exv10w1



 


Exhibit 10.1



(Multicurrency—Cross Border)







International Swap Dealers Association. Inc.



MASTER AGREEMENT



dated as of November 4, 2003



Bank of America, N.A. and BioReliance (Glasgow) Limited



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



Accordingly, the parties agree as follows:—



1. Interpretation



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



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



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



2. Obligations



(a) General Conditions.



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



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



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



Copyright ©1992 by International Swap Dealers Association, Inc.




 







 




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



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



      (i) in the same currency; and


      (ii) in respect of the same Transaction,


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



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



(d) Deduction or Withholding for Tax.



      (i) Gross-Up. All payments under this Agreement will be made without
any deduction or withholding for or on account of any Tax unless

          such deduction or withholding is required by any applicable law, as
modified by the practice of any relevant governmental revenue

          authority,
then in effect. If a party is so required to deduct or
withhold, then that party (“X”) will:—



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


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


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


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


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


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


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(ii) Liability. If:—


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


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


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


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


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



3. Representations



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



(a) Basic Representations.



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


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


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


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


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


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



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



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



(e) Payer Tax Representation. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.



(f) Payee Tax Representations. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(f) is accurate and true.



4. Agreements



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



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



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


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


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


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



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



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



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



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




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



5. Events of Default and Termination Events



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



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


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


(iii) Credit Support Default.


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


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


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


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


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


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


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


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


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


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


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


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


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




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



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


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


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


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


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


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


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


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




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6. Early Termination



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



(b) Right to Terminate Following Termination Event.



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


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


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


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


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


(iv) Right to Terminate. If:—


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


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


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


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


      (c) Effect of Designation.


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


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


(d) Calculations.



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


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


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



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


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


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


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


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


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


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


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


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


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



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


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


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


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


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7. Transfer



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



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



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



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



8. Contractual Currency



(a) Payment in the Contractual Currency. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the “Contractual Currency”). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the Contractual
Currency will not be discharged or satisfied by any tender in any currency
other than the Contractual Currency, except to the extent such tender results
in the actual receipt by the party to which payment is owed, acting in a
reasonable manner and in good faith in converting the currency so tendered into
this 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.




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9. Miscellaneous



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



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



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



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



(e) Counterparts and Confirmations.



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


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


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



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



10. Offices; Multibranch Parties



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



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



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



11. Expenses



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


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



12. Notices



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



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


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


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


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


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


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



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



13. Governing Law and Jurisdiction



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



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



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


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


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



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


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



(d) Waiver of Immunities. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.



14. Definitions



As used in this Agreement:—



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



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



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



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



“Applicable Rate” means:—



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



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



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



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



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



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



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



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



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



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




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



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



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



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



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



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



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



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



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


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



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



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



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



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



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



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



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



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



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



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



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



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




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



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



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



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



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



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



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



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



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



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



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



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


17


ISDA ® 1992






 



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.




	 	 	 	 	 	 	 	 
	 	 	Bank of America,
N.A.
	 	 	 	BioReliance
(Glasgow) Limited

		 	
	 		 	

	 	 	
(Name of Party)
	 	 	 	
(Name of Party)
	 
	By:	 	 	 	By:	 	 
		 	
	 		 	

	 	 	
Name:  Roger H. Heintzelman
	 	 	 	

Name:
	 	 	
Title: Principal
	 	 	 	Title:
	 	 	
Date:
	 	 	 	Date:







18




ISDA ® 1992






 



(Multicurrency — Cross Border)





International Swap Dealers Association, Inc.



SCHEDULE

to the

Master Agreement



dated as of November 4, 2003



between



BANK OF AMERICA, N.A.

(“Party A”)

and

BIORELIANCE (GLASGOW) LIMITED

(“Party B”)



PART 1: Termination
Provisions




	 	 	 
	(a)	 	
“Specified Entity” means in relation to Party A for the purpose of
Sections 5(a)(v), 5(a)(vi), 5(a)(vii) and 5(b)(iv):
	 	 	 
	 	 	
None;
	 	 	 
	 	 	
“Specified Entity” means in relation to Party B for the purpose of
Sections 5(a)(v), 5(a)(vi), 5(a)(vii) and 5(b)(iv):
	 	 	 
	 	 	
Any Affiliate of Party B.
	 	 	 
