Exhibit
4.7


(Multicurrency—Cross
Border)


 


ISDA®


International Swap and
Derivatives Association, Inc.


 


MASTER AGREEMENT


 


dated as of December 13,
2007


 


	
  BARCLAYS
  BANK PLC

  	
  and

  	
  Wilmington
  Trust Company, not in its individual capacity but solely in its capacity as
  trustee of the CNH Equipment Trust 2007-C

  
	
   

  	
   

  	
   

  
	
  (“Party A”)

  	
   

  	
  (“Party B”)

  



 


have entered and/or
anticipate entering into one or more transactions (each a “Transaction”) that
are or will be governed by this Master Agreement, which includes
the schedule (the “Schedule”), and the documents
and other confirming evidence (each a “Confirmation”) exchanged
between the parties confirming those Transactions.  


 


Accordingly, the parties
agree as follows:—


 


1.             Interpretation


 


(a)           Definitions. The
terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this
Master Agreement.


 


(b)           Inconsistency. In
the event of any inconsistency between the provisions of
the Schedule and the other provisions of this
Master Agreement, the Schedule will prevail. In the event
of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.


 


(c)           Single Agreement. All Transactions
are entered into in reliance on the fact that this Master
Agreement and all Confirmations form a single agreement between the
parties (collectively referred to as
this “Agreement”), and the parties would not otherwise enter into any
Transactions.


 


2.             Obligations


 


(a)           General
Conditions.


 


(i)    Each party will make each payment or
delivery specified in each Confirmation to be made by
it, subject to the other provisions of this Agreement.


 


(ii)   Payments under this Agreement will be made on
the due date for value on that date in the place
of the account specified in the relevant Confirmation or otherwise
pursuant to this Agreement, in
freely transferable funds and in the manner customary for payments in
the required currency. Where
settlement is by delivery (that is, other than by payment), such
delivery will be made for receipt on the due date in the
manner customary for the relevant obligation unless
otherwise specified in the relevant Confirmation or
elsewhere in this Agreement.


 


(iii)  Each obligation
of each party under Section 2(a)(i) is subject to (1) the condition precedent
that no Event of Default or Potential Event of Default with
respect to the other party has occurred and is continuing, (2) the
condition precedent that no Early Termination Date
in respect of the relevant Transaction has occurred or
been effectively designated and (3) each other applicable
condition precedent specified in this Agreement.


 


Copyright
© 1992 by International Swap and Derivatives Association, Inc.


 

















 


(b)           Change of Account. Either
party may change its account for receiving a payment or delivery by
giving notice to the other party at least five Local Business Days
prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable objection
to such change.


 


(c)           Netting. If
on any date amounts would otherwise be payable:—


 


(i)    in the same
currency; and


 


(ii)   in respect of the
same Transaction,


 


by each party to
the other, then, on such date, each party’s obligation to make payment of
any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been payable by one party exceeds the
aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger
aggregate amount would have been payable to pay
to the other party the excess of the larger aggregate amount over the smaller
aggregate amount.


 


The parties may elect in respect of two or more Transactions that a net
amount will be determined in respect of all amounts payable on the same date in
the same currency in respect of such
Transactions, regardless of whether such amounts are
payable in respect of the same Transaction. The election may be
made in the Schedule or a Confirmation by specifying that
subparagraph (ii) above will not apply to the Transactions
identified as being subject to the election, together with the starting
date (in which case subparagraph (ii) above will not, or
will cease to, apply to such Transactions from such date). This election
may be made separately for different groups of Transactions
and will apply separately to each pairing of Offices through
which the parties make and receive payments or deliveries.


 


(d)           Deduction or Withholding for Tax.


 


(i)    Gross-Up. All payments under this
Agreement will be made without any deduction or withholding for
or on account of any Tax unless such deduction or withholding is
required by any applicable law, as modified by the practice of
any relevant governmental revenue
authority, then in effect. If a party is so required to deduct
or withhold, then that party (“X”) will:—


 


(1)       promptly
notify the other party (“Y”) of such requirement;


 


(2)       pay to
the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to
be deducted or withheld from any additional amount paid by X to Y
under this Section 2(d)) promptly upon the earlier of
determining that such deduction or withholding is required
or receiving notice that such amount has been assessed against Y;


 


(3)       promptly
forward to Y an official receipt (or a certified copy), or
other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and


 


(4)       if such
Tax is an Indemnifiable Tax, pay to Y, in addition to the payment
to which Y is otherwise entitled under this Agreement,
such additional amount as is necessary
to ensure that  the net amount
actually received by Y (free and clear of Indemnifiable  Taxes, whether assessed
against X or Y) will equal the full amount Y would have received had
no such deduction or withholding been required. However, X will
not be required to pay any additional amount to Y to the
extent that it would not be required to be paid but for:—


 


(A)    the
failure by Y to comply with or perform any agreement contained in Section 4(a)(i), 4(a)(iii) or
4(d); or


 


(B)     the
failure of a representation made by Y pursuant to Section 3(f) to
be accurate and true unless such failure would not have
occurred but for (I) any action taken by a taxing
authority, or brought in a court of competent jurisdiction, on or after
the date on which a Transaction is entered into (regardless
of whether such action is taken or brought with respect to a
party to this Agreement) or (II) a Change in Tax Law.


 


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(ii)       Liability. If:—


 


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


 


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


 


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


 


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


 


(e)       Default Interest; Other Amounts. Prior
to the occurrence or effective designation of an Early
Termination Date in respect of the relevant Transaction, a party that
defaults in the performance of any payment obligation
will, to the extent permitted by law and subject  to Section 6(c), be required to pay interest (before as well as after judgment) on
the overdue amount to the other party on demand in the same currency
as such overdue amount, for the period from (and including) the
original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on
the basis of daily compounding
and the actual number of days elapsed. If, prior to the occurrence or effective designation
of an Early Termination Date in respect of the relevant
Transaction, a party defaults in the performance of any obligation
required to be settled by delivery, it will compensate
the other party on demand if and to the extent provided
for in the relevant Confirmation or elsewhere in this Agreement.


 


3.         Representations


 


Each party represents to
the other party (which representations will be
deemed to be repeated by each party on each date on
which a Transaction is entered into and, in the
case of the representations in Section 3(f), at
all times until the termination of this Agreement) that:—


 


(a)       Basic Representations.


