Exhibit
4.5


 


ISDA®


 


International Swaps and
Derivatives Association, Inc.


 


2002 MASTER AGREEMENT


 


dated as of June 23, 2004


 


AIG Financial Products
Corp. and GE Capital Credit Card Master Note Trust 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


 


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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


 


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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, 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)).


 


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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 organization or incorporation and, if relevant
under such laws, in good standing;


 


(ii)                                  Powers.  It has the
power to execute this Agreement and any other documentation relating to this
Agreement to which it is a party, to deliver this Agreement and any other
documentation relating to this Agreement that it is required by this Agreement
to deliver and to perform its obligations under this Agreement and any
obligations it has under any Credit Support Document to which it is a party and
has taken all necessary action to authorise such execution, delivery and
performance;


 


(iii)                               No
Violation or Conflict. 
Such execution, delivery and performance do not violate or conflict with
any law applicable to it, any provision of its constitutional documents, any
order or judgment of any court or other agency of government applicable to it
or any of its assets or any contractual restriction binding on or affecting it
or any of its assets;


 


(iv)                              Consents.  All governmental
and other consents that are required to have been obtained by it with respect
to this Agreement or any Credit Support Document to which it is a party have
been obtained and are in full force and effect and all conditions of any such
consents have been complied with; and


 


(v)                                 Obligations
Binding. 
Its obligations under this Agreement and any Credit Support Document to
which it is a party constitute its legal, valid and binding obligations,
enforceable in accordance with their respective terms (subject to applicable
bankruptcy, 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.


 


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(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.


 


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(b)                                 Maintain
Authorizations. It will use all reasonable efforts to
maintain in full force and effect all consents of any governmental or other
authority that are required to be obtained by it with respect to this Agreement
or any Credit Support Document to which it is a party and will use all
reasonable efforts to obtain any that may become necessary in the future.


 


(c)                                  Comply
With Laws. It will comply in all material respects
with all applicable laws and orders to which it may be subject if failure so to
comply would materially impair its ability to perform its obligations under
this Agreement or any Credit Support Document to which it is a party.


 


(d)                                 Tax
Agreement. It will give notice of any failure of a
representation made by it under Section 3(f) to be accurate and true promptly
upon learning of such failure.


 


(e)                                  Payment
of Stamp Tax. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated, 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


 


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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:—


 


(1)                                  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


 


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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 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:—


 


(1)                                  a default, event of default or other
similar condition or event (however described) in respect of such party, any
Credit Support Provider of such party or any applicable Specified Entity of
such party under one or more agreements or instruments relating to Specified
Indebtedness of any of them (individually or collectively) 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:—


 


(1)                                  is dissolved (other than pursuant to a
consolidation, amalgamation or merger); (2) becomes insolvent or is unable to
pay its debts or fails or admits in writing its inability generally to pay its
debts as they become due; (3) makes a general assignment, arrangement or composition
with or for the benefit of its creditors; (4)(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


 


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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
(1) 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:-


 


(1)                                  the resulting, surviving or transferee
entity fails to assume all the obligations of such party or such Credit Support
Provider under this Agreement or any Credit Support Document to which it or its
predecessor was a party; 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:—


 


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(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


 


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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,


 


11

















 


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:—


 


12

















 


(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


 


13

















 


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.


 


14

















 


(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 (1) showing, in reasonable detail, such calculations
(including any quotations, market data or information from internal sources
used in making such calculations), (2) specifying


 


15

















 


(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


 


16

















 


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


 


17

















 


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.


 


18

















 


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.


 


19

















 


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.


 


20

















 


(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


 


21

















 


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:—


 


22

















 


(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.


 


23

















 


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:—


 


24

















 


(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).


 


25

















 


“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


 


26

















 


(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).


 


27

















 


“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.


 


28

















 


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 limit0ation,
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.


 


29

















 


“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.


 


30

















 


“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).


 


31

















 


“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


 


32

















 


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.


 


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“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.


 


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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.


 


	
  AIG Financial Products
  Corp.

  	
   

  	
  GE Capital Credit Card
  Master Note Trust

  
	
   

  	
  (Name of Party)

  	
   

  	
  (Name of Party)

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: The Bank
  of New York (Delaware),

  not in its individual capacity, but

  solely on behalf of the Trust

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Kathleen M. Furlong

  	
   

  	
  By:

  	
  /s/ Kristine
  K. Gullo

  
	
   

  	
  Name:
  Kathleen M. Furlong

  	
   

  	
  Name:
  Kristine K. Gullo

  
	
   

  	
  Title: Vice
  President, CFO and Treasurer

  	
   

  	
  Title: Asst.
  Vice President

  
	
   

  	
  Date: June
  23, 2004

  	
   

  	
  Date: June
  23, 2004

  



 


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