	(b)	 	
“Specified Transaction” will have the meaning specified in Section 14 but
shall also include any transaction with respect to the forward sale or
delivery of any security.
	 	 	 
	(c)	 	
The “Cross-Default” provisions of
Section 5(a)(vi) (as amended in Part 5(i))


     will apply to Party A and




     will apply to Party B.





In connection therewith, “Specified Indebtedness” will not have the
meaning specified in Section 14, and such definition shall be replaced by
the following: “any obligation in respect of the payment of moneys
(whether present or future, contingent or otherwise, as principal or
surety or otherwise), except that such term shall not include obligations
in respect of deposits received in the ordinary course of a party’s
banking business.”


“Threshold Amount” means with respect to Party A an amount equal to three
percent (3%) of the Shareholders’ Equity of Bank of America Corporation
and with respect to Party B, $1,000,000.


19







 


With respect to Party B, any default (howsoever defined) under the Credit
Agreement shall be an Event of Default under this Agreement.


“Credit Agreement” means the Credit Agreement dated as of August 12, 2003
among BioReliance Corporation and BioReliance (Glasgow) Limited, as
Borrowers, the Guarantors, as defined therein, the Lenders, party
thereto, and Bank of America, N.A., as Administrative Agent, Security
Trustee and L/C Issuer, (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time).


“Shareholders’ Equity” means with respect to an entity, at any time, the
sum (as shown in the most recent annual audited financial statements of
such entity) of (i) its capital stock (including preferred stock)
outstanding, taken at par value, (ii) its capital surplus and (iii) its
retained earnings, minus (iv) treasury stock, each to be determined in
accordance with generally accepted accounting principles.



	 	 	 
	(d)	 	
The “Credit Event Upon Merger” provisions of Section 5(b)(iv)





will apply to Party A


will apply to Party B.



	 	 	 
	(e)	 	
The “Automatic Early Termination” provision of Section 6(a)





will not apply to Party A


will not apply to Party B.



	 	 	 
	(f)	 	
Payments on Early Termination. For the purpose of Section 6(e):-





(i) Loss will apply.


(ii) The Second Method will apply.



	 	 	 
	(g)	 	
“Termination Currency” means United States Dollars.
	 	 	 
	(h)	 	
Additional Termination Event will apply.
	 	 	 
	 	 	
It shall be an Additional Termination Event hereunder, with respect to
which Party B shall be the Affected Party, if for any reason either Party
A’s obligation to lend under the Credit Agreement is terminated or Party
A ceases to be a party to the Credit Agreement.





PART 2: Tax Representations




	 	 	 
	(a)	 	
Payer Tax Representations. For the purpose of Section 3(e) of this
Agreement, Party A and Party B will make the following representation:-
	 	 	 
	 	 	
It is not required by any 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 Section 2(e), 6(d)(ii) or 6(e) of
this Agreement) to be made by it to the other party under this Agreement.
In making this representation, it may rely on (x) the accuracy of any
representations made by the other party pursuant to Section 3(f) of this
Agreement, (y) the satisfaction of the agreement 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






20







 



	 	 	 
	 	 	
party pursuant to Section 4(a)(i)
or 4(a)(iii) of this Agreement and (z) the satisfaction of the agreement
of the other party contained in Section 4(d) of this Agreement, provided
that it shall not be a breach of this representation where reliance is
placed on clause (y) and the other party does not deliver a form or
document under Section 4(a)(iii) by reason of material 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 will make the following representations
specified below, if any:-





(i)        The following representations will apply to Party A:


Party A is a national banking association created or organized
under the laws of the United States of America and the federal
taxpayer identification number is 94-1687665.


(ii) 
      The following representations will apply to Party B:


Party B is a private limited company created or organized under
the laws of the Scotland and the federal taxpayer identification
number is
              .