 


(i)        Status. It
is duly organised and validly existing under the laws of the
jurisdiction of its organisation or incorporation and, if
relevant under such laws, in good standing;


 


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


 


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


 


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


 


(v)       Obligations Binding. Its
obligations under this Agreement and any
Credit Support Document to which it is a party constitute
its legal, valid and binding obligations, enforceable in accordance
with their respective terms (subject to applicable
bankruptcy, reorganisation, insolvency,
moratorium or similar laws affecting creditors’ rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a
proceeding in equity or at law)).


 


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(b)       Absence of Certain Events.
No Event of Default or Potential Event of Default or,
to its knowledge, Termination Event
with respect to it has occurred and is continuing and no such event or
circumstance would occur as a
result of its entering into or performing  its obligations under this Agreement or any Credit Support
Document to which it is a party.


 


(c)       Absence of  Litigation. There is not
pending or, to its knowledge, threatened against it or any of its Affiliates any action,
suit or proceeding at law or in equity or
before any court, tribunal, governmental body,
agency or official or any arbitrator that is likely to affect the
legality, validity or enforceability against it of this Agreement or any Credit Support
Document to which it is a party or its ability to
perform its obligations under this Agreement or such Credit
Support Document.


 


(d)       Accuracy of Specified
Information. All applicable information
that is furnished in writing by or on behalf of it
to the other party and is identified for the purpose of this Section 3(d) in
the Schedule is, as of the date of the information,
true, accurate and complete in every material respect.


 


(e)       Payer Tax Representation. Each
representation specified in the Schedule as being made by it for
the purpose of this

Section 3(e) is accurate and true.


 


(f)        Payee Tax Representations.
Each representation specified in the Schedule as being
made by it for the purpose of this 

Section 3(f) is accurate and true.


 


4.         Agreements


 


Each party agrees with the other that, so long as
either party has or may have any obligation under this
Agreement or under any Credit Support Document to which it is a
party:—


 


(a)       Furnish Specified Information. It
will deliver to the other party or, in certain cases under
subparagraph (iii) below, to such government or taxing authority as
the other party reasonably directs:—


 


(i)          any
forms, documents or certificates relating to taxation specified in the
Schedule or any Confirmation;


 


(ii)         any other documents specified in the
Schedule or any Confirmation; and


 


(iii)        upon reasonable demand by such other
party, any form or document that may be required or
reasonably requested in writing in order to allow such other party or its
Credit Support Provider to make a payment under this
Agreement or any applicable Credit Support Document without any
deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the
completion, execution or submission of such form or document would
not materially prejudice the legal or commercial position of the
party in receipt of such demand), with any such form or document
to be accurate and completed in a manner reasonably satisfactory to such other
party and to be executed and to be delivered
with any reasonably required certification,


 


in each case by the date specified in the Schedule or
such Confirmation or, if none is specified, as soon as
reasonably practicable.


 


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


 


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


 


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


 


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


 


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organised,
managed and controlled, or considered to have its seat, or in which a branch
or office through which it is acting for the purpose of this Agreement is located (“Stamp
Tax Jurisdiction”) and will indemnify the other party against any Stamp Tax levied or imposed upon
the other party or in respect of the other party’s execution or performance of this
Agreement by any such Stamp Tax Jurisdiction which is
not also a Stamp Tax Jurisdiction with respect to the other
party.


 


5.         Events of Default and Termination
Events


 


(a)       Events
of Default. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of
such party or any Specified Entity of
such party of any of the following events constitutes
an event of default (an “Event of Default”) with respect to such
party:—


 


(i)        Failure to Pay or Deliver. Failure by the party
to make, when due, any payment under this
Agreement or delivery under Section 2(a)(i) or 2(e) required
to be made by it if such failure is not remedied on or before
the third Local Business Day after notice of such failure is given to the
party;


 


(ii)       Breach of Agreement. Failure by the party to
comply with or perform any agreement or obligation (other than
an obligation to make any payment under this Agreement or delivery under Section 2(a)(i) or
2(e) or to give notice of a Termination Event or any
agreement or obligation under Section 4(a)(i), 4(a)(iii) or
4(d)) to be complied with or performed by the party in accordance
with this Agreement if such failure is not remedied on or before the
thirtieth day after notice of such failure is given to the
party;


 


(iii)      Credit
Support Default.


 


(1)       Failure by the party or
any Credit Support Provider of such party to comply with or
perform any agreement or obligation to be complied with or performed
by it in accordance with any Credit Support Document if
such failure is continuing after any applicable grace
period has elapsed;


 


(2)       the expiration or termination of such Credit Support Document or the
failing or ceasing of such Credit
Support Document to be in full force and effect for the purpose
of this Agreement (in either case
other than in accordance with its terms) prior to the  satisfaction of all obligations of such party under each Transaction to
which such Credit Support Document relates without
the written consent of the other party; or


 


(3)       the
party or such Credit Support Provider
disaffirms, disclaims, repudiates or rejects, in
whole or in part, or challenges the validity of, such Credit Support
Document;


 


(iv)      Misrepresentation.
A representation (other than a representation under Section 3(e) or (f)) made or repeated or deemed to have been made or repeated by the
party or any Credit Support Provider of such party in this Agreement
or any Credit Support Document proves to have been incorrect or misleading
in any material respect when made or
repeated or deemed to have been made
or repeated;


 


(v)       Default under Specified
Transaction. The party, any
Credit Support Provider of such party or any applicable Specified Entity of such party (1) defaults
under a Specified Transaction and, after
giving effect to any applicable
notice requirement or grace period, there occurs a liquidation of, an
acceleration of obligations under,
or an early termination of, that Specified Transaction, (2) defaults,
after giving effect to any applicable notice requirement or grace
period, in making any payment or delivery due on the last
payment, delivery or exchange date of, or any payment
on early termination of, a Specified Transaction (or such
default continues for at least three Local
Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms,
disclaims, repudiates or rejects, in whole or in part, a
Specified Transaction (or such action is taken by any
person or entity appointed or empowered to operate it or
act on its behalf);


 


(vi)      Cross Default.  If “Cross Default” is specified  in the
Schedule as applying to the party, the occurrence or existence of (1) a default, event of
default or other similar condition or event
(however


 


