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(MULTICURRENCY-CROSS BORDER)
[ISDA(R) LOGO]
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of 25 AUGUST 2000
CREDIT SUISSE FIRST BOSTON INTERNATIONAL and BANKER TRUST COMPANY ACTING AS
TRUSTEE FOR THE FLEET CREDIT CARD
MASTER TRUST II
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows:-
1. INTERPRETATION
(a) DEFINITIONS. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) INCONSISTENCY. In the event of any inconsistency between the provisions
of the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) SINGLE AGREEMENT. All transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. OBLIGATIONS
(a) GENERAL CONDITIONS.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the required
currency. Where settlement is by delivery (that is, other than by payment),
such delivery will be made for receipt on the due date in the manner
customary for the relevant obligation unless otherwise specified in the
relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to (1)
the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing, (2)
the condition precedent that no Early Termination Date in respect of the
relevant Transaction has occurred or been effectively designated and (3)
each other applicable condition precedent specified in this Agreement.
Copyright(C) 1992 by International Swap Dealers Association, Inc.
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(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise by payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the
other party, replaced by an obligation upon the party by whom the larger
aggregate amount would have been payable to pay to the other party the excess
of the larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such deduction
or withholding is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, then in effect. If
a party is so required to deduct or withhold, then that party ("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that such
deduction or withholding is required or receiving notice that such
amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to
the payment to which Y is otherwise entitled under this Agreement,
such additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes,
whether assessed against X or Y) will equal the full amount Y would
have received had no such deduction or withholding been required.
However, X will not be required to pay any additional amount to Y to
the extent that it would not be required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure would
not have occurred but for (I) any action taken by a taxing
authority, or brought in a court of competent jurisdiction, on
or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with
respect to a party to this Agreement) or (II) a Change in Tax
Law.
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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)).
(c) 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 organised and validly existing under the laws of
the jurisdiction of its organisation 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, reorganisation, 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)).
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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,
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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) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) CROSS DEFAULT. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (however
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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 agreements or instruments, before it would otherwise have
been due and payable or (2) a default by such party, such Credit Support
Provider or such Specified Entity (individually or collectively) in making one
or more payments on the due date thereof in an aggregate amount of not less than
the applicable Threshold Amount under such agreements or instruments (after
giving effect to any applicable notice requirement or grace period);
(vii) BANKRUPTCY. The party, any Credit Support Provider of such party or any
applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation, amalgamation or
merger); (2) becomes insolvent or is unable to pay its debts or fails or
admits in writing its inability generally to pay its debts as they become
due; (3) makes a general assignment, arrangement or composition with or for
the benefit of its creditors; (4) institutes or has instituted against it a
proceeding seeking a judgment of insolvency or bankruptcy or any other
relief under any bankruptcy or insolvency law or other similar law
affecting creditors' rights, or a petition is presented for its winding-up
or liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A) results
in a judgment of insolvency or bankruptcy or the entry of an order for
relief or the making of an order for its winding-up or liquidation or (B)
is not dismissed, discharged, stayed or restrained in each case within 30
days of the institution or presentation thereof; (5) has a resolution
passed for its winding-up, official management or liquidation (other than
pursuant to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official for it
or for all or substantially all its assets; (7) has a secured party take
possession of all or substantially all its assets or has a distress,
execution, attachment, sequestration or other legal process levied,
enforced or sued on or against all or substantially all its assets and such
secured party maintains possession, or any such process is not dismissed,
discharged, stayed or restrained, in each case within 30 days thereafter;
(8) causes or is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to any of the
events specified in clauses (1) to (7) (inclusive); or (9) takes any action
in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the foregoing acts; or
(viii) MERGER WITHOUT ASSUMPTION. The party or any Credit Support Provider of
such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at the
time of such consolidation, amalgamation, merger or transfer:--
(1) the resulting, surviving or transferee entity fails to assume all the
obligations of such party or such Credit Support Provider under this
Agreement or any Credit Support Document to which it or its predecessor
was a party by operation of law or pursuant to an agreement reasonably
satisfactory to the other party to this Agreement; or
(2) the benefits of any Credit Support Document fail to extend (without the
consent of the other party) to the performance by such resulting, surviving
or transferee entity of its obligations under this Agreement.
(b) TERMINATION EVENTS. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an Illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event Upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event
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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 of which the
other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) CREDIT EVENT UPON MERGER. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate, will
be the Affected Party); or
(v) ADDITIONAL TERMINATION EVENT. If any "Additional Termination Event" is
specified in the Schedule or any Confirmation as applying, the occurrence
of such event (and, in such event, the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in the Schedule
or such Confirmation).
(c) EVENT OF DEFAULT AND ILLEGALITY. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an
Event of Default.
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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 of the time immediately
preceding the institution of the relevant proceeding or the presentation of the
relevant petition upon the occurrence with respect to such party of an Event of
Default specified in Section 5(a)(vii)(4) or, to the extent analogous thereto,
(8).
(b) RIGHT TO TERMINATE FOLLOWING TERMINATION EVENT.
(i) NOTICE. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying
the nature of that Termination Event and each Affected Transaction and
will also give such other information about that Termination Event as
the other party may reasonably require.
(ii) TRANSFER TO AVOID TERMINATION EVENT. If either an Illegality under
Section 5(b)(i)(l) 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)(l)
or a Tax Event occurs and there are two Affected Parties, each party
will use all reasonable efforts to reach agreement within 30 days after
notice thereof is given under Section 6(b)(i) on action to avoid that
Termination Event.
(iv) RIGHT TO TERMINATE. If:--
(1) a transfer under Section 6(b)(ii) or an agreement under
Section 6(b)(iii), as the case may be, has not been effected with
respect to all Affected Transactions within 30 days after an
Affected Party gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected
Party,
either party in the case of an Illegality, the Burdened Party in the
case of a Tax Event Upon Merger, any Affected Party in the case of a
Tax Event or an Additional Termination Event if there is more than one
Affected Party, or the party which is not the Affected Party in the
case of a Credit Event Upon Merger or an Additional Termination Event
if there is only one Affected Party may, by not more than 20 days
notice to the other party and provided that the relevant Termination
Event is then
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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 judgment) in
the Termination Currency, from (and including) the relevant Early
Termination Date to (but excluding) the date such amount is paid, at the
Applicable Rate. Such interest will be calculated on the basis of daily
compounding and the actual number of days elapsed.
(e) PAYMENTS ON EARLY TERMINATION. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and a
payment method, either the "First Method" or the "Second Method". If the
parties fail to designate a payment measure or payment method in the
Schedule, it will be deemed that "Market Quotation" or the "Second
Method", as the case may be, shall apply. The amount, if any, payable in
respect of an Early Termination Date and determined pursuant to this
Section will be subject to any Set-off.
(i) EVENTS OF DEFAULT. If the Early Termination Date results from an
Event of Default:--
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-defaulting Party's Loss in respect of this
Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the
sum of the Settlement Amount (determined by the
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Non-defaulting Party) in respect of the Terminated Transactions and the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party less (B) the Termination Currency Equivalent of the
Unpaid Amounts owing to the Defaulting Party. If that amount is a
positive number, the Defaulting Party will pay it to the Non-defaulting
Party; if it is a negative number, the Non-defaulting Party will pay the
absolute value of that amount to the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute value of
that amount to the Defaulting Party.
(ii) TERMINATION EVENTS. If the Early Termination Date results from a
Termination Event:--
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies, except
that, in either case, references to the Defaulting Party and to the
Non-defaulting Party will be deemed to be references to the Affected
Party and the party which is not the Affected Party, respectively, and,
if Loss applies and fewer than all the Transactions are being terminated,
Loss shall be calculated in respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:--
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions, and an
amount will be payable equal to (I) the sum of (a) one-half of the
difference between the Settlement Amount of the party with the
higher Settlement Amount ("X") and the Settlement Amount of the
party with the lower Settlement Amount ("Y") and (b) the
Termination Currency Equivalent of the Unpaid Amounts owing to X
less (II) the Termination Currency Equivalent of the Unpaid Amounts
owing to Y; and
(B) if Loss applies, each party will determine its Loss in respect
of this Agreement (or, if fewer than all the Transactions are being
terminated, in respect of all Terminated Transactions) and an amount
will be payable equal to one-half of the difference between the Loss
of the party with the higher Loss ("X") and the Loss of the party
with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if it is
a negative number, X will pay the absolute value of that amount to Y.
(iii) ADJUSTMENT FOR BANKRUPTCY. In circumstances where an Early Termination
Date occurs because "Automatic Early Termination" applies in respect of a party,
the amount determined under this Section 6(e) will be subject to such
adjustments as are appropriate and permitted by law to reflect any payments or
deliveries made by one party to the other under this Agreement (and retained by
such other party) during the period from the relevant Early Termination Date to
the date for payment determined under Section 6(d)(ii).
(iv) PRE-ESTIMATE. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate of loss
and not a penalty. Such amount is payable for the loss of bargain and the loss
of protection against future risks and except as otherwise provided in this
Agreement neither party will be entitled to recover any additional damages as a
consequence of such losses.
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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 way of
security or otherwise) by either party without the prior written consent of the
other party, except that:--
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in
any amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. CONTRACTUAL CURRENCY
(a) PAYMENT IN THE CONTRACTUAL CURRENCY. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that payment
(the "Contractual Currency"). To the extent permitted by applicable law, any
obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the Contractual
Currency so received falls short of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional
amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount of
such excess.
