Exhibit
4.3


 




	
  (Multicurrency—Cross Border)

  	
   

  	
  CLASS B SWAP

  






 


ISDAÒ


International Swap Dealers Association, Inc.


 


MASTER
AGREEMENT


 


dated as of May 19, 2004


 




	
  Barclays Bank PLC

  (“Party
  A”)

  	
   

  	
  and

  	
   

  	
  World Financial Network Credit

  Card

  Master Note Trust

  (“Party B”)

  






 


have entered and/or anticipate entering into one or more transactions
(each a “Transaction”) that are or will be governed by this 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.


 


(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;


 


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(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.


 


(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.


 


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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)).


 


(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.


 


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(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 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.


 


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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);


 


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(vi)                              Cross Default.  If “Cross Default” is specified in the
Schedule as applying to the party, the occurrence or existence of (1) a
default, event of default or other similar condition or event (however
described) in respect of such party, any Credit Support Provider of such party
or any applicable Specified Entity of such party under one or more agreements
or instruments relating to Specified Indebtedness of any of them (individually or
collectively) 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:—


 


(i) 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


 


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(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 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


 


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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.


 


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 


 


9

















 


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
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


 


10

















 


(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
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


 


11

















 


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.


 


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.


 


12

















 


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.


 


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.


 


13

















 


(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.


 


14

















 


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 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


 


15

















 


(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 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;


 


16

















 


(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.


 


“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


 


17

















 


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 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


 


18

















 


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.


 


“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.


 


19

















 


“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.


 


20

















 


“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 


 

















 


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”)

  (Name of Party)

  	
   

  	
  World Financial Network Credit Card Master

  Note Trust (“Counterparty”)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  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 B SWAP