Insurance Corporation or any
other governmental agency or instrumentality. This Class B Certificate is
limited in right of payment to certain Collections with respect to the
Receivables (and certain other amounts), all as more specifically set forth
hereinabove and in the Agreement and the Series Supplement.
The Agreement or any Supplement may, subject to certain conditions,
be amended by the Sellers, the Servicer and the Trustee without Investor
Certificateholder consent. The Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Trustee's rights, duties or immunities
under the Agreement or otherwise.
The Agreement or any Supplement may also be amended from time to
time (including in connection with the issuance of a Supplemental Certificate)
by the Servicer, the Sellers and the Trustee, with the consent of the Holders of
Investor Certificates evidencing not less than 66-2/3% of the aggregate unpaid
principal amount of the Investor Certificates of all adversely affected Series,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Agreement or any Supplement or of
modifying in any manner the rights of the Investor Certificateholders; provided,
however, that no such amendment shall (i) reduce in any manner the amount of or
delay the timing of any distributions to be made to Investor Certificateholders
or deposits of amounts to be so distributed or the amount available under any
Series Enhancement without the consent of each affected Investor
Certificateholder, (ii) change the definition of or the manner of calculating
the interest of any Investor Certificateholder without the consent of each
affected Investor Certificateholder, (iii) reduce the aforesaid percentage
required to consent to any such amendment without the consent of each Investor
Certificateholder or (iv) adversely
<PAGE>
4
affect the rating of any Series or Class by the Rating Agency without the
consent of the Holders of Investor Certificates of such Series or Class
evidencing not less than 66-2/3% of the aggregate unpaid principal amount of the
Investor Certificates of such Series or Class. The Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Trustee's rights,
duties or immunities under this Agreement or otherwise.
The Class B Certificates are issuable only in minimum denominations
of $1,000 and integral multiples of $1,000. The transfer of this Class B
Certificate shall be registered in the Certificate Register upon surrender of
this Class B Certificate for registration of transfer at any office or agency
maintained by the Transfer Agent and Registrar accompanied by a written
instrument of transfer, in a form satisfactory to the Trustee or the Transfer
Agent and Registrar, duly executed by the Class B Certificateholder or such
Class B Certificateholder's attorney, and duly authorized in writing with such
signature guaranteed, and thereupon one or more new Class B Certificates of
authorized denominations and for the same aggregate fractional undivided
interest will be issued to the designated transferee or transferees.
As provided in the Series Supplement, the Banks may, from time to
time, during the Revolving Period, subject to certain conditions set forth in
the Series Supplement, cause the Trustee to issue Additional Class B
Certificates. When issued, the Additional Class B Certificates will be identical
in all respects to the other outstanding Class B Certificates and will be
equally and ratably entitled to the benefits of the Agreement and the Series
Supplement without preference, priority or distinction.
As provided in the Agreement and subject to certain limitations
therein set forth, Class B Certificates are exchangeable for new Class B
Certificates evidencing like aggregate fractional undivided interests as
requested by the Class B Certificateholder surrendering such Class B
Certificates. No service charge may be imposed for any such exchange but the
Servicer or Transfer Agent and Registrar may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
The Servicer, the Trustee, the Paying Agent and the Transfer Agent
and Registrar and any agent of any of
<PAGE>
5
them, may treat the person in whose name this Class B Certificate is registered
as the owner hereof for all purposes, and neither the Servicer nor the Trustee,
the Paying Agent, the Transfer Agent and Registrar, nor any agent of any of
them, shall be affected by notice to the contrary except in certain
circumstances described in the Agreement.
THIS CLASS B CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
<PAGE>
6
ASSIGNMENT
Social Security or other identifying number of assignee
_________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto __________________________________________________________
_________________________________________________________________________
(name and address of assignee)
the within certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints ______________________, attorney, to transfer said
certificate on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ______________ _______________________*
Signature Guaranteed:
_______________________
_________________________
(*) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Certificate in every
particular, without alteration, enlargement or any change whatsoever.
<PAGE>
EXHIBIT B
FORM OF MONTHLY PAYMENT INSTRUCTIONS AND
NOTIFICATION TO THE TRUSTEE,
EACH CASH COLLATERAL DEPOSITOR
AND EACH ADDITIONAL CASH COLLATERAL DEPOSITOR (1)
----------------------------------------
CITIBANK (SOUTH DAKOTA), N.A.
----------------------------------------
CITIBANK CREDIT CARD MASTER TRUST I
SERIES 1996-6
----------------------------------------
The undersigned, a duly authorized representative of Citibank (South
Dakota), N.A. ("Citibank (South Dakota)"), as Servicer pursuant to the Pooling
and Servicing Agreement dated as of May 29, 1991 (as amended and supplemented,
the "Pooling and Servicing Agreement"), among Citibank (South Dakota), Citibank
(Nevada), National Association ("Citibank (Nevada)") and Yasuda Bank and Trust
Company (U.S.A.), as trustee (the "Trustee"), does hereby certify as follows:
1. Capitalized terms used in this Certificate have their respective
meanings set forth in the Pooling and Servicing Agreement or the Series
1996-6 Supplement dated as of December 3, 1996, among Citibank (South
Dakota), Citibank (Nevada) and the Trustee (as amended and supplemented,
the "Series Supplement"), as applicable. This Certificate is delivered
pursuant to Section 4.11(i) of the Series Supplement.
2. Citibank (South Dakota) is the Servicer.
3. The undersigned is a Servicing Officer.
__________________
(1) To be delivered no later than the applicable Transfer Date.
<PAGE>
2
NOTIFICATION TO MAKE WITHDRAWALS
FROM THE CASH COLLATERAL ACCOUNTS
Pursuant to Sections 4.11(c) through (i) of the Series Supplement,
the Servicer does hereby instruct the Trustee (i) to withdraw pro rata from the
Cash Collateral Accounts and Additional Cash Collateral Accounts on
[__________], 199__, which date is a Transfer Date, in an aggregate amount as
set forth below in respect of the following amounts and (ii) to apply the
proceeds of such withdrawals in accordance with Section 4.11(i) of the Series
Supplement:
1. Pursuant to Section 4.11(c):
----------------------------
Required Draw Amount in respect of the
preceding Due Period ......................................$______
2. Pursuant to Section 4.11(d):
----------------------------
Interest Draw Amount in respect of the
preceding Due Period ......................................$______
3. Pursuant to Section 4.11(e):
----------------------------
Default Draw Amount in respect of the
preceding Due Period ......................................$______
4. Pursuant to Section 4.11(f):
----------------------------
Reimbursement Draw Amount in respect of the
preceding Due Period ......................................$______
5. Pursuant to Section 4.11(g):
----------------------------
Special Draw Amount in respect of the
preceding Due Period ......................................$______
6. Pursuant to Section 4.11(h):
----------------------------
Class A Principal Draw Amount in respect of
the preceding Due Period ..................................$______
<PAGE>
3
Class B Principal Draw Amount in respect of
the preceding Due Period ..................................$______
7. Pursuant to Section 4.11(i):
----------------------------
Total Draw Amount in respect of the
preceding Due Period ......................................$______
Total $______
IN WITNESS WHEREOF, the undersigned has duly executed this
Certificate this ___ day of ______________, ____.
CITIBANK (SOUTH DAKOTA), N.A.,
Servicer,
by
_________________________
Name:
Title:
<PAGE>
EXHIBIT C
FORM OF MONTHLY STATEMENT
CITIBANK (SOUTH DAKOTA), N.A.
CITIBANK (NEVADA), NATIONAL ASSOCIATION
- --------------------------------------------------------------------------------
CITIBANK CREDIT CARD MASTER TRUST I
SERIES 1996-6
- --------------------------------------------------------------------------------
The undersigned, a duly authorized representative of Citibank (South
Dakota), N.A., as Servicer ("Citibank (South Dakota)"), pursuant to the Pooling
and Servicing Agreement dated as of May 29, 1991 (as amended and supplemented,
the "Agreement"), as supplemented by the Series 1996-6 Supplement (as amended
and supplemented, the "Series Supplement"), among Citibank (South Dakota),
Seller and Servicer, Citibank (Nevada), National Association, Seller, and Yasuda
Bank and Trust Company (U.S.A.), as Trustee, does hereby certify the information
set forth below. Capitalized terms used in this Certificate have their
respective meanings as set forth in the Agreement or Series Supplement, as
applicable.
This Certificate relates to the Due Period ended _______________ and
the related Distribution Date.
A. Information Regarding the Portfolio
1. Portfolio Yield ........................................_____%
Yield component [Finance Charge
Receivables collected during the
Due Period / Principal
Receivables in the Trust on the
last day of the prior Due Period]....................._____%
Credit loss component [net
charged-off Principal Receivables
during the Due Period / Principal
Receivables in the Trust on the
last day of the prior Due Period] ....................._____%
<PAGE>
2
2. New purchase rate [aggregate
purchases of merchandise and
services during the Due Period
/ Receivables in the
Trust on the last day
of the prior Due Period] ............................._____%
3. Total payment rate [aggregate
Collections during the Due
Period / Receivables in the
Trust on the last day of
the prior Due Period] ................................_____%
4. Principal payment rate
[aggregate collections
with respect to Principal
Receivables during the Due
Period / Principal Receivables
in the Trust on the last
day of the prior Due Period] ........................._____%
5. Aggregate amount of Principal
Receivables in the Trust:
Beginning of Due Period ..............................$_____
Average ..............................................$_____
End of Due Period ....................................$_____
6. Delinquencies (Aggregate outstanding balances in the Accounts that
were delinquent by the time periods listed below as of the close of
business of the month preceding the Distribution Date, as a
percentage of aggregate Receivables as of the last day of the Due
Period) (1):
Current .............................................._____%
5-34 days delinquent ................................._____%
35-64 days delinquent ................................_____%
65-94 days delinquent ................................_____%
95-124 days delinquent ..............................._____%
125-154 days delinquent .............................._____%
155-184 days delinquent .............................._____%
________
(1) To be delivered no later than the 15th day of each calendar month.
<PAGE>
3
B. Information Regarding Group One (Percentage Basis)
1. Group One weighted average Certificate
Rate ................................................._____%
2. Weighted average rate of Group One Investor
Monthly Fees ........................................._____%
3. Group One Surplus Finance Charge Collections/
the Invested Amount as of the last day of the
prior Due Period ....................................._____%
4. Group One Required Surplus Finance Charge
Amount / the Invested Amount as of the last day
of the prior Due Period .............................._____%
5. Group One Surplus Finance Charge Collections
minus Group One Required Surplus Finance Charge
Amount / the Invested Amount as of the last day
of the prior Due Period .............................._____%
C. Information Regarding Group One (Dollar Basis)
1. Group One Total Investor Collections .................$_____
Group One Investor
Principal Collections ................................$_____
Group One Investor Finance
Charge Collections ...................................$_____
2. Group One Investor Default Amount ....................$_____
3. Group One Investor Monthly Interest ..................$_____
4. Group One Investor Monthly Fees ......................$_____
5. Group One Surplus Finance Charge
Collections ..........................................$_____
6. Group One Required Surplus Finance Charge
Amount ...............................................$_____
7. Group One Surplus Finance Charge Collections
minus Group One Required Surplus Finance Charge
Amount ...............................................$_____
<PAGE>
4
D. Information Regarding Series 1996-6
1.(a) Class A Invested Amount .............................$_____
(b) Class B Invested Amount .............................$_____
2.(a) Class A Monthly Interest ............................$_____
(b) Class B Monthly Interest ............................$_____
3.(a) Balance in the Class A Interest
Funding Account .....................................$_____
(b) Balance in the Class B Interest
Funding Account ....................................$_____
4. Available Cash Collateral
Amount ...............................................$_____
% of Class B Invested
Amount ................................................_____%
5.(a) Class A Investor Charge-offs ........................$_____
(b) Class B Investor Charge-offs ........................$_____
6. Required Amount ........................................$_____
7. Draw on Cash Collateral Account ........................$_____
8.(a) Class A Monthly Principal for the
Distribution Date 1/ ................................$_____
(b) Class B Monthly Principal for the
Distribution Date 2/ ...............................$_____
9. Balance in the Class A Principal
Funding Account 1/ ...................................$_____
10. The Class A Net Swap Payment due (as a negative
number) or the Class A Net Swap Receipt received
(as a positive number) for the
Distribution Date ....................................$_____
11. The Class B Net Swap Payment due (as a negative
number) or the Class B Net Swap Receipt received
(as a positive number) for the
Distribution Date ........................................$
________
2/ Applicable during the Accumulation Period, Principal Payment Period and
any Early Amortization Period.
