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with the books and records of the Company. In addition, the,
<br />Company shall provide, in a timely manner, procurement or
<br />purchase -related transaction and spending data and such other
<br />current financial information concerning the Company and the;
<br />use of the Cards and Accounts as TD may request. If
<br />applicable, the Company will notify TD within five business!
<br />days of any change in the Company's bond rating.
<br />6.5 ASSIGNMENT. This Agreement shall be
<br />binding upon, and shall inure to the benefit of, the parties
<br />hereto and their respective heirs, executors, administrators,
<br />legal representatives, successors and assigns; provided, that'
<br />the Company may not assign this Agreement or any interest,
<br />payment, or rights hereunder without the prior written consent
<br />of TD, and any such attempted assignment without such
<br />consent shall automatically be void.
<br />6.6 FORCE MAJEURE. If either party is
<br />rendered unable, wholly or in part, by a force outside the
<br />control of such party (including, but not limited to, an act of,
<br />God, war, fire, flood, explosion, act of governmental
<br />authority, strike, civil disturbance or breakdown of telephone,
<br />computer or automated mailing equipment) to carry out its
<br />obligations under this Agreement (other than a payment
<br />obligation), or TD is notified by a state or federal regulatory
<br />body or by Visa that any aspect of the Program or this
<br />Agreement does not comply with any applicable law,
<br />regulation, rule, policy, or order applicable to TD, the affected
<br />party shall give the other party prompt written notice to that
<br />effect. Thereafter, the affected obligations of the party giving
<br />the notice shall be suspended and the failure to perform such
<br />obligations shall not be deemed a breach of or Default under
<br />this Agreement so long as the affected party is unable to so
<br />perform for such reason. A party excused from performance
<br />pursuant to this Section 6.6 shall exercise all reasonable
<br />efforts to continue to perform its obligations hereunder and
<br />shall thereafter continue with reasonable due diligence and
<br />good faith to remedy its inability to so perform.
<br />6.7 ENTIRE AGREEMENT. This Agreement
<br />contains the entire agreement and understanding between and
<br />among the parties on the subject matter hereof and supersedes'
<br />all prior proposals, negotiations, agreements and
<br />understandings between the parties. All exhibits and addenda+
<br />attached hereto are hereby incorporated by reference and made
<br />a part of this Agreement.
<br />6.8 SEVERABILITY AND WAIVER. If any;
<br />provision of this Agreement or portion of such provision or!
<br />the application thereof to any person or circumstance shall to
<br />any extent be held invalid or unenforceable, the remainder of
<br />this Agreement (or the remainder of such provision) and the!
<br />application thereof to other persons or circumstances shall not
<br />be affected thereby. No course of dealing and no delay or;
<br />omission by either party in exercising any of its rights under,
<br />this Agreement in a particular instance shall be construed as a!
<br />waiver of those rights or any other rights for any purpose and!
<br />waiver on any one or more occasions shall not be construed as
<br />a bar to or waiver of any right or remedy of either party on any
<br />future occasion.
<br />6.9 CHOICE OF LAW. This Agreement shall be
<br />governed by and construed in accordance with federal law,
<br />and, to the extent not preempted, the substantive laws of the
<br />state where the Company has its main office, without regard to
<br />the conflict of law principles thereof, except that all credit
<br />shall be extended from Delaware and all credit terms,
<br />including, but not limited to, the account set up charges, the
<br />fees and periodic finance charges, the date finance charges
<br />begin to accrue if the new balance is not paid on the payment
<br />due date, the method of determining the balance upon which
<br />periodic finance charges will be imposed, and the allocation of
<br />payments and credits, will be governed by and construed in
<br />accordance with federal law and the laws of the State of
<br />Delaware, to the extent incorporated into federal law, without
<br />regard to the conflict of law principles thereof.
<br />6.10 SURVIVAL. Sections 1, 4, 5.4, 6.9, 6.10, 6.11,
<br />6.16, 6.17, 6.18, 6.19 and 6.20 shall survive the termination or
<br />expiration of this Agreement.
<br />6.11 CONFIDENTIALITY. All information
<br />furnished by either party in connection with this Agreement,
<br />the Program, or the Transactions contemplated hereby shall be
<br />kept confidential (and shall be used by the other party only in
<br />connection with this Agreement), except to the extent that
<br />such information (a) is already lawfully known when received,
<br />(b) thereafter becomes lawfully obtainable from other sources,
<br />(c) is required to be disclosed in any document filed with the
<br />Securities and Exchange Commission, federal banking
<br />regulators, or any other agency of any government, or (d) is
<br />required by law to be disclosed, provided that notice of such
<br />disclosure has been given (when legally permissible) by the
<br />party proposing to make such disclosure, which notice, when
<br />practicable, shall be given sufficiently in advance of the
<br />proposed disclosure to permit the other party to take legal
<br />action to prevent the disclosure. The parties shall advise all
<br />employees, consultants, advisors, agents and other
<br />representatives (collectively, "representatives") who will have
<br />access to any confidential information of the obligations
<br />contained herein. The parties shall not distribute, disclose, or
<br />disseminate confidential information to anyone except its
<br />representatives who are involved in this Agreement, the
<br />Program, or the Transactions contemplated by the parties.
<br />Upon termination of this Agreement, each party shall
<br />promptly cause all copies of documents or extracts thereof
<br />containing any such information and data which has been
<br />provided by or which relates to the other party to be returned
<br />to such other party; provided, that each party may retain in its
<br />files copies of such materials as it shall deem necessary solely
<br />for archival purposes.
<br />TD Hank 06115
<br />Internal
<br />P81
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