PART 3: Agreement to Deliver
Documents



For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents:




	 	 	 
	(a)	 	
Tax forms, documents or certificates to be delivered are:






	 	 	 	 	 
	Party required to	 	 	 	 
	deliver document	 	Form/Document/Certificate	 	Date by which to be delivered
	
	 	
	 	

	Party B	 	
Internal Revenue Service
Form W-9
	 	Upon execution and delivery
of this Agreement






21







 



	 	 	 
	(b)	 	
Other documents to be delivered are:-






	 	 	 	 	 	 	 
	Party required to	 	 	 	Date by	 	Covered by Section
	deliver document	 	Form/Document/Certificate	 	which to be delivered	 	3(d) Representation
	
	 	
	 	
	 	

	Party A
	 	Annual Report of Bank of
	 	To be made available
	 	Yes

	 
	 	America Corporation
	 	on
	 	 

	 
	 	containing audited,
	 	www.bankofamerica.com
	 	 

	 
	 	consolidated financial
	 	/investor/ as soon
	 	 

	 
	 	statements certified by
	 	as available and in
	 	 

	 
	 	independent certified
	 	any event within 120
	 	 

	 
	 	public accountants and
	 	days after the end
	 	 

	 
	 	prepared in accordance
	 	of each fiscal year
	 	 

	 
	 	with generally accepted
	 	of Party A
	 	 

	 
	 	accounting principles in
	 	 
	 	 

	 
	 	the country in which
	 	 
	 	 

	 
	 	such party is organized
	 	 
	 	 

	 
	 	 
	 	 
	 	 

	Party B
	 	Annual Report of Party B
	 	As soon as available
	 	Yes

	 
	 	and of any Credit
	 	and in any event
	 	 

	 
	 	Support Provider thereof
	 	within 90 days after
	 	 

	 
	 	containing audited,
	 	the end of each
	 	 

	 
	 	consolidated financial
	 	fiscal year of Party
	 	 

	 
	 	statements certified by
	 	B and of the Credit
	 	 

	 
	 	independent certified
	 	Support Provider
	 	 

	 
	 	public accountants and
	 	 
	 	 

	 
	 	prepared in accordance
	 	 
	 	 

	 
	 	with generally accepted
	 	 
	 	 

	 
	 	accounting principles in
	 	 
	 	 

	 
	 	the country in which
	 	 
	 	 

	 
	 	such party and such
	 	 
	 	 

	 
	 	Credit Support Provider
	 	 
	 	 

	 
	 	is organized
	 	 
	 	 

	 
	 	 
	 	 
	 	 

	Party A
	 	Quarterly Financial
	 	To be made available
	 	Yes

	 
	 	Statements of Bank of
	 	on
	 	 

	 
	 	America Corporation
	 	www.bankofamerica.com
	 	 

	 
	 	thereof containing
	 	/investor/ as soon
	 	 

	 
	 	unaudited, consolidated
	 	as available and in
	 	 

	 
	 	financial statements of
	 	any event within 120
	 	 

	 
	 	such party's fiscal
	 	days after the end
	 	 

	 
	 	quarter prepared in
	 	of each fiscal year
	 	 

	 
	 	accordance with
	 	of Party A
	 	 

	 
	 	generally accepted
	 	 
	 	 

	 
	 	accounting principles in
	 	 
	 	 

	 
	 	the country in which
	 	 
	 	 

	 
	 	such party is organized
	 	 
	 	 








22







 



	 	 	 	 	 	 	 
	Party required to	 	 	 	Date by	 	Covered by Section
	deliver document	 	Form/Document/Certificate	 	which to be delivered	 	3(d) Representation
	
	 	
	 	
	 	

	Party B
	 	Quarterly Financial
	 	As soon as available
	 	Yes

	 
	 	Statements of Party B
	 	and in any event
	 	 

	 
	 	and any Credit Support
	 	within 30 days after
	 	 

	 
	 	Provider thereof
	 	the end of each
	 	 

	 
	 	containing unaudited,
	 	fiscal quarter of
	 	 

	 
	 	consolidated financial
	 	Party B and of the
	 	 

	 
	 	statements of such
	 	Credit Support
	 	 

	 
	 	party's fiscal quarter
	 	Provider
	 	 

	 
	 	prepared in accordance
	 	 
	 	 

	 
	 	with generally accepted
	 	 
	 	 

	 
	 	accounting principles in
	 	 
	 	 

	 
	 	the country in which
	 	 
	 	 

	 
	 	such party and such
	 	 
	 	 