<PAGE>
5
E. Information regarding Additional Investor
Certificates 3/
1. Additional Issuance Date.............................. _____
2. Invested Amount of Additional Class A
Certificates..........................................$_____
3. Invested Amount of Additional Class B
Certificates..........................................$_____
F. Information Regarding the Accumulation Period4
1. Date on which the Accumulation Period will
commence.............................................. _____
2. Controlled Amortization Amount for each
Monthly Period
(a) [ ], 199[ ] Monthly Period....................$_____
(b) [ ], 199[ ] Monthly Period....................$_____
G. Information Regarding Distributions, Certificateholders
and Charge-offs 5/
1.(a) The total amount of the distribution
to Class A Certificateholders on the
Payment Date ............................................$
(b) The total amount of the distribution
to Class B Certificateholders on the
Payment Date ............................................$
2.(a) The amount of the distribution set forth
in item 1(a) above in respect of
principal on the Class A Certificates ...................$
(b) The amount of the distribution set forth
in item 1(b) above in respect of
principal on the Class B Certificates ...................$
__________________
3/ Applicable after issuance of Additional Investor Certificates.
4/ Applicable only if the Revolving Period has been extended.
5/ The following information, as applicable, is to be included only on
Payment Dates.
<PAGE>
6
3.(a) The amount of the distribution set forth
in item 1(a) above in respect of
interest on the Class A Certificates ....................$
(b) The amount of the distribution set forth
in item 1(b) above in respect of
interest on the Class B Certificates ....................$
4.(a) The amount, if any, by which the outstanding
principal balance of the Class A Certificates
exceeds the Class A Invested Amount as of the
end of the Record Date with respect to the
Payment Date ............................................$
(b) The amount, if any, by which the outstanding
principal balance of the Class B Certificates
exceeds the Class B Invested Amount as of the
end of the Record Date with respect to the
Payment Date ............................................$
CITIBANK (SOUTH DAKOTA), N.A.,
Servicer,
By:___________________________
Name:
Title:
<PAGE>
EXHIBIT D
FORM OF MONTHLY SERVICER'S CERTIFICATE
CITIBANK (SOUTH DAKOTA), N.A.
CITIBANK (NEVADA), NATIONAL ASSOCIATION
CITIBANK CREDIT CARD MASTER TRUST I
SERIES 1996-6
The undersigned, a duly authorized representative of Citibank (South
Dakota), N.A., as Servicer ("Citibank (South Dakota)"), pursuant to the Pooling
and Servicing Agreement dated as of May 29, 1991 (as amended and supplemented,
the "Agreement"), as supplemented by the Series 1996-6 Supplement (as amended
and supplemented, the "Series Supplement"), among Citibank (South Dakota), N.A.,
Seller and Servicer, Citibank (Nevada), National Association, Seller, and Yasuda
Bank and Trust Company (U.S.A.), Trustee, does hereby certify as follows:
1. Capitalized terms used in this Certificate have their respective
meanings as set forth in the Agreement or Series Supplement, as
applicable.
2. Citibank (South Dakota) is, as of the date hereof, the Servicer
under the Agreement.
3. The undersigned is a Servicing Officer.
4. This Certificate relates to the Distribution Date occurring on
__________.
5. As of the date hereof, to the best knowledge of the undersigned,
the Servicer has performed in all material respects all its obligations
under the Agreement through the Due Period preceding such Distribution
Date [or, if there has been a default in the performance of any such
obligation, set forth in detail the (i) nature of such default, (ii) the
action taken by the Sellers and Servicer, if any, to remedy such default
and (iii) the current status of each such default; if applicable, insert
"None"].
<PAGE>
2
6. As of the date hereof, to the best knowledge of the undersigned,
no Amortization Event has been deemed to have occurred on or prior to such
Distribution Date.
7. As of the date hereof, to the best knowledge of the undersigned,
no Lien has been placed on any of the Receivables other than pursuant to
the Agreement (or, if there is a Lien, such Lien consists of _________).
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Certificate this day of , 199 .
CITIBANK (SOUTH DAKOTA), N.A.,
Servicer,
By:_________________________
Name:
Title:
<PAGE>
Exhibit E-1
CLASS A CERTIFICATES
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of December 3, 1996
YASUDA BANK AND TRUST COMPANY
(U.S.A.) as trustee for CITIBANK
CREDIT CARD MASTER TRUST I and CITIBANK (SOUTH DAKOTA), N.A.
- --------------------------------- ----------------------------------------
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) Definition. 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.
Copyright(C)1992 by International Swap Dealers Association, Inc.
<PAGE>
(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 the 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 Transaction 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 have been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonable acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay 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 deducting or withholding been required.
However, X will not be required to pay any additional amount to Y to
the extent that is 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 (1) 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.
ISDA (R) 1992
2
<PAGE>
(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 authorise 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)).
ISDA (R) 1992
3
<PAGE>
(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of
its entering into or performing its obligations under this Agreement or any
Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:---
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:---
(i) any forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to allow
such other party or its Credit Support Provider to make a payment under
this Agreement or any applicable Credit Support Document without any
deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of such
demand), 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 Authorisations. 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,
ISDA (R) 1992
4
<PAGE>
organised, 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) disaffirm, 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
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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 agreement 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
ISDA (R) 1992
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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 to 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, an other 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.
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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 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, an 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
ISDA (R) 1992
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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 judgement) 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 subjected to 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
sums 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 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
ISDA (R) 1992
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Non-defaulting Party) in respect of the Termination 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 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 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
Marked 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 negative number, X will pay the absolute value of that amount
to Y.
(iii) Adjustment for Bankruptcy In circumstance 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 risk and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
ISDA (R) 1992
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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 the 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 salified 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 judgement 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 currency if such shortfall or such excess arises or result from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgement or order for the purpose of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner 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 of 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.
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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 by entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by and 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 that its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation 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 in 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
ISDA (R) 1992
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to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, cost of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect to 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 schedule)
and will be deem 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 that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings related to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of 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 Judgements 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
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reason any party's Process Agent 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 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 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, authorisation, 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.
ISDA (R) 1992
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<PAGE>
"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 Deal" 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" meaning 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
a 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
place(s) specified in the relevant Confirmation or, it 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 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 the 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 Quotations" 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,
ISDA (R) 1992
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<PAGE>
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 Reference Market-maker may, in good faith, agree. The party
making the determination (or its agent) will request each Reference Market-maker
to provide its quotation to the extent reasonably practicable as of the same day
and time (without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and time as of
which those quotations are to be obtained will be selected in good faith by the
party obliged to make a determination under Section 6(e) and, if each party is
so obligated, 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 the 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 home or
office.
"Potential Event of Default" means any event which, 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 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)
which the party is incorporated, organised, 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.
ISDA (R) 1992
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<PAGE>
"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or other wise, 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 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 Transaction"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).
"Terminated Currency" has the meaning specified in the Schedule.
"Terminated 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 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 obligated 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 a Illegality, a Tax Event or 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 amount
that became payable (or that would 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
ISDA (R) 1992
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<PAGE>
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 obligated, 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.
YASUDA BANK AND TRUST COMPANY
(U.S.A.) as trustee for CITIBANK
CREDIT CARD MASTER TRUST I CITIBANK SOUTH DAKOTA), N.A.
By: /s/ Anthony A. Bocchino By: /s/ Eugene D. Rowenhorst
-------------------------- ----------------------------
Anthony A. Bocchino Eugene D. Rowenhorst
Vice President Senior Vice President
December 3, 1996 December 3, 1996
ISDA (R) 1992
18
<PAGE>
Class A Certificates
SCHEDULE
to the
MASTER AGREEMENT
dated as of December 3, 1996
between
YASUDA BANK AND TRUST COMPANY (U.S.A.)
as trustee (the "Trustee") for
CITIBANK CREDIT CARD MASTER TRUST I (the "Trust")
and
CITIBANK (SOUTH DAKOTA), N.A. ("Counterparty").
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to the Trust for
the purpose of:
Section 5(a)(v), None
Section 5(a)(vi), None
Section 5(a)(vii), None
Section 5(b)(iv), None
and in relation to Counterparty for the purpose of:
Section 5(a)(v), None
Section 5(a)(vi), None
Section 5(a)(vii), None
Section 5(b)(iv), None
(b) "Specified Transaction" will have the meaning specified
in Section 14.
(c) "Events of Default". The following Events of Default will not apply to the
Trust or any Credit Support Provider of the Trust and the definition of
"Event of Default" in Section 14 is deemed to be modified accordingly:
Section 5(a)(ii), (Breach of Agreement)
Section 5(a)(iii), (Credit Support Default)
Section 5(a)(iv), (Misrepresentation)
Section 5(a)(v), (Default under Specified Transaction)
Section 5(a)(vi), (Cross Default)
Section 5(a)(vii), (Bankruptcy)
<PAGE>
2
(d) "Termination Events". The following Termination Events will not apply to
the Trust or any Credit Support Provider of the Trust and the definition
of "Termination Event" in Section 14 is deemed to be modified accordingly:
Section 5(b)(ii), (Tax Event)
Section 5(b)(iii), (Tax Event Upon Merger)
Section 5(b)(iv), (Credit Event Upon Merger)
(e) The "Automatic Early Termination" provision of Section 6(a) will not apply
to the Trust or Counterparty.
(f) Payments on Early Termination. Notwithstanding any provision to the
contrary in this Agreement, upon the occurrence of an Early Termination
Date in respect of one or more outstanding Transactions:
(i) the provisions of Sections 6(d)(i) (to the extent they relate to
obtaining Market Quotations) and 6(e)(i), (ii) and (iv) shall not
apply;
(ii) each reference in this Agreement to an amount calculated as
being due in respect of any Early Termination Date under Section
6(e) shall be deemed to refer to an amount calculated in accordance
with Part 1(f)(iii) of this Schedule;
(iii) the amount payable in respect of such Early Termination Date
will be the amount (determined by the Calculation Agent and netted
in accordance with Section 2(c)) that is the sum of the Termination
Currency Equivalent of (1) all Unpaid Amounts in respect of the
Terminated Transactions, (2) all amounts that would be payable if
such Early Termination Date were the next Scheduled Payment Date in
respect of each Terminated Transaction, and (3) each other amount
calculated as being due pursuant to the Confirmation for each
Terminated Transaction; and
(iv) the amount determined in accordance with paragraph (iii) above
will be paid by the relevant party on the day that, but for the
declaration of such Early Termination Date, would have been the next
Payment Date in respect of the Terminated Transactions.
<PAGE>
3
(g) "Termination Currency" means United States Dollars.
(h) "Transfer to Avoid Termination Event". Section 6(b)(ii) is hereby amended
by adding at the end thereof before the period in the third paragraph the
following condition:
"and the prior written confirmation from each Rating Agency that the
then-current ratings of the obligations represented by the
Certificates will not be negatively affected by such transfer".
(i) Additional Termination Event will apply. An additional Termination Event
shall occur if an Early Termination Date is designated in respect of any
Transaction entered into pursuant to the Master Agreement dated as of the
date hereof and headed "Class A Certificates" (the "Citibank (Nevada)
Master Agreement") between Citibank (Nevada), National Association
("Citibank (Nevada)") and the Trustee as trustee on behalf of the Trust.
For the purposes of the foregoing Termination Event, each party hereto
shall be an Affected Party.
Part 2. Tax Representations.
(a) Payer Representations. For the purpose of Section 3(e), each of the Trust
and Counterparty represents that it is not required by any applicable law,
as modified by the practice of any relevant governmental revenue
authority, of any Relevant Jurisdiction to make any deduction or
withholding for or on account of any Tax from any payment (other than
interest under Section 2(e), 6(d)(ii) or 6(e)) 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), (ii) the satisfaction of the agreement contained
in Section 4(a)(i) or 4(a)(iii) and the accuracy and effectiveness of any
document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) and (iii) the satisfaction of the agreement of the other party
contained in Section 4(d), 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.
