EFTA00169707.pdf

ISDA® finetraecinal Swap Dealers Association. Inc 2002 MASTER AGREEMENT Deutsche Bank AG dated as of October 28, 2013 among and Southern Trust Company, Inc. 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 or otherwise effective for the purpose of confirming or evidencing those Transactions. This 2002 Master Agreement and the Schedule are together referred to as this "Master Agreement". Accordingly, the parties agree as follows: I. Interpretation (a) Definitions. The terms defined in Section 14 and elsewhere in this Master Agreement 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, 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. Copy( 2002 b International Swap Dealers Association, Inc. CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) taVaiM 110 EFTA_00019980 EFTA00169707 (iii) Each obligation of each party under Section 2(aXi) is subject to (I) the condition precedent that no Event of Default or Potential Event of Default with respect to the other party bas 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 condition specified in this Agreement to be a condition precedent for the purpose of this Section 2(aXiii). (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 Settlement 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 of Payments. 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 which 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 and payment obligation will be determined in respect of all amounts payable on the same date in the same currency in respect of those Transactions, regardless of whether such amounts art payable in respect of the same Transaction. The election may be made in the Schedule or any Confirmation by specifying that "Multiple Transaction Payment Netting" applies to the Transactions identified as being subject to the election (in which case clause (ii) above will not apply to such Transactions). If Multiple Transaction Payment Netting is applicable to Transactions, it will apply to those Transactions with effect from the starting date specified in the Schedule or such Confirmation, or, if a starting date is not specified in the Schedule or such Confirmation, the starting date otherwise agreed by the panics in writing. 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") (I) 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 ander 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 V an official receipt (or a certified copy), or other documentation reasonably acceptable to Y, evidencing such payment to such authorities; and 2 ISDA® 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) leltatsMi 111 EFTA_000 19981 EFTA00169708 (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 Indemuiliable 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(aXiii) or 4(d); or (B) the failure of a representation made by Y pursuant to Section 30) 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, after 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. (ii) Liability. If:— ) 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)). 3. Representations Each party makes the representations contained in Sections 3(a), 3(b), 3(c), 3(d), 3(c) and 3(1) and, if specified in the Schedule as applying, 3(g) 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). If any "Additional Representation" is specified in the Schedule or any Confirmation as applying, the party or parties specified for such Additional Representation will make and, if applicable, be deemed to repeat such Additional Representation at the time or times specified for such Additional Representation. Basic Rep eeeee rations. .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; 3 ISDA® 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) M44 (0112 EFTA_00019982 EFTA00169709 (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)). (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, any of its Credit Support Providers or any of its applicable Specified Entities 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 Suppun 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. (c) 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. (1) Payee Tax Representations. Each representation specified in the Schedule as being made by it for the purpose of this Section 30) is accurate and true. (g) No Agency. It is entering into this Agreement, including each Transaction, as principal and not as agent of any person or entity. 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 clause (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 4 ISDAS 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) %Waal113 EFTA_00019983 EFTA00169710 (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. ft 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 II. 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. organised. managed and controlled or considered to have its seat, or where an 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 (subject to Sections 5(c) and 6(eXiv)) 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(aXi) or 9(h)(i)(2) or (4) required to be made by it if such failure is not remedied on or before the first Local Business Day in the case of any such payment or the first Local Delivery Day in the case of any such delivery after, in each case, notice of such failure is given to the party; (ii) Breach of Agreement; Repudiation of Agreement (I) 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 9(h)(i)(2) or (4) 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 within 30 days after notice of such failure is given to the party; or (2) the party disaffirms, disclaims, repudiates or rejects, in whole or in part, or challenges the validity of. this Master Agreement, any Confirmation executed and delivered by that party or any 5 DSDA® 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) WROMAi 114 EFTA_00019984 EFTA00169711 Transaction evidenced by such a Confirmation (or such action is taken by any person or entity appointed or empowered to operate it or act on its behalf); (iii) Credit Support Default. (I) 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, or any security interest granted by such party or such Credit Support Provider to the other party pursuant to any such Credit Support Document, to be in full force and effect for the purpose of this Agreement (in each 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 pair, or challenges the validity of, such Credit Support Document (or such action is taken by any person or entity appointed or empowered to operate it or act on its behalf); (iv) Misrepresentation. A representation (other than a representation under Section 3(e) or 3(0) 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:— defaults (other than by failing to make a delivery) under a Specified Transaction or any credit support arrangement relating to a Specified Transaction and, after giving effect to any applicable notice requirement or grace period, such default results in 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 due on the last payment or exchange date of, or any payment on early termination of. a Specified Transaction (or, if there is no applicable notice requirement or grace period, such default continues for at least one Local Business Day); (3) defaults in making any delivery due under (including any delivery due on the last delivery or exchange date of) a Specified Transaction or any credit support arrangement relating to a Specified Transaction and, after giving effect to any applicable notice requirement or grace period. such default results in a liquidation of, an acceleration of obligations under, or an early termination of, all transactions outstanding under the documentation applicable to that Specified Transaction; or (4) disaffirms. disclaims, repudiates or rejects, in whole or in part, or challenges the validity of, a Specified Transaction or any credit support arrangement