(b) JUDGMENTS. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) SEPARATE INDEMNITIES. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) EVIDENCE OF LOSS. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
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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 be entered into as soon as practicable and
may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) NO WAIVER OF RIGHTS. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) HEADINGS. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. OFFICES; MULTIBRANCH PARTIES
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or 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 is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
11. EXPENSES
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document
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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, costs of collection.
12. Notices
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date it
is delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered
or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. Governing Law and Jurisdiction
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan in New York City, if
this Agreement is expressed to be governed by the laws of the State of New
York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments 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 is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to service
of process given in the manner provided for notices in Section 12. Nothing in
this Agreement will affect the right of either party to serve process in any
other manner permitted by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgement) and (v) execution or enforcement of any judgement to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. Definitions
As used in this Agreement:--
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"Applicable Rate" means:--
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Tax Law" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"consent" includes a consent, approval, action, 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 DEFAULT" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"ILLEGALITY" has the meaning specified in Section 5(b).
"INDEMNIFIABLE TAX" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such
Tax and the recipient of such payment or a person related to such recipient
(including, without limitation, a connection arising from such recipient or
related person being or having been a citizen or resident of such jurisdiction,
or being or having been organised, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"LAW" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority)
and "lawful" and "unlawful" will be construed accordingly.
"LOCAL BUSINESS DAY" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for
performance with respect to such Specified Transaction.
"LOSS" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be
its total losses and costs (or gain, in which case expressed as a negative
number) in connection with this Agreement or that Terminated Transaction or
group of Terminated Transactions, as the case may be, including any loss of
bargain, cost of funding or, at the election of such party but without
duplication, loss or cost incurred as a result of its terminating, liquidating,
obtaining or reestablishing any hedge or related trading position (or any gain
resulting from any of them). Loss includes losses and costs (or gains) in
respect of any payment or delivery required to have been made (assuming
satisfaction of each applicable condition precedent) on or before the relevant
Early Termination Date and not made, except, so as to avoid duplication, if
Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies. Loss does not include a
party's legal fees and out-of-pocket expenses referred to under Section 11. A
party will determine its Loss as of the relevant Early Termination Date, or, if
that is not reasonably practicable, as of the earliest date thereafter as is
reasonably practicable. A party may (but need not) determine its Loss by
reference to quotations of relevant rates or prices from one or more leading
dealers in the relevant markets.
"MARKET QUOTATION" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition
precedent) by the parties under Section 2(a)(i) in respect of such Terminated
Transaction or group of Terminated Transactions that would, but for the
occurrence of the relevant Early Termination Date, have
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been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group of Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is to
be included. The Replacement Transaction would be subject to such documentation
as such party and the Reference Market-maker may, in good faith, agree. The
party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable as
of the same day and time (without regard to different time zones) on or as soon
as reasonably practicable after the relevant Early Termination Date. The day
and time as of which those quotations are to be obtained will be selected in
good faith by the party obliged to make a determination under Section 6(e),
and, if each party is so obliged, after consultation with the other. If more
than three quotations are provided, the Market Quotation will be the
arithmetic mean of the quotations, without regard to the quotations having the
highest and lowest values. If exactly three such quotations are provided, the
Market Quotation will be the quotation remaining after disregarding the highest
and lowest quotations. For this purpose, if more than one quotation has the
same highest value or lowest value, then one of such quotations shall be
disregarded. If fewer than three quotations are provided, it will be deemed
that the Market Quotation in respect of such Terminated Transaction or group of
Terminated Transactions cannot be determined.
"Non-default Rate" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it)
if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head or
home office.
"Potential Event of Default" means any event which, with the giving of notice
or the lapse of time or both, would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria
that such party applies generally at the time in deciding whether to offer or
to make an extension of credit and (b) to the extent practicable, from among
such dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, 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 otherwise, as principal or surety or
otherwise) in respect of borrowed money.
"SPECIFIED TRANSACTION" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"STAMP TAX" means any stamp, registration, documentation or similar tax.
"TAX" means any present or future tax, levy, impost, duty, charge, assessment
or fee of any nature (including interest, penalties and additions thereto) that
is imposed by any government or other taxing authority in respect of any
payment under this Agreement other than a stamp, registration, documentation or
similar tax.
"TAX EVENT" has the meaning specified in Section 5(b).
"TAX EVENT UPON MERGER" has the meaning specified in Section 5(b).
"TERMINATED TRANSACTIONS" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"TERMINATION CURRENCY" has the meaning specified in the Schedule.
"TERMINATION CURRENCY EQUIVALENT" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"TERMINATION EVENT" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"TERMINATION RATE" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"UNPAID AMOUNTS" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(ii)) 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
17
<PAGE> 18
value of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or
would have been required to have been paid or performed to (but excluding) such
Early Termination Date, at the Applicable Rate. Such amounts of interest will
be calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b)
above shall be reasonably determined by the party obliged to make the
determination under Section 6(e) or, if each party is so obliged, it shall be
the average of the Termination Currency Equivalents of the fair market values
reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
CREDIT SUISSE FIRST BOSTON BANKERS TRUST COMPANY ACTING AS TRUSTEE
INTERNATIONAL FOR THE FLEET CREDIT CARD MASTER TRUST II
--------------------------------- -----------------------------------------
(Name of Party) (Name of Party)
By: /s/ Michael Pringle By: /s/ Peter Becker
----------------------------- -------------------------------------
Name: Michael Pringle Name: Peter Becker
Title: Attorney-In-Fact Title: Assistant Vice President
Date: 24 August 2000 Date: 24 August 2000
By: /s/ Edmond Curtin
-----------------------------
Name: Edmond Curtin
Title: Director - Legal and
Compliance Department
Date: 24 August 2000
18
<PAGE> 19
Exhibit 10.1
EXECUTION COPY
SCHEDULE
TO THE
MASTER AGREEMENT
dated as of August 25, 2000
between
Credit Suisse First Boston International ("Party A"),
and
BANKERS TRUST COMPANY (the "Trustee")
acting as trustee for
The FLEET CREDIT CARD MASTER TRUST II ("Party B"), a trust formed pursuant to a
pooling and servicing agreement dated as of December 1, 1993 and amended and
restated on May 23, 1994 (as further amended and supplemented from time to time,
the "Pooling and Servicing Agreement"), as supplemented by the Series 2000-C
Supplement dated as of August 25, 2000 each between Fleet Bank (RI), National
Association, as Seller and Servicer, and the Trustee (the Pooling and Servicing
Agreement, as so supplemented, the "Trust Agreement").
Part 1. TERMINATION PROVISIONS
In this Agreement:
(a) "SPECIFIED ENTITY" shall not apply for purposes of this Agreement.
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14
of this Agreement.
(c) The "BREACH OF AGREEMENT" provisions of Section 5(a)(ii), the
"Misrepresentation" provisions of Section 5(a)(iv), the "Default under
Specified Transaction" provisions of Section 5(a)(v), the "Cross
Default" provisions of Section 5(a)(vi), the "Merger Without
Assumption" provisions of Section 5(a)(viii), the "Tax Event"
provisions of Section 5(b)(ii), "Tax Event Upon Merger" provisions of
Section 5(b)(iii), and the "Credit Event Upon Merger" provisions of
Section 5(b)(iv) will not apply to Party A and will not apply to Party
B. Solely with respect to payments required to be made by Party A
relating to the Rapid Accumulation Period, the word "third" in the
final line of Section 5(a)(i) shall be replaced with "12:00 noon New
York City time of the first".
<PAGE> 20
(d) The "AUTOMATIC EARLY TERMINATION" provisions of Section 6(a) will not
apply to Party A and will not apply to Party B.
(e) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement, Market Quotation and the Second Method will apply; provided,
however, that in the case of an Event of Default with respect to Party
A as the Defaulting Party or a Termination Event with respect to Party
A as the Affected Party, the related Settlement Amount, if negative,
will be deemed to be zero if the Market Quotation cannot be determined.
(f) MARKET QUOTATION. Notwithstanding anything to the contrary in the
definition of Market Quotation in Section 14, in the case of an Event
of Default with respect to Party A as the Defaulting Party or a
Termination Event with respect to Party A as the Affected Party, the
Market Quotation, if negative, will be deemed to be the negative
quotation, if any, with the highest absolute value received from any
Reference Market-maker, even if only one quotation is provided, with
which Party B is able, using its best efforts, to enter into a
Replacement Transaction even if Party B reasonably believes such Market
Quotation would not produce a commercially reasonable result.
(g) "REFERENCE MARKET-MAKER" will not have the meaning specified in Section
14, but will instead mean the following:
"Reference Market-maker" means five leading dealers in the
relevant market selected by the party determining the Market
Quotation in good faith (a) from among dealers which are rated
not lower than investment grade by Standard & Poor's Ratings
Group, a division of McGraw-Hill, Inc. ("S&P") and Moody's
Investor Services, Inc. ("Moody's") which satisfy the criteria
that such party applies generally at that time in deciding
whether to offer or make an extension of credit and (b) to the
extent practicable, from among dealers having an office in the
same city.
(h) "TERMINATION CURRENCY" means United States Dollars ("USD").
Part 2. TAX REPRESENTATIONS.
(a) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A and Party B will each make the following
representation:
It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Sections 2(e),
6(d)(ii) and 6(e) of this Agreement) to be made by it to the other
party under this Agreement. In making this representation, it may rely
on (i) the accuracy of any representation made by the other party
pursuant to Section 3(f) of this Agreement, (ii) the
2
<PAGE> 21
satisfaction of the agreement contained in Section 4(a)(i) or 4(a)(iii)
of this Agreement and the accuracy and effectiveness of any document
provided by the other party pursuant to Section 4(a)(i) and 4(a)(iii)
of this Agreement; and (iii) the satisfaction of the agreement of the
other party contained in Section 4(d) of this Agreement, provided that
it shall not be a breach of this representation where reliance is
placed on clause (ii) and the other party does not deliver a form or
document under Section 4(a)(iii) by reason of material prejudice to its
legal or commercial position.
