Exhibit 4.4


 


ISDA®


International Swaps and Derivatives Association, Inc.


 


2002 MASTER AGREEMENT


 


dated as of March 30, 2005           


 


Class C Swap


 


Royal Bank of Canada (“Party A”) and GE CAPITAL CREDIT CARD MASTER NOTE TRUST (“Party B”) have
entered and/or anticipate entering into one or more transactions (each a
“Transaction”) that are or will be governed by this 2002 Master Agreement,
which includes the schedule (the “Schedule”), and the documents and other
confirming evidence (each a “Confirmation”) exchanged between the parties or
otherwise effective for the purpose of confirming or evidencing those
Transactions.  This 2002 Master Agreement
and the Schedule are together referred to as this “Master Agreement”.


 


Accordingly, the parties agree as follows:—


 


1.                                      Interpretation


 


(a)                               Definitions.  The terms defined in
Section 14 and elsewhere in this Master Agreement 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, 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 condition specified in this Agreement
to be a condition precedent for the purpose of this Section 2(a)(iii).


 


(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 Settlement 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 of
Payments.  If
on any date amounts would otherwise be payable:—


 


(i)                                in the same currency; and


 


(ii)                             in respect of the same
Transaction,


 


by each party to the other, then, on such date, each
party’s obligation to make payment of any such amount will be automatically
satisfied and discharged and, if the aggregate amount that would otherwise have
been payable by one party exceeds the aggregate amount that would otherwise
have been payable by the other party, replaced by an obligation upon the party
by which 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 and payment obligation will be determined in
respect of all amounts payable on the same date in the same currency in respect
of those Transactions, regardless of whether such amounts are payable in
respect of the same Transaction.  The
election may be made in the Schedule or any Confirmation by specifying
that “Multiple Transaction Payment Netting” applies to the Transactions
identified as being subject to the election (in which case clause (ii) above
will not apply to such Transactions).  If
Multiple Transaction Payment Netting is applicable to Transactions, it will
apply to those Transactions with effect from the starting date specified in the
Schedule or such Confirmation, or, if a starting date is not specified in
the Schedule or such Confirmation, the starting date otherwise agreed by
the parties in writing.  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 a
Transaction is entered into (regardless of whether such action is taken or
brought with respect to a party to this Agreement) or (II) a Change in Tax Law.


 


(ii)                             Liability.  If:—


 


(1)                             X is required by any applicable
law, as modified by the practice of any relevant governmental revenue
authority, to make any deduction or withholding in respect of which X would not
be required to pay an additional amount to Y under Section 2(d)(i)(4);


 


(2)                             X does not so deduct or withhold;
and


 


(3)                             a liability resulting from such
Tax is assessed directly against X,


 


then, except to the extent Y
has satisfied or then satisfies the liability resulting from such Tax, Y will
promptly pay to X the amount of such liability (including any related liability
for interest, but including any related liability for penalties only if Y has
failed to comply with or perform any agreement contained in
Section 4(a)(i), 4(a)(iii) or 4(d)).


 


3.                                      Representations


 


Each party makes the representations contained in
Sections 3(a), 3(b), 3(c), 3(d), 3(e) and 3(f) and, if specified in the
Schedule as applying, 3(g) 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). 
If any “Additional Representation” is specified in the Schedule or
any Confirmation as applying, the party or parties specified for such
Additional Representation will make and, if applicable, be deemed to repeat such
Additional Representation at the time or times specified for such Additional
Representation.


 


(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)).


 


(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, any of its Credit
Support Providers or any of its applicable Specified Entities 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.


 


(g)                              No Agency.  It is entering into
this Agreement, including each Transaction, as principal and not as agent of
any person or entity.


 


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 clause (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, organised, managed and controlled or considered to
have its seat, or where an 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 (subject to Sections 5(c) and 6(e)(iv)) 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 9(h)(i)(2) or (4)
required to be made by it if such failure is not remedied on or before the
first Local Business Day in the case of any such payment or the first Local
Delivery Day in the case of any such delivery after, in each case, notice of
such failure is given to the party;


 


(ii)                             Breach
of Agreement; Repudiation of Agreement.


 


(1)                             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
9(h)(i)(2) or (4) 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 within 30 days after notice of such failure is given to the party;
or


 


(2)                             the party disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the validity of, this
Master Agreement, any Confirmation executed and delivered by that party or any
Transaction evidenced by such a Confirmation (or such action is taken by any
person or entity appointed or empowered to operate it or act on its behalf);


 





















 


(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, or any security interest granted by such party or such Credit Support
Provider to the other party pursuant to any such Credit Support Document, to be
in full force and effect for the purpose of this Agreement (in each 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 (or such action is
taken by any person or entity appointed or empowered to operate it or act on
its behalf);


 


(iv)                         Misrepresentation.  A representation
(other than a representation under Section 3(e) or 3(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:—


 


(l)                             defaults (other than by failing to
make a delivery) under a Specified Transaction or any credit support
arrangement relating to a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, such default results in 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 due on the
last payment or exchange date of, or any payment on early termination of, a
Specified Transaction (or, if there is no applicable notice requirement or
grace period, such default continues for at least one Local Business Day);


 


(3)                          defaults in making any delivery
due under (including any delivery due on the last delivery or exchange date of)
a Specified Transaction or any credit support arrangement relating to a
Specified Transaction and, after giving effect to any applicable notice
requirement or grace period, such default results in a liquidation of, an
acceleration of obligations under, or an early termination of, all transactions
outstanding under the documentation applicable to that Specified Transaction;
or


 


(4)                          disaffirms, disclaims, repudiates
or rejects, in whole or in part, or challenges the validity of, a Specified
Transaction or any credit support arrangement relating to a Specified
Transaction that is, in either case, confirmed or evidenced by a document or
other confirming evidence executed and delivered by that party, Credit Support
Provider or Specified or Specified Entity (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:—


 


(l)                             a default, event of default or
other similar condition or event (however described) in respect of such party,
any Credit Support Provider of such party or any applicable Specified Entity of
such party under one or more agreements or instruments relating to Specified
Indebtedness of any of them (individually or collectively) where the aggregate
principal amount of such agreements or instruments, either alone or together
with the amount, if any, referred to in clause (2) below, is 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 under such agreements or instruments on the due
date for payment (after giving effect to any applicable notice requirement or
grace period) in an aggregate amount, either alone or together with the amount,
if any, referred to in clause (1) above, of not less than the applicable
Threshold Amount;


 


(vii)                      Bankruptcy.  The party, any Credit
Support Provider of such party or any applicable Specified Entity of such
party:—


 