relating to a Specified Transaction that is, in either case, confirmed or evidenced by a document or other confirming evidence executed and delivered by that party. Credit Support Provider or Specified Entity (or such action is taken by any person or entity appointed or empowered to operate it or act on its behalf); 6 ISDA® 2002 CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) elaStsingl115 EFTA_000 19985 EFTA00169712 (vi) Cron-Default. If "Cross-Default" is specified in the Schedule as applying to the party, the occurrence or existence of:— (I) a default, event of default or other similar condition or event (however 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 diem (individually or collectively) where the aggregate principal amount of such agreements or instruments, either alone or together with the amount, if any, referred to in clause (2) below, is 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 under such agreements or instruments on the due date for payment (after giving effect to any applicable notice requirement or grace period) in an aggregate amount, either alone or together with the amount. if any. referred to in clause (1) above, of not less than the applicable Threshold Amount; (vii) Bankruptcy. The party, any Credit Support Provider of such party or any applicable Specified Entity of such party:— (I) 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)(A) institutes or has instituted against it, by a regulator. supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its bead or home office, 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 by it or such regulator, supervisor or similar official, or (B) 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 such proceeding or petition is instituted or presented by a person or entity not described in clause (A) above and either (1) 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 (II) is not dismissed, discharged, stayed or restrained in each case within 15 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 15 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 (I) to (7) above (inclusive); or (9) takes any action in finttierance of. or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts; or 7 ISDAt 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) W6600116 EFTA_000 19986 EFTA00169713 (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, or reorganises, reincorporates or reconstitutes into or as. another entity and, at the time of such consolidation, amalgamation, merger. transfer. reorganisation, reincorporation or reconstitution:— (I) 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; 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 (subject to Section 5(c)) an Illegality if the event is specified in clause (i) below, a Force Majeure Event if the event is specified in clause (ii) below, a Tax Event if the event is specified in clause (iii) below, a Tax Event Upon Merger if the event is specified in clause (iv) below, and, if specified to be applicable, a Credit Event Upon Merger if the event is specified pursuant to clause (v) below or an Additional Termination Event if the event is specified pursuant to clause (vi) below:— (i) Illegality. After giving effect to any applicable provision, disruption fallback or remedy specified in, or pursuant to, the relevant Confirmation or elsewhere in this Agreement, due to an event or circumstance (other than any action taken by a party or, if applicable, any Credit Support Provider of such party) occurring after a Transaction is entered into, it becomes unlawful under any applicable law (including without limitation the laws of any country in which payment, delivery or compliance is required by either party or any Credit Support Provider, as the case may be), on any day, or it would be unlawful if the relevant payment, delivery or compliance were required on that day (in each case, other than as a result of a breach by the party of Section 4(b)):— (I) for the Office through which such party (which will be the Affected Patty) makes and receives payments or deliveries with respect to such Transaction to perform any absolute or contingent obligation to make a payment or delivery in respect of such Transaction, 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) for such party or any Credit Support Provider of such party (which will be the Affected Party) to perform any absolute or contingent obligation to make a payment or delivery which such party or Credit Support Provider has under any Credit Support Document relating to such Transaction, to receive a payment or delivery under such Credit Support Document or to comply with any other material provision of such Credit Support Document; (ii) Force Majeure Event. After giving effect to any applicable provision, disruption fallback or remedy specified in. or pursuant to, the relevant Confirmation or elsewhere in this Agreement, by reason of force majeure or act of state occurring after a Transaction is entered into, on any day:— (I) the Office through which such party (which will be the Affected Party) makes and receives payments or deliveries with respect to such Transaction is prevented from performing any absolute or contingent obligation to make a payment or delivery in respect of such Transaction, from receiving a payment or delivery in respect of such Transaction or from complying with any other material provision of this Agreement relating to such Transaction (or would be so prevented if such payment, delivery or compliance were required on that day), or it becomes impossible or 8 ISDA6 2002 CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) %MtME117 EFTA_00019987 EFTA00169714 impracticable for such Office so to perform, receive or comply (or it would be impossible or impracticable for such Office so to perform. receive or comply if such payment. delivery or compliance were required on that day): or (2) such party or any Credit Support Provider of such party (which will be the Affected Party) is prevented from performing any absolute or contingent obligation to make a payment or delivery which such party or Credit Support Provider has under any Credit Support Document relating to such Transaction, from receiving a payment or delivery under such Credit Support Document or from complying with any other material provision of such Credit Support Document (or would be so prevented if such payment, delivery or compliance were required on that day), or it becomes impossible or impracticable for such party or Credit Support Provider so to perform, receive or comply (or it would be impossible or impracticable for such party or Credit Support Provider so to perform, receive or comply if such payment, delivery or compliance were required on that day), so long as the force majeurc or act of state is beyond the control of such Office, such party or such Credit Support Provider, as appropriate, and such Office, party or Credit Support Provider could not, after using all reasonable efforts (which will not require such party or Credit Support Provider to incur a loss, other than immaterial, incidental expenses), overcome such prevention, impossibility or impracticability; (iii) Tar Event. Due to (I) any action taken by a taxing authority, or brought in a court of competent jurisdiction, after a Transaction is entered into (regardless of whether such action is taken or brought with respect to a party to this Agreement) or (2) 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 Settlement Date (A) be required to pay to the other party an additional amount in respect of an Indemnifiable Tax under Section 2(dX1X4) (except in respect of interest under Section 9(h)) or (8) 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 9(h)) and no additional amount is requited to be paid in respect of such Tax under Section 2(d)(iX4) (other than by reason of Section 2(d)(i)(4XA) or (B)); (iv) Tax