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BA CREDIT CARD TRUST
as Issuer
CLASS A(2008-9) TERMS DOCUMENT
dated as of August 5, 2008
to
AMENDED AND RESTATED BASERIES INDENTURE SUPPLEMENT
dated as of June 10, 2006
to
SECOND AMENDED AND RESTATED INDENTURE
dated as of October 20, 2006
THE BANK OF NEW YORK MELLON
as Indenture Trustee
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Article I
Definitions and Other Provisions of General
Application........................................1
Section 1.01.
Definitions....................................................................................1
Section 1.02.
Governing Law; Submission to Jurisdiction; Agent for Service of
Process........................6
Section 1.03.
Counterparts...................................................................................6
Section 1.04.
Ratification of Indenture and Indenture
Supplement.............................................6
Article II
The Class A(2008-9)
Notes......................................................................8
Section 2.01.
Creation and
Designation.......................................................................8
Section 2.02.
Specification of Required Subordinated Amount and other
Terms..................................8
Section 2.03.
Interest
Payment...............................................................................8
Section 2.04.
Payments of Interest and
Principal.............................................................9
Section 2.05.
Form of Delivery of Class A(2008-9) Notes; Depository;
Denominations...........................9
Section 2.06.
Delivery and Payment for the Class A(2008-9)
Notes............................................10
Section 2.07.
Targeted Deposits to the Accumulation Reserve
Account.........................................10
Section 2.08.
Derivative
Agreement..........................................................................10
Section 2.09.
Interest Reserve
Account......................................................................11
Section 2.10.
Early Redemption
Events.......................................................................13
Section 2.11.
Derivative Reserve
Account....................................................................13
Section 2.12.
Termination
Payments..........................................................................14
Article III
Representations and
Warranties................................................................16
Section 3.01.
Issuer's Representations and
Warranties.......................................................16
THIS CLASS A(2008-9) TERMS DOCUMENT (this "Terms Document"), by and
between BA CREDIT CARD
TRUST, a statutory trust created under the laws of the State of
Delaware (the "Issuer"), having its principal
office at Rodney Square North, 1100 North Market Street,
Wilmington, Delaware 19890, and THE BANK OF NEW YORK
MELLON, a New York banking corporation, as Indenture Trustee ( the
"Indenture Trustee"), is made and entered into
as of August 5, 2008.
Pursuant to this Terms Document, the Issuer and the Indenture
Trustee shall create a new
tranche of Class A Notes and shall specify the principal terms
thereof.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01.
Definitions.
For all purposes of this Terms Document, except as otherwise
expressly
provided or unless the context otherwise requires:
(1)
the terms defined in this Article have the meanings assigned to
them in this Article,
and include the plural as well as the singular;
(2)
all other terms used herein which are defined in the Amended and
Restated BAseries
Indenture Supplement, dated as of June 10, 2006 (the "Indenture
Supplement"), between
the Issuer and the Indenture Trustee, or the Second Amended and
Restated Indenture,
dated as of October 20, 2006 (the "Indenture"), between the Issuer
and the Indenture
Trustee, as acknowledged and accepted by FIA, as Servicer, either
directly or by
reference therein, have the meanings assigned to them therein;
(3)
all accounting terms not otherwise defined herein have the meanings
assigned to them
in accordance with generally accepted accounting principles and,
except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with
respect to any computation required or permitted hereunder means
such accounting
principles as are generally accepted in the United States of
America at the date of
such computation;
(4)
all references in this Terms Document to designated "Articles,"
"Sections" and other
subdivisions are to the designated Articles, Sections and other
subdivisions of this
Terms Document as originally executed;
(5)
the words "herein," "hereof" and "hereunder" and other words of
similar import refer
to this Terms Document as a whole and not to any particular
Article, Section or other
subdivision;
(6)
in the event that any term or provision contained herein shall
conflict with or be
inconsistent with any term or provision contained in the Indenture
Supplement or the Indenture, the terms and provisions of this Terms
Document shall be
controlling;
(7)
each capitalized term defined herein shall relate only to the Class
A(2008-9) Notes
and no other tranche of Notes issued by the Issuer; and
(8)
"including" and words of similar import will be deemed to be
followed by "without
limitation."