(l) 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)(A) institutes or has instituted against it, by a regulator,
supervisor or any similar official with primary insolvency, rehabilitative or
regulatory jurisdiction over it in the jurisdiction of its incorporation or
organisation or the jurisdiction of its head or home office, 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 by it or such
regulator, supervisor or similar official, or (B) 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 such proceeding or petition is instituted or presented by a
person or entity not described in clause (A) above and either (I) 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 (II) is not dismissed,
discharged, stayed or restrained in each case within 15 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 15 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 (l) to (7) above (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, or reorganises, reincorporates or
reconstitutes into or as, another entity and, at the time of such
consolidation, amalgamation, merger, transfer, reorganisation, reincorporation
or reconstitution:—


 


(l)                             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; 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 (subject to Section 5(c)) an Illegality if the
event is specified in clause (i) below, a Force Majeure Event if the event is
specified in clause (ii) below, a Tax Event if the event is specified in clause
(iii) below, a Tax Event Upon Merger if the event is specified in clause (iv)
below, and, if specified to be applicable, a Credit Event Upon Merger if the
event is specified pursuant to clause (v) below or an Additional Termination
Event if the event is specified pursuant to clause (vi) below:—


 


(i)                                Illegality.  After giving effect to
any applicable provision, disruption fallback or remedy specified in, or
pursuant to, the relevant Confirmation or elsewhere in this Agreement, due to
an event or circumstance (other than any action taken by a party or, if
applicable, any Credit Support Provider of such party) occurring after a
Transaction is entered into, it becomes unlawful under any applicable law (including
without limitation the laws of any country in which payment, delivery or
compliance is required by either party or any Credit Support Provider, as the
case may be), on any day, or it would be unlawful if the relevant payment,
delivery or compliance were required on that day (in each case, other than as a
result of a breach by the party of Section 4(b)):—


 


(1)                             for the Office through which such
party (which will be the Affected Party) makes and receives payments or
deliveries with respect to such Transaction to perform any absolute or
contingent obligation to make a payment or delivery in respect of such
Transaction, 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)                             for such party or any Credit
Support Provider of such party (which will be the Affected Party) to perform
any absolute or contingent obligation to make a payment or delivery which such
party or Credit Support Provider has under any Credit Support Document relating
to such Transaction, to receive a payment or delivery under such Credit Support
Document or to comply with any other material provision of such Credit Support
Document;


 


(ii)                             Force
Majeure Event.  After
giving effect to any applicable provision, disruption fallback or remedy
specified in, or pursuant to, the relevant Confirmation or elsewhere in this
Agreement, by reason of force majeure or act of state occurring after a
Transaction is entered into, on any day:—


 


(1)                             the Office through which such
party (which will be the Affected Party) makes and receives payments or
deliveries with respect to such Transaction is prevented from performing any
absolute or contingent obligation to make a payment or delivery in respect of
such Transaction, from receiving a payment or delivery in respect of such
Transaction, or from complying with any other
material provision of this Agreement relating to such Transaction (or would be
so prevented if such payment, delivery or compliance were required on that
day), or it becomes impossible or impracticable for such Office so to perform,
receive or comply (or it would be impossible or 


 





















 


impracticable for such
Office so to perform, receive or comply if such payment, delivery or compliance
were required on that day); or


 


(2)                             such party or any Credit Support
Provider of such party (which will be the Affected Party) is prevented from
performing any absolute or contingent obligation to make a payment or delivery
which such party or Credit Support Provider has under any Credit Support
Document relating to such Transaction, from receiving a payment or delivery under
such Credit Support Document or from complying with any other
material provision of such Credit Support Document (or would be so prevented if
such payment, delivery or compliance were required on that day), or it becomes
impossible or impracticable for such party or Credit Support Provider so to
perform, receive or comply (or it would be impossible or impracticable for such
party or Credit Support Provider so to perform, receive or comply if such
payment, delivery or compliance were required on that day),


 


so long as the force majeure
or act of state is beyond the control of such Office, such party or such Credit
Support Provider, as appropriate, and such Office, party or Credit Support
Provider could not, after using all reasonable efforts (which will not require
such party or Credit Support Provider to incur a loss, other than immaterial,
incidental expenses), overcome such prevention, impossibility or
impracticability;


 


(iii)                          Tax
Event.  Due
to (1) any action taken by a taxing authority, or brought in a court of
competent jurisdiction, after a Transaction is entered into (regardless of
whether such action is taken or brought with respect to a party to this
Agreement) or (2) 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 Settlement Date (A)
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 9(h)) or (B) 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 9(h)) 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));


 


(iv)                         Tax
Event Upon Merger.  The party (the “Burdened Party”) on the next succeeding
Scheduled Settlement 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 9(h))
or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any 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 (or any substantial part of the assets
comprising the business conducted by it as of the date of this Master Agreement)
to, or reorganising,
reincorporating or reconstituting into or as, another entity
(which will be the Affected Party) where such action does not constitute a
Merger Without Assumption;


 


(v)                            Credit
Event Upon Merger.  If “Credit Event Upon Merger” is specified in the
Schedule as applying to the party, a Designated Event (as
defined below) occurs with respect to such party, any Credit Support Provider
of such party or any applicable Specified Entity of such party (in each
case, ”X”) and such Designated Event does not constitute a Merger Without
Assumption, and the creditworthiness of X or, if applicable, the successor,
surviving or transferee entity of X, after taking into account any applicable
Credit Support Document, is materially weaker immediately after the occurrence
of such Designated Event than that of X immediately prior to the occurrence of
such Designated Event (and, in any such event, such party or its successor,
surviving or transferee entity, as appropriate, will be the Affected
Party).  A “Designated Event” with
respect to X means that:—


 


(1)                             X consolidates or amalgamates
with, or merges with or into, or transfers all or substantially all its assets
(or any substantial part of the assets comprising the business conducted by X
as of the date of this Master Agreement) to, or reorganises,
reincorporates or reconstitutes into or as, another entity;


 





















 


(2)                             any person, related group of
persons or entity acquires directly or indirectly the beneficial ownership of
(A) equity securities having the power to elect a majority of the board of
directors (or its equivalent) of X or (B) any other ownership interest enabling
it to exercise control of X; or


 


(3)                             X effects any substantial change
in its capital structure by means of the issuance, incurrence or guarantee of
debt or the issuance of (A) preferred stock or other securities convertible
into,
or exchangeable for debt or preferred stock or (B) in the case of entities
other than corporations, any other form of ownership interest; or


 


(vi)                         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 will be as
specified for such Additional Termination Event in the Schedule or such
Confirmation).


 


(c)                               Hierarchy
of Events.


 


(i)                                An event or circumstance that
constitutes or gives rise to an Illegality or a Force Majeure Event will not,
for so long as that is the case, also constitute or give rise to an Event of
Default under Section 5(a)(i), 5(a)(ii)(1) or 5(a)(iii)(1) insofar as such
event or circumstance relates to the failure to make any payment or delivery or
a failure to comply with any other material provision of this Agreement or a
Credit Support Document, as the case may be.