(b) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement, Party A and Party B make the following representations:
(i) The following representation will apply to Party B:
For United States federal income tax purposes it is a "United
States Person" as defined in Section 7701 (a)(30) of the
Internal Revenue Code.
(ii) The following representation will apply to Party A:
For the purpose of Section 3(f) of this Agreement, Party A
represents that it is fully eligible for the benefits of the
"Business Profits" or "Industrial or Commercial Profits"
provision, as the case may be, the "Interest" provision or the
"Other Income" provision (if any) of the Specified Treaty with
respect to any payment described in such provisions and
received or to be received by it in connection with this
Agreement that it is not effectively connected with its
conduct of a trade or business in the Specified Jurisdiction
and no such payment is attributable to a trade or business
carried on by it through a permanent establishment in the
Specified Jurisdiction.
Party A further represents that each payment received or to be
received by Party A in connection with this Agreement that is
not eligible for the benefits of the Specified Treaty will be
effectively connected with its conduct of a trade or business
in the Specified Jurisdiction.
Specified Treaty means the Convention Between the United
States of America and the Government of the United Kingdom of
Great Britain and Northern Ireland for the Avoidance of Double
Taxation and the Prevention of Fiscal Evasion with Respect to
Taxes on Income and Capital Gain.
Specified Jurisdiction means the United States of America.
3
<PAGE> 22
Part 3. AGREEMENT TO DELIVER DOCUMENTS.
For the purpose of Sections 3(d), 4(a)(i) and (ii) of this Agreement,
each party agrees to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
4
<PAGE> 23
<TABLE>
<CAPTION>
PARTY REQUIRED TO DATE BY WHICH COVERED BY SECTION
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE TO BE DELIVERED 3(d) REPRESENTATION
---------------- ------------------------- --------------- -------------------
<S> <C> <C> <C>
Party B Any form or document that may be Promptly upon Yes
reasonably requested, and that reasonable demand by
Party B is eligible to provide, in the other party.
order to allow the requesting party
to make a payment without (or with
reduced) withholding Tax.
Party A An accurate and complete signed Within 30 days of Yes
copy of each of Internal Revenue the execution and
Service Form W-8 BEN Claiming delivery of this
Treaty Benefits and all other Agreement, but in no
related forms (including any event later than the
certificate with respect thereto) date of the first
as Party B may reasonably request, payment made by
and two accurate and completed Party B to Party A
signed copies of Internal Revenue in connection with
Service Form W-8 ECI, and all other the Agreement and
related forms (including any additionally, prior
certificate with respect thereto) to the date on which
as Party B may reasonably request. the first payment is
to be made by Party
B, with respect to
each succeeding
calendar year; and
within the earlier
of (i) 30 days of
a change in
circumstances that
renders the forms
previously
delivered to Party
B inaccurate or
incomplete in any
material respect
or (ii) the first
Party B Floating
Amount Payment
Date which falls
after a change in
circumstances that
renders the forms
previously
delivered to Party
B inaccurate or
incomplete in any
material respect.
</TABLE>
5
<PAGE> 24
(b) Other documents to be delivered are:
<TABLE>
<CAPTION>
PARTY REQUIRED TO DATE BY WHICH TO BE COVERED BY
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DELIVERED SECTION 3(d)
---------------- ------------------------- --------- ------------
<S> <C> <C> <C>
Party A Opinions of internal Upon execution of No
counsel for Party A this Agreement
substantially in the
form of Exhibit A and
B to this Schedule
Party A An Authority Upon execution of Yes
Signatory Booklet of this Agreement
Party A with respect
to the signatory of
this Agreement
Party B An opinion of counsel Upon execution of No
for Party B this Agreement
substantially in the
form of Exhibit C to
this Schedule
Party B An Authority Upon execution of Yes
Signatory Booklet of this Agreement
Party B with respect
to the signatory of
this Agreement
Party B Documentary evidence Upon execution of Yes
of authority of this Agreement
Bankers Trust
Company, as Trustee,
to act on behalf of
Party B
</TABLE>
6
<PAGE> 25
Part 4. MISCELLANEOUS.
(a) ADDRESSES FOR NOTICES. For the purpose of Section 12(a):
(1) Address for notices or communications to Party A (other than
by facsimile):
Address: Credit Suisse First Boston International
One Cabot Square
London E14 4QJ
England
Attention: (1) Head of Credit Risk Management;
(2) Managing Director - Operations Department;
(3) Managing Director - Legal Department
Telex No.: 264521
Answerback: CSFBI G
(For all purposes.)
(2) For the purpose of facsimile notices or communications
under this Agreement (other than a notice or communication
under Section 5 or 6):
Facsimile No.: 020 7888 2686
Attention: Managing Director - Legal Department
Telephone number for oral confirmation of receipt of facsimile
in legible form: 020 7888 2028
Designated responsible employee for the purposes of Section
12(a)(iii): Senior Legal Secretary
Address for notices or communications to Party B:
Bankers Trust Company
Corporate Trust and Agency Group
4 Albany Street, 10th Floor
New York, New York 10015
Attention: Structured Finance Team
Telephone No.: (212) 250-2500
Facsimile No.: (212) 250-6439
7
<PAGE> 26
(b) PROCESS AGENT. For the purpose of Section 13(c):
Party A appoints as its Process Agent: Credit Suisse First Boston
Corporation,
Eleven Madison Avenue,
New York, NY 10010
(Attention: General Counsel,
Legal and Compliance
Department).
Party B appoints as its Process Agent: Not applicable.
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement.
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is the Trustee, unless
otherwise specified in a Confirmation in relation to the relevant
Transaction.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:
In the case of Party A: Not applicable.
In the case of Party B: Not applicable.
(g) CREDIT SUPPORT PROVIDER.
In relation to Party A: Not applicable
In relation to Party B: Not applicable
(h) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
choice of law doctrine but without prejudice to the provisions of
Section 5-1401 of the General Obligations Law of the State of New
York).
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this
Agreement will apply to any of the Transactions, except that it will
not apply to payments by each Party to the other if Party B so notifies
Party A ten (10) days in advance of the date such Payments are due.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement, except that with respect to Party B there shall be
deemed to be no Affiliates.
8
<PAGE> 27
Part 5. OTHER PROVISIONS.
(a) CONFIRMATION. Each Confirmation supplements, forms part of, and will
be read and construed as one with, this Agreement. A form of
Confirmation is set forth as Exhibit D hereto.
(b) WAIVER OF TRIAL BY JURY. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury
in respect of any suit, action or proceeding relating to this
Agreement. Each party (i) certifies that no representative, agent or
attorney of the other party has represented, expressly or otherwise,
that such other party would not, in the event of such a suit, action or
proceeding, seek to enforce the foregoing waiver and (ii) acknowledges
that it and the other party have been induced to enter this Agreement
by, among other things, the mutual waivers and certifications in this
Section.
(c) NON-PETITION. Party A hereby agrees that it will not bring any action
(whether in bankruptcy or otherwise) against Party B in any court prior
to the date which is one year and one day after all Investor
Certificates (as such term is defined in the Pooling and Servicing
Agreement), including all collateral interests and class C interests,
of Party B have been paid in full.
(d) ASSIGNMENT. In the event the long-term, senior unsecured debt rating of
Party A as provided for by S&P or Moody's is reduced to below BBB- or
Baa3, respectively, or such ratings are withdrawn by either S&P or
Moody's, Party A shall assign and delegate its rights and obligations
under this Agreement to a replacement counterparty, at Party A's own
cost, at the written direction of Party B.
(e) PROVISION FOR PAYMENTS FROM PARTY B. Notwithstanding anything contained
in this Agreement to the contrary, any amount required to be paid by
Party B pursuant to this Agreement will be payable only to the extent
provided in subsections 4.5(a)(ii) and 4.15(e) of the Trust Agreement
(as each such term is defined in the Confirmation). Except as expressly
provided in Part 5 (j) below, the Trustee shall not incur any liability
in connection with this Agreement, and Party A shall not bring any
claim whatsoever against the Trustee in its individual capacity or
against the assets of the Trustee (other than the assets of the Trust).
(f) DEFINITION OF TRUSTEE. For purposes of this Agreement the term
"Trustee" shall mean Bankers Trust Company as trustee for Party B.
(g) RELATIONSHIP BETWEEN PARTIES. Each party will be deemed to represent to
the other party on the date on which it enters into this Agreement that
(absent a written agreement between the parties that expressly imposes
affirmative obligations to the contrary):
(i) NON-RELIANCE. It is acting for its own account, and it has made its
own independent decisions to enter into this Agreement and each
Transaction and as to whether this
9
<PAGE> 28
Agreement and each Transaction is appropriate or proper for it based
upon its own judgment and upon advice from such advisers as it has
deemed necessary. It is not relying on any communication (written or
oral) of the other party as investment advice or as a recommendation to
enter into this Agreement or Transaction; it being understood that
information and explanations related to the terms and conditions of
this Agreement and each Transaction shall not be considered investment
advice or a recommendation to enter into this Agreement or Transaction.
No communication (written or oral) received from the other party shall
be deemed to be an assurance or guarantee as to the expected results of
this Agreement or Transaction.