Event Upon Merger. The party (the "Burdened Party") on the next succeeding Scheduled Settlement Date will either (I) be required to pay an additional amount in respect of an Indemnifiable Tax under Section 2(d)(0(4) (except in respect of interest under Section 9(h)) or (2) receive a payment from which an amount has been deducted or withheld for or on account of any Tax in respect of which the other party is not required to pay an additional amount (other than by reason of Section 2(dXiX4XA) 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 (or any substantial part of the assets comprising the business conducted by it as of the date of this Master Agreement) to, or reorganising, reincorporating or reconstituting into or as, another entity (which will be the Affected Party) where such action does not constitute a Merger Without Assumption; (v) Credit Event Upon Merger. If "Credit Event Upon Merger" is specified in the Schedule as applying to the party. a Designated Event (as defined below) occurs with respect to such party, any Credit Support Provider of such party or any applicable Specified Entity of such party (in each case, "X") and such Designated Event does not constitute a Merger Without Assumption. and the creditworthiness of X or, if appU:able, the successor, surviving or transferee entity of X. after taking into account any applicable Credit Support Document, is materially weaker immediately after the occurrence of such Designated Event than that of X immediately prior to the occurrence of such Designated Event (and, in any such event, such party or its successor. surviving or transferee entity, as appropriate, will be the Affected Party). A "Designated Event" with respect to X means that:— (I) X consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets (or any substantial part of the assets comprising the business conducted by X as of the 9 ISDA® 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) eV66tiNgq118 EFTA_00019988 EFTA00169715 date of this Master Agreement) to, or reorganises, reincorporates or reconstitutes into or as, another entity; (2) any person, related group of persons or entity acquires directly or indirectly the beneficial ownership of (A) equity securities having the power to elect a majority of the board of directors (or its equivalent) of X or (B) any other ownership interest enabling it to exercise control of X; or (3) X effects any substantial change in its capital structure by means of the issuance. incurrence or guarantee of debt or the issuance of (A) preferred stock or other securities convertible into or exchangeable for debt or preferred stock or (B) in the case of entities other than corporations, any other form of ownership interest; or (vi) 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 will be as specified for such Additional Termination Event in the Schedule or such Confirmation). (c) Hierarchy of Events. (i) An event or circumstance that constitutes or gives rise to an Illegality or a Force Majeure Event will not. for so long as that is the case, also constitute or give rise to an Event of Default under Section 5(a)(i). 5(a)(iiX I ) or 5(a)(iii)(1) insofar as such event or circumstance relates to the failure to make any payment or delivery or a failure to comply with any other material provision of this Agreement or a Credit Support Document, as the case may be. (ii) Except in circumstances contemplated by clause (i) above, if an event or circumstance which would otherwise constitute or give rise to an Illegality or a Force Majeure Event also constitutes an Event of Default or any other Termination Event, it will be treated as an Event of Default or such other Termination Event, as the case may be, and will not constitute or give rise to an Illegality or a Force Majeure Event. If an event or circumstance which would otherwise constitute or give rise to a Force Majeure Event also constitutes an Illegality, it will be treated as an Illegality, except as described in clause (ii) above, and not a Force Majeure Event. (d) Deferral of Payments and Deliveries During Waiting Period. If an Illegality or a Force Majeure Event has occurred and is continuing with respect to a Transaction, each payment or delivery which would otherwise be required to be made under that Transaction wilt be deferred to, and will not be due until:— (i) the first Local Business Day or, in the case of a delivery, the first Local Delivery Day (or the first day that would have been a Local Business Day or Local Delivery Day, as appropriate, but for the occurrence of the event or circumstance constituting or giving rise to that Illegality or Force Majeure Event) following the end of any applicable Waiting Period in respect of that illegality or Force Majeure Event, as the case may be; or (ii) if earlier, the date on which the event or circumstance constituting or giving rise to that Illegality or Force Majeure Event ceases to exist or, if such date is not a Local Business Day or. in the case of a delivery, a Local Delivery Day, the first following day that is a Local Business Day or Local Delivery Day. as appropriate. (e) Inability of Head or Home Office to Perform Obligations of Branch. If (i) an Illegality or a Force Majeure Event occurs under Section 5(bXi)(1) or 5(b)(ii)( I ) and the relevant Office is not the Affected Party's head or home office, (ii) Section 10(a) applies. (iii) the other party seeks performance of the relevant obligation or 10 ISDA® 2002 CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) In0119 EFTA_00019989 EFTA00169716 compliance with the relevant provision by the Affected Party's head or home office and (iv) the Affected Party's head or home office fails so to perform or comply due to the occurrence of an event or circumstance which would, if that head or home office were the Office through which the Affected Party makes and receives payments and deliveries with respect to the relevant Transaction, constitute or give rise to an Illegality or a Force Majeure Event, and such failure would otherwise constitute an Event of Default under Section 5(aXi) or 5(a)(iiiXI) with respect to such party. then, for so long as the relevant event or circumstance continues to exist with respect to both the Office referred to in Section 5(bXiX I) or S(bXii)(1), as the case may be, and the Affected Party's head or home office, such failure will not constitute an Event of Default under Section 5(aXi) or 5(a)(iiiX1). 6. Early Termination; Close-Out Netting (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 inunediately upon the occurrence with respect to such party of an Event of Default specified in Section 5(aXviiX I), (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)(viiX4) or, to the extent analogous thereto, (8). (b) Right to Terminate Following Termination Event (i) Notice. If a Termination Event other than a Force Majeure 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 the other party such other information about that Termination Event as the other party may reasonably require. If a Force Majeure Event occurs, each party will, promptly upon becoming aware of it, use all reasonable efforts to notify the other party, specifying the nature of that Force Majeure Event, and will also give the other patty such other information about that Force Majeure Event as the other party may reasonably require. (ii) Transfer to Avoid Termination Event If 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(bXiv), use all reasonable efforts (which will not require such party to incur a loss, other than immaterial, incidental expenses) to transfer within 20 days after it gives notice under Section 6(bXi) 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 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 of such occurrence is given under Section 6(b)(i) to avoid that Termination Event. ISDA49 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) eMISAS120 