 


(ii)                             Except in circumstances
contemplated by clause (i) above, if an event or circumstance which would
otherwise constitute or give rise to an Illegality or a Force Majeure Event
also constitutes an Event of Default or any other Termination Event, it will be
treated as an Event of Default or such other Termination Event, as the case may
be, and will not constitute or give rise to an Illegality or a Force Majeure
Event.


 


(iii)                          If an event or circumstance which
would otherwise constitute or give rise to a Force Majeure Event also constitutes
an Illegality, it will be treated as an Illegality, except as described in
clause (ii) above, and not a Force Majeure Event.


 


(d)                              Deferral
of Payments and Deliveries During Waiting Period.  If an Illegality or a Force
Majeure Event has occurred and is continuing with respect to
a Transaction, each payment or delivery which would otherwise be required to be
made under that Transaction will be deferred to, and will not be due until:—


 


(i)                                the first Local Business Day or,
in the case of a delivery, the first Local Delivery Day (or the first day that
would have been a Local Business Day or Local Delivery Day, as appropriate,
but for the occurrence of the event or circumstance constituting or giving rise
to that Illegality or Force Majeure Event) following the end of any applicable
Waiting Period in respect of that Illegality or Force Majeure Event, as the
case may be; or


 


(ii)                             if earlier, the date on which the
event or circumstance constituting or giving rise to that Illegality or Force
Majeure Event ceases to exist or, if such date is not a Local Business Day or,
in the case of a delivery, a Local Delivery Day, the first following day that
is a Local Business Day or Local Delivery Day, as appropriate.


 


(e)                               Inability
of Head or Home Office to Perform Obligations of Branch.  If (i) an Illegality or a Force
Majeure Event occurs under Section 5(b)(i)(1) or 5(b)(ii)(1) and the
relevant Office is not the Affected Party’s head or home office, (ii)
Section 10(a) applies, (iii) the other party seeks performance of the
relevant obligation or compliance with the relevant provision by the Affected
Party’s head or home office and (iv) the Affected Party’s head or home office
fails so to perform or comply due to the occurrence of an event or circumstance
which would, if that head or home office were the Office through which the
Affected Party makes and receives payments and deliveries


 





















 


with respect to the relevant Transaction, constitute
or give rise to an Illegality or a Force Majeure Event, and
such failure would otherwise constitute an Event of Default under
Section 5(a)(i) or 5(a)(iii)(1) with respect to such party, then, for so
long as the relevant event or circumstance continues to exist with respect to
both the Office referred to in Section 5(b)(i)(1) or 5(b)(ii)(1), as the
case may be, and the Affected Party’s head or home office, such failure will
not constitute an Event of Default under Section 5(a)(i) or 5(a)(iii)(1).


 


6.                                      Early
Termination; Close-Out Netting


 


(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
other than a Force Majeure 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 the other
party such other information about that Termination Event as the other party
may reasonably require.  If a Force
Majeure Event occurs, each party will, promptly upon becoming aware of it, use
all reasonable efforts to notify the other party, specifying the nature of that
Force
Majeure Event, and will also give the other party such other
information about that Force Majeure Event as the other party may
reasonably require.


 


(ii)                             Transfer
to Avoid Termination Event.  If 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, other than
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 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 of such occurrence is given under Section 6(b)(i) to avoid
that Termination Event.


 


(iv)                         Right
to Terminate.


 


(1)                             If:—


 





















 


(A)                           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


 


(B)                             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,


 


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 are two Affected Parties,
or the Non-affected Party in the case of a Credit Event Upon Merger or an
Additional Termination Event if there is only one Affected Party may, if the
relevant Termination Event is then continuing, by not more than 20 days notice
to the other party, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected Transactions.


 


(2)                             If at any time an Illegality or a
Force Majeure Event has occurred and is then continuing and any applicable
Waiting Period has expired:—


 


(A)                           Subject to clause (B) below,
either party may, by not more than 20 days notice to the other party, designate
(I) a
day not earlier than the day on which such notice becomes effective as an Early
Termination Date in respect of all Affected Transactions or (II) by
specifying in that notice the Affected Transactions in respect of which it is
designating the relevant day as an Early Termination Date, a
day not earlier than two Local Business Days following the day on which such
notice becomes effective as an Early Termination Date in respect of less than
all Affected Transactions.  Upon receipt of
a notice designating an Early Termination Date in respect of less than all
Affected Transactions, the other party may, by notice to the
designating party, if such notice is effective on or before the day so
designated, designate that same day as an Early Termination Date in respect of
any or all other Affected Transactions.


 


(B)                             An Affected Party (if the
Illegality or Force Majeure Event relates to performance by such party or any
Credit Support Provider of such party of an obligation to make any payment or
delivery under, or to compliance with any other material provision of, the
relevant Credit Support Document) will only have the right to
designate an Early Termination Date under Section 6(b)(iv)(2)(A) as a
result of an Illegality under Section 5(b)(i)(2) or a Force Majeure Event
under Section 5(b)(ii)(2) following the prior designation by the
other party of an Early Termination Date, pursuant to
Section 6(b)(iv)(2)(A), in respect of less than all Affected Transactions.


 


(c)                               Effect of
Designation.


 


(i)                                If notice designating an Early
Termination Date is given under Section 6(a) or 6(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 9(h)(i) 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 will be determined pursuant to Sections
6(e)
and 9(h)(ii).


 


(d)                              Calculations;
Payment Date.


 


(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 (l) showing, in reasonable detail, such calculations
(including any quotations, market data or information from internal sources
used in making such calculations), (2) specifying (except where
there are two Affected Parties) any Early Termination Amount
payable and (3) 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 or market data
obtained in determining a Close-out Amount, the records of the party obtaining
such quotation or market data will be conclusive evidence of the existence and
accuracy of such quotation or market data.


 


(ii)                             Payment
Date.  An
Early Termination Amount due in respect of any Early Termination Date will,
together with any amount of interest payable pursuant to
Section 9(h)(ii)(2), be payable (1) on the day on which
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 (2) on
the day which is two Local Business Days after the day on which notice of the
amount payable is effective (or, if there are two Affected Parties, after the day on
which the statement provided pursuant to clause (i) above by the second party
to provide such a statement is effective) in the case of an Early
Termination Date which is designated as a result of a Termination Event.


 


(e)                               Payments
on Early Termination.  If an Early Termination Date occurs, the amount, if any,
payable in respect of that Early Termination Date (the “Early Termination
Amount”) will be determined pursuant to this Section 6(e)
and will be subject to Section 6(f).


 


(i)                                Events
of Default.  If
the Early Termination Date results from an Event of Default, the Early
Termination Amount will be an amount equal to (1) the sum of (A) the
Termination Currency Equivalent of the Close-out Amount or Close-out Amounts
(whether positive or negative) determined by the Non-defaulting Party for each
Terminated Transaction or group of Terminated Transactions, as the case may be,
and (B)
the Termination Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party less (2) the Termination Currency Equivalent of the Unpaid
Amounts owing to the Defaulting Party. 
If the Early Termination 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 the Early Termination
Amount to the Defaulting Party.