(ii) ASSESSMENT AND UNDERSTANDING. It is capable of assessing the
merits of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of this Agreement and each Transaction. It is also
capable of assuming, and assumes, the risks of this Agreement and each
Transaction.
(iii) STATUS OF PARTIES. The other party is not acting as a
fiduciary for or as adviser to it in respect of this Agreement or
Transaction.
(h) ADDITIONAL REPRESENTATIONS. Each of Party A and Party B represents
that it is an "eligible swap participant" as defined in Commodities
Futures Trading Commission Rule 35.1(b)(2) (17 C.F.R. 35(b)(2)).
(i) NEGATIVE INTEREST RATES. Party A and Party B agree that:
if, with respect to a Calculation Period for a Transaction, a party
("X") is obligated to pay a Floating Amount that is a negative number
(either by reason of a negative Floating Rate or the subtraction of a
Spread from the Floating Rate), the Floating Amount with respect to X
for that Calculation Period will be deemed to be zero, and the other
party ("Y") will pay to X the absolute value of the negative Floating
Amount, in addition to any amounts otherwise owed by Y to X, on the
Payment Date such Floating Amount would have been payable if it had
been a positive number. Any amounts paid by Y to X pursuant to this
provision will be paid to such account as X may designate (unless Y
gives timely notice of a reasonable objection to such designation) in
the currency in which that Floating Amount would have been paid if it
had been a positive number (and without regard to the currency in which
Y is otherwise obligated to make payments).
(j) LIMITED RECOURSE. It is expressly understood and agreed by the parties
hereto that (i) this Agreement and each Transaction entered into
pursuant to this Agreement is entered into by Bankers Trust Company,
not individually or personally but solely as Trustee of the Fleet
Credit Card Master Trust II (the "Trust") in the exercise of the powers
and authority conferred and vested in it, (ii) the representations,
undertakings and agreements herein made on the part of the Trust are
made and intended not as personal representations, undertakings and
agreements by the Trustee but are made and intended
10
<PAGE> 29
for the purpose of binding only the Trust, (iii) nothing herein
contained shall be construed as creating any liability on the Trustee
on the part of the Trust, individually or personally, to perform any
covenant of Party B either expressed or implied contained herein, all
such liability, if any, being expressly waived by the parties who are
signatories to this Agreement and by any Persons claiming by, through
or under such parties; provided, however, that the Trustee shall be
liable in its individual capacity for its own willful misconduct or
gross negligence and (iv) under no circumstances shall the Trustee be
personally liable for the payment of any indebtedness or expenses of
the Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trust
under this Agreement.
(k) SCOPE OF AGREEMENT. Any Specified Transaction (whether now existing or
hereafter entered into) between the parties, the confirmation of which
fails by its terms expressly to exclude application of this Agreement,
shall be governed by and be subject to this Agreement. Any such
confirmation shall be a "Confirmation", and any such Specified
Transaction shall be a "Transaction", for all purposes of this
Agreement.
(l) DEFINITIONS. Unless otherwise specified in a Confirmation, this
Agreement and each Transaction between the parties are subject to the
1991 ISDA Definitions as amended by the 1998 Supplement thereto as
published by the International Swaps and Derivatives Association, Inc.
(the "1991 Definitions"), and will be governed in all relevant respects
by the provisions set forth in the 1991 Definitions, without regard to
any amendment to the 1991 Definitions subsequent to the date hereof.
The provisions of the 1991 Definitions are incorporated by reference in
and shall be deemed a part of this Agreement, except that references in
the 1991 Definitions to a "Swap Transaction" shall be deemed references
to a "Transaction" for purposes of this Agreement.
(m) CHANGE OF ACCOUNT. Section 2(b) of this Agreement is hereby amended by
the addition of the following after the word "delivery" in the first
line thereof:
"to another account in the same legal and tax jurisdiction as the
original account"
(n) ADDITIONAL REPRESENTATIONS. Section 3 of the Agreement is hereby
amended with the addition of the following representation:
"(g) Party B represents and warrants to Party A, that this Agreement
and the Transaction dated August 25, 2000 is the Interest Rate Swap and
that Party A is the Swap Counterparty as such terms are defined in the
Trust Agreement."
11
<PAGE> 30
The parties executing this Schedule have executed the Master Agreement
and have agreed as to the contents of this Schedule.
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
By: /s/ Michael Pringle
-----------------------
Name: Michael Pringle
Title: Attorney-In-Fact
By: /s/ Edmond Curtin
---------------------
Name: Edmond Curtin
Title: Director - Legal and Compliance Department
FLEET CREDIT CARD MASTER TRUST II
BANKERS TRUST COMPANY, solely in its
capacity as trustee and not in its
individual capacity
By: /s/ Peter Becker
--------------------
Name: Peter Becker
Title: Assistant Vice President
12
<PAGE> 31
EXHIBIT A TO SCHEDULE
[FORM OF OPINION OF FOREIGN COUNSEL FOR PARTY A]
25 August 2000
To: Bankers Trust Company,
acting as trustee for
The Fleet Credit Card Master Trust II
4 Albany Street, 10th Floor
New York, NY 10015
Dear Sirs,
This Opinion is furnished to you pursuant to Part 3 of the Schedule to the ISDA
Master Agreement, dated as of 25 August 2000 (the "Master Agreement") by and
between Credit Suisse First Boston International ("CSFBi") and Bankers Trust
Company, acting as trustee for The Fleet Credit Card Master Trust II (the
"Company") and a confirmation dated 25 August 2000 (the "Specified
Confirmation") between the Company and CSFBi, which supplements and forms part
of the Master Agreement (the Master Agreement and the Specified Confirmation
together the "Agreement"). I am delivering this Opinion, not in an individual
capacity, but solely as an employee of CSFBi working, at present, as internal
legal counsel in its Legal and Compliance Department.
In giving this Opinion I have examined executed copies of the Agreement and of
such documents, corporate records, certificates of public officials and other
instruments certified or otherwise identified to my satisfaction and I have
relied on information obtained from public records, officers of CSFBi and such
other sources as I have deemed necessary or appropriate for the purposes of this
Opinion.
In giving this Opinion, I have assumed:
(a) that the Agreement is within the capacity and power of the Company;
(b) that the Agreement will be duly authorised, executed and delivered by
the Company;
(c) the genuineness of all signatures (other than the signature of CSFBi
under the Agreement), the authenticity of all agreements, certificates,
instruments, and documents examined by me and the conformity to the
originals of all agreements, certificates, instruments and documents
submitted to me as originals;
(d) that all documents examined by me remain complete and up to date;
(e) that insofar as any obligation falls to be performed in any
jurisdiction outside England, its performance will not be illegal or
ineffective by virtue of the laws of that jurisdiction;
<PAGE> 32
(f) that words and expressions used in the Agreement would have the sam
meaning and effect therein as if the Agreement were governed by English
law; and
(g) that the Agreement is legal, valid and binding under the law that
governs it.
Upon the basis of the foregoing and subject to the qualifications set out below,
I am of the opinion that at the date hereof so far as the present laws of
England are concerned:
1. CSFBi is a company incorporated in England and Wales with unlimited
liability. It is currently a bank listed as an Authorised
Institution under the Banking Act 1987;
2. save for obtaining the necessary authorisations under the provisions of
the Financial Services Act, which authorisations have been obtained by
CSFBi, CSFBi is not required to obtain any authorisation, consent,
approval, exemption or licence from any governmental authority of
England as a condition to the execution and delivery of the Agreement;
3. CSFBi has the requisite corporate power and authority to enter into the
Agreement and to perform its obligations thereunder, and the Agreement
has been duly authorised and duly executed and delivered by CSFBi and
constitutes valid, binding and enforceable obligations of CSFBi; and
4. the obligations of CSFBi under the Agreement rank at least pari passu
in priority of payment with all other unsecured unsubordinated
obligations of CSFBi, excepting only those obligations preferred by
operation of law.
The Opinion set forth above is subject to the following qualifications:-
(i) This Opinion is confined solely to the laws of England as in force at
the date of this Opinion and I have made no investigation and no
opinion is expressed or implied as to the laws of any other
jurisdiction. I have assumed that no foreign law qualifies or affects
my Opinion as set out above. This Opinion shall, itself, be construed
and interpreted in accordance with the laws of England and Wales.
(ii) As used in this Opinion, the term "enforceable" means that each
obligation or document is of a type and form enforced by the English
courts. The term does not address the extent to which a judgment
obtained in a court outside England will be enforceable in England.
Certain rights and obligations may be qualified by the nature of the
remedies available in the English courts, the acceptance by such courts
of jurisdiction, the power of such courts to stay proceedings, the
provisions of the Limitation Act 1980, doctrines of good faith and fair
conduct and laws based on those doctrines and other principles of law
and equity of general application.
(iii) This Opinion is subject to all insolvency and other laws affecting the
rights of creditors generally.
2
<PAGE> 33
(iv) Section 2(e) of the Master Agreement provides for interest to be paid
on overdue amounts. Such interest may amount to a penalty under
English law and may therefore not be recoverable. Under English law a
contractual provision conferring or imposing a remedy or an obligation
consequent upon default, particularly if it involves enforcing an
additional pecuniary remedy (such as default or overdue interest)
referrable to such default, might be held by an English court to be
irrecoverable on the grounds that it is a penalty and thus void. The
provision for liquidated damages will only be enforceable if the
calculation is a genuine pre-estimate of the loss which will be
suffered as a result of the relevant default, though the fact that any
such provision was held to be void would not of itself prejudice the
legality or validity of any other provision of the Agreement and if in
the opinion of the court a provision for liquidated damages does not
represent a genuine pre-estimate of loss and is therefore an
unenforceable penalty, the court will apply the normal rules in
relation to the calculation of damages.