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described) in respect of such party, any Credit Support Provider of
such party or any applicable Specified Entity of such party
under one or more agreements or instruments relating to Specified
Indebtedness of any of them (individually or collectively) in an
aggregate amount of not less than the applicable Threshold
Amount (as specified in the Schedule) which has resulted
in such Specified Indebtedness becoming, or becoming capable at
such time of being declared, due and payable under such agreements or instruments, before it would otherwise
have been due and payable or (2) a default by such party,
such Credit Support Provider or such Specified Entity
(individually or collectively) in making one or more
payments on the due date thereof in an
aggregate amount of not less than the
applicable Threshold Amount under such agreements or instruments (after
giving effect to any applicable notice requirement or grace
period);


 


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


 


(1)       is dissolved (other than pursuant to a consolidation, amalgamation or
merger); (2) becomes insolvent or is
unable  to pay its debts or fails or
admits in writing its inability generally to pay
its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its
creditors; (4) institutes or has instituted
against it a proceeding seeking a judgment of
insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law
affecting creditors’ rights, or a petition is
presented for its winding-up or liquidation, and, in the
case of any such proceeding or petition instituted or
presented against it, such proceeding or petition (A) results in
a judgment of insolvency or bankruptcy or the entry of an
order for relief or the making of an order for its winding-up or
liquidation or (B) is not
dismissed, discharged, stayed or restrained in each case
within 30 days of the institution
or presentation thereof; (5) has a resolution passed for
its winding-up, official management or liquidation (other than pursuant to a consolidation,
amalgamation or merger); (6) seeks or becomes subject to
the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee,
custodian or other similar official for it or for
all or substantially all its assets; (7) has a secured
party take possession of all or substantially all its assets or has
a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued
on or against all or substantially all its assets and such secured
party maintains possession, or any such process is not dismissed, discharged, stayed or
restrained, in each case within 30 days thereafter; (8) causes
or is subject to any event with respect to it which,
under the applicable laws of any jurisdiction, has an
analogous effect to any of the events specified in clauses (1) to (7) (inclusive); or (9) takes any action  in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the foregoing acts; or


 


(viii)    Merger Without Assumption.
The party or any Credit Support Provider of such party
consolidates or amalgamates with,
or merges with or into, or transfers all or substantially
all its assets to, another entity and, at the time of such
consolidation, amalgamation, merger or transfer:—


 


(1)       the resulting, surviving or transferee entity
fails to assume all the obligations
of such party or such Credit Support Provider under
this Agreement or any Credit Support Document to
which it or its predecessor was a party by operation of law or
pursuant to an agreement reasonably satisfactory to the other party
to this Agreement; or


 


(2)       the benefits of any
Credit Support Document fail to extend (without the consent of the
other party) to the performance by such resulting, surviving or
transferee entity of its obligations under this
Agreement.


 


(b)       Termination Events. The occurrence
at any time with respect to a party or, if applicable, any Credit
Support Provider of such party or
any Specified Entity of such party of any event specified
below constitutes an Illegality if the event is specified in (i) below,
a Tax Event if the event is specified in (ii) below or a Tax Event Upon Merger if the event
is specified in (iii) below, and, if specified to be applicable,
a Credit Event 


 


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Upon Merger if the event is specified pursuant to (iv) below or an Additional Termination
Event if the event is specified pursuant to (v) below:—


 


(i)        Illegality. Due to the adoption of, or any change in, any
applicable law after the date on which
a Transaction is entered into, or due to the promulgation of, or
any change in, the interpretation by any court, tribunal or
regulatory authority with competent jurisdiction of
any applicable law after such date, it becomes
unlawful (other than as a result of a breach by the party of Section 4(b)) for
such party (which will be the Affected Party):—


 


(1)       to perform any absolute
or contingent obligation to make a payment or delivery or to
receive a payment or delivery in respect of such Transaction or to
comply with any other material provision of this Agreement
relating to such Transaction; or


 


(2)       to perform, or for any
Credit Support Provider of such party
to perform, any contingent or other obligation which
the party (or such Credit Support Provider) has under any Credit
Support Document relating to such Transaction;


 


(ii)       Tax Event. Due to (x) any action taken by a taxing authority, or brought in
a court of competent
jurisdiction, on or after the date on which a Transaction is
entered into (regardless of whether such action is taken or
brought with respect to a party to this Agreement) or (y) a Change
in Tax Law, the party (which will be the Affected Party)
will, or there is a substantial likelihood that it will, on
the next succeeding Scheduled Payment Date (1) be required to
pay to the other party an additional amount in respect of
an Indemnifiable Tax under Section 2(d)(i)(4) (except
in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount
is required to be deducted or withheld for or on
account of a Tax (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) and no additional amount is required to be paid in
respect of such Tax under Section 2(d)(i)(4) (other than by
reason of Section 2(d)(i)(4)(A) or (B));


 


(iii)     Tax Event Upon Merger. The party (the “Burdened Party”) on the
next succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except
in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or  (2) receive a payment from
which an amount has been deducted or withheld for or on account of
any Indemnifiable Tax in respect
of which the other party is not required to pay
an additional amount (other than by reason of Section 2(d)(i)(4)(A) or
(B)), in either case as a result of a party
consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to,
another entity (which will be the Affected Party) where such action
does not constitute an event described in Section 5(a)(viii);


 


(iv)  Credit Event Upon Merger. If “Credit Event
Upon Merger” is specified in the Schedule as applying to the party,
such party (“X”), any Credit Support Provider of X or any applicable
Specified Entity of X consolidates or amalgamates with, or merges with or into,
or transfers all or substantially all its assets
to, another entity and such action does
not constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting,
surviving or transferee entity is materially weaker than
that of X, such Credit Support
Provider or such Specified Entity, as
the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as
appropriate, will be the Affected Party); or


 


(v)     Additional Termination
Event. If any “Additional Termination Event”
is specified in the Schedule or any Confirmation as
applying, the occurrence of such event (and, in such event, the
Affected Party or Affected Parties shall be as specified for such Additional
Termination Event in the Schedule or such Confirmation).


 


(c)        Event of Default and
Illegality. If an event or circumstance which would
otherwise constitute or give rise to an Event of
Default also constitutes an Illegality, it will be treated as an
Illegality and will not constitute an Event of
Default.