<PAGE>
4
(b) Payee Representations.
(i) Trust Representation. For the purpose of Section 3(f), the Trust
makes no representations.
(ii) Counterparty Representation. For the purpose of Section 3(f),
Counterparty makes no representations.
Part 3. Agreement to Deliver Documents.
For the purpose of Sections 4(a)(i) and (ii):
(a) Tax forms, documents or certificates to be delivered are:
Each party agrees to complete, accurately and in a manner reasonably
satisfactory to the other party, and to execute, arrange for any
required certification of, and deliver to the other party (or to
such government or taxing authority as the other party reasonably
directs), any form or document that may be required or reasonably
requested in order to allow the other party to make a payment under
this Agreement without any deduction or withholding for or on
account of any Tax or with such deduction or withholding at a
reduced rate, promptly upon the earlier of (i) reasonable demand by
the other party and (ii) learning that the form or document is
required.
(b) Other documents to be delivered are:
Covered by
Party Required to Form/Document/ Date by Which Section 3(d)
Deliver Document Certificate to Be Delivered Representation
- ----------------- -------------- --------------- --------------
Trust and Certified copies of all Upon execution of Yes
Counterparty documents evidencing this Agreement.
necessary corporate and
other authorizations and
approvals with respect
to the execution,
delivery and performance
by the party of this
Agreement, each
Confirmation and any
applicable Credit
Support Document.
Trust and A certificate of an Upon execution of Yes
Counterparty authorized officer of this Agreement.
the party certifying the
names,
<PAGE>
5
Covered by
Party Required to Form/Document/ Date by Which Section 3(d)
Deliver Document Certificate to Be Delivered Representation
- ----------------- -------------- --------------- --------------
true signatures
and authority of the
officers of the party
signing this Agreement
and any applicable
Credit Support Document.
Counterparty Legal opinion in a form Upon execution of No.
reasonably acceptable to this Agreement.
the Trustee, relating to
the enforceability of
Counterparty's
obligations under this
Agreement.
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a):
Address for notices or communications to the Trustee or the Trust:
Address: 666 Fifth Avenue, Suite 802,
New York, New York 10103
Attention: Corporate Trust Department
Fax No.: (212) 373-5998
Telephone No.: (212) 373-5918
Address for notices or communications to Counterparty:
Address: 701 East 60th Street, North
Sioux Falls, SD 57117
Attention: General Counsel
Fax No.: (605) 331-4442 or 7232
Telephone No.: (605) 331-1567
(b) Process Agent. For the purpose of Section 13(c), the Trust appoints the
Trustee as its Process Agent.
(c) Offices. The provisions of Section 10(a) will apply to the Trust and
Counterparty.
(d) Multibranch Party. For the purpose of Section 10(c), the Trust is not a
Multibranch Party, and Counterparty is not a Multibranch Party.
<PAGE>
6
(e) Calculation Agent. The Trustee, on behalf of the Trust, will be the
Calculation Agent (it being understood that the Trustee has appointed the
Servicer under the Pooling and Servicing Agreement to perform the duties
of Calculation Agent hereunder).
(f) Credit Support Document and Credit Support Provider.
None.
(g) GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CHOICE OF LAW DOCTRINE.
(h) "Affiliate" will have the meaning specified in Section 14.
Part 5. Other Provisions.
(a) Tax Treatment. For purposes of Federal income taxes, the parties agree (to
the extent permitted by applicable law) to treat this Agreement as being
entered into between Counterparty, on the one hand, and Citibank (South
Dakota), N.A. ("Citibank (South Dakota)") and Citibank (Nevada), on the
other hand; provided that Counterparty's compliance with the terms of this
Agreement and any Confirmation shall not be deemed to violate this
provision.
(b) Definitions. The applicability of the 1991 ISDA Definitions, the 1992 ISDA
Municipal Counterparty Definitions and the 1992 ISDA FX and Currency
Option Definitions to any Transaction shall be specified in the
Confirmation for such Transaction.
(c) Waiver of Jury Trial. The following paragraph shall be added to this
Agreement as a new Section 15:
"15. Jury Trial. Each party hereby waives its respective
right to jury trial with respect to any litigation
arising under, or in connection with, this Agreement or
any Transaction."
(d) Waiver of Setoff. Notwithstanding any provision of this Agreement or any
other existing or future agreement, each of Counterparty and the Trust
irrevocably waives any and all rights it may have to
<PAGE>
7
set off, net, recoup or otherwise withhold or suspend or condition payment
or performance of any obligation between the Trust and Counterparty
hereunder against any obligations between the Trust and Counterparty under
any other agreements or otherwise.
(e) Consent to Recording. Each party consents to the monitoring or recording,
at any time and from time to time, by the other party of any and all
communications between officers or employees of the parties, waives any
further notice of such monitoring or recording and agrees to notify its
officers and employees of such monitoring or recording.
(f) No Personal Liability. The obligations of the Trust under this Agreement
are not personal obligations of the Trustee and, as a result, the Trustee
will have no personal liability for any amounts required to be paid by the
Trust under this Agreement.
(g) No Petition. Counterparty hereby agrees that it will not, prior to the
date which is one year and one day after the date on which all
certificates or securities issued by the Trust have been paid in full,
acquiesce, petition or otherwise invoke or cause the Trust to invoke the
process of any governmental authority for the purpose of commencing or
sustaining a case against the Trust under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Trust or
any substantial part of its property or ordering the winding-up or
liquidation of the Trust.
(h) Amendment. No amendment, modification or waiver in respect of this
Agreement will be effective unless (a) it is made in accordance with
Section 9(b) and (b) each Rating Agency shall have notified Counterparty
and the Trustee that such amendment, modification or waiver will not
result in a reduction or withdrawal of the rating of the obligations
represented by any Certificates.
(i) Capitalized Terms. Capitalized terms not otherwise defined herein shall,
where used herein or in any Confirmation, have the meanings assigned to
them in the Pooling and Servicing Agreement (the "Pooling and
<PAGE>
8
Servicing Agreement") dated as of May 29, 1991 between Citibank (Nevada)
as Seller, Citibank (South Dakota) as Seller and Servicer, and the Trustee
as trustee, as supplemented by the Series 1996-6 supplement thereto dated
as of December 3, 1996 (the "Supplement").
<PAGE>
9
Please confirm your agreement to the terms of the foregoing Schedule by signing
below.
YASUDA BANK AND TRUST CITIBANK (SOUTH DAKOTA), N.A.
COMPANY (U.S.A.),
as trustee for CITIBANK
CREDIT CARD MASTER TRUST I
By: /s/ Anthony A. Bocchino By: /s/ Eugene D. Rowenhorst
--------------------------- ----------------------------
Anthony A. Bocchino Eugene D. Rowenhorst
Vice President Senior Vice President
<PAGE>
Class A Certificates
CONFIRMATION
To: Yasuda Bank and Trust Company
(U.S.A.), as Trustee (the "Trustee"),
on behalf of Citibank Credit Card
Master Trust I (the "Trust")
From: Citibank (South Dakota), N.A.
("Counterparty")
Date: December 3, 1996
The purpose of this letter agreement is to set forth the terms and
conditions of the Swap Transaction entered into between us on the Trade Date
specified below (the "Swap Transaction"). This letter constitutes a
"Confirmation" as referred to in the Master Agreement specified below.
1. This Confirmation supplements, forms a part of, and is subject
to, the Master Agreement (including the Schedule thereto) dated as of December
3, 1996 headed "Class A Certificates" (the "Master Agreement") between you and
us. All provisions contained or incorporated by reference in the Master
Agreement shall govern this Confirmation except as expressly modified below.
The definitions and provisions contained in the 1991 ISDA
Definitions (as published by the International Swap Dealers Association, Inc.)
are incorporated into this Confirmation. In the event of any inconsistency
between those definitions and provisions and this Confirmation, this
Confirmation will govern.
This Confirmation will be governed by and construed in accordance
with the laws of the State of New York, without reference to choice of law
doctrine.
2. The terms of the particular Swap Transaction to which this
Confirmation relates are as follows:
Transaction Type: Rate Swap Transaction
Notional Amount: With respect to each
Calculation Period,
<PAGE>
37.380827342590% of the outstanding
principal amount of the Class A
Certificates as of the first day of such
Calculation Period (after giving effect
to any distribution of principal to
Class A Certificateholders on such day)
Trade Date: December 3, 1996
Effective Date: December 3, 1996
Termination Date: The earlier of (a) the Termination Date
(as defined in the Supplement) and (b)
the Distribution Date on which the Class
A Invested Amount is reduced to zero
Fixed Amounts:
Fixed Rate Payer: Trust
Fixed Rate Payer
Payment Date-
Early Payment: One Business Day
Fixed Rate Payer
Period End Date: Each Distribution Date
Fixed Amount: (a) With respect to the first Payment
Date, $2,338,203.01 and (b) at all other
times, one twelfth of the product of
6.4748% and the Notional Amount
Floating Amounts:
Floating Rate
Payer: Counterparty
Calculation Dates: The first day of each Calculation Period
<PAGE>
2
Floating Rate Payer
Payment Date: Each Fixed Rate Payer Payment Date
Floating Rate Payer
Period End Date: Each Fixed Rate Payer Period End Date
Floating Rate
Option: USD-LIBOR-BBA
Designated Maturity: (a) Following the occurrence of an
Amortization Event, one month, and (b)
at all other times, three months
Spread: Plus 0.12%, provided that the per annum
rate (Floating Rate plus Spread) for the
first three Calculation Periods shall be
5.62%
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: Each Class A Payment Date
Business Days: New York, Nevada and South Dakota
Business Day
Convention: Following
3. Account Details.
Payments to the
Trust: Citibank, N.A.
Corporate Trust
ABA: 021000089
Ref: CCIMT 96-6
Attention: Hugo Gindreaux
A/C: 36114325
Payments to
Counterparty: Citibank (South Dakota), N.A.
<PAGE>
ABA: 091409571
Ref: CCIMT 96-6 Swap
Each amount payable with respect to this Swap Transaction shall be paid by
12:00 p.m., New York City time, on the relevant Payment Date.
4. Counterparty Downgrade. If (i) the unsecured, unguaranteed,
short-term debt rating of Counterparty is reduced below A-1+ or withdrawn by
Standard & Poor's Rating Services ("Standard & Poor's") or (ii) the unsecured,
unguaranteed long-term debt rating of Counterparty is reduced below Aa3 or
withdrawn by Moody's Investors Service, Inc. ("Moody's"), Counterparty shall
promptly notify the Trustee (and any permitted assignee or transferee of the
Trustee) of such event, and shall, within 30 days of the date of occurrence of
such event, with the prior written confirmation of each Rating Agency that such
arrangement will not result in the reduction or withdrawal of the then-current
rating of any Certificates, either:
(a) transfer, solely at its cost or benefit, as the case may be, its
rights and obligations pursuant to this Swap Transaction to another
counterparty with an unsecured, unguaranteed, short-term debt rating from
Standard & Poor's of no lower than A-1+ and an unsecured, unguaranteed
long-term debt rating from Moody's of no lower than Aa3 (or effect the
same economic result by agreeing to terminate this Swap Transaction and
arranging for such a counterparty to enter into a replacement transaction
with the Trust on terms substantially the same as those contained herein);
or
(b) if Counterparty, using its best efforts, is unable to find such
a counterparty willing to accept such a transfer (or enter into such
replacement transaction), enter into any other arrangement satisfactory to
Counterparty, the Trustee, the Servicer, and the Rating Agencies.
The failure of Counterparty to satisfy its obligations under this
Clause 4 shall not, in and of itself, give rise to any Event of Default or
otherwise be the basis for the designation of an Early Termination Event.
<PAGE>
3
Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing the copy of this Confirmation enclosed for that
purpose and returning it to us.