"Accumulation Reserve Funding Period" shall mean, (a) if the
Accumulation Period Length is
determined to be one (1) month, there shall be no Accumulation
Reserve Funding Period and (b) otherwise, the
period (x) commencing on the earlier to occur of (i) the Monthly
Period beginning three (3) calendar months prior
to the first Transfer Date for which a budgeted deposit is targeted
to be made into the Principal Funding
sub-Account of the Class A(2008-9) Notes pursuant to Section
3.10(b) of the Indenture Supplement and (ii) the
Monthly Period following the first Transfer Date following and
including the September 2008 Transfer Date for
which the Quarterly Excess Available Funds Percentage is less than
4%, but in such event the Accumulation Reserve
Funding Period shall not be required to commence earlier than 16
months prior to the Expected Principal Payment
Date and (y) ending on the close of business on the last day of the
Monthly Period preceding the earlier to occur
of (i) the Expected Principal Payment Date for the Class A(2008-9)
Notes and (ii) the date on which the Class
A(2008-9) Notes are paid in full.
"Base Rate" means, with respect to any Monthly Period, the sum of
(i) the Weighted Average
Interest Rates for the Outstanding BAseries Notes, (ii) the Net
Servicing Fee Rate (as such term is defined in
the Series 2001-D Supplement) and (iii) so long as FIA or The Bank
of New York Mellon is the Servicer, the
Servicer Interchange Rate, in each case, for such Monthly Period.
"BAseries Servicer Interchange" means, with respect to any Monthly
Period, an amount equal to
the product of (a) the Servicer Interchange (as such term is
defined in the Series 2001-D Supplement) with
respect to such Monthly Period and (b) a fraction the numerator of
which is the Weighted Average Available Funds
Allocation Amount for the BAseries for such Monthly Period and the
denominator of which is the Weighted Average
Available Funds Allocation Amount for all series of Notes for such
Monthly Period.
"Class A(2008-9) Note" means any Note, substantially in the form
set forth in Exhibit A-1 to
the Indenture Supplement, designated therein as a Class A(2008-9)
Note and duly executed and authenticated in
accordance with the Indenture.
"Class A(2008-9) Noteholder" means a Person in whose name a Class
A(2008-9) Note is registered
in the Note Register.
"Class A(2008-9) Termination Date" means the earliest to occur of
(a) the Principal Payment
Date on which the Outstanding Dollar Principal Amount of the Class
A(2008-9) Notes is paid in full, (b) the Legal
Maturity Date and (c) the date on which the Indenture is discharged
and satisfied pursuant to Article VI thereof.
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"Class A Required Subordinated Amount of Class B Notes" is defined
in Section 2.02(a).
"Class A Required Subordinated Amount of Class C Notes" is defined
in Section 2.02(b).
"Controlled Accumulation Amount" means $83,333,333.34; provided,
however, if the Accumulation
Period Length is determined to be less than twelve (12) months
pursuant to Section 3.10(b)(ii) of the Indenture
Supplement, the Controlled Accumulation Amount shall be the amount
specified in the definition of "Controlled
Accumulation Amount" in the Indenture Supplement.
"Derivative Agreement" means the ISDA Master Agreement, together
with the Schedule and the
Confirmation thereto, each dated as of August 5, 2008, between the
Issuer and the Derivative Counterparty, as
such Derivative Agreement may be amended, modified or replaced.
"Derivative Counterparty" means Bank of America, N.A. and any of
its successors or transferees
under the Derivative Agreement.
"Derivative Fixed Rate" means, for any applicable Interest Period,
the fixed rate specified in
the Derivative Agreement.
"Derivative Reserve Account" is defined in Section 2.11.
"Excess Available Funds Percentage" means, with respect to any
Transfer Date, the amount, if
any, by which the Portfolio Yield for the preceding Monthly Period
exceeds the Base Rate for such Monthly Period.
"Expected Principal Payment Date" means February 16, 2010.
"Fixed Amount" means, for any Transfer Date, an amount equal to the
fixed amount (including the
amount of any termination payment payable by the Derivative
Counterparty to the Issuer pursuant to Section 6 of
the Derivative Agreement following the termination of the
Derivative Agreement pursuant to the terms thereof)
payable by the Derivative Counterparty to the Issuer for such date
pursuant to the Derivative Agreement for
interest for the Class A(2008-9) Notes.