(v) I express no opinion as to the availability of any specific remedy
other than monetary damages for the enforcement of any obligation of
CSFBi and this Opinion should not be taken to imply that an English
court will necessarily grant any remedy, the availability of which is
subject to equitable considerations or which is otherwise in the
discretion of the court and, in particular, orders for specific
performance and injunctions, which are discretionary remedies under
English law, will not be available where damages are considered by the
court to be an adequate alternative remedy.
(vi) An English court may stay proceedings brought in an English court if
concurrent proceedings are being brought elsewhere.
(vii) Any term of the Agreement may be amended orally by the parties despite
Section 9(b) of the Master Agreement.
(viii) The provisions of Section 11 of the Master Agreement which include an
indemnity for the costs of litigation are subject to the discretion of
the court to decide whether and to what extent a party to litigation
should be awarded the costs incurred by it in connection with the
litigation.
(ix) Whilst in the event of any proceedings being brought in an English
court in respect of a monetary obligation expressed to be payable in a
currency other than pounds sterling of the United Kingdom, the court
would have power to give judgment expressed as an order to pay such
currency, it may decline to do so in its discretion, and an English
court might not enforce the benefit of currency conversion clauses and
may require that all claims or debts be converted into pounds sterling
at an exchange rate determined by the court as at date relating to such
proceeding, such as the date of commencement of winding-up.
This Opinion is given to you, the Company, solely for your benefit and may not
be relied upon by any other person for any purposes other than the entry into
and performance of the Agreement. You are requested not to give copies to others
without my prior written permission
3
<PAGE> 34
except that copies may be released to your legal advisers and auditors for the
purposes of information only on the strict understanding that I assume no
responsibility whatsoever to them as a result or otherwise. In addition, a copy
of this Opinion may be given to Moody's Investors Service Inc., Fitch, Inc. and
Standard & Poor's Ratings Services for the purposes of information only, since I
understand that they wish to know that an opinion has been given and to be made
aware of its terms. However, I accept no responsibility to these rating agencies
in respect of the contents of this Opinion.
Yours faithfully
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
EDMOND CURTIN, solicitor
DIRECTOR - LEGAL & COMPLIANCE DEPARTMENT
4
<PAGE> 35
EXHIBIT B TO SCHEDULE
[FORM OF OPINION OF U.S. COUNSEL FOR PARTY B]
August 25, 2000
Bankers Trust Company,
acting as trustee for
The Fleet Credit Card Master Trust II
4 Albany Street, 10th Floor
New York, NY 10015
Dear Sirs:
I am a Vice President of Credit Suisse First Boston Corporation, an
affiliate of Credit Suisse First Boston International ("CSFBi"). At your
request, I am delivering this opinion as counsel to CSFBi in connection with the
Agreement (as defined below). Unless otherwise defined, capitalized terms used
herein shall have the meanings assigned to such terms in the Agreement. For
purposes of delivering the opinions set forth below, I have reviewed copies of
the following documents:
(i) ISDA Master Agreement dated as of August 25, 2000 (the "Master
Agreement") between CSFBi and Bankers Trust Company, acting as trustee
for The Fleet Credit Card Master Trust II (the "Counterparty"); and
(ii) the Confirmation dated the date hereof (the "Confirmation") between
CSFBi and the Counterparty constituting a part of the Master Agreement
(which together with the Master Agreement is hereinafter referred to
collectively as the "Agreement").
I have also examined originals, or copies certified or otherwise
identified to my satisfaction, of such records of CSFBi, certificates of public
officials, and such other documents as I have deemed necessary for purposes of
this opinion.
For purposes of delivering the opinions set forth below, I have assumed
the genuineness of all signatures, the authenticity of all documents (including
the Agreement) submitted to me as originals, the conformity to authentic
original documents of documents submitted to me as certified, conformed or
photostatted copies and the authority of the person signing and delivering all
such documents. I have also assumed that the Counterparty is entering into the
Agreement in order to manage economic risks arising by reason of fluctuations in
market rates or prices and that the Agreement has been duly authorized, executed
and delivered by CSFBi and is the legal, valid and binding obligation of CSFBi
under English law. As to certain matters of fact, I have relied without
additional investigation upon the documents examined or upon certificates and
statements of officers of CSFBi. I have also assumed that only an interest rate
swap transaction will be entered into under the Agreement.
Based on the foregoing, and such other considerations of fact and law
as I have deemed appropriate, I am of the opinion that:
<PAGE> 36
1. The execution, delivery and performance of the Agreement by CSFBi do not
contravene any provision of law and no authorizations of, exemptions by, or
filings with, any governmental or other authority are required to be obtained or
made by CSFBi in connection therewith.
2. Assuming that the Agreement has been duly authorized, executed and delivered
by the Counterparty and is a legal, valid and binding obligation of the
Counterparty, the Agreement will be a legal, valid and binding agreement of
CSFBi, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, and other laws of general applicability relating to or
affecting the enforcement of creditors' rights, and to general principles of
equity, including without limitation those respecting the availability of
specific performance, the enforcement of liquidated damages provisions and the
ability to terminate an agreement or invoke a condition upon the occurrence of a
default deemed immaterial (regardless of whether enforcement is sought in a
proceeding in equity or at law).
I do not express any opinion as to: (i) whether a money judgment
granted by a court of the United States of America or of the State of New York
would be rendered in a currency other than U.S. Dollars; and (ii) the
enforceability of the provisions of Section 7 of the Master Agreement to the
extent that a Transaction may be deemed a "general intangible" under the New
York Uniform Commercial Code.
The opinions given above are limited to matters concerning the federal
laws of the United States of America and the laws of the State of New York as
they exist as of the date hereof and no opinion is expressed as to the laws of
any other jurisdiction. I express no opinion as to the antitrust, banking,
commodities, environmental, securities, insurance (including financial guaranty
insurance) or tax laws of any state or the United States of America. I expressly
disclaim any duty to update the opinions contained herein.
The undersigned is duly admitted to practice law in the State of New
York and has issued this opinion as an employee of Credit Suisse First Boston
Corporation acting as its internal company counsel and as counsel to CSFBi, and
not in any other capacity. This opinion is solely for your benefit and may not
be relied upon by any other person without my prior written consent, other than
Moody's Investors Service, Inc., Fitch IBCA, Inc, and Standard & Poor's Ratings
Services.
Very truly yours,
CREDIT SUISSE FIRST BOSTON CORPORATION
Marie-Anne Clarke
Vice President - Legal & Compliance Department
2
<PAGE> 37
EXHIBIT C TO SCHEDULE
[FORM OF OPINIONS OF COUNSEL FOR TRUSTEE]
August 25, 2000
<TABLE>
<S> <C>
Moody's Investors Service, Inc. Credit Suisse First Boston Corporation
99 Church Street as Representative of the Underwriters
New York, NY 10007 Eleven Madison Avenue
New York, NY 10010-3629
Fitch IBCA, Inc. Merrill Lynch Pierce, Fenner & Smith
One State Street Plaza Incorporated,
New York, NY 10004 as the Initial Purchaser
World Financial Center, North Tower
New York, NY 10281-1310
Fleet Bank (RI), National Association Bankers Trust Company
101 Gibraltar Road Corporate Trust and Agency Group
Horsham, PA 19044-2303 Four Albany Street
New York, NY 10006
Credit Suisse First Boston International Standard & Poor's Rating Services
One Cabot Square 55 Water Street
London E14H4QJ New York, NY 10041
United Kingdom
</TABLE>
Re: Fleet Credit Card Master Trust II Series 2000-C Class A 7.02% Asset
Backed Certificates and Class B Floating Rate Asset Backed Certificates
and Fleet Secured Note Trust 2000-C Floating Rate Secured Notes
Ladies and Gentlemen:
We have acted as counsel for Bankers Trust Company, in its capacities
as Master Trust Trustee and as Indenture Trustee (the "Trustee") in connection
with (i) the Amended and Restated Pooling and Servicing Agreement dated as of
December 1, 1993, as amended and restated on May 23, 1994, as subsequently
amended and supplemented from time to time, and as assigned by Advanta National
Bank ("Advanta") to Fleet Bank (RI), National Association ("Fleet (RI)")
pursuant to an Assignment and Assumption Agreement, dated as of February 20,
1998, among Advanta, Fleet (RI), Fleet Credit Card LLC, and the Trustee (the
"Amended and Restated
<PAGE> 38
Credit Suisse First Boston International
August 25, 2000
Page 2
Pooling and Servicing Agreement") by and between Fleet (RI), as Seller and
Servicer, and the Trustee, (ii) the Series 2000-C Supplement to the Amended and
Restated Pooling and Servicing Agreement dated as of August 25, 2000 (the
"Supplement" and together with the Amended and Restated Pooling and Servicing
Agreement, the "Agreement") by and between Fleet (RI) and the Trustee, in its
capacity as Master Trust Trustee, with respect to the issuance of the Fleet
Credit Card Master Trust II (the "Trust"), Series 2000-C Class A 7.02% Asset
Backed Certificates and Class B Floating Rate Asset Backed Certificates, (the
"Certificates"), (iii) the Indenture dated as of August 25, 2000 by and between
Fleet Secured Note Trust 2000-C, as Issuer, and the Trustee, in its capacity as
Indenture Trustee, (the "Indenture") with respect to the issuance of the Fleet
Secured Note Trust 2000-C Floating Rate Secured Notes (the "Notes") and (iv) the
Interest Rate Swap Agreement dated as of August 25, 2000 (the "Swap Agreement")
between Credit Suisse First Boston International and the Trustee on behalf of
the Trust.
