SCHEDULE to the Master Agreement dated as of March 30, 2005 between ROYAL BANK OF CANADA (“Party A”) and GE CAPITAL CREDIT CARD MASTER NOTE TRUST (“Party B”)
Exhibit 4.6
SCHEDULE
to the
2002
dated as of March 30, 0000
xxxxxxx XXXXX XXXX XX XXXXXX (“Party A”)
and
GE CAPITAL CREDIT CARD MASTER NOTE TRUST (“Party B”)
Part 1
Termination Provisions
In this Agreement —
(a) “Specified Entity” means in relation to Party A and Party B for the purpose of Sections 5(a)(v), (vi), (vii) and Section 5(b)(v): Not applicable.
(b) “Specified Transaction” will have the meaning specified in Section 14 of this Agreement.
(c) The “Breach of Agreement” provision of Section 5(a)(ii) will not apply to Party B.
(d) The “Misrepresentation” provision of Section 5(a)(iv) will not apply to Party A and will not apply to Party B.
(e) The “Cross Default” provisions of Section 5(a)(vi) will not apply to Party A and will not apply to Party B.
(f) The “Bankruptcy” provision of Section 5(a)(vii) is hereby amended by replacing “15” with “30” in the 16th and 23rd lines thereof.
(g) The “Force Majeure Event” provision of Section 5(b)(ii) will not apply to Party A and will not apply to Party B.
(h) The “Credit Event Upon Merger” provisions of Section 5(b)(v) will not apply to Party A and will not apply to Party B.
(i) The “Automatic Early Termination” provisions of Section 6(a) will not apply to Party A and will not apply to Party B.
(j) “Termination Currency” means United States Dollars.
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(k) Additional Termination Event will apply. Failure to comply with the following shall constitute an Additional Termination Event in which Party A shall be the sole Affected Party:
Credit Downgrade — Party A. If at any time (i) the unsecured debt rating of Party A, or its Credit Support Provider, is withdrawn by or reduced below “A” (long term) or “F1” (short term) if Party A is rated by Fitch Ratings (“Fitch”); or (ii) the unsecured debt ratings of Party A, or its Credit Support Provider, are withdrawn or reduced below “A+” (long term) or, if a short term rating is in effect for Party A, or its Credit Support Provider, below “A-1” (short term) by Standard & Poor’s Rating Services (“S&P”); or (iii) (a) Party A, or its Credit Support Provider, has both long and short term unsecured debt ratings from Xxxxx’x Investors Service, Inc. (“Moody’s”), and any such rating is withdrawn, reduced below (or put on watch for downgrade at) “A1” (long term) or “P-1” (short term) or (b) Party A, or its Credit Support Provider, has only a long-term unsecured debt rating from Moody’s and such rating is withdrawn, reduced below (or put on watch for downgrade at) “Aa3” (any of the above referenced withdrawals or reductions in credit status from the reference agencies being herein referred to as a “Downgrade”); then Party A shall promptly notify Party B by telephone (promptly confirmed in writing), and Party B then shall notify the Rating Agencies. Party A shall then, at its own expense, within 30 days of the date of the Downgrade, enter into a “Qualifying Substitute Arrangement” (as defined below) to assure performance by Party A of its obligations under the Transactions. If Party A fails to enter into a Qualifying Substitute Arrangement pursuant to this provision, it shall be an Additional Termination Event in which Party A is the sole Affected Party.
“Credit Support” shall mean an unconditional letter of credit, guaranty, surety bond or insurance policy providing for prompt payment of the obligations of Party A and its successors under this Agreement, as amended from time to time, and all Transactions hereunder for their duration from a Credit Support Provider meeting the Counterparty Ratings Requirements, that is valid, binding and enforceable in accordance with its terms.