EFTA_000 19990 EFTA00169717 (iv) Right to Terminate. (I) If:— (A) a transfer under Section 6(b)(ii) or an agreement under Section 6(bgiii), 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(bXi); or (B) 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, 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 are two Affected Parties, or the Non- affected Party in the case of a Credit Event Upon Merger or an Additional lamination Event if there is only one Affected Party may. If the relevant Termination Event is then continuing, by not more than 20 days notice to the other party, designate a day not earlier than the day such notice is effective as an Early Termination Date in respect of all Affected Transactions. (2) If at any time an Illegality or a Force Majeure Event has occurred and is then continuing and any applicable Waiting Period has expired:— (A) Subject to clause (B) below, either party may, by not more than 20 days notice to the other party, designate (I) a day not earlier than the day on which such notice becomes effective as an Early lamination Date in respect of all Affected Transactions or (II) by specifying in that notice the Affected Transactions in respect of which it is designating the relevant day as an Early Termination Date, a day not earlier than two Local Business Days following the day on which such notice becomes effective as an Early Termination late in respect of less than all Affected Transactions. Upon receipt of a notice designating an Early Termination Date in respect of less than all Affected Transactions, the other party may, by notice to the designating party, if such notice is effective on or before the day so designated, designate that same day as an Early Termination Date in respect of any or all other Affected Transactions. (B) An Affected Party (if the Illegality or Force Majeure Event relates to performance by such party or any Credit Support Provider of such party of an obligation to make any payment or delivery under, or to compliance with any other material provision of, the relevant Credit Support Documen0 will only have the right to designate an Early Termination Date under Section 6(b)(ivX2)(A) as a result of an Illegality under Section 5(bXiX2) or a Force Majeure Event under Section 5(b)(i1)(2) following the prior designation by the other party of an Early Termination Date, pursuant to Section 6(b)(ivX2XA), in respect of less than all Affected Transactions. (c) Effect of Designation. If notice designating an Early Termination Date is given under Section 6(a) or 6(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(aXi) or 9(h)(i) 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, payabte in respect of an Early Termination Date will be determined pursuant to Sections 6(e) and 9(hXii). 12 ISDA® 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) eM 121 EFTA_00019991 EFTA00169718 (d) Calculations; Payment Date. (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 (I) showing. in reasonable detail, such calculations (including any quotations, market data or information horn internal sources used in making such calculations). (2) specifying (except where them are two Affected Panics) any Early Termination Amount payable and (3) 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 or market data obtained in determining a Close-out Amount, the records of the party obtaining such quotation or market data will be conclusive evidence of the existence and accuracy of such quotation or market data. (ii) Payment Date. An Early Termination Amount due in respect of any Early Termination Date will, together with any amount of interest payable pursuant to Section 9(b)(fiX2), be payable (1) on the day on which 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 (2) on the day which is two Local Business Days after the day on which notice of the amount payable is effective (or. if there are two Affected Panics, after the day on which the statement provided pursuant to clause (i) above by the second party to provide such a statement is effective) in the case of an Early Termination Date which is designated as a result of a Termination Event. (e) Payments on Early Termination. If an Burly Termination Date occurs. the amount. if any. payable in respect of that Early Termination Date (the "Early Termination Amount") will be determined pursuant to this Section 6(e) and will be subject to Section 6(0. (i) Events of Default If the Early Termination Date results from an Event of Default, the Early Termination Amount will be an amount equal to (I) the sum of (A) the Termination Currency Equivalent of the Close-out Amount or Close-out Amounts (whether positive or negative) determined by the Non- defaulting Party for each Terminated Transaction or group of Terminated Transactions. as the case may be, and (B) the Termination Currency Equivalent of the Unpaid Amounts owing to the Non-defaulting Party less (2) the Termination Currency Equivalent of the Unpaid Amounts owing to the Defaulting Party. If the Early Termination 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 the Early Termination Amount to the Defaulting Party. (ii) Termination Events. If the Early Termination Date results from a Termination Event:— (I) One Affected Parry. Subject to clause (3) below, if there is one Affected Party, the Early Termination Amount will be determined in accordance with Section 6(e)(0, except that references to the Defaulting Party and to the Non-defaulting Party will be deemed to be references to the Affected Party and to the Non-affected Party, respectively. (2) Two Affected Panics. Subject to clause (3) below, if there are two Affected Parties, each party will determine an amount equal to the Termination Currency Equivalent of the sum of the Close-out Amount or Close-out Amounts (whether positive or negative) for each Terminated Transaction or group of Terminated Transactions, as the case may be, and the Early Termination Amount will be an amount equal to (A) the sum of (I) one-half of the difference between the higher amount so determined (by party "X") and the lower amount so determined (by party "Y") and (11) the Termination Currency Equivalent of the Unpaid Amounts owing to X less (B) the Termination Currency Equivalent of the Unpaid Amounts owing to Y. If the Early Termination Amount is a positive number. Y will pay it to X: if it is a negative number, X will pay the absolute value of the Early Termination Amount to Y. 13 ISDAO 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) elanti122 EFTA_000 19992 EFTA00169719 (3) Mid•Market Events. If that Termination Event is an Illegality or a Force Majeure Event, then the Early Termination Amount will be determined in accordance with clause (1) or (2) above, as appropriate, except that. for the purpose of determining a Close-out Amount or Close-out Amounts, the Determining Puny will (A) if obtaining quotations (min one or more third parties (or from any of the Determining Party's Affiliates), ask each third party or Affiliate (I) not to take account of the current creditworthiness of the Determining Party or any existing Credit Support Document and (11) to provide mid-market quotations; and (B) in any other case, use mid-market values without regard to the creditworthiness of the Determining Party. (iii) Adjustment for Bankruptcy. In circumstances where an Early Termination Date occurs because Automatic Early Termination applies in respect of a party, the Early Termination Amount will he subject to such adjustrnents as arc appropriate and permitted by applicable 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) Adjustment for Illegality or Force Majeure Event. The failure by a party or any Credit Support Provider of such party to pay, when due, any Early Termination Amount will not constitute an Event of Default under Section 5(a)(i) or 5(a)(iiiX I) if such failure is due to the occurrence