Exhibit 4.14


 


(Multicurrency—Cross
Border)


 


ISDA®


International
Swap Dealers Association, Inc.


 


MASTER AGREEMENT


 


dated
as of March 24, 2004


 


between


 


	
  MORGAN STANLEY CAPITAL

  	
   

  	
  and

  	
   

  	
  WILMINGTON TRUST

  
	
  SERVICES INC.

  	
   

  	
   

  	
   

  	
  COMPANY

  



 


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 Swaps and Derivatives 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)(1), (3), (5), (6) or, to the extent
analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto,
(8).


 


(b)                                 Right to
Terminate Following Termination Event.


 


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


 


(ii)               Transfer
to Avoid Termination Event.
If either an Illegality under Section 5(b)(i)(1) or a Tax Event occurs and
there is only one Affected Party, or if a Tax Event Upon Merger occurs and the
Burdened Party is the Affected Party, the Affected Party will, as a condition
to its right to designate an Early Termination Date under
Section 6(b)(iv), use all reasonable efforts (which will not require such
party to incur a loss, excluding immaterial, incidental expenses) to transfer
within 20 days after it gives notice under Section 6(b)(i) all its rights
and obligations under this Agreement in respect of the Affected Transactions to
another of its Offices or Affiliates so that such Termination Event ceases to
exist.


 


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


 


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


 


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


 


(iv)           Right to
Terminate. If: —


 


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


 


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


 


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


 


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


 


(c)                                  Effect of
Designation.


 


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


 


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


 


(d)                                 Calculations.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


9

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


10

















 


7.                                      Transfer


 


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


 


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


 


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


 


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


 


8.                                      Contractual Currency


 


(a)                                  Payment in
the Contractual Currency.
Each payment under this Agreement will be made in the relevant currency
specified in this Agreement for that payment (the “Contractual Currency”). To
the extent permitted by applicable law, any obligation to make payments under
this Agreement in the Contractual Currency will not be discharged or satisfied
by any tender in any currency other than the Contractual Currency, except to
the extent such tender results in the actual receipt by the party to which
payment is owed, acting in a reasonable manner and in good faith in converting
the currency so tendered into the Contractual Currency, of the full amount in
the Contractual Currency of all amounts payable in respect of this Agreement.
If for any reason the amount in the Contractual Currency so received falls
short of the amount in the Contractual Currency payable in respect of this
Agreement, the party required to make the payment will, to the extent permitted
by applicable law, immediately pay such additional amount in the Contractual
Currency as may be necessary to compensate for the shortfall. If for any reason
the amount in the Contractual Currency so received exceeds the amount in the
Contractual Currency payable in respect of this Agreement, the party receiving
the payment will refund promptly the amount of such excess.


 


(b)                                 Judgments. To the extent permitted by applicable law,
if any judgment or order expressed in a currency other than the Contractual
Currency is rendered (i) for the payment of any amount owing in respect of this
Agreement, (ii) for the payment of any amount relating to any early termination
in respect of this Agreement or (iii) in respect of a judgment or order of
another court for the payment of any amount described in (i) or (ii) above, the
party seeking recovery, after recovery in full of the aggregate amount to which
such party is entitled pursuant to the judgment or order, will be entitled to
receive immediately from the other party the amount of any shortfall of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency and will refund promptly to the other party any excess of
the Contractual Currency received by such party as a consequence of sums paid
in such other currency if such shortfall or such excess arises or results from
any variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such
party. The term “rate of exchange” includes, without limitation, any premiums
and costs of exchange payable in connection with the purchase of or conversion
into the Contractual Currency.


 


(c)                                  Separate
Indemnities. To the
extent permitted by applicable law, these indemnities constitute separate and
independent obligations from the other obligations in this Agreement, will be
enforceable as separate and independent causes of action, will apply
notwithstanding any indulgence granted by the party to which any payment is
owed and will not be affected by judgment being obtained or claim or proof
being made for any other sums payable in respect of this Agreement.


 


(d)                                 Evidence
of Loss. For the purpose
of this Section 8, it will be sufficient for a party to demonstrate that
it would have suffered a loss had an actual exchange or purchase been made.


 


11

















 


9.                                      Miscellaneous


 


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


 


(b)                                 Amendments. No amendment, modification or waiver in
respect of this Agreement will be effective unless in writing (including a
writing evidenced by a facsimile transmission) and executed by each of the
parties or confirmed by an exchange of telexes or electronic messages on an
electronic messaging system. (c)                           Survival
of Obligations. Without
prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations of the parties
under this Agreement will survive the termination of any Transaction.


 


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


 


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


 


(e)                                  Counterparts
and Confirmations.


 


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


 


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


 


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


 


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


 


10.                               Offices; Multibranch Parties


 


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


 


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


 


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


 


11.                               Expenses


 


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


 


12

















 


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


 


12.                               Notices


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


13.                               Governing Law and
Jurisdiction


 


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


 


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


 


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


 


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


 


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


 


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


 


13

















 


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


 


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


 


14.                               Definitions


 


As used in this Agreement:—“Additional Termination Event”
has the meaning specified in Section 5(b).