“Counterparty Ratings Requirement” means with respect to any entity, that either such entity or the Credit Support Provider, has (i) (a) a Moody’s long-term unsecured debt rating or counterparty rating of at least “Aa3”, and if a short term rating has been provided, such rating shall be at least “P-1”, and (ii) an S&P long-term unsecured debt rating or counterparty rating of at least “AA-”, and if a short term rating has been provided, such rating shall be at least “A-1”; and, notwithstanding the foregoing, if such entity or its Credit Support Provider, has a Fitch short-term unsecured debt rating, such rating shall be at least “F1” and if such entity or its Credit Support Provider has a Fitch long-term unsecured debt rating, such rating shall be at least “A”.
“Qualifying Substitute Arrangement” shall mean one of the following arrangements satisfactory to the Rating Agencies: (i) providing Credit Support to Party B and procuring a Ratings Reaffirmation or (ii) procuring a Replacement Transaction and a Ratings Reaffirmation.
“Ratings Reaffirmation” means a written acknowledgement from each Rating Agency whose rating on Party A was reduced or withdrawn that, taking into account the Credit Support or the Replacement Transaction provided, as applicable, (i) the then current rating of the Notes will not be reduced notwithstanding the applicable Downgrade, or (ii) the rating of the Notes in effect prior to the Downgrade will be reinstated to the rating in effect prior to the Downgrade.
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“Replacement Transaction” means a transaction, with a replacement counterparty meeting the Counterparty Rating Requirement who, at no cost to Party B, shall assume Party A’s position under this Agreement and all Transactions hereunder or replace all Transactions outstanding under this Agreement with Transactions between said replacement counterparty and Party B on identical terms.
(l) Discontinued Agency. If one of the foregoing credit rating agencies ceases to be in the business of rating Debt Securities and such business is not continued by a successor or assign of such agency (the “Discontinued Agency”), ratings shall not be deemed withdrawn hereunder, and Party A and Party B shall use their best efforts to jointly (i) select a nationally-recognized credit rating agency in substitution thereof and (ii) agree on the rating level issued by such substitute agency that is equivalent to the ratings specified herein of the Discontinued Agency, whereupon such substitute agency and equivalent rating shall replace the Discontinued Agency and the rating level thereof for the purposes of this Agreement. If at any time all of the agencies specified herein with respect to a party have become Discontinued Agencies and Party A and Party B have not previously agreed in good faith on at least one agency and equivalent rating in substitution for each Discontinued Agency and the applicable rating thereof, the Downgrade provisions of Part 1(k)(i) shall cease to apply to the parties until a substitute agency is agreed upon as described above.
Part 2
Tax Representations
(a) Payer Tax Representation. For the purpose of Section 3(e) of this Agreement, Party A and Party B make the following representation:
It is not required by applicable law, as modified by the practice of any relevant governmental revenue authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax from any payment (other than interest under Section9(h) of this Agreement) to be made by it to the other party under this Agreement. In making this representation, it may rely on:
(i) the accuracy of any representations made by the other party pursuant to Section 3(f) of this Agreement;
(ii) the satisfaction of the agreement of the other party contained in Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement; and
(iii) the satisfaction of the agreement of the other party contained in Section 4(d) of this Agreement;
except that it will not be a breach of this representation where reliance is placed on clause (ii) above and the other party does not deliver a form or document under Section 4(a)(iii) of this Agreement by reason of prejudice to its legal or commercial position.
(b) Payee Tax Representations. For the purpose of Section 3(f) of this Agreement, Party A and Party B make the representations specified below, if any:
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(i) The following representation will apply to Party A:
It is a “foreign person” (as that term is used in section 1.6041-4(a)(4) of United States Treasury Regulations) for United States federal income tax purposes.
Where it is acting through its Toronto office, no part of any payments received or to be received by it in connection with this Agreement is attributable to a trade or business carried on by it in the United States, except for the amount in respect of such payments disclosed by Party A to Party B in accordance with Part 3(a) of this Schedule.
It is a bank organized under the laws of Canada and it is a foreign corporation for U.S. federal tax purposes.