of an event or circumstance which would, if it occurred with respect to payment. delivery or compliance related to a Transaction, constitute or give rise to an Illegality or a Force Majeure Event. Such amount will (I) accrue interest and otherwise be treated as an Unpaid Amount owing to the other party if subsequently an Early Termination Date results from an Event of Default, a Credit Event Upon Merger or an Additional Termination Event in respect of which all outstanding Transactions are Affected Transactions and (2) otherwise accrue interest in accordance with Section 9(hXUX2). (v) Pre-Estimate. The parties agree that an amount recoverable under this Section 6(c) 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 patty will be entitled to recover any additional damages as a consequence of the termination of the Terminated Transactions. (1) Set-Off. Any Early Termination Amount payable to one party (the "Payee") by the other party (the "Payee), in circumstances where there is a Defaulting Party or where there is one Affected Party in the case where either a Credit Event Upon Merger has occurred or any other Termination Event in respect of which all outstanding Transactions are Affected Transactions has occurred, will, at the option of the Non-defaulting Party or the Non- affected Party, ss the case may be ("X") (and without prior notice to the Defaulting Party or the Affected Party, as the case may be), be reduced by its set-off against any other amounts ("Other Amounts") payable by the Payee to the Payer (whether or not arising under this Agreement, matured or contingent and irrespective of the currency, place of payment or place of booking of the obligation). To the extent that any Other Amounts are so set off, those Other Amounts will be discharged promptly and in all respects. X will give notice to the other party of any set-off effected under this Section 6(f). For this purpose, either the Early Termination Amount or the Other Amounts (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. in good faith and using commercially reasonable procedures, to purchase the relevant amount of such currency. 14 ISDA® 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) elaSta1123 EFTA_000 19993 EFTA00169720 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 Section 6(f) will be effective to create a charge or other security interest. This Section 6(0 will be without prejudice and in addition to any right of set-off, offset, combination of accounts, lien, right of retention or withholding or similar right or requirement to which any party is at any time otherwise entitled or subject (whether by operation of law, contract or otherwise). 7. Transfer Subject to Section 6(bXii) and to the extent permitted by applicable law, 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 Early Termination Amount payable to it by a Defaulting Party, together with any amounts payable on or with respect to that interest and any other rights associated with that interest pursuant to Sections 8, 9(h) and 11. Any purported transfer that is not in compliance with this Section 7 will be void. 8. Contractual Currency (a) Payment in the Contractual Currency. Each payment wider 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 good faith and using commercially reasonable procedures 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 patty 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 clause (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 purpose of such judgment or order and the rate of exchange at which such party is able, acting in good faith and using 15 ISDA® 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) D$-SDNY0124 EFTA_000 19994 EFTA00169721 commercially reasonable procedures in convening 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. (c) Separate indemnifies. To the extent permitted by applicable law, the indemnities in this Section 8 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. 9. Miscellaneous (a) Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter. Each of the parties acknowledges that in entering into this Agreement it has not relied on any oral or written representation, warranty or other assurance (except as provided for or referred to in this Agreement) and waives all rights and remedies which might otherwise be available to it in respect thereof, except that nothing in this Agreement will limit or exclude any liability of a party for fraud. (1) Amendments. An amendment, modification or waiver in respect of this Agreement will only be effective if 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 by an exchange of 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 panics 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. (c) 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 and by electronic messaging system), 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 will 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, by an exchange of electronic messages on an electronic messaging system or by an exchange of e-mails, 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, electronic message or c-mail constitutes a Confirmation. (0 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 arc for convenience of reference only and are not to affect the construction of or to be taken into consideration in interpreting this Agreement. 16 ISDA ® 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) %WS; 125 EFTA_000 19995 EFTA00169722 (h) Interest and Compensation. Prior to Early Termination. Prior to the occurrence or effective designation of an Early Termination Date in respect of the relevant Transaction:— Interest on Defaulted Payments. If a party defaults in the performance of any payment obligation, it will, to the extent permitted by applicable law and subject to Section 6(c), pay interest (before as well as after judgment) on the overdue amount to the other party on demand in the sante currency as the overdue amount, for the period from (and including) the original due date for payment to (but excluding) the date of actual payment (and excluding any period in respect of which interest or compensation in respect of the overdue amount is due pursuant to clause (3)(8) or (C) below), at the Default Rate. (2) Compensation for Defaulted Deliveries. If a party defaults in the performance of any obligation required to be settled by delivery, it will on demand (A) compensate the other party to the extent provided for in the relevant Confirmation or elsewhere in this Agreement and (B) unless otherwise provided in the relevant Confirmation or elsewhere in this Agreement, to the extent permitted by applicable law and subject to Section 6(c), pay to the other party interest (before as well as after judgment) on an amount equal to the fair market value of that which was required to be delivered in the same currency as that amount, for the period from (and including) the originally scheduled date for delivery to (but excluding) the date of actual delivery (and excluding any period in respect of which interest or compensation in respect of that amount is due pursuant to clause (4) below), at the Default Rate. The fair market value of any obligation referred to above will be determined as of the originally scheduled date for delivery, in good faith and using commercially reasonable procedures. by the party that was entitled to take delivery. (3) Interest on Deferred Payments. If: a party does not pay any amount that, but for Section 2(a)(iii), would have been payable, it will, to the extent permitted by applicable law and subject to Section 6(c) and clauses (B) and (C) below, pay interest (before as well as after judgment) on that amount to the other party on demand (after such amount becomes payable) in the same currency as that amount, for the period from (and including) the date the amount would, but for Section 2(a)(iii). have been payable