	 
	 	Credit Support Provider
	 	 
	 	 

	 
	 	is organized
	 	 
	 	 

	 
	 	 
	 	 
	 	 

	Party A and Party B
	 	Certified copies of all
	 	Upon execution and
	 	Yes

	 
	 	corporate or partnership
	 	delivery of this
	 	 

	 
	 	authorizations, as the
	 	Agreement
	 	 

	 
	 	case may be, and any
	 	 
	 	 

	 
	 	other documents with
	 	 
	 	 

	 
	 	respect to the
	 	 
	 	 

	 
	 	execution, delivery and
	 	 
	 	 

	 
	 	performance of this
	 	 
	 	 

	 
	 	Agreement and any Credit
	 	 
	 	 

	 
	 	Support Document
	 	 
	 	 

	 
	 	 
	 	 
	 	 

	Party A and Party B
	 	Certificate of authority
	 	Upon execution and
	 	Yes

	 
	 	and specimen signatures
	 	delivery of this
	 	 

	 
	 	of individuals executing
	 	Agreement and
	 	 

	 
	 	this Agreement any
	 	thereafter upon
	 	 

	 
	 	Credit Support Document
	 	request of the other
	 	 

	 
	 	and Confirmations
	 	party
	 	 







PART 4: Miscellaneous




	 	 	 
	(a)	 	
Address for Notices. For the purpose of Section 12(a) of this Agreement:-
	 	 	 
	 	 	
Address for notice or communications to Party A:
	 	 	 
	 	 	
Bank of America, N.A.
	 	 	
Sears Tower
	 	 	
233 South Wacker Drive, Suite 2800
	 	 	
Chicago, IL 60606
	 	 	
Attention: Swap Operations






23







 



	 	 	 
	 	 	
with a copy to:
	 	 	 
	 	 	
Bank of America, N.A.
	 	 	
100 N. Tryon St., NC1-007-13-01
	 	 	
Charlotte, North Carolina 28255
	 	 	
Attention: Capital Markets Documentation
	 	 	
Facsimile: 704-386-4113
	 	 	 
	 	 	
Financial Statements for Party A must be sent to:-
	 	 	 
	 	 	
Bank of America, N.A.
	 	 	
1101 Wootton Parkway
	 	 	
Rockville, MD 20852
	 	 	
Attention: Liz Shore, Senior Vice President
	 	 	
Telephone: 301-517-3129
	 	 	
Facsimile: 301-517-3120
	 	 	 
	 	 	
Address for notice or communications to Party B:
	 	 	 
	 	 	
BioReliance (Glasgow) Limited
	 	 	
14920 Broschart Road
	 	 	
Rockville, MD 20850-3349
	 	 	
Attention: John Coker, Chief Financial Officer
	 	 	
Telephone No.: (301) 610-2606
	 	 	
Facsimile No.: (301) 251-0437






	 	 	 
	(b)	 	
Process Agent. For the purpose of Section 13(c):
	 	 	 
	 	 	
Party A appoints as its Process Agent: Not applicable.
	 	 	 
	 	 	
Party B appoints as its Process Agent: Not applicable.
	 	 	 
	(c)	 	
Offices. The provisions of Section 10(a) will apply to this Agreement.
	 	 	 
	(d)	 	
Multibranch Party. For the purpose of Section 10 of this Agreement:-
	 	 	 
	 	 	
Party A is a Multibranch Party and may act through its Charlotte, North
Carolina, Chicago, Illinois, San Francisco, California, New York, New
York or London, England Office, or such other Office as may be agreed to
by the parties in connection with a Transaction.
	 	 	 
	 	 	
Party B is not a Multibranch Party.
	 	 	 
	(e)	 	
Calculation Agent. The Calculation Agent is Party A.
	 	 	 