 


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6.         Early Termination


 


(a)        Right to Terminate
Following Event of Default. If at any time an Event of Default
with respect to a party (the “Defaulting Party”) has
occurred and is then continuing, the other party (the “Non-defaulting
Party”) may, by not more than 20
days notice  to the Defaulting Party
specifying the relevant Event of Default,
designate a day not earlier than the day such notice is effective as
an Early Termination Date in respect of
all outstanding Transactions. If, however, “Automatic Early
Termination” is specified in the Schedule as
applying to a party, then an Early Termination Date in respect
of all outstanding Transactions will occur immediately upon the occurrence with respect to such party of
an Event of Default specified in Section 5(a)(vii)(l), (3), (5), (6) or, to the extent analogous thereto, (8), and as
of the time immediately preceding the institution of the
relevant proceeding or the presentation of the
relevant petition upon the occurrence with respect to such party of an Event of
Default specified in Section 5(a)(vii)(4) or,
to the extent analogous thereto, (8).


 


(b)        Right to Terminate
Following Termination Event.


 


(i)        Notice. If a Termination Event occurs, an Affected Party
will, promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination  Event and
each Affected Transaction and will also give
such other information about that
Termination Event as the other party
may reasonably require.


 


(ii)       Transfer to Avoid Termination Event. If
either an Illegality under Section 5(b)(i)(l) or a Tax
Event occurs and there is only one Affected Party, or if a Tax Event
Upon Merger occurs and the Burdened Party is the Affected Party,
the Affected Party will, as a condition to its right to designate
an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to
incur a loss, excluding immaterial, incidental
expenses) to transfer within 20 days after
it gives notice under Section 6(b)(i) all its rights and
obligations under this Agreement in respect of
the Affected Transactions to another of its Offices or Affiliates so
that such Termination Event ceases to exist.


 


If the Affected Party is
not able to make such a transfer it will give notice to the
other party to that effect within such
20 day period, whereupon the other party may effect such
a transfer within 30 days after the notice is
given under Section 6(b)(i).


 


Any such transfer by a
party under this Section 6(b)(ii) will be subject to and
conditional upon the prior written consent of the other
party, which consent will not be withheld if such other party’s
policies in effect at such time would permit it to enter into
transactions with the transferee on the terms proposed.


 


(iii)      Two Affected Parties. If an Illegality under Section 5(b)(i)( 1) or
a Tax Event occurs and there are two Affected Parties,
each party will use all reasonable efforts to reach
agreement within 30 days after notice thereof is given
under Section 6(b)(i) on action to avoid that Termination Event.


 


(iv)      Right  to Terminate. If:—


 


(1)       a
transfer under Section 6(b)(ii) or
an agreement under Section 6(b)(iii),
as the case may be, has not been effected with
respect to all Affected Transactions within 30 days after an
Affected Party gives notice under Section 6(b)(i); or


 


(2)       an
Illegality under Section 5(b)(i)(2), a Credit Event Upon Merger
or an Additional Termination Event occurs,
or a Tax Event Upon Merger occurs and the
Burdened Party is not the Affected Party,


 


either party in the case
of an Illegality, the Burdened Party in the
case of a Tax Event Upon Merger, any Affected Party in
the case of a Tax Event or an Additional Termination Event
if there is more than one Affected Party, or the party
which is not the Affected Party in the case of a Credit Event
Upon Merger or an Additional Termination Event if there is only one
Affected Party may, by not more than 20 days notice to the other party and provided that the relevant
Termination Event is then


 


8

















 


continuing, designate a day not earlier than the day
such notice is effective as an Early Termination Date in respect of
all Affected Transactions.


 


(c)       Effect of Designation.


 


(i)        If
notice designating an Early Termination Date is given under Section 6(a) or (b), the Early
Termination Date will occur on the date so designated, whether or not the
relevant Event of Default or Termination Event is then
continuing.


 


(ii)       Upon
the occurrence or effective designation of an Early
Termination Date, no further payments or deliveries
under Section 2(a)(i) or 2(e) in respect of the
Terminated Transactions will be required to be made, but without prejudice to the other
provisions of this Agreement. The amount, if any, payable in respect of an Early
Termination Date shall be determined pursuant to Section 6(e).


 


(d)        Calculations.


 


(i)        Statement. On or as soon as
reasonably practicable following the occurrence of an Early
Termination Date, each party will
make the calculations on  its part, if
any, contemplated by Section 6(e) and will provide
to the other party a statement (1) showing, in reasonable
detail, such calculations (including all relevant
quotations and specifying any  amount
payable under Section 6(e)) and (2) giving details of the relevant account to which
any amount payable to it is to be paid. In
the absence of written confirmation from the
source of a quotation obtained in determining a Market Quotation, the records of
the party obtaining such quotation will be conclusive evidence
of the existence and accuracy of such quotation.


 


(ii)       Payment Date. An amount calculated
as being due in respect of any Early Termination Date  under Section 6(e) will be payable on the
day that notice of the amount payable is effective (in the
case of an Early Termination Date which is designated or occurs
as a result of an Event of Default) and on the day which is two Local Business
Days after the day on which notice of the amount payable
is effective (in the case of an
Early Termination Date which is designated as a
result of a Termination Event). Such amount will be
paid together with (to the extent
permitted under applicable law)
interest thereon (before as well as
after judgment) in the Termination Currency, from (and including)
the relevant Early Termination Date to (but excluding) the date such
amount is paid, at the Applicable Rate. Such interest
will be calculated on the basis of daily compounding and the actual number of
days elapsed.


 


(e)       Payments on Early Termination. If an
Early Termination Date occurs, the following provisions  shall apply based on the parties’ election in the
Schedule of a payment measure, either “Market Quotation”
or “Loss”, and a payment method, either the “First Method” or
the “Second Method”. If the parties fail to designate a payment measure or payment method in the
Schedule, it will be deemed that “Market Quotation”
or the “Second Method”, as
the case may be, shall apply. The amount, if any, payable in respect of an
Early Termination Date and determined pursuant to this Section will be subject
to any Set-off.


 


(i)        Events of Default. If
the Early Termination Date results from an Event of Default:—


 


(1)   First Method and Market Quotation.
If the First Method and Market Quotation apply, the
Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and
the Termination Currency Equivalent of the Unpaid Amounts  owing to the Non-defaulting Party over (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to the Defaulting
Party.