to (but excluding) the date the amount actually becomes payable, at the Applicable Deferral Rate: (B) a payment is deferred pursuant to Section 5(d). the party which would otherwise have been required to make that payment will, to the extent permitted by applicable law, subject to Section 6(c) and for so long as no Event of Default or Potential Event of Default with respect to that party has occurred and is continuing, pay interest (before as well as after judgment) on the amount of the deferred payment to the other party on demand (after such amount becomes payable) in the same currency as the deferred payment, for the period from (and including) the date the amount would, but for Section 5(d). have been payable to (but excluding) the earlier of the date the payment is no longer deferred pursuant to Section 5(d) and the date during the deferral period upon which an Event of Default or Potential Event of Default with respect to that party occurs, at the Applicable Deferral Rate; or (C) a party fails to make any payment due to the occurrence of an Illegality or a Force Majeure Event (after giving effect to any deferral period contemplated by clause (B) above), it will, to the extent permitted by applicable law, subject to Section 6(c) and for so long as the event or circumstance giving rise to that Illegality or Force Majeure Event 17 ISDA® 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) D$-S hPaq126 EFTA_000 19996 EFTA00169723 continues and no Event of Default or Potential Event of Default with respect to that party has occurred and is continuing, pay interest (before as well as after judgment) on the overdue amount to the other party on demand in the same currency as the overdue amount, for the period from (and including) the date the party fails to make the payment due to the occurrence of the relevant Illegality or Force Majeure Event (or, if later, the date the payment is no longer deferred pursuant to Section 5(d)) to (but excluding) the earlier of the dale the event or circumstance giving rise to that Illegality or Force Majeure Event ceases to exist and the date during the period upon which an Event of Default or Potential Event of Default with respect to that party occurs (and excluding any period in respect of which interest or compensation in respect of the overdue amount is due pursuant to clause (B) above), at the Applicable Deferral Rate. (4) Compensation for Deferred Deliveries. If:— (A) a party does not perform any obligation that, but for Section 2(a)(iii), would have been required to be settled by delivery; (B) a delivery is deferred pursuant to Section 5(d); or (C) a party fails to make a delivery due to the occurrence of an Illegality or a Force Majeure Event at a time when any applicable Waiting Period has expired, the patty required (or that would otherwise have been required) to make the delivery will, to the extent permitted by applicable law and subject to Section 6(c), compensate and pay interest to the other party on demand (after, in the case of clauses (A) and (B) above, such delivery is required) if and to the extent provided for in the relevant Confirmation or elsewhere in this Agreement. (ii) Early Termination. Upon the occurrence or effective designation of an Early Termination Date in respect of a Transaction:— (I) Unpaid Amounts. For the purpose of determining an Unpaid Amount in respect of the relevant Transaction, and to the extent permitted by applicable law, interest will accrue on the amount of any payment obligation or the amount equal to the fair market value of any obligation required to be sealed by delivery included in such determination in the same currency as that amount, for the period from (and including) the date the relevant obligation was (or would have been but for Section 2(a)(iii) or 5(d)) required to have been performed to (but excluding) the relevant Early Termination Date, at the Applicable Close-out Rate. (2) Interest on Early Termination Amounts. If an Early Termination Amount is due in respect of such Early Termination Date, that amount will, to the extent permitted by applicable law, be paid together with interest (before as well as after judgment) on that amount in the Termination Currency, for the period from (and including) such Early Termination Date to (but excluding) the date the amount is paid, at the Applicable Close-out Rate. (iii) Interest Calculation. Any interest pursuant to this Section 9(h) will be calculated on the basis of daily compounding and the actual number of days elapsed. IS IMMO 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) elagg71127 EFTA_000 19997 EFTA00169724 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 bead or home office represents to and agrees with the other party that, notwithstanding the place of booking or its jurisdiction of incorporation or organisation, its obligations are the same in terms of recourse against it as if it had entered into the Transaction through its head or home office, except that a party will not have recourse to the head or home office of the other party in respect of any payment or delivery deferred pursuant to Section 5(d) for so long as the payment or delivery is so deferred. This representation and agreement will be deemed to be repeated by each party on each date on which the parties enter into a Transaction. (b) If a party is specified as a Multibranch Party in the Schedule, such party may, subject to clause (c) below, enter into a Transaction through, book a Transaction in and make and receive payments and deliveries with respect to a Transaction through any Office listed in respect of that party in the Schedule (but not any other Office unless otherwise agreed by the parties in writing). (c) The Office through which a party enters into a Transaction will be the Office specified for that party in the relevant Confirmation or as otherwise agreed by the parties in writing, and, if an Office for that party is not specified in the Confirmation or otherwise agreed by the parties in writing, its head or home office. Unless the panics otherwise agree in writing, the Office through which a party enters into a Transaction will also be the Office in which it books the Transaction and the Office through which it makes and receives payments and deliveries with respect to the Transaction. Subject to Section 6(bXii), neither party may change the Office in which it books the Transaction or the Office through which it makes and receives payments or deliveries with respect to a Transaction without the prior written consent of the other party. 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, execution 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 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) E,ffectivertess. Any notice or other communication in respect of this Agreement may be given in any manner described below (except that a notice or other communication under Section 5 or 6 may not be given by electronic messaging system or e-mail) to the address or number or in accordance with the electronic messaging system or e-mail 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 it 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 it is delivered or its delivery is attempted; (v) if sent by electronic messaging system, on the date it is received; or 19 ISDAt 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) aStsitP3M128 EFTA_000 19998 EFTA00169725 (vi) if sent by e-mail, on the date it is delivered, 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 will be deemed given and effective on the first following day that is a Local Business Day. (b) Change of Details. Either party may by notice to the other change the address, telex or facsimile number or electronic messaging system or e-mail 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 any dispute arising out of or in connection with this Agreement ("Proceedings"), each party irrevocably:— (i) submits:— (I) if this Agreement is expressed to be governed by English law, to (A) the non-exclusive jurisdiction of the English courts if the Proceedings do not involve a Convention Court and (B) the exclusive jurisdiction of the English courts if the Proceedings do involve a Convention Court; or (2) if this Agreement is expressed to be governed by the laws of the State of New York, 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; (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; and (iii) agrees. to the extent permitted by applicable law, that the bringing of Proceedings in any one or more jurisdictions will not preclude the bringing of Proceedings in any other jurisdiction. (c) Strike 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 reason any party's Process Agent is unable to act as such, such pasty 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(8)(i). 