 


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


 


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


 


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


 


“Applicable Rate” means:—


 


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


 


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


 


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


 


(d)                                 in all other cases, the Termination Rate.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


14

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


15

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


16

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


17

















 


value of that which was (or
would have been)  required to be
delivered as of the  originally  scheduled 
date  for delivery, in each case
together with (to the extent permitted under applicable law) interest, in the
currency of such amounts, from (and including) the date such amounts or
obligations were or would have been required to have been paid or performed to
(but excluding) such Early Termination Date, at the Applicable Rate.  Such amounts  of  interest will be
calculated on the basis of daily compounding and the actual number of days  elapsed. 
The fair market value of any 
obligation referred  to in clause
(b) above shall be reasonably  determined
by the party obliged to make the determination under Section 6(e) or, if
each party is so obliged, it shall be the average of the Termination Currency
Equivalents of  the fair  market values reasonably  determined by both parties.


 


IN  WITNESS  WHEREOF  the parties have executed this document on
the respective dates specified below with effect from the date specified on the
first page of this document.


 


 


	
  MORGAN
  STANLEY CAPITAL SERVICES INC.

  	
   

  	
  WILMINGTON
  TRUST COMPANY

  
	
   

  	
   

  	
  in its capacity as
  Subordination Agent on behalf of the

  
	
   

  	
   

  	
  Trustee under the Class
  G-1 Trust Agreement

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Nina C. Simmons

  	
   

  	
   

  	
  By:

  	
  /s/ Kathleen
  A. Pedelini

  	
   

  
	
   

  	
  Name:  Nina C. Simmons

  	
   

  	
   

  	
   

  	
  Name:  Kathleen A. Pedelini

  	
   

  
	
   

  	
  Title:    Vice President

  	
   

  	
   

  	
   

  	
  Title:    Financial Services Officer

  	
   

  



 


Copyright
© 1994 by International Swaps and Derivatives Association, Inc.


 


18

















 


(Multicurrency — Cross Border)


 


ISDA®


International Swap Dealers
Association, Inc.


 


SCHEDULE


to the


Master
Agreement


 


dated as of
                                


 


	
  between

  	
  and

  	
   

  
	
  (“Party
  A”)

  	
   

  	
  (“Party
  B”)

  
	
   

  	
   

  	
   

  



 


Part 1.               Termination Provisions.


(a)                          “Specified
Entity” means in
relation to Party A for the purpose of: —


Section 5(a)(v),


Section 5(a)(vi),


Section 5(a)(vii),


Section 5(b)(iv),


 


and in relation to Party B for the purpose of:—


 


Section 5(a)(v),


Section 5(a)(vi),


Section 5(a)(vii),


Section 5(b)(iv),


 


(b)                         “Specified
Transaction” will have
the meaning specified in Section 14 of this Agreement unless another
meaning is specified here


 


 


(c)                          The “Cross Default” provisions of
Section 5(a)(vi) will/will not * apply to Party A


will/will not * apply to Party B


 


If
such provisions apply:—


 


“Specified Indebtedness” will have the meaning specified in
Section 14 of this Agreement unless another meaning is specified here


 


 












*                                         Delete
as applicable.


 


19

















 


“Threshold Amount” means


 


 


(d)                                 The “Credit Event Upon Merger” provisions of
Section 5(b)(iv) will/will not * apply to Party A


will/will not * apply to Party B


 


(e)                                  The “Automatic Early Termination” provision of
Section 6(a) will/will not * apply to Party A


will/will not * apply to Party B


 


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


 


(i)
Market Quotation/Loss * will apply.


 


(ii)
The First Method/The Second Method * will apply.


 


(g)                                 “Termination
Currency” means
                                                 ,
if such currency is specified and freely available, and otherwise United States
Dollars.


 


(h)                                 Additional
Termination Event  will/will not apply*. The following shall
constitute an  Additional 


Termination
Event: —


 


 


 


 


 


For
the purpose of the foregoing Termination Event, the Affected Party or Affected
Parties shall be: —


 


 


Part 2.               Tax Representations.


 


(a)                                  Payer
Representations. For the
purpose of Section 3(e) of this Agreement, Party A will/will not* make the
following representation and Party B will/will not* 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 (i) the accuracy of
any representations made by the other party pursuant to Section 3(f) of
this Agreement, (ii) the satisfaction of the agreement contained in
Section 4(a)(i) or 4(a)(iii) of this Agreement and the accuracy and
effectiveness of any document provided by the other party pursuant to
Section 4(a)(i) or 4(a)(iii) of this Agreement and (iii) the satisfaction
of the agreement of the other party contained in Section 4(d) of this
Agreement, provided that it shall
not be a breach of this representation where reliance is placed on clause (ii)
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
Representations. For the
purpose of Section 3(f) of this Agreement, Party A and Party B make the
representations specified below, if any:


 


(i)
The following representation will/will not* apply to Party A and will/will not
apply to Party B: —


 


It
is fully eligible for the benefits of the “Business Profits” or “Industrial and
Commercial Profits” provision, as the case may be, the “Interest” provision or
the “Other Income” provision (if any) of the Specified Treaty with respect to
any payment described in such provisions and received or to be received


 












*                                         Delete as applicable.