 


(ii)                             Termination
Events.  If
the Early Termination Date results from a Termination Event:—


 


(1)                             One Affected
Party.  Subject
to clause (3) below, if there is one Affected Party, the Early Termination Amount
will be determined in accordance with Section 6(e)(i), except that
references to the Defaulting Party and to the Non-defaulting Party will be
deemed to be references to the Affected Party and to the Non-affected Party,
respectively.


 


(2)                             Two Affected Parties.  Subject to clause (3)
below, if there are two Affected Parties, each party will determine an amount
equal to the Termination Currency Equivalent of the sum of the Close-out Amount
or Close-out Amounts (whether positive or negative) for each Terminated
Transaction or group of Terminated Transactions, as the case may be, and the
Early Termination Amount will be an amount equal to (A) the sum of (I) one-half
of the difference between the higher amount so determined (by party “X”) and
the lower amount so determined (by party “Y”) and (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to X less (B) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y.  If the Early Termination Amount is a positive
number, Y will pay it to X; if it is a negative number, X will pay the absolute
value of the Early Termination Amount to Y.


 


(3)                             Mid-Market
Events.  If
that Termination Event is an Illegality or a Force Majeure Event, then the
Early Termination Amount will be determined in accordance with clause (1)
or (2) above, as appropriate, except that, for the purpose
of determining a Close-out Amount or Close-out Amounts, the Determining Party
will:—


 





















 


(A)                           if obtaining quotations from one
or more third parties (or from any of the Determining Party’s Affiliates), ask
each third party or Affiliate (I) not to take account of the current
creditworthiness of the Determining Party or any existing Credit Support
Document and (II) to provide mid-market quotations; and


 


(B)                             in any other case, use mid-market
values without regard to the creditworthiness of the Determining Party.


 


(iii)                          Adjustment
for Bankruptcy.  In
circumstances where an Early Termination Date occurs because Automatic Early
Termination applies in respect of a party, the Early Termination Amount will be
subject to such adjustments as are appropriate and permitted by applicable 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)                         Adjustment
for Illegality or Force Majeure Event.  The failure by a party
or any Credit Support Provider of such party to pay, when due, any Early
Termination Amount will not constitute an Event of Default under
Section 5(a)(i) or 5(a)(iii)(1) if such failure is due to the occurrence
of an event or circumstance which would, if it occurred with respect to
payment, delivery or compliance related to a Transaction, constitute or give
rise to an Illegality or a Force Majeure Event. 
Such amount will (1) accrue interest and otherwise be treated as an
Unpaid Amount owing to the other party if subsequently an Early
Termination Date results from an Event of Default, a Credit Event Upon Merger
or an Additional Termination Event in respect of which all outstanding
Transactions are Affected Transactions and (2) otherwise accrue interest
in accordance with Section 9(h)(ii)(2).


 


(v)                            Pre-Estimate.  The parties agree that 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 the termination of the
Terminated Transactions.


 


(f)                                 Set-Off.  Any Early Termination
Amount payable to one party (the “Payee”)
by the other party (the “Payer”), in circumstances where there
is a Defaulting Party or where there is one Affected Party in the case where
either a Credit Event Upon Merger has occurred or any other Termination Event
in respect of which all outstanding Transactions are Affected Transactions has
occurred, will, at the option of the Non-defaulting Party or the Non-affected
Party, as the case may be (“X”) (and without prior notice to the Defaulting
Party or the Affected Party, as the case may be), be reduced by its set-off
against any other amounts (“Other Amounts”) payable by the Payee to the Payer
(whether or not arising under this Agreement, matured or contingent and
irrespective of the currency, place of payment or place of booking
of the obligation).  To the extent that
any Other Amounts are so set off, those Other Amounts will be discharged
promptly and in all respects.  X will
give notice to the other party of any set-off effected under this
Section 6(f).


 


For this purpose, either the Early Termination
Amount or the Other Amounts (or the relevant portion of such amounts) may be
converted by X into the currency in which the other is denominated at the rate
of exchange at which such party would be able, in good faith and using
commercially reasonable procedures, to purchase the relevant
amount of such currency.


 


If an obligation is unascertained, X may in good
faith estimate that obligation and set off in respect of the estimate, subject
to the relevant party accounting to the other when the obligation is
ascertained.


 


Nothing in this Section 6(f) will be effective
to create a charge or other security interest. 
This Section 6(f) will be without prejudice and in addition to any
right of set-off, offset, combination of accounts, lien, right of retention or
withholding or similar right or requirement to which any party is at any time
otherwise entitled or subject (whether by operation of law, contract or
otherwise).


 





















 


7.                                      Transfer


 


Subject to Section 6(b)(ii) and to the extent
permitted by applicable law, 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 Early Termination Amount payable to it by
a Defaulting Party, together with any amounts payable on or with respect to
that interest and any other rights associated with that interest pursuant
to Sections
8, 9(h) and 11.


 


Any purported transfer that is not in compliance
with this Section 7 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 good faith
and using commercially reasonable procedures 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 clause (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 purpose of such judgment or
order and the rate of exchange at which such party is able, acting in good faith
and using commercially reasonable procedures 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.


 


(c)                               Separate
Indemnities.  To
the extent permitted by applicable law, the indemnities in this Section 8
constitute separate and independent obligations from the other obligations in
this Agreement, will be enforceable as separate and independent causes of
action, will apply notwithstanding any indulgence granted by the party to which
any payment is owed and will not be affected by judgment being obtained or
claim or proof being made for any other sums payable in respect of this
Agreement.


 





















 


(d)                              Evidence
of Loss.  For
the purpose of this Section 8, it will be sufficient for a party to
demonstrate that it would have suffered a loss had an actual exchange or
purchase been made.


 


9.                                      Miscellaneous


 


(a)                               Entire
Agreement.  This
Agreement constitutes the entire agreement and understanding of the parties
with respect to its subject matter.  Each
of the parties acknowledges that in entering into this Agreement it has not
relied on any oral or written representation, warranty or other assurance
(except as provided for or referred to in this Agreement) and waives all rights
and remedies which might otherwise be available to it in respect thereof, except
that nothing in this Agreement will limit or exclude any liability of a party
for fraud.


 


(b)                              Amendments.  An amendment,
modification or waiver in respect of this Agreement will only be effective if
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 by an
exchange of 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 and by
electronic messaging system), 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 will 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, by an exchange of electronic messages on
an electronic messaging system or by an exchange of e-mails, 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,
electronic message or e-mail 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.


 


(h)                              Interest
and Compensation.