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(ii) B makes the following representation:
It is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of United States Treasury Regulations) for United States federal income tax purposes and an “Exempt recipient” within the meaning of section 1.6049-4(c)(1)(ii) of United States Treasury Regulations.
(c) Modified Tax Provisions. Party B’s obligations under Section 2(d)(i) of this Agreement shall be limited to complying with clauses (1), (2) and (3) thereof and Party B shall not be obligated to pay any amount owing by it under clause (4).
Part 3
Agreement to Deliver Documents
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each Party agrees to deliver the following documents, as applicable:
(a) Tax forms, documents or certificates to be delivered are:
Each party agrees to complete (accurately and in a manner reasonably satisfactory to the other party), execute, arrange for any required certification of, and deliver to the other party or such government or taxing authority as the other party directs, any form or document that may be required or reasonably requested in order to allow the other party to make a payment under this Agreement without any deduction or withholding for or on account of any Tax or with such deductions or withholding at a reduced rate.
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Party
Required |
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Form/Document/ |
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Date by |
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Covered
by |
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Party B |
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IRS Form W-9 |
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(i) Upon execution of the Agreement, (ii) every three years thereafter; (iii) upon knowledge that such document is obsolete or inaccurrate and (iv) thereafter, upon request of Party A. |
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N/A |
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Party A |
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IRS Form W-8BEN and IRS Form W-8ECI |
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(i) Upon execution of the Agreement; (ii) every three years thereafter; (iii) promptly upon learning that any Form W-8BEN, or W-8ECI (or any successor thereto) has become obsolete or incorrect; and (iv) upon request of Party B. |
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N/A |
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Party A |
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A statement in writing to Party B specifying the amount of income effectively connected with a trade or business in the United States (ECI) of Party A, if any, in respect of the total amount of payments under this Agreement received from Party B by Party A when acting through its Toronto office during a calendar year (in the event that Party A fails to timely deliver such statement to Party B, Party A shall be deemed to have advised Party B to treat the entire amount of all such payments made to Party A when acting through its Toronto office as ECI for the purpose of satisfying any information reporting obligations imposed on Party B under the Internal Revenue Code and the United States Treasury Regulations). |
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On February 15 of the calendar year following the year in which any payment is made by Party A to Party B and upon request. |
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N/A |
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(b) Other documents to be delivered are:
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Party |
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Form/Document/ |
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Date by |
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Covered
by |
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Party A |
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A copy of the most recent annual report of such party or its Credit Support Provider, as applicable, containing audited consolidated financial statements for such fiscal year certified by independent certified public accountants and prepared in accordance with generally accepted accounting principles (“GAAP”) in the party’s country of organization, or, in lieu thereof, a copy of such party’s most recent Form 10-K or Form 40-F, as applicable, as filed with the Securities and Exchange Commission. |
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Upon request of the other party and within a reasonable time after public availability (or, if such party is not a public reporting entity, within a reasonable time of such request). |
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Yes |
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Party A |
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With respect to the first three quarters of its fiscal year, a copy of the unaudited consolidated financial statements of such party or of such Party’s Credit Support Provider, if applicable, for its most recent fiscal quarter prepared in accordance with GAAP on a basis consistent with that of the annual financial statements of such party, or, in lieu thereof, a copy of such party’s Form 10-Q or Form 6-K, as applicable, as filed with the Securities and Exchange Commission. |
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Upon request of the other party and within a reasonable time after public availability (or, if such party is not a public reporting entity, within a reasonable time of such request). |
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Yes |
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Party A & B |
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Evidence, reasonably satisfactory in form and substance to the receiving party, concerning the due execution and delivery of this Agreement or any Confirmation, including, without limitation, signing authority and specimen signatures for each individual executing the Agreement and any Confirmation. |
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At or promptly following the execution and delivery of this Agreement and the execution and delivery of any Confirmation (if such Confirmation so requires). |