Very truly yours,
CITIBANK (SOUTH DAKOTA), N.A.
by /s/ Eugene D. Rowenhorst
---------------------------
Eugene D. Rowenhorst
Senior Vice President
Accepted and confirmed as of
the date first above written:
YASUDA BANK AND TRUST COMPANY
(U.S.A.), as Trustee on behalf of
CITIBANK CREDIT CARD MASTER
TRUST I,
by /s/ Anthony A. Bocchino
--------------------------
Anthony A, Bocchino
Vice President
<PAGE>
CLASS A CERTIFICATES
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of December 3, 1996
YASUDA BANK AND TRUST COMPANY
(U.S.A.) as trustee for CITIBANK CITIBANK (NEVADA),
CREDIT CARD MASTER TRUST I and NATIONAL ASSOCIATION
- --------------------------------- ----------------------------------------
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) Definition. 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.
Copyright(C)1992 by International Swap Dealers Association, Inc.
<PAGE>
(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 the 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 Transaction 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 have been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonable acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay 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 deducting or withholding been required.
However, X will not be required to pay any additional amount to Y to
the extent that is 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 (1) 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.
ISDA (R) 1992
2
<PAGE>
(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 authorise 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)).
ISDA (R) 1992
3
<PAGE>
(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of
its entering into or performing its obligations under this Agreement or any
Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:---
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:---
(i) any forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to allow
such other party or its Credit Support Provider to make a payment under
this Agreement or any applicable Credit Support Document without any
deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of such
demand), 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 Authorisations. 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,
ISDA (R) 1992
4
<PAGE>
organised, 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) disaffirm, 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
ISDA (R) 1992
5
<PAGE>
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 agreement 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
ISDA (R) 1992
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<PAGE>
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 to 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, an other 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.
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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 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, an 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
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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 judgement) 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 subjected to 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
sums 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 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
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Non-defaulting Party) in respect of the Termination 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 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 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
Marked 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 negative number, X will pay the absolute value of that amount
to Y.
(iii) Adjustment for Bankruptcy In circumstance 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 risk and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
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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 the 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 salified 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 judgement 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 currency if such shortfall or such excess arises or result from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgement or order for the purpose of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner 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 of 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.
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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 by entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by and 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 that its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation 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 in 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
ISDA (R) 1992
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to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, cost of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect to 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 schedule)
and will be deem 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 that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings related to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of 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 Judgements 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
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reason any party's Process Agent 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 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 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, authorisation, 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.
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"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 Deal" 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" meaning 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
a 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
place(s) specified in the relevant Confirmation or, it 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 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 the 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 Quotations" 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,
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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 Reference Market-maker may, in good faith, agree. The party
making the determination (or its agent) will request each Reference Market-maker
to provide its quotation to the extent reasonably practicable as of the same day
and time (without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and time as of
which those quotations are to be obtained will be selected in good faith by the
party obliged to make a determination under Section 6(e) and, if each party is
so obligated, 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 the 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 home or
office.
"Potential Event of Default" means any event which, 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 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)
which the party is incorporated, organised, 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.
ISDA (R) 1992
16
<PAGE>
"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or other wise, 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 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 Transaction"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).
"Terminated Currency" has the meaning specified in the Schedule.
"Terminated 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 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 obligated 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 a Illegality, a Tax Event or 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 amount
that became payable (or that would 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
ISDA (R) 1992
17
<PAGE>
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 obligated, 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.
YASUDA BANK AND TRUST COMPANY
(U.S.A.) as trustee for CITIBANK CITIBANK (NEVADA),
CREDIT CARD MASTER TRUST I NATIONAL ASSOCIATION
By: /s/ Anthony A. Bocchino By: /s/ Robert G. Boyt
-------------------------- ----------------------------
Anthony A. Bocchino Robert G. Boyt
Vice President Vice President
December 3, 1996 December 3, 1996
ISDA (R) 1992
18
<PAGE>
Class A Certificates
SCHEDULE
to the
MASTER AGREEMENT
dated as of December 3, 1996
between
YASUDA BANK AND TRUST COMPANY (U.S.A.)
as trustee (the "Trustee") for
CITIBANK CREDIT CARD MASTER TRUST I (the "Trust")
and
CITIBANK (NEVADA), NATIONAL ASSOCIATION ("Counterparty").
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to the Trust for the purpose of:
Section 5(a)(v), None
Section 5(a)(vi), None
Section 5(a)(vii), None
Section 5(b)(iv), None
and in relation to Counterparty for the purpose of:
Section 5(a)(v), None
Section 5(a)(vi), None
Section 5(a)(vii), None
Section 5(b)(iv), None
(b) "Specified Transaction" will have the meaning specified in Section 14.
(c) "Events of Default". The following Events of Default will not apply to the
Trust or any Credit Support Provider of the Trust and the definition of
"Event of Default" in Section 14 is deemed to be modified accordingly:
Section 5(a)(ii), (Breach of Agreement)
Section 5(a)(iii), (Credit Support Default)
Section 5(a)(iv), (Misrepresentation)
Section 5(a)(v), (Default under Specified Transaction)
Section 5(a)(vi), (Cross Default)
Section 5(a)(vii), (Bankruptcy)
<PAGE>
2
(d) "Termination Events". The following Termination Events will not apply to
the Trust or any Credit Support Provider of the Trust and the definition
of "Termination Event" in Section 14 is deemed to be modified accordingly:
Section 5(b)(ii), (Tax Event)
Section 5(b)(iii), (Tax Event Upon Merger)
Section 5(b)(iv), (Credit Event Upon Merger)
(e) The "Automatic Early Termination" provision of Section 6(a) will not apply
to the Trust or Counterparty.
(f) Payments on Early Termination. Notwithstanding any provision to the
contrary in this Agreement, upon the occurrence of an Early Termination
Date in respect of one or more outstanding Transactions:
(i) the provisions of Sections 6(d)(i) (to the extent they relate to
obtaining Market Quotations) and 6(e)(i), (ii) and (iv) shall not
apply;
(ii) each reference in this Agreement to an amount calculated as
being due in respect of any Early Termination Date under Section
6(e) shall be deemed to refer to an amount calculated in accordance
with Part 1(f)(iii) of this Schedule;
(iii) the amount payable in respect of such Early Termination Date
will be the amount (determined by the Calculation Agent and netted
in accordance with Section 2(c)) that is the sum of the Termination
Currency Equivalent of (1) all Unpaid Amounts in respect of the
Terminated Transactions, (2) all amounts that would be payable if
such Early Termination Date were the next Scheduled Payment Date in
respect of each Terminated Transaction, and (3) each other amount
calculated as being due pursuant to the Confirmation for each
Terminated Transaction; and
(iv) the amount determined in accordance with paragraph (iii) above
will be paid by the relevant party on the day that, but for the
declaration of such Early Termination Date, would have been the next
Payment Date in respect of the Terminated Transactions.
<PAGE>
3
(g) "Termination Currency" means United States Dollars.
(h) "Transfer to Avoid Termination Event". Section 6(b)(ii) is hereby amended
by adding at the end thereof before the period in the third paragraph the
following condition:
"and the prior written confirmation from each Rating Agency that the
then-current ratings of the obligations represented by the
Certificates will not be negatively affected by such transfer".
(i) Additional Termination Event will apply. An additional Termination Event
shall occur if an Early Termination Date is designated in respect of any
Transaction entered into pursuant to the Master Agreement dated as of the
date hereof and headed "Class A Certificates" (the "Citibank (South
Dakota) Master Agreement") between Citibank (South Dakota), N.A.
("Citibank (South Dakota)") and the Trustee as trustee on behalf of the
Trust. For the purposes of the foregoing Termination Event, each party
hereto shall be an Affected Party.
Part 2. Tax Representations.
(a) Payer Representations. For the purpose of Section 3(e), each of the Trust
and Counterparty represents that it is not required by any applicable law,
as modified by the practice of any relevant governmental revenue
authority, of any Relevant Jurisdiction to make any deduction or
withholding for or on account of any Tax from any payment (other than
interest under Section 2(e), 6(d)(ii) or 6(e)) 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), (ii) the satisfaction of the agreement contained
in Section 4(a)(i) or 4(a)(iii) and the accuracy and effectiveness of any
document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) and (iii) the satisfaction of the agreement of the other party
contained in Section 4(d), 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.
<PAGE>
4
(b) Payee Representations.
(i) Trust Representation. For the purpose of Section 3(f), the Trust
makes no representations.
(ii) Counterparty Representation. For the purpose of Section 3(f),
Counterparty makes no representations.
Part 3. Agreement to Deliver Documents.
For the purpose of Sections 4(a)(i) and (ii):
(a) Tax forms, documents or certificates to be delivered are:
Each party agrees to complete, accurately and in a manner reasonably
satisfactory to the other party, and to execute, arrange for any
required certification of, and deliver to the other party (or to
such government or taxing authority as the other party reasonably
directs), any form or document that may be required or reasonably
requested in order to allow the other party to make a payment under
this Agreement without any deduction or withholding for or on
account of any Tax or with such deduction or withholding at a
reduced rate, promptly upon the earlier of (i) reasonable demand by
the other party and (ii) learning that the form or document is
required.
(b) Other documents to be delivered are:
Covered by
Party Required to Form/Document/ Date by Which Section 3(d)
Deliver Document Certificate to Be Delivered Representation
- ----------------- -------------- --------------- --------------
Trust and Certified copies of Upon execution of Yes
Counterparty all documents this Agreement.
evidencing necessary
corporate and other
authorizations and
approvals with respect
to the execution,
delivery and
performance by the
party of this
Agreement, each
Confirmation and any
applicable Credit
Support Document.
Trust and A certificate of an Upon execution of Yes
Counterparty authorized officer of this Agreement.
the party certifying
the names,
<PAGE>
5
Covered by
Party Required to Form/Document/ Date by Which Section 3(d)
Deliver Document Certificate to Be Delivered Representation
- ----------------- -------------- --------------- --------------
true signatures and
authority of the
officers of the party
signing this Agreement
and any applicable
Credit Support
Document.
Counterparty Legal opinion in a Upon execution of No.
form reasonably this Agreement.
acceptable to the
Trustee, relating to
the enforceability of
Counterparty's
obligations under this
Agreement.
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a):
Address for notices or communications to the Trustee or the Trust:
Address: 666 Fifth Avenue, Suite 802,
New York, New York 10103
Attention: Corporate Trust Department
Fax No.: (212) 373-5998
Telephone No.: (212) 373-5918
Address for notices or communications to Counterparty:
Address: 8725 West Sahara Avenue
Las Vegas, Nevada 89163
Attention: Mr. Robert Boyt
Fax No.: (702) 797-4455
Telephone No.: (702) 797-4875
(b) Process Agent. For the purpose of Section 13(c), the Trust appoints the
Trustee as its Process Agent.
(c) Offices. The provisions of Section 10(a) will apply to the Trust and
Counterparty.
(d) Multibranch Party. For the purpose of Section 10(c), the Trust is not a
Multibranch Party, and Counterparty is not a Multibranch Party.
<PAGE>
6
(e) Calculation Agent. The Trustee, on behalf of the Trust, will be the
Calculation Agent (it being understood that the Trustee has appointed the
Servicer under the Pooling and Servicing Agreement to perform the duties
of Calculation Agent hereunder).
(f) Credit Support Document and Credit Support Provider.
None.
(g) GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CHOICE OF LAW DOCTRINE.
(h) "Affiliate" will have the meaning specified in Section 14.
Part 5. Other Provisions.
(a) Tax Treatment. For purposes of Federal income taxes, the parties agree (to
the extent permitted by applicable law) to treat this Agreement as being
entered into between Counterparty, on the one hand, and Citibank (South
Dakota) and Citibank (Nevada), National Association ("Citibank (Nevada)"),
on the other hand; provided that Counterparty's compliance with the terms
of this Agreement and any Confirmation shall not be deemed to violate this
provision.
(b) Definitions. The applicability of the 1991 ISDA Definitions, the 1992 ISDA
Municipal Counterparty Definitions and the 1992 ISDA FX and Currency
Option Definitions to any Transaction shall be specified in the
Confirmation for such Transaction.
(c) Waiver of Jury Trial. The following paragraph shall be added to this
Agreement as a new Section 15:
"15. Jury Trial. Each party hereby waives its respective
right to jury trial with respect to any litigation
arising under, or in connection with, this Agreement or
any Transaction."