	(f)	 	
Credit Support Document. Details of any Credit Support Document:-
	 	 	 
	 	 	
Each of the following, as amended, supplemented, modified, renewed,
replaced, consolidated, substituted or extended from time to time, is a
“Credit Support Document”:
	 	 	 
	 	 	
In relation to Party B,
	 	 	 
	 	 	
the Collateral Documents, and the Guaranty, as such terms are defined in
the Credit Agreement.






24







 



	 	 	 
	 	 	
Party B agrees that the security interests in collateral granted to Party
A under the foregoing Credit Support Documents shall secure the
obligations of Party B to Party A under this Agreement.
	 	 	 
	(g)	 	
Credit Support Provider.
	 	 	 
	 	 	
Credit Support Provider means in relation to Party A:
	 	 	 
	 	 	
Not applicable.
	 	 	 
	 	 	
Credit Support Provider means in relation to Party B:
	 	 	 
	 	 	
Guarantors, as defined in the Credit Agreement.
	 	 	 
	(h)	 	
Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York (without reference to
its conflict of laws doctrine).
	 	 	 
	(i)	 	
Netting of Payments. All amounts payable on the same date, in the same
currency and in respect of the same Transaction shall be netted in
accordance with Section 2(c) of this Agreement. The election contained in
the last paragraph of Section 2(c) of this Agreement shall not apply for
the purposes of this Agreement.
	 	 	 
	(j)	 	
“Affiliate” will have the meaning specified in Section 14 of this
Agreement.
	 	 	 





PART 5: Other Provisions




	 	 	 
	(a)	 	
Set-off. Any amount (the “Early Termination Amount”) payable to one
party (the Payee) by the other party (the Payer) under Section 6(e), in
circumstances where there is a Defaulting Party or one Affected Party in
the case where a Termination Event under Section 5(b)(iv) or (v) has
occurred, will, at the option of the party (“X”) other than the Defaulting
Party or the Affected Party (and without prior notice to the Defaulting
Party or the Affected Party), be reduced by its set-off against any
amount(s) (the “Other Agreement Amount”) payable (whether at such time or
in the future or upon the occurrence of a contingency) by the Payee to the
Payer (irrespective of the currency, place of payment or booking office of
the obligation) under any other agreement(s) between the Payee and the
Payer or instrument(s) or undertaking(s) issued or executed by one party
to, or in favor of, the other party (and the Other Agreement Amount will
be discharged promptly and in all respects to the extent it is so
set-off). X will give notice to the other party of any set-off effected
under this Part 5(a).
	 	 	 
	 	 	
For this purpose, either the Early Termination Amount or the Other
Agreement Amount (or the relevant portion of such amounts) may be
converted by X into the currency in which the other is denominated at the
rate of exchange at which such party would be able, acting in a
reasonable manner and in good faith, to purchase the relevant amount of
such currency.






25







 



	 	 	 
	 	 	
If an obligation is unascertained, X may in good faith estimate that
obligation and set-off in respect of the estimate, subject to the
relevant party accounting to the other when the obligation is
ascertained.
	 	 	 
	 	 	
Nothing in this Part 5(a) shall be effective to create a charge or other
security interest. This Part 5(a) shall be without prejudice and in
addition to any right of set-off, combination of accounts, lien or other
right to which any party is at any time otherwise entitled (whether by
operation of law, contract or otherwise).
	 	 	 
	(b)	 	
Delivery of Confirmations. For each Transaction entered into hereunder,
Party A shall promptly send to Party B a Confirmation via facsimile
transmission. Party B agrees to respond to such Confirmation within two
(2) Local Business Days, either confirming agreement thereto or requesting
a correction of any error(s) contained therein. Failure by Party A to send
a Confirmation or of Party B to respond within such period shall not
affect the validity or enforceability of such Transaction. Absent manifest
error, there shall be a presumption that the terms contained in such
Confirmation are the terms of the Transaction.
	 	 	 
	(c)	 	
Recording of Conversations. Each party to this Agreement acknowledges
and agrees to the tape recording of conversations between trading and
marketing personnel of the parties to this Agreement whether by one or
other or both of the parties or their agents, and that any such tape
recordings may be submitted in evidence in any Proceedings relating to the
Agreement.
	 	 	 