12(aXiii) or 12(aXiv). Nothing in this Agreement will affect the right of either party to serve process in any other manner permitted by applicable law. (d) Waiver of Immunities. Each party irrevocably waives, to the 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 or order for specific performance or 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. 20 ISDMO 2002 CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) lelaStari129 EFTA_000 19999 EFTA00169726 14. Definitions As used in this Agreement:— "Additional Representation" has the meaning specified in Section 3. "Additional Termination Event" has the meaning specified in Section 5(b). "Affected Party" has the meaning specified in Section 5(b). "Affected Transaction" means (a) with respect to any Tcmtination Event consisting of an Illegality, Force Majeure Event, Tax Event or Tax Event Upon Merger, all Transactions affected by the occurrence of such Termination Event (which, in the case of an Illegality under Section 5(bXi)(2) or a Force Majeure Event under Section 5(bXii)(2), means all Transactions unless the relevant Credit Support Document references only certain Transactions, in which case those Transactions and, if the relevant Credit Support Document constitutes a Confirmation for a Transaction, that Transaction) 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. "Agreement" has the meaning specified in Section 1(c). "Applicable Close-out Rate" means:— (a) in respect of the determination of an Unpaid Amount:— (i) in respect of obligations payable or deliverable (or which would have been but for Section 2(aXiii)) by a Defaulting Party, the Default Rate; (ii) in respect of obligations payable or deliverable (or which would have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default Rate; (iii) in respect of obligations deferred pursuant to Section 5(d), if there is no Defaulting Party and for so long as the deferral period continues, the Applicable Deferral Rate; and (iv) in all other cases following the occurrence of a Termination Event (except where interest accrues pursuant to clause (iii) above), the Applicable Deferral Rate; and (b) in respect of an Early Termination Amount:— (i) for the period from (and including) the relevant Early Termination Date to (but excluding) the date (determined in accordance with Section 6(dXii)) on which that amount is payable:— ( I) if the Early Termination Amount is payable by a Defaulting Party, the Default Rate; (2) if the Early Termination Amount is payable by a Non-defaulting Party, the Non-default Rate; and (3) in all other cases, the Applicable Deferral Rate; and 2 t ISDAI 2002 CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) %SOWN EFTA_00020000 EFTA00169727 (ii) for the period from (and including) the date (determined in accordance with Section 6(d)(ii)) on which that amount is payable to (but excluding) the date of actual payment:— (1) if a party fails to pay the Early Termination Amount due to the occurrence of an event or circumstance which would, if it occurred with respect to a payment or delivery under a Transaction, constitute or give rise to an Illegality or a Force Majeure Event, and for so long as the Early Termination Amount remains unpaid due to the continuing existence of such event or circumstance, the Applicable Deferral Rate; (2) if the Barly Termination Amount is payable by a Defaulting Party (but excluding any period in respect of which clause (1) above applies), the Default Rate; (3) if the Early Termination Amount is payable by a Non-defaulting Party (but excluding any period in respect of which clause (I) above applies), the Non-default Rate; and (4) in all other cases, the Termination Rate. "Applicable Deferral Rate" means:— (a) for the purpose of Section 9(h)(0(3)(A), the rate certified by the relevant payer to be a rate offered to the payer by a major bank in a relevant interbank market for overnight deposits in the applicable currency, such bank to be selected in good faith by the payer for the purpose of obtaining a representative rate that will reasonably reflect conditions prevailing at the time in that relevant market; (h) for purposes of Section 9(hXi)(3)(B) and clause (a)(iii) of the definition of Applicable Closeout Rate, the rate certified by the relevant payer to be a rate offered to prime banks by a major bank in a relevant interbank market for overnight deposits in the applicable currency, such bank to be selected in good faith by the payer after consultation with the other party, if practicable, for the purpose of obtaining a representative rate that will reasonably reflect conditions prevailing at the time in that relevant market; and (c) for purposes of Section 9(h)(iX3)(C) and clauses (a)(iv), (0(i)(3) and (b)(ii)(1) of the definition of Applicable Close-out Rate, a rate equal to the arithmetic mean of the rate determined pursuant to clause (a) above and 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. "Automatic Early Termination" has the meaning specified in Section 6(a). "Burdened Patsy" has the meaning specified in Section 5(bXiv). "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 after the parties enter into the relevant Transaction. "Close-out Amount" means, with respect to each Terminated Transaction or each group of Terminated Transactions and a Determining Party, the amount of the losses or costs of the Determining Party that are or would be incurred under then prevailing circumstances (expressed as a positive number) or gains of the Determining Party that are or would be realised under then prevailing circumstances (expressed as a negative number) in replacing, or in providing for the Determining Party the economic equivalent of, (a) the material terms of that Terminated Transaction or group of Terminated Transactions, including the payments and deliveries by the parties under Section 2(a)(i) in respect of that Terminated Transaction or group of Terminated Transactions that would, but for the occurrence of the relevant Early Termination Date, have been required after that date (assuming satisfaction of the conditions precedent in 22 ISDA® 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) i)M0310131 EFTA_0002000 1 EFTA00169728 Section 2(aXiii)) and (b) the option rights of the parties in respect of that Terminated Transaction or group of Terminated Transactions. Any Close-out Amount will be determined by the Determining Party (or its agent), which will act in good faith and use commercially reasonable procedures in order to produce a commercially reasonable result. The Determining Party may determine a Close-out Amount for any group of Terminated Transactions or any individual Terminated Transaction but, in the aggregate, for not less than all Terminated Transactions. Each Close-out Amount will be determined as of the Early Termination Date or, if that would not be commercially reasonable, as of the date or dates following the Early Tenninatiun Date as would be commercially reasonable. Unpaid Amounts