(d) Waiver of Setoff. Notwithstanding any provision of this Agreement or any
other existing or future agreement, each of Counterparty and the Trust
irrevocably waives any and all rights it may have to
<PAGE>
7
set off, net, recoup or otherwise withhold or suspend or condition payment
or performance of any obligation between the Trust and Counterparty
hereunder against any obligations between the Trust and Counterparty under
any other agreements or otherwise.
(e) Consent to Recording. Each party consents to the monitoring or recording,
at any time and from time to time, by the other party of any and all
communications between officers or employees of the parties, waives any
further notice of such monitoring or recording and agrees to notify its
officers and employees of such monitoring or recording.
(f) No Personal Liability. The obligations of the Trust under this Agreement
are not personal obligations of the Trustee and, as a result, the Trustee
will have no personal liability for any amounts required to be paid by the
Trust under this Agreement.
(g) No Petition. Counterparty hereby agrees that it will not, prior to the
date which is one year and one day after the date on which all
certificates or securities issued by the Trust have been paid in full,
acquiesce, petition or otherwise invoke or cause the Trust to invoke the
process of any governmental authority for the purpose of commencing or
sustaining a case against the Trust under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Trust or
any substantial part of its property or ordering the winding-up or
liquidation of the Trust.
(h) Amendment. No amendment, modification or waiver in respect of this
Agreement will be effective unless (a) it is made in accordance with
Section 9(b) and (b) each Rating Agency shall have notified Counterparty
and the Trustee that such amendment, modification or waiver will not
result in a reduction or withdrawal of the rating of the obligations
represented by any Certificates.
(i) Capitalized Terms. Capitalized terms not otherwise defined herein shall,
where used herein or in any Confirmation, have the meanings assigned to
them in the Pooling and Servicing Agreement (the "Pooling and
<PAGE>
8
Servicing Agreement") dated as of May 29, 1991 between Citibank (Nevada)
as Seller, Citibank (South Dakota) as Seller and Servicer, and the Trustee
as trustee, as supplemented by the Series 1996-6 supplement thereto dated
as of December 3, 1996 (the "Supplement").
<PAGE>
9
Please confirm your agreement to the terms of the foregoing Schedule by signing
below.
YASUDA BANK AND TRUST CITIBANK (NEVADA), NATIONAL
COMPANY (U.S.A.), ASSOCIATION
as trustee for CITIBANK
CREDIT CARD MASTER TRUST I
By: /s/ Anthony A. Bocchino By: /s/ Robert G. Boyt
--------------------------- ----------------------
Anthony A. Bocchino Robert G. Boyt
Vice President Vice President
<PAGE>
Class A Certificates
CONFIRMATION
To: Yasuda Bank and Trust Company
(U.S.A.), as Trustee (the "Trustee"),
on behalf of Citibank Credit Card
Master Trust I (the "Trust")
From: Citibank (Nevada), National Association
("Counterparty")
Date: December 3, 1996
The purpose of this letter agreement is to set forth the terms and
conditions of the Swap Transaction entered into between us on the Trade Date
specified below (the "Swap Transaction"). This letter constitutes a
"Confirmation" as referred to in the Master Agreement specified below.
1. This Confirmation supplements, forms a part of, and is subject
to, the Master Agreement (including the Schedule thereto) dated as of December
3, 1996 headed "Class A Certificates" (the "Master Agreement") between you and
us. All provisions contained or incorporated by reference in the Master
Agreement shall govern this Confirmation except as expressly modified below.
The definitions and provisions contained in the 1991 ISDA
Definitions (as published by the International Swap Dealers Association, Inc.)
are incorporated into this Confirmation. In the event of any inconsistency
between those definitions and provisions and this Confirmation, this
Confirmation will govern.
This Confirmation will be governed by and construed in accordance
with the laws of the State of New York, without reference to choice of law
doctrine.
2. The terms of the particular Swap Transaction to which this
Confirmation relates are as follows:
Transaction Type: Rate Swap Transaction
Notional Amount: With respect to each Calculation Period,
<PAGE>
2
62.619172657410% of the outstanding
principal amount of the Class A
Certificates as of the first day of such
Calculation Period (after giving effect
to any distribution of principal to
Class A Certificateholders on such day)
Trade Date: December 3, 1996
Effective Date: December 3, 1996
Termination Date: The earlier of (a) the Termination Date
(as defined in the Supplement) and (b)
the Distribution Date on which the Class
A Invested Amount is reduced to zero
Fixed Amounts:
Fixed Rate Payer: Trust
Fixed Rate Payer
Payment Date-
Early Payment: One Business Day
Fixed Rate Payer
Period End Date: Each Distribution Date
Fixed Amount: (a) With respect to the first Payment
Date, $3,916,883.29 and (b) at all other
times, one twelfth of the product of
6.4748% and the Notional Amount
Floating Amounts:
Floating Rate
Payer: Counterparty
Calculation Dates: The first day of each Calculation Period
Floating Rate Payer
Payment Date: Each Fixed Rate Payer Payment Date
<PAGE>
3
Floating Rate Payer
Period End Date: Each Fixed Rate Payer Period End Date
Floating Rate
Option: USD-LIBOR-BBA
Designated Maturity: (a) Following the occurrence of an
Amortization Event, one month, and (b)
at all other times, three months
Spread: Plus 0.12% provided that the per annum
rate (Floating Rate plus Spread) for the
first three Calculation Periods shall be
5.62%
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: Each Class A Payment Date
Business Days: New York, Nevada and South Dakota
Business Day
Convention: Following
3. Account Details.
Payments to the
Trust: Citibank, N.A.
Corporate Trust
ABA: 021000089
Ref: CCIMT 96-6
Attention: Hugo Gindreaux
A/C: 36114325
Payments to
Counterparty: Citibank (Nevada), National
Association
ABA: 122401710
Ref: CCIMT 96-6 Swap
<PAGE>
4
Each amount payable with respect to this Swap Transaction shall be paid by
12:00 p.m., New York City time, on the relevant Payment Date.
4. Counterparty Downgrade. If (i) the unsecured, unguaranteed,
short-term debt rating of Counterparty is reduced below A-1+ or withdrawn by
Standard & Poor's Rating Services ("Standard & Poor's") or (ii) the unsecured,
unguaranteed long-term debt rating of Counterparty is reduced below Aa3 or
withdrawn by Moody's Investors Service, Inc. ("Moody's"), Counterparty shall
promptly notify the Trustee (and any permitted assignee or transferee of the
Trustee) of such event, and shall, within 30 days of the date of occurrence of
such event, with the prior written confirmation of each Rating Agency that such
arrangement will not result in the reduction or withdrawal of the then-current
rating of any Certificates, either:
(a) transfer, solely at its cost or benefit, as the case may be, its
rights and obligations pursuant to this Swap Transaction to another
counterparty with an unsecured, unguaranteed, short-term debt rating from
Standard & Poor's of no lower than A-1+ and an unsecured, unguaranteed
long-term debt rating from Moody's of no lower than Aa3 (or effect the
same economic result by agreeing to terminate this Swap Transaction and
arranging for such a counterparty to enter into a replacement transaction
with the Trust on terms substantially the same as those contained herein);
or
(b) if Counterparty, using its best efforts, is unable to find such
a counterparty willing to accept such a transfer (or enter into such
replacement transaction), enter into any other arrangement satisfactory to
Counterparty, the Trustee, the Servicer, and the Rating Agencies.
The failure of Counterparty to satisfy its obligations under this
Clause 4 shall not, in and of itself, give rise to any Event of Default or
otherwise be the basis for the designation of an Early Termination Event.
<PAGE>
5
Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing the copy of this Confirmation enclosed for that
purpose and returning it to us.
Very truly yours,
CITIBANK (NEVADA), NATIONAL
ASSOCIATION
by /s/ Robert G. Boyt
------------------------
Robert G. Boyt
Vice President
Accepted and confirmed as of the date first above written:
YASUDA BANK AND TRUST COMPANY
(U.S.A.), as Trustee on behalf of
CITIBANK CREDIT CARD MASTER
TRUST I,
by /s/ Anthony A. Bocchino
------------------------
Anthony A. Bocchino
Vice President
<PAGE>
EXHIBIT E-2
CLASS B CERTIFICATES
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of December 3, 1996
YASUDA BANK AND TRUST COMPANY
(U.S.A.) as trustee for CITIBANK
CREDIT CARD MASTER TRUST I and CITIBANK (SOUTH DAKOTA), N.A.
- --------------------------------- ----------------------------------------
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) Definition. 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.
Copyright(C)1992 by International Swap Dealers Association, Inc.
<PAGE>
(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 the 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 Transaction 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 have been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonable acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay 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 deducting or withholding been required.
However, X will not be required to pay any additional amount to Y to
the extent that is 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 (1) 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.
ISDA (R) 1992
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(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 authorise 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)).
ISDA (R) 1992
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(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of
its entering into or performing its obligations under this Agreement or any
Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:---
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:---
(i) any forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to allow
such other party or its Credit Support Provider to make a payment under
this Agreement or any applicable Credit Support Document without any
deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of such
demand), 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 Authorisations. 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,
ISDA (R) 1992
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organised, 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) disaffirm, 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
ISDA (R) 1992
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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 agreement 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
ISDA (R) 1992
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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 to 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, an other 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.
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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 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, an 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
ISDA (R) 1992
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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 judgement) 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 subjected to 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
sums 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 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
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Non-defaulting Party) in respect of the Termination 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 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 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
Marked 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 negative number, X will pay the absolute value of that amount
to Y.
(iii) Adjustment for Bankruptcy In circumstance 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 risk and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
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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 the 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 salified 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 judgement 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 currency if such shortfall or such excess arises or result from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgement or order for the purpose of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner 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 of 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.
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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 by entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by and 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 that its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation 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 in 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
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to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, cost of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect to 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 schedule)
and will be deem 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 that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings related to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of 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 Judgements 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
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reason any party's Process Agent 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 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 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, authorisation, 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.
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"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 Deal" 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" meaning 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
a 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
place(s) specified in the relevant Confirmation or, it 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 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 the 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 Quotations" 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,
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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 Reference Market-maker may, in good faith, agree. The party
making the determination (or its agent) will request each Reference Market-maker
to provide its quotation to the extent reasonably practicable as of the same day
and time (without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and time as of
which those quotations are to be obtained will be selected in good faith by the
party obliged to make a determination under Section 6(e) and, if each party is
so obligated, 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 the 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 home or
office.
"Potential Event of Default" means any event which, 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 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)
which the party is incorporated, organised, 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.
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"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or other wise, 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 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 Transaction"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).
"Terminated Currency" has the meaning specified in the Schedule.
"Terminated 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 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 obligated 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 a Illegality, a Tax Event or 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 amount
that became payable (or that would 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
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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 obligated, 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.
YASUDA BANK AND TRUST COMPANY
(U.S.A.) as trustee for CITIBANK
CREDIT CARD MASTER TRUST I CITIBANK SOUTH DAKOTA), N.A.
By: /s/ Anthony A. Bocchino By: /s/ Eugene D. Rowenhorst
-------------------------- ----------------------------
Anthony A. Bocchino Eugene D. Rowenhorst
Vice President Senior Vice President
December 3, 1996 December 3, 1996
ISDA (R) 1992
18
<PAGE>
Class B Certificates
SCHEDULE
to the
MASTER AGREEMENT
dated as of December 3, 1996
between
YASUDA BANK AND TRUST COMPANY (U.S.A.)
as trustee (the "Trustee") for
CITIBANK CREDIT CARD MASTER TRUST I (the "Trust")
and
CITIBANK (SOUTH DAKOTA), N.A. ("Counterparty").
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to the Trust for the purpose of:
Section 5(a)(v), None
Section 5(a)(vi), None
Section 5(a)(vii), None
Section 5(b)(iv), None
and in relation to Counterparty for the purpose of:
Section 5(a)(v), None
Section 5(a)(vi), None
Section 5(a)(vii), None
Section 5(b)(iv), None
(b) "Specified Transaction" will have the meaning specified in Section 14.