 


(2)   First Method and Loss. If the First Method and Loss apply,
the Defaulting Party will pay
to the Non-defaulting Party, if a positive number, the
Non-defaulting Party’s Loss in respect
of this Agreement.


 


(3)   Second Method and Market Quotation.  If the Second Method and Market Quotation apply, an amount will be payable equal
to (A) the sum of the Settlement Amount (determined by the 


 


9
















Non-defaulting Party) in respect of
the Terminated Transactions and the Termination Currency Equivalent of the Unpaid Amounts owing
to the Non-defaulting Party less (B) the Termination
Currency Equivalent of the Unpaid Amounts owing to the Defaulting
Party. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a negative
number, the Non-defaulting Party
will pay the absolute value of that amount to the Defaulting
Party.


 


(4)       Second Method and Loss. If the Second Method and Loss apply, an
amount will be payable
equal to the Non-defaulting Party’s Loss in respect of this
Agreement. If that amount is a positive number, the Defaulting Party will pay it to the
Non-defaulting Party; if it is a negative number, the Non-defaulting Party will pay the absolute value
of that amount to the Defaulting Party.


 


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


 


(1)       One Affected
Party. If there is one Affected Party, the amount payable will be determined
in accordance with Section 6(e)(i)(3),
if Market Quotation applies, or Section 6(e)(i)(4), if Loss
applies, except that, in either
case, references to the Defaulting Party and
to the Non-defaulting Party will be deemed to be
references to the Affected Party and the party which is not the
Affected Party, respectively, and,
if Loss applies and fewer than all the Transactions are being
terminated, Loss shall be calculated in respect of all Terminated Transactions.


 


(2)       Two Affected Parties. If there are two Affected Parties:—


 


(A)      if Market Quotation
applies, each party will determine a Settlement Amount in
respect of the Terminated Transactions, and an amount will be payable
equal to (I) the sum of (a) one-half of the
difference between the Settlement Amount of the party with
the higher Settlement Amount (“X”) and the Settlement Amount of
the party with the lower Settlement Amount (“Y”) and (b) the
Termination Currency Equivalent of the Unpaid Amounts owing to X less (II) the Termination Currency
Equivalent of the Unpaid Amounts owing to Y;
and


 


(B)       if Loss applies, each party will determine  its Loss in respect of this Agreement (or,
if fewer than all the Transactions are being terminated, in
respect of all Terminated Transactions) and an
amount will be payable equal to one-half of the difference between
the Loss of the party with the
higher Loss (“X”) and the Loss of the party with the lower
Loss (“Y”).


 


If the amount payable is a positive number, Y will pay
it to X; if it is a negative number, X
will pay the absolute value of that amount to Y.


 


(iii)      Adjustment for Bankruptcy.
In circumstances where an Early
Termination Date occurs because “Automatic Early
Termination” applies in respect of a party, the
amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and
permitted by law to reflect any payments or deliveries made by one
party to the other under this Agreement (and retained by such other party)
during the period from the relevant Early Termination Date to the date for
payment determined under Section 6(d)(ii).


 


(iv)      Pre-Estimate. The
parties agree that if Market Quotation
applies an amount recoverable under this Section 6(e) is
a reasonable pre-estimate of loss and not a penalty. Such amount is payable for
the loss of bargain and the loss of protection against future
risks and except as otherwise provided
in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.


 


10

















 


7.         Transfer


 


Subject to Section 6(b)(ii),
neither this Agreement nor any interest or obligation in
or under this Agreement
may be transferred (whether
by way of security or otherwise) by either party without
the prior written consent of the other party,
except that: —


 


(a)        a
party may make such a transfer of this Agreement pursuant to
a consolidation or amalgamation
with, or merger with or into, or transfer of all or
substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this Agreement);
and


 


(b)        a
party may make such a transfer of all or any part of its interest in any amount payable to it from
a Defaulting Party under Section 6(e).


 


Any purported transfer that is not in compliance with
this Section will be void.


 


8.         Contractual Currency


 


(a)        Payment in the Contractual Currency. Each
payment under this Agreement will be made in the relevant currency specified in this Agreement for that
payment (the “Contractual Currency”). To the extent
permitted by applicable law, any obligation to make payments under
this Agreement in the Contractual Currency will not be
discharged or satisfied by any tender in any currency other than the Contractual
Currency, except to the
extent such tender results in the actual receipt by the party to which payment is owed,
acting in a reasonable manner and in good
faith in converting the currency so tendered into the Contractual
Currency, of the full amount in the
Contractual Currency of all amounts payable in respect of this
Agreement. If for any reason the amount in the Contractual Currency so received
falls short of the amount in the Contractual Currency payable in respect of this Agreement, the party required to make
the payment will, to the extent permitted by
applicable law, immediately pay such additional amount in the
Contractual Currency as may be necessary to
compensate for the shortfall. If for any reason the amount in the
Contractual Currency so received exceeds the amount in the Contractual Currency payable in respect of
this Agreement, the party receiving the payment will refund promptly the
amount of such excess.


 


(b)        Judgments. To
the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered (i) for the payment of
any amount owing in respect of this Agreement, (ii) for the
payment of any amount relating to any early
termination in respect of this Agreement or (iii) in
respect of a judgment or order of another
court for the payment of any amount described in (i) or (ii) above, the
party seeking recovery, after recovery in full of the aggregate amount to which
such party is entitled pursuant to the judgment or order, will be entitled to
receive immediately from the other party the amount of any
shortfall of the Contractual Currency received by such party as a consequence of
sums paid in such other currency and will refund promptly to the other party
any excess of the Contractual Currency received by such party as a consequence
of sums paid in such other currency if such shortfall or such excess arises or
results from any variation between the rate of exchange at which the Contractual
Currency is converted into the currency of
the judgment or order for the purposes of such judgment or order and the
rate of exchange at which such party is able, acting in a reasonable manner and
in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with
the amount of the currency of the judgment or order actually received by such
party. The term “rate of exchange” includes, without
limitation, any premiums and costs of exchange payable in connection
with the purchase of or conversion into the Contractual
Currency.


 


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


 


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


 


11

















 


9.         Miscellaneous


 


(a)       Entire Agreement.  This Agreement constitutes the entire agreement and
understanding of the parties
with respect to its subject matter and supersedes all oral
communication and prior writings with respect thereto.