 


(i)                                Prior
to Early Termination.  Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant
Transaction:—


 


(1)                             Interest on
Defaulted Payments.  If
a party defaults in the performance of any payment obligation, it will, to the
extent permitted by applicable law and subject to Section 6(c), pay
interest (before as well as after judgment) on the overdue amount to the other
party on demand in the same currency as the overdue amount, for the period from
(and including) the original due date for


 





















 


payment to (but excluding)
the date of actual payment (and excluding any period in respect of which
interest or compensation in respect of the overdue amount is due pursuant to
clause (3)(B) or (C) below), at the Default Rate.


 


(2)                             Compensation for
Defaulted Deliveries.  If a party defaults in the performance of any obligation
required to be settled by delivery, it will on demand (A) compensate the other
party to the extent provided for in the relevant Confirmation or elsewhere in
this Agreement and (B) unless otherwise provided in the relevant
Confirmation or elsewhere in this Agreement, to the extent permitted by
applicable law and subject to Section 6(c), pay to the other party
interest (before as well as after judgment) on an amount equal to the fair
market value of that which was required to be delivered in the same currency as
that amount, for the period from (and including) the originally scheduled date
for delivery to (but excluding) the date of actual delivery (and excluding any
period in respect of which interest or compensation in respect of that amount
is due pursuant to clause (4) below), at the Default Rate.  The fair market value of any obligation
referred to above will be determined as of the originally scheduled date for
delivery, in good faith and using commercially reasonable procedures, by the
party that was entitled to take delivery.


 


(3)                             Interest on
Deferred Payments.  If:—


 


(A)                           a party does not pay any amount
that, but for Section 2(a)(iii), would have been payable, it will, to the
extent permitted by applicable law and subject to Section 6(c) and clauses
(B) and (C) below, pay interest (before as well as after judgment) on that
amount to the other party on demand (after such amount becomes payable) in the
same currency as that amount, for the period from (and including) the date the
amount would, but for Section 2(a)(iii), have been payable to (but
excluding) the date the amount actually becomes payable, at the Applicable
Deferral Rate;


 


(B)                             a payment is deferred pursuant to
Section 5(d), the party which would otherwise have been required to make
that payment will, to the extent permitted by applicable law, subject to
Section 6(c) and for so long as no Event of Default or Potential Event of
Default with respect to that party has occurred and is continuing, pay
interest (before
as well as after judgment) on the amount of the deferred payment to the other
party on demand (after such amount becomes
payable) in the same currency as the deferred payment, for the period from (and
including) the date the amount would, but for Section 5(d), have been
payable to (but excluding) the earlier of the date the payment is no longer
deferred pursuant to Section 5(d) and the date during the deferral period
upon which an Event of Default or Potential Event of Default with respect to
that party occurs, at the Applicable Deferral Rate; or


 


(C)                             a party fails to make any payment
due to the occurrence of an Illegality or a Force Majeure Event (after
giving effect to any deferral period contemplated by clause (B) above),
it will, to the extent permitted by applicable law, subject to
Section 6(c) and for so long as the event or circumstance giving rise to
that Illegality or Force Majeure Event continues and no Event of Default or
Potential Event of Default with respect to that party has occurred and is
continuing, pay interest (before as well as after judgment) on the overdue
amount to the other party on demand in the same currency as the overdue amount,
for the period from (and including) the date the party fails to make the
payment due to the occurrence of the relevant Illegality or Force Majeure Event
(or, if
later, the date the payment is no longer deferred pursuant to
Section 5(d)) to (but excluding) the earlier of the date the
event or circumstance giving rise to that Illegality or Force Majeure Event
ceases to exist and the date during the period upon which an Event of Default
or Potential Event of Default with respect to that party occurs (and excluding
any period in respect of which


 





















 


interest or compensation in
respect of the overdue amount is due pursuant to clause (B) above), at the
Applicable Deferral Rate.


 


(4)                          Compensation for
Deferred Deliveries.  If:—


 


(A)                           a party does not perform any
obligation that, but for Section 2(a)(iii), would have been required to be
settled by delivery;


 


(B)                             a delivery is deferred pursuant to
Section 5(d); or


 


(C)                             a party fails to make a delivery
due to the occurrence of an Illegality or a Force Majeure Event at a time when
any applicable Waiting Period has expired,


 


the party required (or that would otherwise have been
required) to make the delivery will, to the extent permitted by applicable law
and subject to Section 6(c), compensate and pay interest to the other
party on demand (after, in the case of clauses (A) and (B) above, such delivery
is required) if and to the extent provided for in the relevant Confirmation or
elsewhere in this Agreement.


 


(ii)                             Early
Termination.  Upon
the occurrence or effective designation of an Early Termination Date in respect
of a Transaction:—


 


(1)                             Unpaid Amounts.  For the purpose
of determining an Unpaid Amount in respect of the relevant Transaction, and to
the extent permitted by applicable law, interest will accrue on the amount of
any payment obligation or the amount equal to the fair market value of any
obligation required to be settled by delivery included in such determination in
the same currency as that amount, for the period from (and including) the date
the relevant obligation was (or would have been but for Section 2(a)(iii)
or 5(d)) required to have been performed to (but excluding) the relevant Early
Termination Date, at the Applicable Close-out Rate.


 


(2)                             Interest on
Early Termination Amounts.  If an Early Termination Amount is due in respect of such
Early Termination Date, that amount will, to the extent permitted by applicable
law, be paid together with interest (before as well as after judgment) on that
amount in the Termination Currency, for the period from (and including) such
Early Termination Date to (but excluding) the date the amount is paid, at the
Applicable Close-out Rate.


 


(iii)                          Interest
Calculation.  Any
interest pursuant to this Section 9(h) will be calculated on the basis of
daily compounding and the actual number of days elapsed.


 





















 


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 and agrees with the
other party that, notwithstanding the place of booking or its jurisdiction of
incorporation or organisation, its obligations are the same in terms of
recourse against it as if it had entered into the Transaction through its head
or home office, except that a party will not have recourse to the head or home
office of the other party in respect of any payment or delivery deferred pursuant
to Section 5(d) for so long as the payment or delivery is so
deferred.  This representation and
agreement will be deemed to be repeated by each party on each date on which the
parties enter into a Transaction.


 


(b)                              If a party is specified as a Multibranch
Party in the Schedule, such party may, subject to clause (c) below,
enter into a Transaction through, book a Transaction in,
and make and receive payments and deliveries with respect to a Transaction
through any Office listed in respect of that party in the Schedule (but
not any other Office unless otherwise agreed by the parties in writing).


 


(c)                               The Office through which a party enters into
a Transaction will be the Office specified for that party in the relevant
Confirmation or as otherwise agreed by the parties in writing, and,
if an Office for that party is not specified in the Confirmation or otherwise
agreed by the parties in writing, its head or home office.  Unless the parties otherwise agree in
writing, the Office through which a party enters into a Transaction will also
be the Office in which it books the Transaction and the Office through which it
makes and receives payments and deliveries with respect to the
Transaction.  Subject to
Section 6(b)(ii), neither party may change the Office in which it books
the Transaction or the Office through which it makes and receives payments or
deliveries with respect to a Transaction without the prior written consent of
the other party.