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Yes |
Part 4
Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a) of this Agreement:
Address for notices or communications to Party A:
Address for notices or communications to Party A with respect to this Agreement shall be given to it at the following address:
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Address: |
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Royal Bank of Canada |
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0xx Xxxxx |
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Xxxxx Xxxx Xxxxx |
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000 Xxx Xxxxxx |
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Xxxxxxx, Xxxxxxx |
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XXXXXX X0X 0X0 |
Attention: Managing Director, Global Middle Office
Facsimile No.: (000) 000-0000
Unless otherwise provided herein, address for notices or communications to Party A relating to a particular Swap Transaction concluded with its Toronto office, shall be given to it at the following address:
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Swap Transaction |
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Royal
Bank of Canada |
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Attention: |
Manager,
Capital Market |
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Facsimile No.: |
(000)
000-0000 or |
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Electronic Messaging System: Not Applicable |
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Address for notices or communications to Party A relating to a particular Swap Transaction concluded with its New York Office, shall be given to it at the following address:-
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Swap Transaction |
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Royal
Bank of Canada |
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Attention: |
RBC
DS Global Markets |
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Telex: 420464 |
Answerback: RBOC |
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Facsimile No.: |
000-000-0000 |
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Electronic Messaging System: N/A |
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Address for notices or communications to Party B:
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Address: |
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GE Capital Credit Card Master Note Trust |
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c/o General Electric Capital Corporation, as Administrator |
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0000 Xxxxxx Xxxxxx, 0xx Xxxxx |
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Xxxxxxxx, XX 00000 |
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Attention: |
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Manager Operations - Securitization |
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Telephone: |
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000-000-0000 |
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Facsimile: |
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000-000-0000 |
(b) Process Agent. For the purpose of Section 13(c) of this Agreement:
Party A appoints as its Process Agent:
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Royal Bank of Canada New York Branch One Liberty Plaza, 2nd Floor 000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000-0000 U.S.A |
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Attention: |
RBC
DS Global Markets |
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Telex: 420464 |
Answerback: RBOC |
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Facsimile No.: |
000-000-0000 |
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Electronic Messaging System: N/A |
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Party B appoints as its Process Agent: Not applicable
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(c) Offices. The provisions of Section 10(a) shall apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(b), Party A is a Multibranch Party and may act through its Toronto and New York offices. Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent shall be Party A, unless Party A is a Defaulting Party in which case the Calculation Agent will be Party B.
(f) Credit Support Document. Details of any Credit Support Document: Not applicable.
(g) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York without reference to choice of law doctrine.
(h) Netting of Payments. “Multiple Transaction Payment Netting” will not apply for the purpose of Section 2(c) of this Agreement to all Transactions (in each case starting from the date of this Agreement).
(i) “Affiliate” will have the meaning specified in Section 14 provided that Party B is deemed to have no Affiliates.
(j) Absence of Litigation. For the purpose of Section 3(c):—
“Specified Entity” means in relation to Party A: Not applicable.
“Specified Entity” means in relation to Party B: Not applicable.
(k) No Agency. The provisions of Section 3(g) will apply to this Agreement.
(l) Additional Representation will apply. For the purpose of Section 3 of this Agreement, the following will constitute an Additional Representation:—
(i) Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into that Transaction and as to whether that Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) or the other party as investment advice or as a recommendation to enter into that Transaction, it being understood that information and explanations related to the terms and conditions of a Transaction will not be considered investment advice or a recommendation to enter into that Transaction. No communication (written or oral) received from the other party will be deemed to be an assurance or guarantee as to the expected results of that Transaction.
(ii) Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of that Transaction. It is also capable of assuming, and assumes, the risks of that Transaction.
(iii) Status of Parties. The other party is not acting as a fiduciary for or an adviser to it in respect of that Transaction.
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(iv) Eligible Contract Participant. It is an “eligible contract participant” as defined in Section la(12) of the Commodity Exchange Act, as amended.