	(d)	 	
Furnishing Specified Information. Section 4(a)(iii) is hereby amended by
inserting “promptly upon the earlier of (i)” in lieu of the word “upon” at
the beginning thereof and inserting “or (ii) such party learning that the
form or document is required” before the word “any” on the first line
thereof.
	 	 	 
	(e)	 	
Notice by Facsimile Transmission. Section 12(a) is hereby amended by
deleting the parenthetical “(except that a notice or other communication
under Section 5 or 6 may not be given by facsimile transmission or
electronic messaging system)”.
	 	 	 
	(f)	 	
Section 3(a) of this Agreement is amended by (i) deleting the word “and”
at the end of clause (iv); (ii) deleting the period at the end of clause
(v) and inserting therein “; and “ ; and (iii) by inserting the following
additional representation:





“(vi) Eligible Contract Participant. Each party represents to the
other party (which representation will be deemed to be repeated by
each party on each date on which a Transaction is entered into)
that it is an “eligible contract participant” as defined in
Section 1a(12) of the U.S. Commodity Exchange Act, 7 U.S.C.
Section 1a(12).”



	 	 	 
	(g)	 	
Section 3 is revised so as to add the following Section (g) at the end
thereof:
	 	 	 
	 	 	
“(g) Relationship Between Parties. Each party represents to the other
party and will be deemed to represent to the other party on the date on
which it enters into a Transaction that (absent a written agreement
between the parties that expressly imposes affirmative obligations to the
contrary for that Transaction):-





26







 


(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 advisors as
it has deemed necessary. It is not relying on any communication
(written or oral) of 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 shall not be considered investment
advice or a recommendation to enter into that Transaction.
Further, such party has not received from the other party any
assurance or guarantee as to the expected results of that
Transaction.



(ii) Evaluation and Understanding.It is capable of evaluating
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 financial and other risks of that
Transaction.


(iii) Status of Parties.The other party is not acting as an
agent, fiduciary or advisor for it in respect of that
Transaction.”



	 	 	 
	(h)	 	
Waiver of Right to Trial by Jury. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
	 	 	 
	(i)	 	
Cross Default. Section 5(a)(vi) of this Agreement is hereby amended
adding the following after the semicolon at the end thereof:





“provided, however, that notwithstanding the foregoing (but
subject to any provision to the contrary contained in any such
agreement or instrument), an Event of Default shall not occur
under either (1) or (2) above if the default, event of default or
other similar condition or event referred to in (1) or the failure
to pay referred to in (2) is caused not (even in part) by the
unavailability of funds but is caused solely due to a technical or
administrative error which has been remedied within three Local
Business Days after notice of such failure is given to the party.”



	 	 	 
	(j)	 	
Incorporation by Reference of Terms of Credit Agreement. The covenants,
terms and provisions of, including all representations and warranties of
Party B contained in the Credit Agreement, as in effect as of the date of
this Agreement, are hereby incorporated by reference in, and made part of,
this Agreement to the same extent as if such covenants, terms, and
provisions were set forth in full herein. Party B hereby agrees that,
during the period commencing with the date of this Agreement through and
including such date on which all of Party B’s obligations under this
Agreement are fully performed, Party B will (a) observe, perform, and
fulfill each and every such covenant, term, and provision applicable to
Party B, as such covenants, terms, and provisions, may be amended from
time to time after the date of this Agreement with the consent of Party A
and (b) deliver to Party A at the address for notices to Party A provided
in Part 4 each notice, document, certificate or other writing as Party B
is obligated to furnish to any other party to the Credit Agreement. In the
event the Credit Agreement terminates or becomes no longer binding on
Party B prior to the termination of this Agreement, such covenants, terms,






27







 



	 	 	 
	 	 	and provisions (other than those requiring payments in respect of amounts
owed under the Credit Agreement) will remain in force and effect for
purposes of this Agreement as though set forth in full herein until the
date on which all of Party B’s obligations under this Agreement are fully
performed, and this Agreement is terminated.






	 	 	 
	Accepted and agreed:	 	 
	 
	BANK OF AMERICA, N.A	 	
BIORELIANCE (GLASGOW) LIMITED
	 



Name:  Roger H. Heintzelman	 	
 



Name:
	Title: Principal	 	
Title:







28