In this connection, we have examined such certificates of public
officials, such certificates of officers of the Trustee, and copies certified to
our satisfaction of such corporate documents and records of the Trustee, and of
such other papers, as we have deemed relevant and necessary for our opinion
hereinafter set forth. We have relied upon such certificates of public officials
and of officers of the Trustee with respect to the accuracy of material factual
matters contained therein which were not independently established. In rendering
the opinion expressed below, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals and the
conformity to authentic original documents of all documents submitted to us as
certified, conformed or photostatic copies.
Based upon the foregoing, it is our opinion that:
1. The Trustee has been duly incorporated and is validly existing as a
New York banking corporation under the laws of the State of New York and has the
power and authority to enter into, and to take all action required of it under,
the Agreement, the Indenture and the Swap Agreement.
2. The Transfer and Administration Agreement has been acknowledged by
the Trustee and the Agreement, the Indenture and the Swap Agreement have been
duly authorized, executed and delivered by the Trustee.
3. The Agreement and the Indenture constitute the legal, valid and
binding obligations of the Trustee, enforceable against the Trustee in
accordance with their respective terms, except as the enforceability thereof may
be limited by (i) bankruptcy, insolvency, reorganization, or other similar laws
affecting the enforcement of creditors' rights generally, as such laws would
apply in the event of a bankruptcy, insolvency or reorganization or similar
<PAGE> 39
Credit Suisse First Boston International
August 25, 2000
Page 3
occurrence affecting the Trustee, and (ii) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4. The Certificates and the Notes have been duly authenticated and
delivered by the Trustee.
5. The acknowledgment of the Transfer and Administration Agreement, the
execution and delivery of the Agreement, the Indenture and the Swap Agreement
and the performance by the Trustee of their respective terms do not conflict
with or result in a violation of (A) any law or regulation of the United States
of America or the State of New York governing the banking or trust powers of the
Trustee, or (B) the charter or bylaws of the Trustee.
6. No approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State of New York
having jurisdiction over the banking or trust powers of the Trustee is required
in connection with the execution and delivery by the Trustee of the Agreement,
the Indenture and the Swap Agreement and the acknowledgment of the Transfer and
Administration Agreement or the performance by the Trustee of the terms of the
Agreement, the Indenture or the Swap Agreement.
We express no opinion as to matters governed by any law other than the
law of the State of New York and the Federal law of the United States.
Very truly yours,
<PAGE> 40
[Letterhead of Orrick, Herrington & Sutcliffe LLP]
August 25, 2000
Credit Suisse First Boston International
One Cabot Square
London E 14 4QJ
United Kingdom
Re: Fleet Credit Card Master Trust II (the "Trust"), Series 2000-C
Ladies and Gentlemen:
We have acted as special counsel for Fleet Bank (RI), National
Association, a national banking association ("Fleet (RI)"), in connection with
the Amended and Restated Pooling and Servicing Agreement, dated as of December
1, 1993, as amended and restated on May 23, 1994 and as thereafter amended and
supplemented (the "Pooling and Servicing Agreement"), between Fleet (RI), as
Seller and Servicer, and the Bankers Trust Company, as Trustee (the "Trustee")
for the Fleet Credit Card Master Trust II (the "Trust"), and the Series 2000-C
Supplement dated as of August 25, 2000 (the "Series 2000-C Supplement" and
together with the Pooling and Servicing Agreement, the "Agreement"), between
Fleet (RI), as Seller and Servicer, and the Trustee.
Fleet (RI), as Seller and Servicer under the Agreement, has
requested that we deliver this letter to you.
Fleet (RI) proposes to cause the Trust on this date to sell
$529,750,000 aggregate principal amount of Class A 7.02% Asset Backed
Certificates, Series 2000-C (the "Class A Certificates") and, in connection
therewith, the Seller and Servicer have directed the Trustee, on behalf of the
Trust, to execute and deliver to Credit Suisse First Boston International, as
swap counterparty (the "Swap Counterparty") the ISDA Master Agreement dated as
of August 25, 2000 (the "Master Agreement") between the Swap Counterparty and
Bankers Trust Company, acting as trustee for the Trust, the Schedule to the
Master Agreement dated as of August 25, 2000 (the "Schedule") and the
confirmation thereto also dated August 25, 2000 (the "Confirmation"). The Master
Agreement, the Schedule and the Confirmation are, in this letter, collectively,
the "Swap Agreement."
<PAGE> 41
Credit Suisse First Boston International
August 25, 2000
Page 2
For purposes of giving the opinion hereinafter set forth, we
have examined executed or conformed counterparts, or copies otherwise proved to
our satisfaction of the following, copies of which have been delivered to you:
(i) the Pooling and Servicing Agreement;
(ii) the Series 2000-C Supplement;
(iii) the Swap Agreement; and
(iv) such other documents as we have deemed necessary
or appropriate as a basis for the opinion set forth below.
We have obtained or have been furnished with, and have relied
upon, such certificates, advices and assurances from public officials and others
as we have deemed necessary or appropriate for purposes of this opinion.
Based upon the foregoing, having regard to legal
considerations which we deem relevant, and subject to the limitations set forth
below, we are of the opinion that the Swap Agreement constitutes the legal,
valid and binding obligation of the Trustee under the laws of the State of New
York and the Swap Agreement is enforceable against the Trustee in accordance
with its terms.
With your permission, we have assumed the following: (i) the
due authorization, execution and delivery by all parties thereto of all
documents examined by us, including the Pooling and Servicing Agreement, the
Series 2000-C Supplement and the Swap Agreement, (ii) that the Trustee and the
Swap Counterparty each has the power and authority to enter into and perform all
of its respective obligations under the Swap Agreement, (iii) that, as to the
Swap Counterparty, the Swap Agreement is a legal, valid and binding obligation,
enforceable in accordance with its terms under the laws of the State of New York
and (iv) that the Trustee is duly incorporated and validly existing as a New
York banking corporation.
With your permission, we have assumed the following: (a) the
authenticity of original documents and the genuineness of all signatures; (b)
the conformity to the originals of all documents submitted to us as copies; and
(c) the truth, accuracy and completeness of the information, factual matters,
representations and warranties contained in the records, documents, instruments
and certificates we have reviewed. We have further assumed that each of the
parties to each of the documents described above fully complies with all of its
obligations thereunder and that there are no arrangements, understandings or
agreements among the parties relating to the Swap Agreement other than those
evidenced by the documents described herein.
<PAGE> 42
Credit Suisse First Boston International
August 25, 2000
Page 3
Our opinion that any document is legal, valid, binding or
enforceable in accordance with its terms is subject to: (1) limitations imposed
by bankruptcy, insolvency, reorganization, receivership, conservatorship,
liquidation, arrangement, fraudulent conveyance, moratorium or other laws
relating to or affecting the enforcement of creditors' rights generally and the
rights and remedies of creditors of national banking associations; (2) general
principles of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law; and (3) rights to indemnification and
contribution which may be limited by applicable law or equitable principles or
otherwise unenforceable as against public policy.
We express no opinion as to the law of any jurisdiction other
than the laws of the State of New York and the United States of America.
This opinion is solely for your benefit and may not be relied
upon or used by, circulated, quoted, or referred to, not may copies hereof be
delivered to, any other person without our prior written approval. We disclaim
any obligation to update this opinion letter for events occurring or coming to
our attention after the date hereof.
Very truly yours,
ORRICK, HERRINGTON & SUTCLIFFE LLP
<PAGE> 43
EXHIBIT D TO SCHEDULE
Date: August 25, 2000
To: Bankers Trust Company, as
Trustee, on behalf of
Fleet Credit Card Master Trust II
Telephone: (212) 250-6323
Telecopier: (212) 250-6439
From: CREDIT SUISSE FIRST BOSTON INTERNATIONAL
One Cabot Square
London E 14 4QJ
United Kingdom
Subject: Transaction
The purpose of this communication is to set forth the terms
and conditions of the swap transaction entered into on the Trade Date referred
to below (the "Transaction"), between BANKERS TRUST COMPANY (the "Trustee"), as
trustee on behalf of the FLEET CREDIT CARD MASTER TRUST II ("Party B"), but only
as relates to the Series 2000-C Class A 7.02% Certificates (the "Trust") and
CREDIT SUISSE FIRST BOSTON INTERNATIONAL ("Party A"). This communication
constitutes a "Confirmation" as referred to in the Swap Agreement specified
below.
This Confirmation supplements, forms part of, and is subject
to, the Master Agreement dated as of August 25, 2000 between Party A and Party B
(the "Master Agreement"). All provisions contained in, or incorporated by
reference to, such Master Agreement shall govern this Confirmation except as
expressly modified below.
This Confirmation and the Schedule to the Master Agreement
(the "Schedule") each incorporate the definitions and provisions contained in
(i) the 1991 ISDA Definitions (as supplemented by the 1998 Supplement) (as
published by the International Swaps and Derivatives Association, Inc.) (the
"Definitions"), without regard to any amendment to the Definitions subsequent to
the date hereof, and (ii) the Series 2000-C Supplement dated as of August 25,
2000 (the "Supplement") to the Amended and Restated Pooling and Servicing
Agreement dated as of December 1, 1993 as amended and restated on May 23, 1994
between Fleet Bank (RI), National Association, as Seller and Servicer, and
Bankers Trust Company, as Trustee (as amended, the "Pooling and Servicing
Agreement", together with the Supplement, the "Trust Agreement"), and relating
to the Trust, Series 2000-C ("Series 2000-C") and, in particular, for the
purposes hereof, the Class A 7.02% Asset Backed Certificates, Series 2000-C (the
"Class A Certificates"). In the event of any inconsistency between the
definitions in the Supplement and any of the Definitions, the Schedule or this
Confirmation, the definitions in the Supplement will govern; in the event of any
inconsistency between this Confirmation and either the Schedule or the
Definitions, this
<PAGE> 44
Confirmation will govern; and in the event of any inconsistency between the
Schedule and the Definitions, the Schedule will govern.
