INSTRUMENTS IDENTICAL OR ECONOMICALLY RELATED TO
THE TRANSACTIONS CONTEMPLATED BY THE ISDA DOCUMENTS, OR MAY HAVE AN INVESTMENT
BANKING OR OTHER COMMERCIAL RELATIONSHIP WITH AND ACCESS TO INFORMATION FROM THE
ISSUER(S) OF FINANCIAL INSTRUMENTS OR OTHER INTERESTS UNDERLYING SUCH
TRANSACTIONS DURING THE TERM OF THE ISDA DOCUMENTS.
SET MAY ALSO UNDERTAKE
LAWFUL PROPRIETARY ACTIVITIES, INCLUDING HEDGING TRANSACTIONS RELATED TO THE
INITIATION OR TERMINATION OF A TRANSACTION, THAT MAY ADVERSELY AFFECT THE MARKET
PRICE, RATE, INDEX OR OTHER MARKET FACTOR(S) UNDERLYING THE TRANSACTIONS
CONTEMPLATED BY THE ISDA DOCUMENTS AND CONSEQUENTLY THE VALUE OF THE
TRANSACTIONS CONTEMPLATED BY THE ISDA DOCUMENTS.
NEITHER THIS AGREEMENT NOR THE
OTHER SPECIFIED AGREEMENTS SHALL LIMIT IN ANY MANNER THE ABILITY OF SET TO ENTER
INTO ANY TRANSACTION OF ANY NATURE WITH ANY OTHER PERSON.
THE PARTIES
ACKNOWLEDGE THAT THE RELATIONSHIP BETWEEN SET AND PARTY B AND ITS AFFILIATES IS
A COMMERCIAL AND NOT A FIDUCIARY RELATIONSHIP AND THAT SET IS FREE TO PURSUE ITS
OWN BUSINESS INTERESTS.
(M)
EXISTING ISDA. THE PARTIES HEREBY AGREE THAT,
ON AND WITH EFFECT FROM THE DATE OF THIS AGREEMENT, THE ISDA MASTER AGREEMENT,
DATED AS OF NOVEMBER 10, 2005 (AS AMENDED, SUPPLEMENTED, OR OTHERWISE MODIFIED
PRIOR TO THE DATE HEREOF) BETWEEN PARTY A AND PARTY B (THE "EXISTING ISDA MASTER
AGREEMENT") SHALL BE TERMINATED IN ALL RESPECTS, AND ALL TRANSACTIONS (AS
DEFINED IN THE EXISTING ISDA MASTER AGREEMENT) WHICH REMAIN IN EFFECT AS OF THE
DATE HEREOF SHALL, FROM AND AFTER THE DATE HEREOF, BE (AND SHALL BE DEEMED TO
BE) TRANSACTIONS UNDER THIS AGREEMENT IN ALL RESPECTS AND FOR ALL PURPOSES. IN
THE EVENT OF ANY CONFLICT BETWEEN THE PROVISIONS OF THIS AGREEMENT AND ANY
CONFIRMATION EVIDENCING AN OUTSTANDING TRANSACTION ORIGINALLY ENTERED INTO UNDER
THE EXISTING ISDA MASTER AGREEMENT, THE CONFIRMATION WILL PREVAIL FOR PURPOSES
OF SUCH TRANSACTION.
(N)
PAYMENTS.
EXCEPT AS OTHERWISE EXPRESSLY
PROVIDED HEREIN:
(I)
ALL PAYMENTS SHALL BE MADE BY PARTY B TO
PARTY A WITHOUT SETOFF, RECOUPMENT OR COUNTERCLAIM AND IN IMMEDIATELY AVAILABLE
FUNDS AT THE OFFICE SPECIFIED BY PARTY A NOT LATER THAN 12:00 P.M. NEW YORK TIME
ON THE DATE DUE, AND FUNDS RECEIVED AFTER THAT HOUR SHALL BE DEEMED TO HAVE BEEN
RECEIVED BY PARTY A ON THE FOLLOWING BUSINESS DAY.
(II)
IF ANY PAYMENT UNDER THIS AGREEMENT FALLS
DUE ON A DAY WHICH IS NOT A BUSINESS DAY, THEN SUCH DUE DATE SHALL BE EXTENDED
TO THE IMMEDIATELY FOLLOWING BUSINESS DAY AND ADDITIONAL INTEREST,
22
FINANCING FEES AND CREDIT SUPPORT FEES SHALL ACCRUE AND BE PAYABLE FOR THE
PERIOD OF ANY SUCH EXTENSION.
(O)
TERMINATION OF SPECIFIED TRANSACTIONS. PARTY
B SHALL DEMONSTRATE TO PARTY A THAT ALL SPECIFIED TRANSACTIONS (AND ANY RELATED
MASTER AGREEMENTS) BETWEEN PARTY B OR ANY SPECIFIED ENTITY OF PARTY B AND ANY
THIRD PARTY, AS SET FORTH ON EXHIBIT 5(O), SHALL BE TERMINATED OR NOVATED TO
PARTY A WITHIN 30 DAYS AFTER THE CLOSING DATE.
PARTY B REPRESENTS TO PARTY A
THAT NO OTHER SPECIFIED TRANSACTIONS WILL BE OUTSTANDING AS OF THE CLOSING DATE
EXCEPT THOSE