 


(b)       Amendments.  No
amendment, modification or waiver in respect of this
Agreement will be effective unless in writing
(including a writing evidenced by a facsimile transmission) and executed
by each of the parties or confirmed by an exchange of
telexes or electronic messages on an electronic messaging system.


 


(c)       Survival of Obligations.  Without prejudice to Sections 2(a)(iii) and 6(c)(ii),
the obligations of the parties under this Agreement will
survive the termination of any Transaction.


 


(d)       Remedies Cumulative.  Except as provided in this Agreement, the
rights, powers, remedies and privileges provided in
this Agreement are cumulative and not exclusive of any
rights, powers, remedies and privileges provided by law.


 


(e)        Counterparts and
Confirmations.


 


(i)      This
Agreement (and each amendment, modification and waiver in respect
of it) may be executed and delivered in counterparts
(including by facsimile transmission), each of which will be
deemed an original.


 


(ii)     The
parties intend that they are legally bound
by the terms of each Transaction from the moment
they agree to those terms (whether
orally or otherwise). A Confirmation shall
be entered into as soon as practicable and may be
executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an
exchange of electronic messages on an electronic messaging system,
which in each case will be sufficient
for all purposes to evidence a binding supplement to this Agreement.
The parties will specify therein or through another effective means that any such counterpart,
telex or electronic message constitutes a Confirmation.


 


(f)        No Waiver of Rights. A failure or delay in
exercising any right, power or privilege
in respect of this Agreement will not be presumed to operate as a waiver, and
a single or partial exercise of any right, power or privilege will not
be presumed to preclude any subsequent or further exercise, of that
right, power or privilege or the exercise of any other
right, power or privilege.


 


(g)       Headings.
The headings used in this Agreement
are for convenience of reference only and are not
to affect the construction of or to be taken into consideration
in interpreting this Agreement.


 


10.      Offices; Multibranch Parties


 


(a)       If Section 10(a) is
specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than
its head or home office represents to the other party
that, notwithstanding the place of booking office or jurisdiction of incorporation or organisation
of such party, the obligations of such party are the same as if it had entered into the
Transaction through its head or home office. This representation will be deemed to be
repeated by such party on each date on which a Transaction is entered
into.


 


(b)       Neither
party may change the Office through which it makes and
receives payments or deliveries
for the purpose of a Transaction without the prior written
consent of the other party.


 


(c)       If a
party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make
and receive payments or deliveries under any Transaction through any Office listed in
the Schedule, and the Office through which it
makes and receives payments or deliveries with respect to
a Transaction will be specified in the relevant
Confirmation.


 


11.      Expenses


 


A Defaulting Party will, on demand, indemnify and hold
harmless the other party for and against all
reasonable out-of-pocket expenses, including legal fees and Stamp Tax,
incurred by such other party by reason of the enforcement and protection of its
rights under this Agreement or any Credit Support Document 


 


12

















 


to which the Defaulting Party is a party or by reason of the
early termination of any Transaction, including,
but not limited to, costs of collection.


 


12.      Notices


 


(a)       Effectiveness.  Any notice or other
communication in respect of this Agreement may
be given in any manner set forth below (except that a notice or other communication
under Section 5 or 6 may not be given
by facsimile transmission or electronic messaging system) to the
address or number or in accordance with
the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:—


 


(i)        if in
writing and delivered in person or by courier, on the date it is delivered;


 


(ii)       if
sent by telex, on the date the recipient’s answerback is received;


 


(iii)      if
sent by facsimile transmission, on the date that transmission is
received by a responsible employee of  the recipient
in legible form (it being agreed that the burden of
proving receipt will be on the sender and will
not be met by a transmission report generated by
the sender’s facsimile machine);


 


(iv)      if sent
by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt
requested), on the date that mail is delivered or its delivery
is attempted; or


 


(v)       if sent
by electronic messaging system, on the date that electronic message is
received,


 


unless the date of that delivery (or attempted delivery)
or that receipt, as applicable, is not a Local Business Day or that communication is delivered (or attempted)
or received, as applicable, after the close of business on a Local Business Day, in which case that communication shall
be deemed given and effective on the first following day that is a Local
Business Day.


 


(b)       Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at which notices
or other communications are to be given to it.


 


13.      Governing Law and Jurisdiction


 


(a)       Governing Law. This Agreement will
be governed by and construed in accordance with the law
specified in the Schedule.


 


(b)       Jurisdiction. With respect to any
suit, action or proceedings relating to this Agreement (“Proceedings”), each
party irrevocably:—


 


(i)        submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed
by English law, or to the non-exclusive jurisdiction of the
courts of the State of New York and the
United States District Court located in the Borough of Manhattan in
New York City, if this
Agreement is expressed to be governed by the laws of the State
of New York; and


 


(ii)       waives any objection which it may have at
any time to the laying of venue of any Proceedings
brought in any such court, waives any claim that such Proceedings
have been brought in an
inconvenient forum and further waives the right to object, with
respect to such Proceedings, that
such court does not have any jurisdiction over such party.


 


Nothing in this Agreement precludes either party from
bringing Proceedings in any other jurisdiction
(outside, if this Agreement is expressed to be governed by
English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Act 1982 or any modification, extension or
reenactment thereof for the time being in force) nor will the
bringing of Proceedings in any one or more
jurisdictions preclude the bringing of Proceedings in any other
jurisdiction.


 


(c)       Service of Process. Each party irrevocably appoints the Process Agent
(if any) specified opposite its name in the Schedule to receive, for it and on its behalf,
service of process in any Proceedings. If for any


 


13

















 


reason any party’s
Process Agent is unable to act as such, such party will promptly
notify the other party and within 30 days appoint
a substitute process agent acceptable to the other
party. The parties irrevocably
consent to service of process given in the manner provided for
notices in Section 12. Nothing in this
Agreement will affect the right of either party to serve process
in any other manner permitted by law.


 


(d)       Waiver of Immunities. Each party
irrevocably waives, to the fullest
extent permitted by applicable
law, with respect to  itself and
its revenues and assets (irrespective of
their use or intended use), all immunity
on the grounds of sovereignty
or other similar grounds from (i) suit, (ii) jurisdiction of
any court, (iii) relief by way of injunction, order for specific performance or for recovery of
property, (iv) attachment of its assets
(whether before or after 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
Termination Event” has the meaning specified in Section 5(b).