(c) "Events of Default". The following Events of Default will not apply to the
Trust or any Credit Support Provider of the Trust and the definition of
"Event of Default" in Section 14 is deemed to be modified accordingly:
Section 5(a)(ii), (Breach of Agreement)
Section 5(a)(iii), (Credit Support Default)
Section 5(a)(iv), (Misrepresentation)
Section 5(a)(v), (Default under Specified Transaction)
Section 5(a)(vi), (Cross Default)
Section 5(a)(vii), (Bankruptcy)
<PAGE>
2
(d) "Termination Events". The following Termination Events will not apply to
the Trust or any Credit Support Provider of the Trust and the definition
of "Termination Event" in Section 14 is deemed to be modified accordingly:
Section 5(b)(ii), (Tax Event)
Section 5(b)(iii), (Tax Event Upon Merger)
Section 5(b)(iv), (Credit Event Upon Merger)
(e) The "Automatic Early Termination" provision of Section 6(a) will not apply
to the Trust or Counterparty.
(f) Payments on Early Termination. Notwithstanding any provision to the
contrary in this Agreement, upon the occurrence of an Early Termination
Date in respect of one or more outstanding Transactions:
(i) the provisions of Sections 6(d)(i) (to the extent they relate to
obtaining Market Quotations) and 6(e)(i), (ii) and (iv) shall not
apply;
(ii) each reference in this Agreement to an amount calculated as
being due in respect of any Early Termination Date under Section
6(e) shall be deemed to refer to an amount calculated in accordance
with Part 1(f)(iii) of this Schedule;
(iii) the amount payable in respect of such Early Termination Date
will be the amount (determined by the Calculation Agent and netted
in accordance with Section 2(c)) that is the sum of the Termination
Currency Equivalent of (1) all Unpaid Amounts in respect of the
Terminated Transactions, (2) all amounts that would be payable if
such Early Termination Date were the next Scheduled Payment Date in
respect of each Terminated Transaction, and (3) each other amount
calculated as being due pursuant to the Confirmation for each
Terminated Transaction; and
(iv) the amount determined in accordance with paragraph (iii) above
will be paid by the relevant party on the day that, but for the
declaration of such Early Termination Date, would have been the next
Payment Date in respect of the Terminated Transactions.
<PAGE>
3
(g) "Termination Currency" means United States Dollars.
(h) "Transfer to Avoid Termination Event". Section 6(b)(ii) is hereby amended
by adding at the end thereof before the period in the third paragraph the
following condition:
"and the prior written confirmation from each Rating Agency that the
then-current ratings of the obligations represented by the
Certificates will not be negatively affected by such transfer".
(i) Additional Termination Event will apply. An additional Termination Event
shall occur if an Early Termination Date is designated in respect of any
Transaction entered into pursuant to the Master Agreement dated as of the
date hereof and headed "Class B Certificates" (the "Citibank (Nevada)
Master Agreement") between Citibank (Nevada), National Association
("Citibank (Nevada)") and the Trustee as trustee on behalf of the Trust.
For the purposes of the foregoing Termination Event, each party hereto
shall be an Affected Party.
Part 2. Tax Representations.
(a) Payer Representations. For the purpose of Section 3(e), each of the Trust
and Counterparty represents that it is not required by any applicable law,
as modified by the practice of any relevant governmental revenue
authority, of any Relevant Jurisdiction to make any deduction or
withholding for or on account of any Tax from any payment (other than
interest under Section 2(e), 6(d)(ii) or 6(e)) 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), (ii) the satisfaction of the agreement contained
in Section 4(a)(i) or 4(a)(iii) and the accuracy and effectiveness of any
document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) and (iii) the satisfaction of the agreement of the other party
contained in Section 4(d), 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.
<PAGE>
4
(b) Payee Representations.
(i) Trust Representation. For the purpose of Section 3(f), the Trust
makes no representations.
(ii) Counterparty Representation. For the purpose of Section 3(f),
Counterparty makes no representations.
Part 3. Agreement to Deliver Documents.
For the purpose of Sections 4(a)(i) and (ii):
(a) Tax forms, documents or certificates to be delivered are:
Each party agrees to complete, accurately and in a manner reasonably
satisfactory to the other party, and to execute, arrange for any
required certification of, and deliver to the other party (or to
such government or taxing authority as the other party reasonably
directs), any form or document that may be required or reasonably
requested in order to allow the other party to make a payment under
this Agreement without any deduction or withholding for or on
account of any Tax or with such deduction or withholding at a
reduced rate, promptly upon the earlier of (i) reasonable demand by
the other party and (ii) learning that the form or document is
required.
(b) Other documents to be delivered are:
Covered by
Party Required to Form/Document/ Date by Which Section 3(d)
Deliver Document Certificate to Be Delivered Representation
- ----------------- -------------- --------------- --------------
Trust and Certified copies of Upon execution of Yes.
Counterparty all documents this Agreement.
evidencing necessary
corporate and other
authorizations and
approvals with
respect to the
execution, delivery
and performance by
the party of this
Agreement, each
Confirmation and any
applicable Credit
Support Document.
Trust and A certificate of an Upon execution of Yes
Counterparty authorized officer of this Agreement.
the party certifying
the names,
<PAGE>
5
Covered by
Party Required to Form/Document/ Date by Which Section 3(d)
Deliver Document Certificate to Be Delivered Representation
- ----------------- -------------- --------------- --------------
true signatures and
authority of the
officers of the party
signing this
Agreement and any
applicable Credit
Support Document.
Counterparty Legal opinion in a Upon execution of No.
form reasonably this Agreement.
acceptable to the
Trustee, relating to
the enforceability of
Counterparty's
obligations under
this Agreement.
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a):
Address for notices or communications to the Trustee or the Trust:
Address: 666 Fifth Avenue, Suite 802,
New York, New York 10103
Attention: Corporate Trust Department
Fax No.: (212) 373-5998
Telephone No.: (212) 373-5918
Address for notices or communications to Counterparty:
Address: 701 East 60th Street, North
Sioux Falls, SD 57117
Attention: General Counsel
Fax No.: (605) 331-4442 or 7232
Telephone No.: (605) 331-1567
(b) Process Agent. For the purpose of Section 13(c), the Trust appoints the
Trustee as its Process Agent.
(c) Offices. The provisions of Section 10(a) will apply to the Trust and
Counterparty.
(d) Multibranch Party. For the purpose of Section 10(c), the Trust is not a
Multibranch Party, and Counterparty is not a Multibranch Party.
<PAGE>
6
(e) Calculation Agent. The Trustee, on behalf of the Trust, will be the
Calculation Agent (it being understood that the Trustee has appointed the
Servicer under the Pooling and Servicing Agreement to perform the duties
of Calculation Agent hereunder).
(f) Credit Support Document and Credit Support Provider. None.
(g) GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CHOICE OF LAW DOCTRINE.
(h) "Affiliate" will have the meaning specified in Section 14.
Part 5. Other Provisions.
(a) Tax Treatment. For purposes of Federal income taxes, the parties agree (to
the extent permitted by applicable law) to treat this Agreement as being
entered into between Counterparty, on the one hand, and Citibank (South
Dakota), N.A. ("Citibank (South Dakota)") and Citibank (Nevada), on the
other hand; provided that Counterparty's compliance with the terms of this
Agreement and any Confirmation shall not be deemed to violate this
provision.
(b) Definitions. The applicability of the 1991 ISDA Definitions, the 1992 ISDA
Municipal Counterparty Definitions and the 1992 ISDA FX and Currency
Option Definitions to any Transaction shall be specified in the
Confirmation for such Transaction.
(c) Waiver of Jury Trial. The following paragraph shall be added to this
Agreement as a new Section 15:
"15. Jury Trial. Each party hereby waives its
respective right to jury trial with respect to any
litigation arising under, or in connection with,
this Agreement or any Transaction."
(d) Waiver of Setoff. Notwithstanding any provision of this Agreement or any
other existing or future agreement, each of Counterparty and the Trust
irrevocably waives any and all rights it may have to
<PAGE>
7
set off, net, recoup or otherwise withhold or suspend or condition payment
or performance of any obligation between the Trust and Counterparty
hereunder against any obligations between the Trust and Counterparty under
any other agreements or otherwise.
(e) Consent to Recording. Each party consents to the monitoring or recording,
at any time and from time to time, by the other party of any and all
communications between officers or employees of the parties, waives any
further notice of such monitoring or recording and agrees to notify its
officers and employees of such monitoring or recording.
(f) No Personal Liability. The obligations of the Trust under this Agreement
are not personal obligations of the Trustee and, as a result, the Trustee
will have no personal liability for any amounts required to be paid by the
Trust under this Agreement.
(g) No Petition. Counterparty hereby agrees that it will not, prior to the
date which is one year and one day after the date on which all
certificates or securities issued by the Trust have been paid in full,
acquiesce, petition or otherwise invoke or cause the Trust to invoke the
process of any governmental authority for the purpose of commencing or
sustaining a case against the Trust under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Trust or
any substantial part of its property or ordering the winding-up or
liquidation of the Trust.
(h) Amendment. No amendment, modification or waiver in respect of this
Agreement will be effective unless (a) it is made in accordance with
Section 9(b) and (b) each Rating Agency shall have notified Counterparty
and the Trustee that such amendment, modification or waiver will not
result in a reduction or withdrawal of the rating of the obligations
represented by any Certificates.
(i) Capitalized Terms. Capitalized terms not otherwise defined herein shall,
where used herein or in any Confirmation, have the meanings assigned to
them in the Pooling and Servicing Agreement (the "Pooling and
<PAGE>
8
Servicing Agreement") dated as of May 29, 1991 between Citibank (Nevada)
as Seller, Citibank (South Dakota) as Seller and Servicer, and the Trustee
as trustee, as supplemented by the Series 1996-6 supplement thereto dated
as of December 3, 1996 (the "Supplement").
<PAGE>
9
Please confirm your agreement to the terms of the foregoing Schedule by signing
below.
YASUDA BANK AND TRUST CITIBANK (SOUTH DAKOTA), N.A.
COMPANY (U.S.A.),
as trustee for CITIBANK
CREDIT CARD MASTER TRUST I
By: /s/ Anthony A. Bocchino By: /s/ Eugene D. Rowenhorst
-------------------------- ----------------------------
Anthony A. Bocchino Eugene D. Rowenhorst
Vice President Senior Vice President
December 3, 1996 December 3, 1996
<PAGE>
Class B Certificates
CONFIRMATION
To: Yasuda Bank and Trust Company
(U.S.A.), as Trustee (the "Trustee"),
on behalf of Citibank Credit Card
Master Trust I (the "Trust")
From: Citibank (South Dakota), N.A.
("Counterparty")
Date: December 3, 1996
The purpose of this letter agreement is to set forth the terms and
conditions of the Swap Transaction entered into between us on the Trade Date
specified below (the "Swap Transaction"). This letter constitutes a
"Confirmation" as referred to in the Master Agreement specified below.
1. This Confirmation supplements, forms a part of, and is subject
to, the Master Agreement (including the Schedule thereto) dated as of December
3, 1996 headed "Class B Certificates" (the "Master Agreement") between you and
us. All provisions contained or incorporated by reference in the Master
Agreement shall govern this Confirmation except as expressly modified below.
The definitions and provisions contained in the 1991 ISDA
Definitions (as published by the International Swap Dealers Association, Inc.)
are incorporated into this Confirmation. In the event of any inconsistency
between those definitions and provisions and this Confirmation, this
Confirmation will govern.
This Confirmation will be governed by and construed in accordance
with the laws of the State of New York, without reference to choice of law
doctrine.