 


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, execution fees and Stamp Tax, incurred by such other
party by reason of the enforcement and protection of its rights under this
Agreement or any Credit Support Document to which the Defaulting Party is a
party or by reason of the early termination of any Transaction, including, but
not limited to, costs of collection.


 


12.                               Notices


 


(a)                               Effectiveness.  Any notice or other
communication in respect of this Agreement may be given in any manner described
below (except that a notice or other communication under Section 5 or 6
may not be given by electronic messaging system or e-mail) to the address or
number or in accordance with the electronic messaging system or 

e-mail 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 it 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 it is delivered or its delivery is attempted;


 


(v)                            if sent by electronic messaging
system, on the date it is received; or


 





















 


(vi)                         if sent by e-mail, on the date it
is delivered,


 


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
will be deemed given and effective on the first following day that is a Local
Business Day.


 


(b)                              Change of
Details.  Either
party may by notice to the other change the address, telex or facsimile number
or electronic messaging system or e-mail 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 any dispute arising out of or in
connection with this Agreement (“Proceedings”), each party irrevocably:—


 


(i)                                submits:—


 


(1)                             if this Agreement is expressed to
be governed by English law, to (A) the non-exclusive jurisdiction of the
English courts if the Proceedings do not involve a Convention Court and
(B) the exclusive jurisdiction of the English courts if the Proceedings do
involve a Convention Court; or


 


(2)                             if this Agreement is expressed to
be governed by the laws of the State of New York, 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;


 


(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;
and


 


(iii)                          agrees, to the extent permitted by
applicable law, that the bringing of Proceedings in any one or more jurisdictions
will not preclude the bringing of Proceedings in any other jurisdiction.


 


(c)                               Service of
Process.  Each
party irrevocably appoints the Process Agent, if any, specified opposite its
name in the Schedule to receive, for it and on its behalf, service of
process in any Proceedings.  If for any
reason any party’s Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party.  The
parties irrevocably consent to service of process given in the manner provided
for notices in Section 12(a)(i), 12(a)(iii) or 12(a)(iv).  Nothing in this Agreement will affect the
right of either party to serve process in any other manner permitted by
applicable law.


 


(d)                              Waiver of
Immunities.  Each
party irrevocably waives, to the 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 or order for specific performance or recovery of property, (iv)
attachment of its assets (whether before or after judgment) and (v) execution
or enforcement of any judgment to which it or its revenues or assets might
otherwise be entitled in any Proceedings in the courts of any jurisdiction and
irrevocably agrees, to the extent permitted by applicable law, that it will not
claim any such immunity in any Proceedings.


 





















 


14.                               Definitions


 


As used in this Agreement:—


 


“Additional
Representation” has the meaning specified in Section 3.


 


“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, Force Majeure Event, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event (which, in
the case of an Illegality under Section 5(b)(i)(2) or a Force Majeure
Event under Section 5(b)(ii)(2), means all Transactions unless
the relevant Credit Support Document references only certain Transactions, in
which case those Transactions and, if the relevant Credit Support
Document constitutes a Confirmation for a Transaction, that Transaction) 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.


 


“Agreement” has the meaning specified in
Section 1(c).


 


“Applicable
Close-out Rate” means:—


 


(a)                               in respect of the determination of an Unpaid
Amount:—


 


(i)                                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;


 


(ii)                             in
respect of obligations payable or deliverable (or which would have been but for
Section 2(a)(iii)) by a Non-defaulting Party, the Non-default Rate;


 


(iii)                          in respect
of obligations deferred pursuant to Section 5(d), if there is no
Defaulting Party and for so long as the deferral period continues, the
Applicable Deferral Rate; and


 


(iv)                         in all other
cases following the occurrence of a Termination Event (except where interest
accrues pursuant to clause (iii) above), the Applicable Deferral Rate; and


 


(b)                              in respect of an Early Termination Amount:—


 


(i)                                for the period from (and
including) the relevant Early Termination Date to (but excluding) the date
(determined in accordance with Section 6(d)(ii)) on which that amount is
payable:—


 


(1)                             if the Early Termination Amount is payable by a Defaulting Party,
the Default Rate;


 


(2)                             if the Early Termination Amount is payable by a Non-defaulting
Party, the Non-default Rate; and


 


(3)                             in all other cases, the Applicable Deferral Rate; and


 





















 


(ii)                             for the
period from (and including) the date (determined in accordance with
Section 6(d)(ii)) on which that amount is payable to (but excluding) the
date of actual payment:—


 


(1)                             if a party fails to pay the Early
Termination Amount due to the occurrence of an event or circumstance which
would, if it occurred with respect to a payment or delivery under a
Transaction, constitute or give rise to an Illegality or a Force Majeure Event,
and for so long as the Early Termination Amount remains unpaid due to the
continuing existence of such event or circumstance, the Applicable Deferral
Rate;


 


(2)                             if the Early Termination Amount is
payable by a Defaulting Party (but excluding any period in respect of which
clause (1) above applies), the Default Rate;


 


(3)                             if the Early Termination Amount is
payable by a Non-defaulting Party (but excluding any period in respect of which
clause (1) above applies), the Non-default Rate; and


 


(4)                             in all other cases, the
Termination Rate.


 


“Applicable
Deferral Rate” means:—


 


(a)                               for the purpose of
Section 9(h)(i)(3)(A), the rate certified by the relevant payer to be a
rate offered to the payer by a major bank in a relevant interbank market for
overnight deposits in the applicable currency, such bank to be selected in good
faith by the payer for the purpose of obtaining a representative
rate that will reasonably reflect conditions prevailing at the time in that
relevant market;


 


(b)                              for purposes of Section 9(h)(i)(3)(B)
and clause (a)(iii) of the definition of Applicable Close-out Rate, the rate
certified by the relevant payer to be a rate offered to prime banks by a major
bank in a relevant interbank market for overnight deposits in the applicable
currency, such bank to be selected in good faith by the payer after
consultation with the other party, if practicable, for the purpose
of obtaining a representative rate that will reasonably reflect conditions
prevailing at the time in that relevant market; and


 


(c)                               for purposes of Section 9(h)(i)(3)(C)
and clauses (a)(iv), (b)(i)(3) and (b)(ii)(1) of the definition of Applicable
Close-out Rate, a rate equal to the arithmetic mean of the rate determined
pursuant to clause (a) above and 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.


 


“Automatic Early Termination” has the meaning specified in
Section 6(a).


 


“Burdened Party” has the meaning specified in
Section 5(b)(iv).