 


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


 


“Affected
Transactions” means
(a) with respect to any Termination Event
consisting of an Illegality, Tax
Event or Tax Event Upon Merger, all Transactions affected
by the occurrence of such Termination Event and (b) with respect to
any other Termination Event, all Transactions.


 


“Affiliate”
means,
subject to the Schedule, in relation to any person, any
entity controlled, directly or
indirectly, by the person, any entity that controls, directly or
indirectly, the person or any entity directly or indirectly under common control with the
person. For this purpose, “control” of any
entity or person means ownership of a majority of
the voting power of the entity or person.


 


“Applicable Rate” means:—


 


(a)       in
respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii))
by a Defaulting Party, the Default Rate;


 


(b)       in respect of an obligation
to pay an amount under Section 6(e) of either party from and after the date
(determined in accordance with Section 6(d)(ii)) on which that amount is
payable, the Default Rate;


 


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


 


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


 


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


 


“Change in Tax Law” means the enactment, promulgation, execution or ratification of,
or any change in or amendment to, any law (or in the application or official interpretation
of any law) that occurs on or after the
date on which the relevant Transaction is entered into.


 


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


 


“Credit Event Upon Merger” has the meaning specified in Section 5(b).


 


“Credit Support Document” means any
agreement or instrument that is specified as such in this Agreement.


 


“Credit Support Provider” has the meaning specified in the
Schedule.


 


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


 


14

















 


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


 


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


 


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


 


“Illegality” has the meaning specified in Section 5(b).


 


“Indemnifiable Tax”
means any Tax
other than a Tax that would not be imposed
in respect of a payment
under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such Tax and the recipient
of such payment or a person related to such recipient
(including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of such
jurisdiction, or being or having been organised, present or engaged in a trade
or business in such jurisdiction, or having or having had a permanent
establishment or fixed place of business in such
jurisdiction, but excluding a connection arising solely from such recipient
or related person having executed, delivered, performed its obligations or
received a payment under, or enforced, this Agreement or a Credit Support
Document).


 


“law”  includes any treaty, law, rule or regulation (as modified, in the case of tax matters,
by the practice of any
relevant governmental revenue authority) and “lawful” and “unlawful” will be construed
accordingly.


 


“Local Business Day” means, subject to the Schedule, a day on
which commercial banks are open for
business (including dealings in foreign exchange and foreign currency
deposits) (a) in relation to any
obligation under Section 2(a)(i), in the place(s) specified in the relevant Confirmation or,
if not so specified, as otherwise agreed by the parties in writing or determined pursuant
to provisions contained, or incorporated by reference, in this
Agreement, (b) in relation to any other
payment, in the place where the relevant account is
located and, if different, in the principal financial centre, if any, of the
currency of such payment, (c) in
relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the
city specified in the address for notice provided by the
recipient and, in the case of a notice contemplated by Section 2(b), in the
place where the relevant new account is
to be located and (d) in relation to Section 5(a)(v)(2), in the relevant
locations for performance with respect to such Specified Transaction.


 


“Loss” means, with respect to this Agreement or
one or more Terminated Transactions, as the case may be, and
a party, the Termination Currency Equivalent of an amount that
party reasonably determines in good faith to be
its total losses and costs (or gain, in which case expressed as
a negative number) in connection with this Agreement or that Terminated Transaction
or group of Terminated Transactions, as the case may be, including any loss of
bargain, cost of funding or, at the election of such party
but without duplication, loss or cost incurred as a result
of its terminating, liquidating, obtaining or reestablishing any
hedge or related trading position (or any gain
resulting from any of them). Loss includes losses and costs (or
gains) in respect of any payment or delivery required to have been
made (assuming satisfaction of each applicable condition precedent)
on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3) or
6(e)(ii)(2)(A) applies. Loss does not include a party’s legal fees
and out-of-pocket expenses referred to under Section 11. A party will
determine its Loss as of the relevant Early Termination Date, or, if
that is not reasonably practicable, as of the
earliest date thereafter as is reasonably practicable. A party may
(but need not) determine its Loss by reference to
quotations of relevant rates or prices from one or more leading
dealers in the relevant markets.


 


“Market
Quotation” means,
with respect to one or more Terminated Transactions and a party making the
determination, an amount determined on the basis of quotations from
Reference Market-makers. Each quotation will be for an
amount, if any, that would be paid to such party
(expressed as a negative number) or by such party (expressed as a positive
number) in consideration of an agreement between such party (taking
into account any existing Credit Support Document with respect
to the obligations of such party) and the quoting Reference Market-maker
to enter into a transaction (the
“Replacement Transaction”) that would
have the effect of preserving for such party the economic
equivalent of any payment or delivery (whether
the underlying obligation was absolute or contingent and assuming the
satisfaction of each applicable condition precedent) by the parties under Section 2(a)(i) in
respect of such Terminated Transaction or group of Terminated Transactions that would, but for the
occurrence of the relevant Early Termination Date, have 


 


15

















 


been required after that date. For this purpose, Unpaid Amounts in respect of the Terminated Transaction or
group of Terminated Transactions are to be excluded but, without limitation,
any payment or delivery that would, but for the
relevant Early Termination Date, have been required
(assuming satisfaction of each applicable condition precedent)
after that Early Termination Date is to be included. The Replacement
Transaction would be subject
to such documentation as such party and the Reference Market-maker may, in
good faith, agree. The party making the
determination (or its agent) will request each Reference
Market maker to provide its quotation to the extent reasonably practicable as
of the same day and time
(without regard to different time zones) on or as soon as
reasonably practicable after the relevant Early Termination Date. The day
and time as of which those quotations are to
be obtained will be selected in good faith by the party
obliged to make a determination under Section 6(e),
and, if each party is so obliged, after consultation with the other. If
more than three quotations are provided, the Market Quotation will be the
arithmetic mean of the quotations, without
regard to the quotations having the highest and lowest values. If
exactly three such quotations are provided, the Market Quotation will be the quotation
remaining after disregarding the highest and lowest quotations. For this purpose,
if more than one quotation has the same highest value or lowest value, then one of such quotations shall be
disregarded. If fewer than three quotations are provided, it will be
deemed that the Market Quotation in respect of such Terminated Transaction or group of Terminated Transactions
cannot be determined.


 


“Non-default Rate” means a rate
per annum equal to the cost (without proof or evidence of any actual cost)
to the Non-defaulting Party (as certified by it) if it were to fund the
relevant amount.