2. The terms of the particular Swap Transaction to which this
Confirmation relates are as follows:
Transaction Type: Rate Swap Transaction
Notional Amount: With respect to each Calculation Period,
<PAGE>
2
37.380827342590% of the calculation
Period, Class B Invested Amount on the
first day of such Calculation Period
(after giving effect to any increase or
decrease of the Class B Invested Amount
on such day)
Tade Date: December 3, 1996
Effective Date: December 3, 1996
Termination Date: The earlier of (a) the Termination Date
(as defined in the Supplement) and (b)
the Distribution Date on which the
outstanding principal amount of the
Class B Certificates is reduced to zero
Fixed Amounts:
Fixed Rate Payer: Trust
Fixed Rate Payer
Payment Date-
Early Payment: One Business Day
Fixed Rate Payer
Period End Date: Each Distribution Date
Fixed Amount: (a) With respect to the first Payment
Date, $153,921.85 and (b) at all other
times, one twelfth of the product of
6.6773% and the Notional Amount
Floating Amounts:
Floating Rate
Payer: Counterparty
Calculation Dates: The first day of each Calculation Period
Floating Rate Payer
Payment Date: Each Fixed Rate Payer Payment Date
<PAGE>
3
Floating Rate Payer
Period End Date: Each Fixed Rate Payer Period End Date
Floating Rate
Option: USD-LIBOR-BBA
Designated Maturity: (a) Following the occurrence of an
Amortization Event, one month, and (b)
at all other times, three months
Spread: Plus 0.32%, provided that the per annum
rate (Floating Rate plus Spread) for the
first three Calculation Periods shall be
5.82%
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: Each Class B Payment Date
Business Days: New York, Nevada and South Dakota
Business Day
Convention: Following
3. Account Details.
Payments to the Trust: Citibank, N.A.
Corporate Trust
ABA: 021000089
Ref: CCIMT 96-6
Attention: Hugo Gindreaux
A/C: 36114325
Payments to
Counterparty: Citibank (South Dakota), N.A.
ABA: 091409571
Ref: CCIMT 96-6 Swap
<PAGE>
4
Each amount payable with respect to this Swap Transaction shall be paid by
12:00 p.m., New York City time, on the relevant Payment Date.
4. Counterparty Downgrade. If (i) the unsecured, unguaranteed,
short-term debt rating of Counterparty is reduced below A-1+ or withdrawn by
Standard & Poor's Rating Services ("Standard & Poor's") or (ii) the unsecured,
unguaranteed long-term debt rating of Counterparty is reduced below Aa3 or
withdrawn by Moody's Investors Service, Inc. ("Moody's"), Counterparty shall
promptly notify the Trustee (and any permitted assignee or transferee of the
Trustee) of such event, and shall, within 30 days of the date of occurrence of
such event, with the prior written confirmation of each Rating Agency that such
arrangement will not result in the reduction or withdrawal of the then-current
rating of any Certificates, either:
(a) transfer, solely at its cost or benefit, as the case may be, its
rights and obligations pursuant to this Swap Transaction to another
counterparty with an unsecured, unguaranteed, short-term debt rating from
Standard & Poor's of no lower than A-1+ and an unsecured, unguaranteed
long-term debt rating from Moody's of no lower than Aa3 (or effect the
same economic result by agreeing to terminate this Swap Transaction and
arranging for such a counterparty to enter into a replacement transaction
with the Trust on terms substantially the same as those contained herein);
or
(b) if Counterparty, using its best efforts, is unable to find such
a counterparty willing to accept such a transfer (or enter into such
replacement transaction), enter into any other arrangement satisfactory to
Counterparty, the Trustee, the Servicer, and the Rating Agencies.
The failure of Counterparty to satisfy its obligations under this
Clause 4 shall not, in and of itself, give rise to any Event of Default or
otherwise be the basis for the designation of an Early Termination Event.
<PAGE>
5
Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing the copy of this Confirmation enclosed for that
purpose and returning it to us.
Very truly yours,
CITIBANK (SOUTH DAKOTA), N.A.
by /s/ Eugene D. Rowenhorst
---------------------------
Eugene D. Rowenhorst
Senior Vice President
Accepted and confirmed as of
the date first above written:
YASUDA BANK AND TRUST COMPANY
(U.S.A.), as Trustee on behalf of
CITIBANK CREDIT CARD MASTER
TRUST I,
by /s/ Anthony A. Bocchino
--------------------------
Anthony A, Bocchino
Vice President
<PAGE>
CLASS B CERTIFICATES
(Multicurrency--Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of December 3, 1996
YASUDA BANK AND TRUST COMPANY
(U.S.A.) as trustee for CITIBANK CITIBANK (NEVADA),
CREDIT CARD MASTER TRUST I and NATIONAL ASSOCIATION
- --------------------------------- ----------------------------------------
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) Definition. 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.
Copyright(C)1992 by International Swap Dealers Association, Inc.
<PAGE>
(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 the 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 Transaction 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 have been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonable acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay 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 deducting or withholding been required.
However, X will not be required to pay any additional amount to Y to
the extent that is 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 (1) 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.
ISDA (R) 1992
2
<PAGE>
(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 authorise 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)).
ISDA (R) 1992
3
<PAGE>
(b) Absence of Certain Events. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of
its entering into or performing its obligations under this Agreement or any
Credit Support Document to which it is a party.
(c) Absence of Litigation. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) Accuracy of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) Payee Tax Representations. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. Agreements
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:---
(a) Furnish Specified Information. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:---
(i) any forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to allow
such other party or its Credit Support Provider to make a payment under
this Agreement or any applicable Credit Support Document without any
deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of such
demand), 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 Authorisations. 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,
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organised, 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) disaffirm, 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
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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 agreement 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
ISDA (R) 1992
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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 to 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, an other 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.
ISDA (R) 1992
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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 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, an 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
ISDA (R) 1992
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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 judgement) 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 subjected to 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
sums 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 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
ISDA (R) 1992
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Non-defaulting Party) in respect of the Termination 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 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 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
Marked 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 negative number, X will pay the absolute value of that amount
to Y.
(iii) Adjustment for Bankruptcy In circumstance 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 risk and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
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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 the 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 salified 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 judgement 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 currency if such shortfall or such excess arises or result from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgement or order for the purpose of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner 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 of 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.
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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 by entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by and 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 that its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation 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 in 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
ISDA (R) 1992
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<PAGE>
to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, cost of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect to 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 schedule)
and will be deem 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 that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings related to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of 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 Judgements 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
ISDA (R) 1992
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<PAGE>
reason any party's Process Agent 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 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 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, authorisation, 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.
ISDA (R) 1992
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<PAGE>
"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 Deal" 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" meaning 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
a 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
place(s) specified in the relevant Confirmation or, it 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 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 the 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 Quotations" 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,
ISDA (R) 1992
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<PAGE>
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 Reference Market-maker may, in good faith, agree. The party
making the determination (or its agent) will request each Reference Market-maker
to provide its quotation to the extent reasonably practicable as of the same day
and time (without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and time as of
which those quotations are to be obtained will be selected in good faith by the
party obliged to make a determination under Section 6(e) and, if each party is
so obligated, 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 the 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 home or
office.
"Potential Event of Default" means any event which, 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 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)
which the party is incorporated, organised, 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.
ISDA (R) 1992
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"Specified Indebtedness" means, subject to the Schedule, any obligation (whether
present or future, contingent or other wise, 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 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 Transaction"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).
"Terminated Currency" has the meaning specified in the Schedule.
"Terminated 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 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 obligated 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 a Illegality, a Tax Event or 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 amount
that became payable (or that would 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
ISDA (R) 1992
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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 obligated, 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.
YASUDA BANK AND TRUST COMPANY
(U.S.A.) as trustee for CITIBANK CITIBANK (NEVADA),
CREDIT CARD MASTER TRUST I NATIONAL ASSOCIATION
By: /s/ Anthony A. Bocchino By: /s/ Robert G. Boyt
-------------------------- ----------------------------
Anthony A. Bocchino Robert G. Boyt
Vice President Vice President
December 3, 1996 December 3, 1996
ISDA (R) 1992
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<PAGE>
Class B Certificates
SCHEDULE
to the
MASTER AGREEMENT
dated as of December 3, 1996
between
YASUDA BANK AND TRUST COMPANY (U.S.A.)
as trustee (the "Trustee") for
CITIBANK CREDIT CARD MASTER TRUST I (the "Trust")
and
CITIBANK (NEVADA), NATIONAL ASSOCIATION ("Counterparty").
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to the Trust for
the purpose of:
Section 5(a)(v), None
Section 5(a)(vi), None
Section 5(a)(vii), None
Section 5(b)(iv), None
and in relation to Counterparty for the purpose of:
Section 5(a)(v), None
Section 5(a)(vi), None
Section 5(a)(vii), None
Section 5(b)(iv), None
(b) "Specified Transaction" will have the meaning specified
in Section 14.
(c) "Events of Default". The following Events of Default will not apply to the
Trust or any Credit Support Provider of the Trust and the definition of
"Event of Default" in Section 14 is deemed to be modified accordingly:
Section 5(a)(ii), (Breach of Agreement)
Section 5(a)(iii), (Credit Support Default)
Section 5(a)(iv), (Misrepresentation)
Section 5(a)(v), (Default under Specified Transaction)
Section 5(a)(vi), (Cross Default)
Section 5(a)(vii), (Bankruptcy)
<PAGE>
2
(d) "Termination Events". The following Termination Events will not apply to
the Trust or any Credit Support Provider of the Trust and the definition
of "Termination Event" in Section 14 is deemed to be modified accordingly:
Section 5(b)(ii), (Tax Event)
Section 5(b)(iii), (Tax Event Upon Merger)
Section 5(b)(iv), (Credit Event Upon Merger)
(e) The "Automatic Early Termination" provision of Section 6(a) will not apply
to the Trust or Counterparty.
(f) Payments on Early Termination. Notwithstanding any provision to the
contrary in this Agreement, upon the occurrence of an Early Termination
Date in respect of one or more outstanding Transactions:
(i) the provisions of Sections 6(d)(i) (to the extent they relate to
obtaining Market Quotations) and 6(e)(i), (ii) and (iv) shall not
apply;
(ii) each reference in this Agreement to an amount calculated as
being due in respect of any Early Termination Date under Section
6(e) shall be deemed to refer to an amount calculated in accordance
with Part 1(f)(iii) of this Schedule;
(iii) the amount payable in respect of such Early Termination Date
will be the amount (determined by the Calculation Agent and netted
in accordance with Section 2(c)) that is the sum of the Termination
Currency Equivalent of (1) all Unpaid Amounts in respect of the
Terminated Transactions, (2) all amounts that would be payable if
such Early Termination Date were the next Scheduled Payment Date in
respect of each Terminated Transaction, and (3) each other amount
calculated as being due pursuant to the Confirmation for each
Terminated Transaction; and
(iv) the amount determined in accordance with paragraph (iii) above
will be paid by the relevant party on the day that, but for the
declaration of such Early Termination Date, would have been the next
Payment Date in respect of the Terminated Transactions.
<PAGE>
3
(g) "Termination Currency" means United States Dollars.
(h) "Transfer to Avoid Termination Event". Section 6(b)(ii) is hereby amended
by adding at the end thereof before the period in the third paragraph the
following condition:
"and the prior written confirmation from each Rating Agency that the
then-current ratings of the obligations represented by the
Certificates will not be negatively affected by such transfer".
(i) Additional Termination Event will apply. An additional Termination Event
shall occur if an Early Termination Date is designated in respect of any
Transaction entered into pursuant to the Master Agreement dated as of the
date hereof and headed "Class B Certificates" (the "Citibank (South
Dakota) Master Agreement") between Citibank (South Dakota), N.A.
("Citibank (South Dakota)") and the Trustee as trustee on behalf of the
Trust. For the purposes of the foregoing Termination Event, each party
hereto shall be an Affected Party.
Part 2. Tax Representations.
(a) Payer Representations. For the purpose of Section 3(e), each of the Trust
and Counterparty represents that it is not required by any applicable law,
as modified by the practice of any relevant governmental revenue
authority, of any Relevant Jurisdiction to make any deduction or
withholding for or on account of any Tax from any payment (other than
interest under Section 2(e), 6(d)(ii) or 6(e)) 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), (ii) the satisfaction of the agreement contained
in Section 4(a)(i) or 4(a)(iii) and the accuracy and effectiveness of any
document provided by the other party pursuant to Section 4(a)(i) or
4(a)(iii) and (iii) the satisfaction of the agreement of the other party
contained in Section 4(d), 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.
<PAGE>
4
(b) Payee Representations.
(i) Trust Representation. For the purpose of Section 3(f), the Trust
makes no representations.
(ii) Counterparty Representation. For the purpose of Section 3(f),
Counterparty makes no representations.
Part 3. Agreement to Deliver Documents.