The terms of this particular Transaction to which this
Confirmation relates are as follows:
<TABLE>
<S> <C>
Trade Date: August 17, 2000
Effective Date: The Closing Date for Series 2000-C
Termination Date: The Class A Expected Final
Distribution Date; provided,
however, that in the event that
the Rapid Amortization Period
commences as a result of a Trust
Pay Out Event, the Termination
Date will be the earlier of (i)
the date on which the Notional
Amount is zero and (ii) the Class
A Expected Final Distribution
Date.
FIXED AMOUNTS:
Fixed Rate Payer: Party A.
Fixed Rate: 7.02%
Fixed Amount for Initial Fixed Rate
Payer Payment Date: $5,165,062.50
Fixed Amount: For each Fixed Rate Payer Payment
Date other than the initial Fixed
Rate Payer Payment Date, an
amount calculated on a formula
basis for that Fixed Rate Payer
Payment Date as follows:
Fixed Rate
Fixed = Notional x Fixed
Amount Amount Rate
--------------------
12
Fixed Rate Notional Amount: For the initial Fixed Rate Payer
Payment Date, $529,750,000 (the
initial outstanding principal
balance of the Class A
Certificates), and for each Fixed
Rate Payer Payment Date
thereafter the outstanding
principal balance of Class A
Certificates as of the Record
Date immediately preceding such
Fixed Rate Payer Payment Date
Fixed Rate Payer Payment Dates: Each Transfer Date.
Fixed Rate Day Count Fraction: 30/360.
</TABLE>
<PAGE> 45
<TABLE>
<S> <C>
FLOATING AMOUNTS:
Floating Rate Payer: Party B.
Calculation Periods: For the initial Floating Rate
Payer Payment Date, the period
from and including the Effective
Date through the day preceding
the first Distribution Date; and
for each Floating Rate Payer
Payment Date thereafter, each
Calculation Period will be the
period from and including the
previous Distribution Date
through the day preceding the
current Distribution Date.
Floating Rate Payer Payment Dates: Each Transfer Date.
Floating Rate Option: USD-LIBOR-BBA; provided, however,
that the last sentence of the
definition of
"USD-LIBOR-Reference Banks" is
hereby amended to replace the
penultimate use of "that Reset
Date" with "the day that is two
London Banking Days preceding
that Reset Date."
Reset Dates: Means, with respect to each
Floating Rate Payer Payment Date
after the initial Floating Rate
Payer Payment Date, the first day
of the related Calculation Period
for such Floating Rate Payer
Payment Date.
Designated Maturity: One month.
Floating Rate Spread:
Floating Amount for Initial
Floating Rate Payer Payment Date:
Floating Rate Notional Amount: For the initial Floating Rate
Payer Payment Date, $529,750,000
(the initial outstanding
principal balance of the Class A
Certificates), and for each
Floating Rate Payer Payment Date
thereafter the outstanding
principal balance of the Class A
Certificates as of the Record
Date immediately preceding such
Floating Rate Payer Payment Date.
Floating Rate Day Count Fraction: Actual/360.
Compounding: Not Applicable.
Calculation Agent: Trustee.
</TABLE>
<PAGE> 46
<TABLE>
<S> <C>
Business Days: New York.
Credit Support Document: Not Applicable.
Other Provisions: The Servicer shall establish and
maintain in the name of the
Trustee for the benefit of the
Class A Certificateholders, the
interest reserve account (the
"Interest Reserve Account"). If
at any time during the Term of
the Transaction, (i) the
short-term debt rating of Party A
is reduced below A-1 or is
withdrawn by S&P, (ii) the
short-term debt rating of Party A
is reduced below F1+ or is
withdrawn by Fitch, (iii) the
long-term, senior unsecured debt
rating of Party A is reduced
below A- by S&P or is withdrawn
by S&P or (iv) the long-term,
senior unsecured debt rating of
Party A is reduced below AA- by
Fitch or is withdrawn by Fitch,
then Party A will, within 30 days
from the date of such reduction
or withdrawal, fund the Interest
Reserve Account in an amount
equal to one-twelfth of the
product of (a) the Fixed Rate and
(b) the Fixed Rate Notional
Amount as of the Record Date
preceding such reduction or
withdrawal (the "Required
Interest Reserve Amount");
provided, however, that the
failure of Party A to adequately
fund the Interest Reserve Account
within thirty days of such
reduction or withdrawal shall not
constitute an Event of Default
pursuant to the provisions of
subsection 5(a) or a Termination
Event pursuant to the provisions
of subsection 5(b). Party A shall
treat the amount on deposit in
the Interest Reserve Account as
its money for tax purposes. After
establishment of the Interest
Reserve Account, in the event
there shall occur an Early
Termination Date as a result of
an Event of Default with respect
to Party A as the Defaulting
Party or a Termination Event with
respect to Party A as the
Affected Party, the funds then
contained in the Interest Reserve
Account will be deposited into
the Collection Account to the
extent provided in the
Supplement. Funds on deposit in
the Interest Reserve Account
shall be invested at the
direction of Party A by the
trustee in Eligible Investments.
All interest and
</TABLE>
<PAGE> 47
<TABLE>
<S> <C>
earnings (net of losses and
investment expenses) on the
Interest Reserve Account shall be
retained in the Interest Reserve
Account (to the extent that the
amount on deposit in the Interest
Reserve Account is less than the
Required Interest Reserve Amount)
and the balance, if any, shall be
distributed to Party A. Upon
termination of the Interest
Reserve Account as provided in
the Supplement after payment of
all amounts owing to the Series
2000-C Certificateholders that
are payable from such account,
the Trustee will release all
amounts on deposit therein to
Party A if on any Transfer Date
subsequent to the increase of
Party A's credit rating or
ratings to the level that each of
the following is true: Party A's
short-term debt rating by S & P
is not less than A-1 and by Fitch
is not less the F1+ and Party A's
long-term, senior unsecured debt
rating is not less than A- by S &
P, and is not less than AA- by
Fitch, then, the Trustee at the
direction of the Servicer, after
the prior payment of all amounts
owing to the Series 2000-C
Certificateholders that are
payable from the Interest Reserve
Account, shall withdraw from the
Interest Reserve Account and pay
to Party A, the amount, if any,
on deposit in the Interest
Reserve Account.
If Party B at the direction of
the Servicer notifies Party A
that netting of payments will not
apply to any of the Transactions
pursuant to Part 4(i) of the
Schedule, each payment obligation
of Party B under Section 2(a)(i)
of the Master Agreement in
respect of this Transaction shall
be subject to the condition
precedent that in respect of each
such payment obligation each
amount payable by Party A with
respect to this Transaction shall
be paid by Party A by 10:00 a.m.,
New York City time, on the
relevant Fixed Rate Payer Payment
Date.
London Banking Day: London, England.
Governing Law: New York.
Offices: Party A is not a Multibranch Party.
</TABLE>
<PAGE> 48
<TABLE>
<S> <C>
Party B is not a Multibranch Party.
Payment Instructions
for Party A in USD:
Payment Instructions
for the Trust in USD:
</TABLE>
RELATIONSHIP BETWEEN THE PARTIES
Credit Suisse First Boston International is regulated by the Securities
and Futures Authority and has entered into this transaction as
principal. The time at which the above Transaction was executed will be
notified to Party B on request.
<PAGE> 49
Please confirm that the foregoing correctly sets forth the terms of our
agreement with respect to the Transaction by signing in the space provided below
and sending a copy of the executed Confirmation to us.
It has been a pleasure working with you on this transaction and we look forward
to working with you again in the future.
Very truly yours,
CREDIT SUISSE FIRST BOSTON
INTERNATIONAL
By its Agent: CSFB International Trading L.L.C.
By:
-----------------------------------
Name:
Title:
Agreed and Accepted by:
FLEET CREDIT CARD MASTER TRUST II,
BANKERS TRUST COMPANY, solely
in its capacity as trustee and not
in its individual capacity
By:
-----------------------------------
Name:
Title:
<PAGE> 50
[CREDIT SUISSE LOGO] CREDIT SUISSE FIRST BOSTON INTERNATIONAL
One Cabot Square, Telephone 0207 888 2000
London E14 4QJ Facsimile 0207 888 4125/3862
Date: August 25, 2000
To: Bankers Trust Company, as
Trustee, on behalf of
Fleet Credit Card Master Trust II
Telephone: (212) 250-6323
Telecopier: (212) 250-6439
From: CREDIT SUISSE FIRST BOSTON INTERNATIONAL
One Cabot Square
London E 14 4QJ
United Kingdom
Subject: Transaction
The purpose of this communication is to set forth the terms
and conditions of the Transaction entered into on the Trade Date referred to
below (the "Transaction"), between BANKERS TRUST COMPANY (the "Trustee"), as
trustee on behalf of the FLEET CREDIT CARD MASTER TRUST II ("Party B"), but only
as relates to the Series 2000-C Class A 7.02% Certificates (the "Trust") and
CREDIT SUISSE FIRST BOSTON INTERNATIONAL ("Party A"). This communication
constitutes a "Confirmation" as referred to in the Swap Agreement specified
below.