(v) FDICIA/Regulation EE. In addition to the foregoing representations, Party A represents to Party B either that (1) it is a Financial Institution as defined in Section 402(9) of the Federal Deposit Insurance Corporation Improvement Act of 1991, or (2) (A) it will engage in Financial Contracts (as defined in Section 2 of Regulation EE of the Federal Reserve Board (12 C.F.R. §231.2)) as a counterparty on both sides of one or more Financial Markets (as defined in Section 2 of Regulation EE of the Federal Reserve Board (12 C.F.R. §231.2)), and (B) that, on the date of this Agreement, it meets at least one of the tests set forth in Section 3(a)(1)-(2) of Regulation EE of the Federal Reserve Board (12 C.F.R. §231.3(a)(1)-(2)). The representation contained in clause (1) or clause 2(A) of this paragraph (h), as the case may be, will be deemed to be repeated by Party A on each date on which a Transaction is entered into.
(m) Consent to Recording. Each party (i) consents to the recording of the telephone conversations of trading and marketing personnel of the parties in connection with this Agreement or any potential Transaction, (ii) agrees to obtain any necessary consent of, and give notice of such recording to, such personnel and (iii) agrees, to the extent permitted by applicable law, that recordings may be submitted in evidence in any Proceedings.
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Part 5
Other Provisions
(a) Recourse and Ranking. The obligations of Party B under this Agreement, and under any Transaction executed hereunder, are limited recourse obligations of Party B payable solely from the Trust Estate. No recourse shall be had for the payment of any amount owing in respect of any Transaction or any other obligation or claim arising out of or based upon this Agreement against any member, employee, officer, director or agent of Party B. Any accrued obligations owing by Party B under this Agreement and any Transaction shall be payable by Party B solely to the extent that funds are available therefor from time to time in accordance with the provisions of the Indenture; and, following realization of the Trust Estate, any claims of Party A against Party B shall be extinguished. Notwithstanding any provisions contained in this Agreement to the contrary, Party B shall not be obligated to pay any amount pursuant to this Agreement unless Party B has received funds which may be used to make such payment and such payment is made in advance in accordance with the Indenture. Any amount which Party B does not pay pursuant to the operation of the preceding sentence shall not constitute a claim (as defined in §101 of the Bankruptcy Code) against or corporate obligation of Party B for any such insufficiency unless and until such payment is permitted under such preceding sentence.
(b) Limitation of Defaults and Termination. Notwithstanding the terms of Sections 5 and 6 of this Agreement, Party A shall be entitled to designate an Early Termination Date pursuant to Section 6 of this Agreement only as a result of the occurrence of an Event of Default set forth in Section 5(a)(i) or 5(a)(vii)(4) with respect to Party B as the Defaulting Party or a Termination Event set forth in Sections 5(b)(i) or 5(b)(iii) of this Agreement with respect to Party A as the Affected Party.
(c) No Bankruptcy Petition Against the Company. Party A hereby covenants and agrees that, prior to the date which is one year and one day after all the Notes (or any rated securities) issued by Party B have been paid in full it will not institute against, or join any other Person in instituting against, Party B any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States.
(d) Transfers. Notwithstanding Section 6 of the Agreement, no trasnfer by Party A shall be effective unless Party A obtains Party B’s consent and a Ratings Reaffiramation prior to such transfer. Party A consents to the pledge and assignment by Party B of its rights hereunder and under any Transaction to the Indenture Trustee.
(e) Amendments. No amendments, modification or waiver in respect of this Agreement will be effective unless (i) it is in writing and executed by each of the parties or confirmed by an exchange of telexes or facsimiles and (ii) except as waived by the Rating Agencies, the Rating Agencies shall have advised that such assignment or amendment will not result in a downgrade or withdrawal of the then current rating on the Notes.