"Floating Amount" means, for any Transfer Date, an amount equal to
(a) the floating amount
(excluding the amount of any termination payment payable by the
Issuer to the Derivative Counterparty pursuant to
Section 6 of the Derivative Agreement following the termination of
the Derivative Agreement pursuant to the terms
thereof) payable by the Issuer to the Derivative Counterparty for
such date pursuant to the Derivative Agreement,
minus (b) the amount, if any, by which the PFA Accumulation
Earnings Shortfall plus the PFA Prefunding Earnings
Shortfall for the Class A(2008-9) Notes for such Transfer Date
exceeds the sum of (i)
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the aggregate amount withdrawn from the Derivative Reserve Account
and (ii) the aggregate amount to be treated as
BAseries Available Funds pursuant to Section 3.04(a)(i) or
3.04(a)(ii) of the Indenture Supplement, in each case,
for the Class A(2008-9) Notes for such Transfer Date; provided,
however, that solely for purposes of clause (c) of
the definition of PFA Accumulation Earnings Target and clause (c)
of the definition of PFA Prefunding Earnings
Target, the "Floating Amount" for any Transfer Date will be limited
to the amount determined pursuant to clause
(a) above.
"Initial Dollar Principal Amount" means $1,000,000,000.
"Interest Payment Date" means the fifteenth day of each month, or
if such fifteenth day is not
a Business Day, the next succeeding Business Day, commencing
September 15, 2008.
"Interest Period" means, with respect to any Interest Payment Date,
the period from and
including the previous Interest Payment Date (or in the case of the
initial Interest Payment Date, from and
including the Issuance Date) through the day preceding such
Interest Payment Date.
"Interest Reserve Account" is defined in Section 2.09.
"Interest Reserve Account Event" is defined in Section 2.08.
"Issuance Date" means August 5, 2008.
"Legal Maturity Date" means July 16, 2012.
"Net Derivative Payment" means, for any Transfer Date, (a) if the
netting provisions of
subsection 2(c)(ii) of the Derivative Agreement apply, the amount
by which the Floating Amount for such date
exceeds the Fixed Amount for such date, and (b) otherwise, an
amount equal to the Floating Amount for such date.
"Net Derivative Receipt" means, for any Transfer Date, (a) if the
netting provisions of
subsection 2(c)(ii) of the Derivative Agreement apply, the amount
by which the Fixed Amount for such date exceeds
the Floating Amount for such date, and (b) otherwise, an amount
equal to the Fixed Amount for such date.
"Note Interest Rate" means a per annum rate equal to 4.07%.
"Paying Agent" means The Bank of New York Mellon.
"Portfolio Yield" means, with respect to any Monthly Period, the
annualized percentage
equivalent of a fraction, the numerator of which is (a) the amount
of Available Funds allocated to the BAseries
pursuant to Section 501 of the Indenture, plus (b) any Interest
Funding sub-Account Earnings on the related
Transfer Date, plus (c) any amounts to be treated as BAseries
Available Funds pursuant to Sections 3.20(d) and
3.27(a) of the Indenture Supplement,
4
plus (d) the BAseries Servicer Interchange for such Monthly Period,
minus (e) the excess, if any, of the sum of the
PFA Prefunding Earnings Shortfall plus the PFA Accumulation
Earnings Shortfall over the sum of the aggregate amount
to be treated as BAseries Available Funds for such Monthly Period
pursuant to Sections 3.04(a)(ii) and 3.25(a) of the
Indenture Supplement plus any other amounts applied to cover
earnings shortfalls on amounts in the Principal Funding
sub-Account for any tranche of BAseries Notes for such Monthly
Period, minus (f) the BAseries Investor Default Amount
for such Monthly Period, and the denominator of which is the
Weighted Average Available Funds Allocation Amount for
the BAseries for such Monthly Period.
"Predecessor Note" means, with respect to any particular Note,
every previous Note evidencing
all or a portion of the same debt as that evidenced by such
particular Note; and, for the purpose of this
definition, any Note authenticated and delivered under Section 306
of the Indenture in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt
as the mutilated, lost, destroyed or stolen
Note.