This Confirmation supplements, forms part of, and is subject
to, the Master Agreement dated as of August 25, 2000 between Party A and Party B
(the "Master Agreement"). All provisions contained in, or incorporated by
reference to, such Master Agreement shall govern this Confirmation except as
expressly modified below.
This Confirmation and the Schedule to the Master Agreement
(the "Schedule") each incorporate the definitions and provisions contained in
(i) the 1991 ISDA Definitions (as supplemented by the 1998 Supplement) (as
published by the International Swaps and Derivatives Association, Inc.) (the
"Definitions"), without regard to any amendment to the Definitions subsequent to
the date hereof, and (ii) the Series 2000-C Supplement dated as of August 25,
2000 (the "Supplement") to the Amended and Restated Pooling and Servicing
Agreement dated as of December 1, 1993 as amended and restated on May 23, 1994
between Fleet Bank (RI), National Association, as Seller and Servicer, and
Bankers Trust Company, as Trustee (as amended, the "Pooling and Servicing
Agreement", together with the Supplement, the "Trust Agreement"), and relating
to the Trust, Series 2000-C ("Series 2000-C") and, in particular, for the
purposes hereof, the Class A 7.02% Asset Backed Certificates, Series 2000-C (the
"Class A Certificates"). In the
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event of any inconsistency between the definitions in the Supplement and any of
the Definitions, the Schedule or this Confirmation, the definitions in the
Supplement will govern; in the event of any inconsistency between this
Confirmation and either the Schedule or the Definitions, this Confirmation will
govern; and in the event of any inconsistency between the Schedule and the
Definitions, the Schedule will govern.
The terms of this particular Transaction to which this Confirmation relates are
as follows:
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Trade Date: August 17, 2000
Effective Date: The Closing Date for Series 2000-C
Termination Date: The Class A Expected Final
Distribution Date; provided,
however, that in the event that
the Rapid Amortization Period
commences as a result of a Trust
Pay Out Event, the Termination
Date will be the earlier of (i)
the date on which the Notional
Amount is zero and (ii) the Class
A Expected Final Distribution
Date.
FIXED AMOUNTS:
Fixed Rate Payer: Party A.
Fixed Rate: 7.02%
Fixed Amount for Initial Fixed Rate
Payer Payment Date: $5,165,062.50
Fixed Amount: For each Fixed Rate Payer Payment
Date other than the initial Fixed
Rate Payer Payment Date, an
amount calculated on a formula
basis for that Fixed Rate Payer
Payment Date as follows:
Fixed Rate
Fixed = Notional x Fixed
Amount Amount Rate
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12
Fixed Rate Notional Amount: For the initial Fixed Rate Payer
Payment Date, $529,750,000 (the
initial outstanding principal
balance of the Class A
Certificates), and for each Fixed
Rate Payer Payment Date
thereafter the outstanding
principal balance of Class A
Certificates as of the Record
Date immediately preceding such
Fixed Rate Payer Payment Date
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Fixed Rate Payer Payment Dates: Each Transfer Date.
Fixed Rate Day Count Fraction: 30/360.
FLOATING AMOUNTS:
Floating Rate Payer: Party B.
Calculation Periods: For the initial Floating Rate
Payer Payment Date, the period
from and including the Effective
Date through the day preceding
the first Distribution Date; and
for each Floating Rate Payer
Payment Date thereafter, each
Calculation Period will be the
period from and including the
previous Distribution Date
through the day preceding the
current Distribution Date.
Floating Rate Payer Payment Dates: Each Transfer Date.
Floating Rate Option: USD-LIBOR-BBA; provided, however,
that the last sentence of the
definition of
"USD-LIBOR-Reference Banks" is
hereby amended to replace the
penultimate use of "that Reset
Date" with "the day that is two
London Banking Days preceding
that Reset Date."
Reset Dates: Means, with respect to each
Floating Rate Payer Payment Date
after the initial Floating Rate
Payer Payment Date, the first day
of the related Calculation Period
for such Floating Rate Payer
Payment Date.
Designated Maturity: One month.
Floating Rate Spread:
Floating Amount for Initial
Floating Rate Payer Payment Date:
Floating Rate Notional Amount: For the initial Floating Rate
Payer Payment Date, $529,750,000
(the initial outstanding
principal balance of the Class A
Certificates), and for each
Floating Rate Payer Payment Date
thereafter the outstanding
principal balance of the Class A
Certificates as of the Record
Date
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<S> <C>
immediately preceding such
Floating Rate Payer Payment Date.
Floating Rate Day Count Fraction: Actual/360.
Compounding: Not Applicable.
Calculation Agent: Trustee.
Business Days: New York.
Credit Support Document: Not Applicable.
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<S> <C>
Other Provisions: The Servicer shall establish and
maintain in the name of the
Trustee for the benefit of the
Class A Certificateholders, the
interest reserve account (the
"Interest Reserve Account"). If
at any time during the Term of
the Transaction, (i) the
short-term debt rating of Party A
is reduced below A-1 or is
withdrawn by S&P, (ii) the
short-term debt rating of Party A
is reduced below F1+ or is
withdrawn by Fitch, (iii) the
long-term, senior unsecured debt
rating of Party A is reduced
below A- by S&P or is withdrawn
by S&P or (iv) the long-term,
senior unsecured debt rating of
Party A is reduced below AA- by
Fitch or is withdrawn by Fitch,
then Party A will, within 30 days
from the date of such reduction
or withdrawal, fund the Interest
Reserve Account in an amount
equal to one-twelfth of the
product of (a) the Fixed Rate and
(b) the Fixed Rate Notional
Amount as of the Record Date
preceding such reduction or
withdrawal (the "Required
Interest Reserve Amount");
provided, however, that the
failure of Party A to adequately
fund the Interest Reserve Account
within thirty days of such
reduction or withdrawal shall not
constitute an Event of Default
pursuant to the provisions of
subsection 5(a) or a Termination
Event pursuant to the provisions
of subsection 5(b). Party A shall
treat the amount on deposit in
the Interest Reserve Account as
its money for tax purposes. After
establishment of the Interest
Reserve Account, in the event
there shall occur an Early
Termination Date as a result of
an Event of Default with respect
to Party A as the Defaulting
Party or a Termination Event with
respect to Party A as the
Affected Party, the funds then
contained in the Interest Reserve
Account will be deposited into
the Collection Account to the
extent provided in the
Supplement. Funds on deposit in
the Interest Reserve Account
shall be invested at the
direction of Party A by the
trustee in Eligible Investments.
All interest and earnings (net of
losses and investment expenses)
on the Interest Reserve Account
shall be
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<S> <C>
retained in the Interest Reserve
Account (to the extent that the
amount on deposit in the Interest
Reserve Account is less than the
Required Interest Reserve Amount)
and the balance, if any, shall be
distributed to Party A. Upon
termination of the Interest
Reserve Account as provided in
the Supplement after payment of
all amounts owing to the Series
2000-C Certificateholders that
are payable from such account,
the Trustee will release all
amounts on deposit therein to
Party A if on any Transfer Date
subsequent to the increase of
Party A's credit rating or
ratings to the level that each of
the following is true: Party A's
short-term debt rating by S & P
is not less than A-1 and by Fitch
is not less the F1+ and Party A's
long-term, senior unsecured debt
rating is not less than A- by S &
P, and is not less than AA- by
Fitch, then, the Trustee at the
direction of the Servicer, after
the prior payment of all amounts
owing to the Series 2000-C
Certificateholders that are
payable from the Interest Reserve
Account, shall withdraw from the
Interest Reserve Account and pay
to Party A, the amount, if any,
on deposit in the Interest
Reserve Account.
If Party B at the direction of
the Servicer notifies Party A
that netting of payments will not
apply to any of the Transactions
pursuant to Part 4(i) of the
Schedule, each payment obligation
of Party B under Section 2(a)(i)
of the Master Agreement in
respect of this Transaction shall
be subject to the condition
precedent that in respect of each
such payment obligation each
amount payable by Party A with
respect to this Transaction shall
be paid by Party A by 10:00 a.m.,
New York City time, on the
relevant Fixed Rate Payer Payment
Date.
London Banking Day: London, England.
Governing Law: New York.
Offices: Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
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<S> <C>
Payment Instructions
for Party A in USD:
Payment Instructions
for the Trust in USD:
</TABLE>
RELATIONSHIP BETWEEN THE PARTIES
Credit Suisse First Boston International is regulated by the Securities
and Futures Authority and has entered into this transaction as
principal. The time at which the above Transaction was executed will be
notified to Party B on request.
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[CREDIT SUISSE LOGO] CREDIT SUISSE FIRST BOSTON INTERNATIONAL
One Cabot Square, Telephone 0207 888 2000
London E14 4QJ Facsimile 0207 888 4125/3862
Please confirm that the foregoing correctly sets forth the terms of our
agreement with respect to the Transaction by signing in the space provided below
and sending a copy of the executed Confirmation to us.
It has been a pleasure working with you on this transaction and we look forward
to working with you again in the future.
Very truly yours,
CREDIT SUISSE FIRST BOSTON INTERNATIONAL,
By its Agent: CSFB INTERNATIONAL TRADING L.L.C.
By: /s/ Ricardo Harewood
-------------------------------------
Name: Ricardo Harewood
Title: Assistant Vice President
Agreed and Accepted by:
FLEET CREDIT CARD MASTER TRUST II,
BANKERS TRUST COMPANY, solely
in its capacity as trustee and not
in its individual capacity
By: /s/ Peter Becker
-------------------------------
Name: Peter Becker
Title: Assistant Vice President