(f) Definitions. Reference is hereby made to the 2000 ISDA Definitions (the “2000 Definitions”), as published by the International Swaps and Derivatives Association, Inc. (“ISDA”), which are hereby incorporated by reference herein and shall be deemed to be incorporated in each Confirmation hereunder, unless otherwise specified in a Confirmation. Any terms used and not
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otherwise defined herein which are contained in the 2000 Definitions shall have the meaning set forth therein. Capitalized terms used and not otherwise defined herein or in the Agreement or the 2000 Definitions (hereinafter defined) shall have the meanings assigned to them in the Master Indenture, dated as of September 25, 2003, among Party B, as Issuer and Deutsche Bank Trust Company Americas, as Indenture Trustee, as amended or supplemented from time to time (the “Indenture”).
(f) Confirmations. Notwithstanding anything to the contrary in this Agreement:
This Agreement shall only govern Class B Swap (as defined in the Indenture Supplement) Confirmation dated as of the date hereof.
(g) Additional Tax Provisions. (i) The definition of “Indemnifiable Tax” in Section 14 of this Agreement is modified by adding the following at the end thereof:
Notwithstanding the foregoing, “Indemnifiable Tax” also means any Tax imposed in respect of a payment under this Agreement by reason of a Change in Tax Law by a government or taxing authority of a Relevant Jurisdiction of the party making such payment, unless the other party is incorporated, organized, managed and controlled or considered to have its seat in such jurisdiction, or is acting for purposes of this Agreement through a branch or office located in such jurisdiction.
(h) Waiver of Contractual Right of Setoff. Notwithstanding any provision of this Agreement or any other existing or future agreement, each party irrevocably waives any and all contractual rights it may have to set off, net, recoup or otherwise withhold or suspend or condition payment or performance of any obligation between the two parties hereunder against any obligations between the two parties under any other agreements or otherwise. The words “and will be subject to Section 6(f) in the third line of the first paragraph of Section 6(e) and Section 6(f) of this Agreement are deleted.
(i) Waiver of Right to Trial by Jury. Each party irrevocably waives, to the fullest extent permitted by applicable law, any right it may have to trial by jury of any claim, demand or cause of action relating in any way to this Agreement or any Credit Support Document, whether sounding in contract or tort or otherwise, and agrees that either party may file a copy of this section with any court as evidence of the waiver of its jury trial rights.
(j) Conditions Precedent. Section 2(a)(iii)(1) of the Agreement shall not apply to the obligations of Party A unless an Event of Default set forth in Sections 5(a)(i) or 5(a)(vii)(4) with respect to Party B has occurred and is continuing.
(k) Amendment to Indenture. Party B agrees that it shall not amend, modify or waive any provisions in the Indenture without the consent of Party A if such amendment, modification or waiver would have a material adverse effect on Party A’s rights under this Agreement.
(l) No Recourse. It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by The Bank of New York (Delaware), not individually or personally but solely as trustee of GE Capital Credit Card Master Note Trust (the “Trust”), in the exercise of
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the powers and authority conferred and vested in it, (b) each of the representations, undertakings and agreements herein made on the part of the Trust is made and intended not as personal representations, undertakings and agreements by The Bank of New York (Delaware) but is made and intended for the purpose of binding only the Trust, (c) nothing herein contained shall be construed as creating any liability on The Bank of New York (Delaware), individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (d) under no circumstances shall The Bank of New York (Delaware) be personally liable for the payment of any indebtedness or expenses of the Trust or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Master Agreement or any other related documents.
(m) Party A Downgrade. Party A agrees to enter into a Qualifying Substitute Arrangment pursuant to Part 1(k) hereof if a Downgrade occurs with respect to Party A.
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Please confirm your agreement to the terms of the foregoing Schedule by signing below.
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ROYAL BANK OF CANADA |
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By: |
/s/ Xxxxx Xxxxxxxxx |
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Name: Xxxxx Xxxxxxxxx |
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Title: Manager, Trading Documentation |
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GE CAPITAL CREDIT CARD MASTER |
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By: The Bank of New York (Delaware), not in its individual capacity, but solely as Trustee |
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By: |
/s/ Xxxxxxxx X. Xxxxx |
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Name: Xxxxxxxx X. Xxxxx |
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Title: Assistant Vice President |