"Quarterly Excess Available Funds Percentage" means, with respect
to the September 2008
Transfer Date and each Transfer Date thereafter, the percentage
equivalent of a fraction the numerator of which is
the sum of the Excess Available Funds Percentages with respect to
the immediately preceding three Monthly Periods
and the denominator of which is three.
"Record Date" means, for any Transfer Date, the last Business Day
of the preceding Monthly
Period.
"Required Accumulation Reserve sub-Account Amount" means, with
respect to any Monthly Period
during the Accumulation Reserve Funding Period, an amount equal to
(i) 0.5% of the Outstanding Dollar Principal
Amount of the Class A(2008-9) Notes as of the close of business on
the last day of the preceding Monthly Period
or (ii) any other amount designated by the Issuer; provided,
however, that if such designation is of a lesser
amount, the Note Rating Agencies shall have provided prior written
confirmation that a Ratings Effect will not
occur with respect to such change.
"Required Derivative Reserve Amount" shall have the meaning
specified in the Supplemental
Derivative Letter dated as of the date hereof between the Issuer,
the Indenture Trustee and the Derivative
Counterparty.
"Required Interest Reserve Amount" is defined in Section 2.08.
"Servicer Interchange Rate" means, for any Monthly Period, the
percentage equivalent of a
fraction, the numerator of which is the BAseries Servicer
Interchange for such Monthly Period, and the
denominator of which is the Weighted Average Available Funds
Allocation Amount for the BAseries for such Monthly
Period.
"Stated Principal Amount" means $1,000,000,000.
5
"Weighted Average Interest Rates" means, with respect to any
Outstanding Notes of a class or
tranche of the BAseries, or of all of the Outstanding Notes of the
BAseries, on any date, the weighted average
(weighted based on the Outstanding Dollar Principal Amount of the
related Notes on such date) of the following
rates of interest:
(a)
in the case of a tranche of Dollar Interest-bearing Notes with no
Derivative Agreement
for interest, the rate of interest applicable to that tranche on
that date;
(b)
in the case of a tranche of Discount Notes, the rate of accretion
(converted to an
accrual rate) of that tranche on that date;
(c)
in the case of a tranche of Notes with a payment due under a
Performing Derivative
Agreement for interest, the rate at which payments by the Issuer to
the applicable Derivative Counterparty accrue
on that date (prior to the netting of such payments, if
applicable); and
(d)
in the case of a tranche of Notes with a non-Performing Derivative
Agreement for
interest, the rate specified for that date in the related terms
document, which, in the event that the Derivative
Agreement for the Class A(2008-9) Notes is non-Performing, is the
Note Interest Rate.
Section 1.02.
Governing Law; Submission to Jurisdiction; Agent for Service of
Process.
This
Terms Document shall be governed by and construed in accordance
with the laws of the State of Delaware, without
regard to principles of conflict of laws.
The parties hereto declare that it is their intention that this
Terms
Document shall be regarded as made under the laws of the State of
Delaware and that the laws of said State shall
be applied in interpreting its provisions in all cases where legal
interpretation shall be required.
Each of the
parties hereto agrees (a) that this Terms Document involves at
least $100,000.00, and (b) that this Terms
Document has been entered into by the parties hereto in express
reliance upon 6 DEL. C. § 2708.
Each of the
parties hereto hereby irrevocably and unconditionally agrees (a) to
be subject to the jurisdiction of the courts
of the State of Delaware and of the federal courts sitting in the
State of Delaware, and (b)(1) to the extent
such party is not otherwise subject to service of process in the
State of Delaware, to appoint and maintain an
agent in the State of Delaware as such party's agent for acceptance
of legal process, and (2) that, to the
fullest extent permitted by applicable law, service of process may
also be made on such party by prepaid
certified mail with a proof of mailing receipt validated by the
United States Postal Service constituting evidence
of valid service, and that service made pursuant to (b)(1) or (2)
above shall, to the fullest extent permitted by
applicable law, have the same legal force and effect as if served
upon such party personally within the State of
Delaware.
S