 


“Non-defaulting Party” has the meaning specified in Section 6(a).


 


“Office” means a branch or office of a party,
which may be such party’s head or home office.


 


“Potential Event of Default” means any
event which, with the giving of notice or the lapse
of time or both, would constitute an Event of
Default.


 


“Reference Market-makers” means four leading dealers in the
relevant market selected by the party
determining a Market Quotation in good faith (a) from among
dealers of the highest credit standing which
satisfy all the criteria that such party applies generally at
the time in deciding whether to offer or to make
an extension of credit and
(b) to the extent practicable, from among such dealers having an
office in the same city.


 


“Relevant
Jurisdiction” means,
with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed
and controlled or considered to have its seat, (b) where an Office through
which the party is acting for purposes of this Agreement is
located, (c) in which the party executes this Agreement and (d) in relation to any
payment, from or through which such payment is made.


 


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


 


“Set-off”
means
set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an  amount
under Section 6 is entitled or
subject (whether arising under
this Agreement, another contract, applicable law or otherwise)
that is exercised by, or imposed on, such payer.


 


“Settlement
Amount” means,
with respect to a party and any Early Termination Date, the sum of:—


 


(a)       the Termination Currency Equivalent of the Market Quotations  (whether positive or negative) for each
Terminated Transaction or group of
Terminated Transactions for which a Market Quotation is determined;
and


 


(b)       such party’s Loss (whether positive or
negative and without reference to any Unpaid Amounts) for
each Terminated Transaction or group of
Terminated Transactions for which a Market Quotation cannot be
determined or would not (in the reasonable belief of the party
making the determination) produce a
commercially reasonable result.


 


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


 


16

















 


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


 


“Specified Transaction”  means, subject
to the Schedule, (a) any transaction (including an agreement with respect
thereto) now existing
or hereafter entered into between one party to this
Agreement (or any Credit Support Provider of such party or any applicable
Specified Entity of such party) and the other
party to this Agreement (or any Credit Support Provider of such other party or any applicable Specified Entity of such other party) which is
a rate swap transaction, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap, equity or
equity index option, bond option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of these
transactions), (b) any combination of these transactions and (c) any other
transaction identified as a Specified Transaction in  this Agreement or the relevant
confirmation.


 


“Stamp
Tax” means
any stamp, registration, documentation or similar tax.


 


“Tax” means any present or future
tax, levy, impost, duty, charge, assessment or fee of any nature (including
interest, penalties and additions thereto) that is imposed by any government
or other taxing authority in
respect of any payment under this Agreement other
than a stamp, registration, documentation or similar tax.


 


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


 


“Tax
Event Upon Merger” has the meaning specified in Section 5(b).


 


“Terminated
Transactions” means
with respect to any Early Termination Date (a) if resulting from a
Termination Event, all Affected Transactions
and (b) if resulting from an
Event of Default, all Transactions
(in either case) in effect immediately
before the effectiveness of the notice designating that Early Termination
Date (or, if “Automatic Early Termination” applies, immediately
before that Early Termination Date).


 


“Termination Currency” has the meaning specified in the
Schedule.


 


“Termination Currency Equivalent”
means, in
respect of any amount denominated in the Termination
Currency, such Termination Currency amount
and, in respect of any amount denominated in a currency other
than the Termination Currency
(the “Other Currency”), the amount in
the Termination Currency determined
by the party making the relevant determination as being
required to purchase such amount of such Other Currency as at the relevant Early Termination Date, or, if the relevant Market
Quotation or Loss (as the case may be), is determined as of a later date, that later date, with the
Termination Currency at the rate equal to the spot exchange rate of the foreign
exchange agent (selected as provided below) for the purchase of such Other
Currency with the Termination Currency at or about 11:00 a.m. (in the city in which
such foreign exchange agent is located) on such date as would be customary for
the determination of such a rate for the purchase of such Other Currency for
value on the relevant Early Termination Date or that later date. The foreign exchange
agent will, if only one party is obliged to make a determination under Section 6(e),
be selected in good faith by that party and otherwise will be agreed by the
parties.


 


“Termination Event” means an Illegality, a Tax Event or a Tax
Event Upon Merger or, if specified to be
applicable, a Credit Event Upon Merger or an Additional
Termination Event.


 


“Termination Rate” means a rate per annum equal to the
arithmetic mean of the cost (without proof or
evidence of any actual cost) to each party (as certified by
such party) if it were to fund or of funding such amounts.


 


“Unpaid Amounts”  owing to any party
means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the amounts that
became payable (or that would have become
payable but for Section 2(a)(iii)) to such party under Section
2(a)(i) on or prior to such Early Termination
Date and which remain unpaid as at such Early Termination
Date and (b) in respect of each Terminated Transaction, for each obligation under Section 2(a)(i) which
was (or would have been but for Section 2(a) (iii)) required to be settled by delivery to such
party on or prior to such Early Termination Date
and which has not been so settled as at such Early
Termination Date, an amount equal to the fair market 


 


17

















 


value of that
which was (or would have been) required to be delivered as of
the originally scheduled date for delivery, in each case together with (to the
extent  permitted under applicable
law) interest, in the currency of such amounts, from (and
including) the date such amounts  or
obligations were or would have been required
to have been paid or
performed to (but excluding) such Early Termination Date, at the Applicable Rate. Such
amounts of interest will be calculated on the basis of daily
compounding and the actual number of days elapsed. The fair market value of any
obligation referred to in clause (b) above shall be reasonably determined by the
party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average
of the Termination Currency Equivalents of the fair market values reasonably
determined by both parties.


 


IN WITNESS WHEREOF the parties have executed this
document on the respective dates specified below
with effect from the date specified on the first page of this
document.


 


 


	
  BARCLAYS
  BANK PLC

  	
   

  	
  CNH
  EQUIPMENT TRUST 2007-C  

  By: Wilmington Trust Company, not in 

  its individual capacity but solely as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ LeeLee
  Panno

  	
   

  	
  By:

  	
  /s/ J.
  Christopher Murphy

  
	
  Name:

  	
  LeeLee Panno

  	
   

  	
  Name:

  	
  J.
  Christopher Murphy

  
	
  Title:

  	
  Associate
  Director

  	
   

  	
  Title:

  	
  Financial
  Services Officer

  



 


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