 


“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 after the parties enter into the relevant Transaction.


 


“Close-out
Amount” means, with respect to each Terminated Transaction or each group of
Terminated Transactions and a Determining Party, the amount of the losses or
costs of the Determining Party that are or would be incurred under then
prevailing circumstances (expressed as a positive number) or gains of the
Determining Party that are or would be realised under then prevailing
circumstances (expressed as a negative number) in replacing, or in providing
for the Determining Party the economic equivalent of, (a) the material terms of
that Terminated Transaction or group of Terminated Transactions, including the
payments and deliveries by the parties under Section 2(a)(i) in respect of
that Terminated Transaction or group of Terminated Transactions that would, but
for the occurrence of the relevant Early Termination Date, have been required
after that date (assuming satisfaction of the conditions precedent in
Section 2(a)(iii)) and (b) the option rights of the parties in respect of
that Terminated Transaction or group of Terminated Transactions.


 





















 


Any Close-out Amount will be determined by the
Determining Party (or its agent), which will act in good faith and use
commercially reasonable procedures in order to produce a commercially
reasonable result.  The Determining Party
may determine a Close-out Amount for any group of Terminated Transactions or
any individual Terminated Transaction but, in the aggregate, for not less than
all Terminated Transactions.  Each
Close-out Amount will be determined as of the Early Termination Date or, if
that would not be commercially reasonable, as of the date or dates following
the Early Termination Date as would be commercially reasonable.


 


Unpaid Amounts in respect of a Terminated
Transaction or group of Terminated Transactions and legal fees and
out-of-pocket expenses referred to in Section 11 are to be excluded in all
determinations of Close-out Amounts.


 


In determining a Close-out Amount, the Determining
Party may consider any relevant information, including, without limitation, one
or more of the following types of information:—


 


(i)                                  quotations (either firm or indicative) for
replacement transactions supplied by one or more third parties that may take
into account the creditworthiness of the Determining Party at the time the quotation
is provided and the terms of any relevant documentation, including credit
support documentation, between the Determining Party and the third party
providing the quotation;


 


(ii)                               information consisting of relevant market
data in the relevant market supplied by one or more third parties including,
without limitation, relevant rates, prices, yields, yield curves, volatilities,
spreads, correlations or other relevant market data in the relevant market; or


 


(iii)                            information of the types described in clause
(i) or (ii) above from internal sources (including any of the Determining
Party’s Affiliates) if that information is of the same type used by the
Determining Party in the regular course of its business for the valuation of
similar transactions.


 


The Determining Party will consider, taking into
account the standards and procedures described in this definition, quotations
pursuant to clause (i) above or relevant market data pursuant to clause (ii)
above unless the Determining Party reasonably believes in good faith that such
quotations or relevant market data are not readily available or would produce a
result that would not satisfy those standards. 
When considering information described in clause (i), (ii) or (iii)
above, the Determining Party may include costs of funding, to the extent costs
of funding are not and would not be a component of the other information being
utilised.  Third parties supplying
quotations pursuant to clause (i) above or market data pursuant to clause
(ii) above may include, without limitation, dealers in the relevant markets,
end-users of the relevant product, information vendors, brokers and other
sources of market information.


 


Without
duplication of amounts calculated based on information described in clause (i),
(ii) or (iii) above, or other relevant information, and when it is commercially
reasonable to do so, the Determining Party may in addition consider in
calculating a Close-out Amount any loss or cost incurred in connection with its
terminating, liquidating or re-establishing any hedge related to a Terminated
Transaction or group of Terminated Transactions (or any gain resulting from any
of them).


 


Commercially
reasonable procedures used in determining a Close-out Amount may include the
following:—


 


(1)                               application to relevant market data from third parties pursuant to
clause (ii) above or information from internal sources pursuant to clause (iii)
above of pricing or other valuation models that are, at the time of the
determination of the Close-out Amount, used by the Determining Party in the
regular course of its business in pricing or valuing transactions between the
Determining Party and unrelated third parties that are similar to the
Terminated Transaction or group of Terminated Transactions; and


 


(2)                               application of different valuation methods to
Terminated Transactions or groups of Terminated Transactions depending on the
type, complexity, size or number of the Terminated Transactions or group of
Terminated Transactions.


 





















 


“Confirmation” has the meaning specified in the
preamble.


 


“consent” includes a consent, approval,
action, authorisation, exemption, notice, filing, registration or exchange
control consent.


 


“Contractual Currency” has the meaning specified in
Section 8(a).


 


“Convention
Court”
means any court which is bound to apply to the Proceedings either
Article 17 of the 1968 Brussels Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters or Article 17 of
the 1988 Lugano Convention on Jurisdiction and the Enforcement of Judgments in
Civil and Commercial Matters.


 


“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.


 


“Cross-Default” means the event specified in
Section 5(a)(vi).


 


“Default Rate” means a rate per annum equal to
the cost (without proof or evidence of any actual cost) to the relevant payee
(as certified by it) if it were to fund or of funding the relevant amount plus
1% per annum.


 


“Defaulting
Party”
has the meaning specified in Section 6(a).


 


“Designated Event” has the meaning specified in
Section 5(b)(v).


 


“Determining
Party”
means the party determining a Close-out Amount.


 


“Early
Termination Amount” has the meaning specified in Section 6(e).


 


“Early
Termination Date” means the date determined in accordance with Section 6(a) or
6(b)(iv).


 


“electronic
messages”
does not include e-mails but does include documents expressed in markup
languages, and “electronic
messaging system” will be construed accordingly.


 


“English law” means the law of England and
Wales, and “English”
will be construed accordingly.


 


“Event of
Default”
has the meaning specified in Section 5(a) and, if applicable, in the
Schedule.


 


“Force Majeure
Event”
has the meaning specified in Section 5(b).


 


“General Business
Day”
means a day on which commercial banks are open for general business (including
dealings in foreign exchange and foreign currency deposits).


 


“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 “unlawful” will be construed
accordingly.


 


“Local Business
Day”
means (a) in relation to any obligation under Section 2(a)(i), a General
Business Day in the place or places specified in the relevant Confirmation and
a day on which a relevant settlement system is open or operating as specified
in the relevant Confirmation or, if a place or a settlement system is 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)
for the
purpose of determining when a Waiting Period expires, a General
Business Day in the place where the event or circumstance that constitutes or
gives rise to the Illegality or Force Majeure Event, as the case may be,
occurs, (c) in relation to any other payment, a General Business Day 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 and, if that currency
does not have a single recognised principal financial centre, a day on which
the settlement system necessary to accomplish such payment is open, (d) in
relation to any notice or other communication, including notice contemplated
under Section 5(a)(i), a General Business Day (or a day
that would have been a General Business Day but for the occurrence of an event
or circumstance which would, if it occurred with respect to payment, delivery
or compliance related to a Transaction, constitute or give rise to an
Illegality or a Force Majeure Event) in the place 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 (e) in relation to Section 5(a)(v)(2), a General
Business Day in the relevant locations for performance with respect to such
Specified Transaction.