For the purpose of Sections 4(a)(i) and (ii):
(a) Tax forms, documents or certificates to be delivered are:
Each party agrees to complete, accurately and in a manner reasonably
satisfactory to the other party, and to execute, arrange for any
required certification of, and deliver to the other party (or to
such government or taxing authority as the other party reasonably
directs), any form or document that may be required or reasonably
requested in order to allow the other party to make a payment under
this Agreement without any deduction or withholding for or on
account of any Tax or with such deduction or withholding at a
reduced rate, promptly upon the earlier of (i) reasonable demand by
the other party and (ii) learning that the form or document is
required.
(b) Other documents to be delivered are:
Covered by
Party Required to Form/Document/ Date by Which Section 3(d)
Deliver Document Certificate to Be Delivered Representation
- ----------------- ---------------------- --------------- --------------
Trust and Certified copies of Upon execution of Yes
Counterparty all documents this Agreement.
evidencing necessary
corporate and other
authorizations and
approvals with respect
to the execution,
delivery and
performance by the
party of this
Agreement, each
Confirmation and any
applicable Credit
Support Document.
Trust and A certificate of an Upon execution of Yes
Counterparty authorized officer of this Agreement.
the party certifying
the names,
<PAGE>
5
Covered by
Party Required to Form/Document/ Date by Which Section 3(d)
Deliver Document Certificate to Be Delivered Representation
- ----------------- -------------- --------------- --------------
true signatures and
authority of the
officers of the party
signing this Agreement
and any applicable
Credit Support
Document.
Counterparty Legal opinion in a Upon execution of No.
form reasonably this Agreement.
acceptable to the
Trustee, relating to
the enforceability of
Counterparty's
obligations under this
Agreement.
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a):
Address for notices or communications to the Trustee or the Trust:
Address: 666 Fifth Avenue, Suite 802,
New York, New York 10103
Attention: Corporate Trust Department
Fax No.: (212) 373-5998
Telephone No.: (212) 373-5918
Address for notices or communications to Counterparty:
Address: 8725 West Sahara Avenue
Las Vegas, Nevada 89163
Attention: Mr. Robert Boyt
Fax No.: (702) 797-4455
Telephone No.: (702) 797-4875
(b) Process Agent. For the purpose of Section 13(c), the Trust appoints the
Trustee as its Process Agent.
(c) Offices. The provisions of Section 10(a) will apply to the Trust and
Counterparty.
(d) Multibranch Party. For the purpose of Section 10(c), the Trust is not a
Multibranch Party, and Counterparty is not a Multibranch Party.
<PAGE>
5
(e) Calculation Agent. The Trustee, on behalf of the Trust, will be the
Calculation Agent (it being understood that the Trustee has appointed the
Servicer under the Pooling and Servicing Agreement to perform the duties
of Calculation Agent hereunder).
(f) Credit Support Document and Credit Support Provider. None.
(g) GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CHOICE OF LAW DOCTRINE.
(h) "Affiliate" will have the meaning specified in Section 14.
Part 5. Other Provisions.
(a) Tax Treatment. For purposes of Federal income taxes, the parties agree (to
the extent permitted by applicable law) to treat this Agreement as being
entered into between Counterparty, on the one hand, and Citibank (South
Dakota) and Citibank (Nevada), National Association ("Citibank (Nevada)"),
on the other hand; provided that Counterparty's compliance with the terms
of this Agreement and any Confirmation shall not be deemed to violate this
provision.
(b) Definitions. The applicability of the 1991 ISDA Definitions, the 1992 ISDA
Municipal Counterparty Definitions and the 1992 ISDA FX and Currency
Option Definitions to any Transaction shall be specified in the
Confirmation for such Transaction.
(c) Waiver of Jury Trial. The following paragraph shall be added to this
Agreement as a new Section 15:
"15. Jury Trial. Each party hereby waives its respective
right to jury trial with respect to any litigation
arising under, or in connection with, this Agreement or
any Transaction."
(d) Waiver of Setoff. Notwithstanding any provision of this Agreement or any
other existing or future agreement, each of Counterparty and the Trust
irrevocably waives any and all rights it may have to
<PAGE>
7
set off, net, recoup or otherwise withhold or suspend or condition payment
or performance of any obligation between the Trust and Counterparty
hereunder against any obligations between the Trust and Counterparty under
any other agreements or otherwise.
(e) Consent to Recording. Each party consents to the monitoring or recording,
at any time and from time to time, by the other party of any and all
communications between officers or employees of the parties, waives any
further notice of such monitoring or recording and agrees to notify its
officers and employees of such monitoring or recording.
(f) No Personal Liability. The obligations of the Trust under this Agreement
are not personal obligations of the Trustee and, as a result, the Trustee
will have no personal liability for any amounts required to be paid by the
Trust under this Agreement.
(g) No Petition. Counterparty hereby agrees that it will not, prior to the
date which is one year and one day after the date on which all
certificates or securities issued by the Trust have been paid in full,
acquiesce, petition or otherwise invoke or cause the Trust to invoke the
process of any governmental authority for the purpose of commencing or
sustaining a case against the Trust under any Federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Trust or
any substantial part of its property or ordering the winding-up or
liquidation of the Trust.
(h) Amendment. No amendment, modification or waiver in respect of this
Agreement will be effective unless (a) it is made in accordance with
Section 9(b) and (b) each Rating Agency shall have notified Counterparty
and the Trustee that such amendment, modification or waiver will not
result in a reduction or withdrawal of the rating of the obligations
represented by any Certificates.
(i) Capitalized Terms. Capitalized terms not otherwise defined herein shall,
where used herein or in any Confirmation, have the meanings assigned to
them in the Pooling and Servicing Agreement (the "Pooling and
<PAGE>
8
Servicing Agreement") dated as of May 29, 1991 between Citibank (Nevada)
as Seller, Citibank (South Dakota) as Seller and Servicer, and the Trustee
as trustee, as supplemented by the Series 1996-6 supplement thereto dated
as of December 3, 1996 (the "Supplement").
<PAGE>
9
Please confirm your agreement to the terms of the foregoing Schedule by signing
below.
YASUDA BANK AND TRUST CITIBANK (NEVADA), NATIONAL
COMPANY (U.S.A.), ASSOCIATION
as trustee for CITIBANK
CREDIT CARD MASTER TRUST I
By: /s/ Anthony A. Bocchino By: /s/ Robert G. Boyt
--------------------------- ----------------------
Anthony A. Bocchino Robert G. Boyt
Vice President Vice President
<PAGE>
Class B Certificates
CONFIRMATION
To: Yasuda Bank and Trust Company
(U.S.A.), as Trustee (the "Trustee"),
on behalf of Citibank Credit Card
Master Trust I (the "Trust")
From: Citibank (Nevada), National Association
("Counterparty")
Date: December 3, 1996
The purpose of this letter agreement is to set forth the terms and
conditions of the Swap Transaction entered into between us on the Trade Date
specified below (the "Swap Transaction"). This letter constitutes a
"Confirmation" as referred to in the Master Agreement specified below.
1. This Confirmation supplements, forms a part of, and is subject
to, the Master Agreement (including the Schedule thereto) dated as of December
3, 1996 headed "Class B Certificates" (the "Master Agreement") between you and
us. All provisions contained or incorporated by reference in the Master
Agreement shall govern this Confirmation except as expressly modified below.
The definitions and provisions contained in the 1991 ISDA
Definitions (as published by the International Swap Dealers Association, Inc.)
are incorporated into this Confirmation. In the event of any inconsistency
between those definitions and provisions and this Confirmation, this
Confirmation will govern.
This Confirmation will be governed by and construed in accordance
with the laws of the State of New York, without reference to choice of law
doctrine.
2. The terms of the particular Swap Transaction to which this
Confirmation relates are as follows:
Transaction Type: Rate Swap Transaction
Notional Amount: With respect to each Calculation Period,
<PAGE>
2
62.619172657410% of the Class B Invested
Amount on the first day of such
Calculation Period (after giving effect
to any increase or decrease of the Class
B Invested Amount on such day)
Trade Date: December 3, 1996
Effective Date: December 3, 1996
Termination Date: The earlier of (a) the Termination Date
(as defined in the Supplement) and (b)
the Distribution Date on which the
outstanding principal amount of the
Class B Certificates is reduced to zero
Fixed Amounts:
Fixed Rate Payer: Trust
Fixed Rate Payer
Payment Date-
Early Payment: One Business Day
Fixed Rate Payer
Period End Date: Each Distribution Date
Fixed Amount: (a) With respect to the first Payment
Date, $257,844.98 and (b) at all other
times, one twelfth of the product of
6.6773% and the Notional Amount
Floating Amounts:
Floating Rate
Payer: Counterparty
Calculation Dates: The first day of each Calculation Period
Floating Rate Payer
Payment Date: Each Fixed Rate Payer Payment Date
<PAGE>
3
Floating Rate Payer
Period End Date: Each Fixed Rate Payer Period End Date
Floating Rate
Option: USD-LIBOR-BBA
Designated Maturity: (a) Following the occurrence of an
Amortization Event, one month, and (b)
at all other times, three months
Spread: Plus 0.32%, provided that the per annum
rate (Floating Rate plus Spread) for the
first three Calculation Periods shall be
5.82%
Floating Rate Day
Count Fraction: Actual/360
Reset Dates: Each Class B Payment Date
Business Days: New York, Nevada and South Dakota
Business Day
Convention: Following
3. Account Details.
Payments to the Trust: Citibank, N.A.
Corporate Trust
ABA: 021000089
Ref: CCIMT 96-6
Attention: Hugo Gindreaux
A/C: 36114325
Payments to
Counterparty: Citibank (Nevada), National Association
ABA: 122401710
Ref: CCIMT 96-6 Swap
<PAGE>
4
Each amount payable with respect to this Swap Transaction shall be paid by
12:00 p.m., New York City time, on the relevant Payment Date.
4. Counterparty Downgrade. If (i) the unsecured, unguaranteed,
short-term debt rating of Counterparty is reduced below A-1+ or withdrawn by
Standard & Poor's Rating Services ("Standard & Poor's") or (ii) the unsecured,
unguaranteed long-term debt rating of Counterparty is reduced below Aa3 or
withdrawn by Moody's Investors Service, Inc. ("Moody's"), Counterparty shall
promptly notify the Trustee (and any permitted assignee or transferee of the
Trustee) of such event, and shall, within 30 days of the date of occurrence of
such event, with the prior written confirmation of each Rating Agency that such
arrangement will not result in the reduction or withdrawal of the then-current
rating of any Certificates, either:
(a) transfer, solely at its cost or benefit, as the case may be, its
rights and obligations pursuant to this Swap Transaction to another
counterparty with an unsecured, unguaranteed, short-term debt rating from
Standard & Poor's of no lower than A-1+ and an unsecured, unguaranteed
long-term debt rating from Moody's of no lower than Aa3 (or effect the
same economic result by agreeing to terminate this Swap Transaction and
arranging for such a counterparty to enter into a replacement transaction
with the Trust on terms substantially the same as those contained herein);
or
(b) if Counterparty, using its best efforts, is unable to find such
a counterparty willing to accept such a transfer (or enter into such
replacement transaction), enter into any other arrangement satisfactory to
Counterparty, the Trustee, the Servicer, and the Rating Agencies.
The failure of Counterparty to satisfy its obligations under this
Clause 4 shall not, in and of itself, give rise to any Event of Default or
otherwise be the basis for the designation of an Early Termination Event.
<PAGE>
5
Please confirm that the foregoing correctly sets forth the terms of
our agreement by executing the copy of this Confirmation enclosed for that
purpose and returning it to us.
Very truly yours,
CITIBANK (NEVADA), NATIONAL
ASSOCIATION
by /s/ Robert G. Boyt
------------------------
Robert G. Boyt
Vice President
Accepted and confirmed as of the date first above written:
YASUDA BANK AND TRUST COMPANY
(U.S.A.), as Trustee on behalf of
CITIBANK CREDIT CARD MASTER
TRUST I,
by /s/ Anthony A. Bocchino
------------------------
Anthony A. Bocchino
Vice President
<PAGE>
SCHEDULE 1
Recognized Dealers
for Purposes of Section 8.01(a)(ii)
Class A Dealers
- ---------------
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Citibank, N.A.
Lehman Brothers Inc.
Salomon Brothers Inc
Class B Dealers
- ---------------
Citibank, N.A.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
