Exhibit 4.2


 


	
  (Multicurrency—Cross
  Border)

  	
   

  	
  CLASS
  A SWAP

  



 


 


ISDAÒ


 


International Swap Dealers Association, Inc.


 


MASTER
AGREEMENT


 


dated as of May 19, 2004


 


	
  Barclays Bank PLC

  	
   

  	
  and

  	
   

  	
  World Financial Network Credit Card

  
	
  (“Party A”)

  	
   

  	
   

  	
   

  	
  Master Note Trust

  
	
   

  	
   

  	
   

  	
   

  	
  (“Party B”)

  



 


have entered and/or anticipate entering into one or
more transactions (each a “Transaction”) that are or will be governed by this
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 Dealers 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, organised,
managed and controlled, or considered to have its seat, or in which a branch or
office through


 


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which it is acting for the purpose of this Agreement is located (“Stamp
Tax Jurisdiction”) and will indemnify the other party against any Stamp Tax
levied or imposed upon the other party or in respect of the other party’s
execution or performance of this Agreement by any such Stamp Tax Jurisdiction
which is not also a Stamp Tax Jurisdiction with respect to the other party.


 


5.                                      Events
of Default and Termination Events


 


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


 


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


 


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


 


(iii)       Credit Support Default.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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6.                                      Early
Termination


 


(a)                                  Right to Terminate Following Event
of Default.  If at any
time an Event of Default with respect to a party (the “Defaulting Party”) has
occurred and is then continuing, the other party (the “Non-defaulting Party”)
may, by not more than 20 days notice to the Defaulting Party specifying the
relevant Event of Default, designate a day not earlier than the day such notice
is effective as an Early Termination Date in respect of all outstanding
Transactions.  If, however, “Automatic
Early Termination” is specified in the Schedule as applying to a party, then an
Early Termination Date in respect of all outstanding Transactions will occur
immediately upon the occurrence with respect to such party of an Event of
Default specified in Section 5(a)(vii)(1), (3), (5), (6) or, to the extent
analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).


 


(b)                                 Right to Terminate Following
Termination Event.


 


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


 


(ii)                                  Transfer to Avoid Termination Event.  If either an Illegality under Section
5(b)(i)(1) 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


 


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


 


(c)                                  Effect of Designation.


 


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


 


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


 


(d)                                 Calculations.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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 he entered into as soon as practicable and may he
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 re-enactment thereof for the time being in force)
nor will the bringing of Proceedings in any one or more jurisdictions preclude
the bringing of Proceedings in any other jurisdiction.


 


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


 


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 meanings 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 (“Barclays”)

  	
   

  	
   

  	
  World Financial Network Credit Card Master

  Note Trust (“Counterparty”)

  	
   

  
	
   

  	
  (Name of Party)

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Chase
  Manhattan Bank USA, National

  Association, not in its individual capacity, but

  solely as Owner Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  (Name of Party)

  
	
   

  
	
   

  
	
  By:

  	
   

  	
  /s/ Justin Wray

  	
   

  	
   

  	
  By:

  	
   

  	
  /s/ John J. Cashin

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Justin Wray

  	
   

  	
   

  	
   

  	
  Name:

  	
  John J. Cashin

  
	
   

  	
   

  	
  Title:

  	
  Director 

  	
   

  	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
  Date:

  	
  May 19, 2004

  	
   

  	
   

  	
   

  	
  Date:

  	
  May
  19, 2004

  
																		



 


 


CLASS A SWAP