 


“Local Delivery
Day”
means, for purposes of Sections 5(a)(i) and 5(d), a day on which settlement
systems necessary to accomplish the relevant delivery are generally open for
business so that the delivery is capable of being accomplished in accordance
with customary market practice, in the place specified in the relevant
Confirmation or, if not so specified, in a location as determined in accordance
with customary market practice for the relevant delivery.


 


“Master Agreement” has the meaning specified in the
preamble.


 


“Merger Without
Assumption” means the event specified in Section 5(a)(viii).


 


“Multiple Transaction Payment
Netting” has
the meaning specified in Section 2(c).


 


“Non-affected
Party”
means, so long as there is only one Affected Party, the other party.


 


“Non-default
Rate”
means the rate certified by the Non-defaulting Party to be a rate offered to
the Non-defaulting Party by a major bank in a relevant interbank market for
overnight deposits in the applicable currency, such bank to be selected in good
faith by the Non-defaulting Party for the purpose of obtaining a
representative rate that will reasonably reflect conditions prevailing at the
time in that relevant market.


 


“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.


 


“Other Amounts” has the meaning specified in
Section 6(f).


 


“Payee” has the meaning specified in
Section 6(f).


 


“Payer” has the meaning specified in
Section 6(f).


 





















 


“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.


 


“Proceedings” has the meaning specified in
Section 13(b).


 


“Process Agent” has the meaning specified in the
Schedule.


 


“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.


 


“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.


 


“Schedule” has the meaning specified in the
preamble.


 


“Scheduled Settlement
Date” means a
date on which a payment or delivery is to be made under Section 2(a)(i)
with respect to a Transaction.


 


“Specified
Entity”
has the meaning specified in the Schedule.


 


“Specified
Indebtedness” means, subject to the Schedule, any obligation (whether present or
future, contingent or otherwise, as principal or surety or otherwise) in
respect of borrowed money.


 


“Specified
Transaction” means, subject to the Schedule, (a) any transaction (including an
agreement with respect to any such transaction) 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 not a
Transaction under this Agreement but (i) which is a rate swap transaction, swap
option, 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, credit protection transaction, credit swap,
credit default swap, credit default option, total return swap, credit spread
transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back
transaction, securities lending transaction, weather index transaction,
or forward purchase or sale of a security, commodity or other financial
instrument or interest (including any option with respect to any of these
transactions) or (ii) which is a type of transaction that is similar to
any transaction referred to in clause (i) above that is currently, or in
the future becomes, recurrently entered into in the financial markets
(including terms and conditions incorporated by reference in such agreement)
and which is a forward, swap, future, option or other derivative on one or more
rates, currencies, commodities, equity securities or other equity instruments,
debt securities or other debt instruments, economic indices or measures of
economic risk or value, or other benchmarks against which payments or
deliveries are to be made, (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.


 


“Stamp Tax Jurisdiction” has the meaning specified in
Section 4(e).


 


“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 an Illegality or a Force Majeure Event, all Affected Transactions
specified in the notice given pursuant to Section 6(b)(iv), (b) if
resulting from any other Termination Event, all Affected Transactions and (c)
if resulting from an Event of Default, all Transactions in effect either
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”
means (a) if a Termination Currency is specified in the Schedule and that
currency is freely available, that currency, and (b) otherwise, euro if this
Agreement is expressed to be governed by English law or United States Dollars
if this Agreement is expressed to be governed by the laws of the State of New
York.


 


“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 Close-out Amount 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 Force Majeure Event, a Tax Event, 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.


 


“Threshold Amount” means the amount, if any,
specified as such in the Schedule.


 


“Transaction” has the meaning specified in the
preamble.


 


“Unpaid Amounts” owing to any party means, with
respect to an Early Termination Date, the aggregate of (a) in respect of
all Terminated Transactions, the amounts that became payable (or that would
have become payable but for Section 2(a)(iii) or due but for
Section 5(d)) to such party under Section 2(a)(i) or 2(d)(i)(4) on or
prior to such Early Termination Date and which remain unpaid as at such Early
Termination Date, (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) or 5(d)) required to be settled by delivery
to such party on or prior to such Early Termination Date and which has not been
so settled as at such Early Termination Date, an amount equal to the fair
market value of that which was (or would have been) required to be delivered and (c) if
the Early Termination Date results from an Event of Default, a Credit Event
Upon Merger or an Additional Termination Event in respect of which all
outstanding Transactions are Affected Transactions, any Early Termination
Amount due prior to such Early Termination Date and which remains unpaid as of
such Early Termination Date, in each case together with any
amount of interest accrued or other compensation in respect of that
obligation or deferred obligation, as the case may be, pursuant to Section 9(h)(ii)(1) or (2), as
appropriate.  The fair
market value of any obligation referred to in clause (b) above will be
determined as of the originally scheduled date for delivery, in good faith and
using commercially reasonable procedures, by the party obliged to make the
determination under Section 6(e) or, if each party is so obliged, it will
be the average of the Termination Currency Equivalents of the fair market
values so determined by both parties.


 





















 


 “Waiting Period” means:—


 


(a)                               in respect of an event or circumstance under
Section 5(b)(i), other than in the case of Section 5(b)(i)(2) where
the relevant payment, delivery or compliance is actually required on the
relevant day (in which case no Waiting Period will apply), a period of three Local
Business Days (or days that would have been Local Business Days but for the
occurrence of that event or circumstance) following the occurrence of that
event or circumstance; and


 


(b)                              in respect of an event or circumstance under
Section 5(b)(ii), other than in the case of Section 5(b)(ii)(2) where
the relevant payment, delivery or compliance is actually required on the
relevant day (in which case no Waiting Period will apply), a period of eight
Local Business Days (or days that would have been Local Business Days but for
the occurrence of that event or circumstance) following the occurrence of that
event or circumstance.


 


 


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.


 


 


	
  Royal Bank of Canada

  	
  GE CAPITAL CREDIT CARD MASTER

  NOTE TRUST

  
	
   

  	
  (Name of Party A)

  	
  (Name of Party B)

  
	
   

  	
   

  	
  By: The Bank of New York (Delaware), not in its

  Individual capacity, but solely as Trustee

  



 


 


	
  By: 

  	
  /s/ Irene Klausmann

  	
   

  	
  By: 

  	
  /s/ Kristine K. Gullo

  	
   

  
	
   

  	
   Name: Irene Klausmann

  	
   

  	
   Name: Kristine K. Gullo

  
	
   

  	
   Title: Manager, Trading Documentation

  	
   

  	
   Title: Assistant Vice President

  
	
   

  	
   Date: March 30, 2005

  	
   

  	
   Date: March 30, 2005