 


20

















 


by
it in connection with this Agreement and no such payment is attributable to a
trade or business carried


on
by it through a permanent establishment in the Specified Jurisdiction.


 


If
such representation applies, then: —


 


“Specified Treaty” means with respect to Party A


 


“Specified Jurisdiction” means with respect to Party A


 


“Specified Treaty” means with respect to Party B


 


“Specified Jurisdiction” means with respect to Party B


 


(ii)
The following representation will/will not* apply to Party A and will/will not*
apply to Party B: —


 


Each
payment received or to be received by it in connection with this Agreement will
be effectively connected with its conduct of a trade or business in the
Specified Jurisdiction.


 


If such representation
applies, then: —


 


“Specified Jurisdiction” means with respect to Party A


 


“Specified Jurisdiction” means with respect to Party B


 


(iii)
The following representation will/will not* apply to Party A and will/will not*
apply to Party B: —


 


(A)
It is entering into each Transaction in the ordinary course of its trade as,
and is, either (1) a recognised U.K. bank or (2) a recognised U.K. swaps dealer
(in either case (1) or (2), for purposes of the United Kingdom Inland Revenue
extra statutory concession C17 on interest and currency swaps dated
March 14, 1989), and (B) it will bring into account payments made and
received in respect of each Transaction in computing its income for United
Kingdom tax purposes.


 


(iv) Other Payee Representations: —


 


 


 


 


N.B. The above
representations may need modification if either party is a Multibranch Party.


 












*                                         Delete as applicable.


 


21

















 


Part 3. Agreement to Deliver Documents.


 


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


 


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


 


	
  Party required to

  deliver document

  	
   

  	
  Form/Document/

  Certificate

  	
   

  	
  Date by
  which

  to be delivered

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


(b) Other documents to be
delivered are: —


 


	
  Party required to

  deliver document

  	
   

  	
  Form/Document/

  Certificate

  	
   

  	
  Date by which

  to be delivered

  	
   

  	
  Covered by

  Section 3(d)

  Representation

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Yes/No*

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Yes/No*

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Yes/No*

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Yes/No*

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Yes/No*

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Part
4. Miscellaneous.


 


(a)                                  Addresses
for Notices. For the
purpose of Section 12(a) of this Agreement: —


Address
for notices or communications to Party A: —


Address:


Attention:


Telex
No.:                                                                         Answerback:


Facsimile
No.:                                                 
                Telephone
No:


Electronic
Messaging System Details:


Address
for notices or communications to Party B: —


Address:


Attention:


Telex
No.:                                                                        Answerback:


 












*                                         Delete as applicable.


 


22

















 


Facsimile
No.:                                                             Telephone No.:


 


Electronic
Messaging System Details:


 


(b)                                 Process
Agent. For the purpose
of Section 13(c) of this Agreement: —


 


Party
A appoints as its Process Agent


 


Party
B appoints as its Process Agent


 


(c)                                  Offices. The provisions of Section 10(a)
will/will not* apply to this Agreement.


 


(d)                                 Multibranch
Party. For the purpose
of Section 10(c) of this Agreement: —


 


Party
A is/is not* a Multibranch Party and, if so, may act through the following
Offices: —


 


 


 


Party
B is/is not* a Multibranch Party and, if so, may act through the following
Offices: —


 


 


 


(e)                                  Calculation
Agent. The Calculation
Agent is
                                                         ,
unless otherwise specified in a Confirmation in relation to the relevant
Transaction.


 


(f)                                    Credit
Support Document.
Details of any Credit Support Document: —


 


 


 


(g)                                 Credit
Support Provider. Credit
Support Provider means in relation to Party A,


 


 


Credit
Support Provider means in relation to Party B,


 


 


 


(h)                                 Governing
Law. This Agreement will
be governed by and construed in accordance with English law/the laws of the
State of New York (without reference to choice of law doctrine) *.


 












*                                         Delete as applicable.


 


23

















 


(i)                                     Netting of
Payments. Subparagraph
(ii) of Section 2(c) of this Agreement will not apply to the following
Transactions or groups of Transactions (in each case starting from the date of
this Agreement/in each case starting from
                                                         
*)


 


 


(j)                                     “Affiliate” will have the meaning specified in
Section 14 of this Agreement unless another meaning is specified here 


 


 


Part
5.               Other Provisions.


 












*                                         Delete as applicable.


 


24