in respect of a Terminated Transaction or group of Terminated Transactions and legal fees and out- of-pocket expenses referred to in Section 11 are to be excluded in all determinations of Close-out Amounts. In determining a Close-out Amount, the Determining Party may consider any relevant information, including, without limitation, one or more of the following types of information:— (i) quotations (either firtn or indicative) for replacement transactions supplied by one or more third parties that may take into account the creditworthiness of the Determining Party at the time the quotation is provided and the terms of any relevant documentation, including credit support documentation, between the Determining Party and the third party providing the quotation; (ii) information consisting of relevant market data in the relevant market supplied by one or more third parties including, without limitation, relevant rates, prices, yields, yield curves. volatilities, spreads, correlations or other relevant market data in the relevant market; or (iii) information of the types described in clause (i) or (ii) above from internal sources (including any of the Determining Party's Affiliates) if that information is of the same type used by the Detennining Party in the regular course of its business for the valuation of similar transactions. The Detennining Party will consider, taking into account the standards and procedures described in this definition, quotations pursuant to clause (i) above or relevant market data pursuant to clause (ii) above unless the Determining Party reasonably believes in good faith that such quotations or relevant market data arc not readily available or would produce a result that would not satisfy those standards. When considering information described in clause (i), (ii) or (iii) above, the Determining Party may include costs of funding, to the extent costs of funding are not and would not be a component of the other information being utilised. Third panics supplying quotations pursuant to, clause (i) above or market data pursuant to clause (ii) above may include, without limitation, dealers in the relevant markets. end-users of the relevant product, information vendors, brokers and other sources of market information. Without duplication of amounts calculated based on information described in clause (i). (ii) or (iii) above, or other relevant information, and when it is commercially reasonable to do so, the Determining Party may in addition consider in calculating a Close-out Amount any lass or cost incurred in connection with its terminating, liquidating or re-establishing any hedge related to a Terminated Transaction or group of Terminated Transactions (or any gain resulting from any of them). Commercially reasonable procedures used in determining a Close-out Amount may include the following:— (I) application to relevant market data from third parties pursuant to clause (ii) above or information from internal sources pursuant to clause (iii) above of pricing or other valuation models that are, at the time of the determination of the Close-out Amount, used by the Determining Party in the regular course of its business in pricing or valuing transactions between the Determining Party and unrelated third parties that are similar to the Terminated Transaction or group of Terminated Transactions; and 23 ISDA* 2002 CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) lga6sWigi132 EFTA_00020002 EFTA00169729 (2) application of different valuation methods to Terminated Transactions or groups of Terminated Transactions depending on the type, complexity, size or number of the Terminated Transactions or group of Terminated Transactions. "Confirmation" has the meaning specified in the preamble. "consent" includes a consent, approval, action, authorisation, exemption, notice, filing, registration or exchange control consent. "Contractual Currency" has the meaning specified in Section 8(a). "Convention Court" means any court which is bound to apply to the Proceedings either Article 17 of the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters or Article 17 of the 1988 Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. "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 Agreanent. "Credit Support Provider" has the meaning specified in the Schedule. "Cross-Default" means the event specified in Section 5(a)(vi). "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. "Defaulting Party" has the meaning specified in Section 6(a). "Designated Event" has the meaning specified in Section 5(bXv). "Determining Pany" means the party determining a Close-out Amount. "Early Termination Amount" has the meaning specified in Section 6(e). "Early Termination Date" means the date determined in accordance with Section 6(a) or 6(b)(iv). "electronic messages" does not include e•mails but does include documents expressed in markup languages. and "electronic messaging system" will be construed accordingly. "English law" means the law of England and Wales, and "English" will be construed accordingly. "Event of Default" has the meaning specified in Section 5(a) and, if applicable. in the Schedule. "Force Majeure Event" has the meaning specified in Section 5(b). "General Business Day" means a day on which commercial banks arc open for general business (including dealings in foreign exchange and foreign currency deposits). "Illegality" has the meaning specified in Section 5(b). 24 ODA. 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) lelaStsiM133 EFTA_00020003 EFTA00169730 "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 "unlawful" will be construed accordingly. "Local Business Day" means (a) in relation to any obligation under Section 2(a)(i), a General Business Day in the place or places specified in the relevant Confirmation and a day on which a relevant settlement system is open or operating as specified in the relevant Confirmation or, if a place or a settlement system is 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) for the purpose of determining when a Waiting Period expires, a General Business Day in the place where the event or circumstance that constitutes or gives rise to the Illegality or Force Majeure Event, as the case may be. occurs, (c) in relation to any other payment, a General Business Day 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 and, if that currency does not have a single recognised principal financial centre, a day on which the settlement system necessary to accomplish such payment is open, (d) in relation to any notice or other communication, including notice contemplated under Section 5(aXi), a General Business Day (or a day that would have been a General Business Day but for the occurrence of an event or circumstance which would, if it occurred with respect to payment, delivery or compliance related to a Transaction, constitute or give rise to an Illegality or a Force Majeure Event) in the place 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 (e) in relation to Section 5(aXvX2), a General Business Day in the relevant locations for performance with respect to such Specified Transaction. "Local Delivery Day" means, for purposes of Sections 5(a)(i) and 5(d), a day on which settlement systems necessary to accomplish the relevant delivery are generally open for business so that the delivery is capable of being accomplished in accordance with customary market practice, in the place specified in the relevant Confirmation or, if not so specifitzl. in a location as determined in accordance with customary market practice for the relevant delivery. "Master Agreement" has the meaning specified in the preamble. "Merger Without Ansunption" means the event specified in Section 5(a)(vili). "Multiple Transaction Payment Netting" has the meaning specified in Section 2(c). "Non-affected Party" means, so long as there is only one Affected Party, the other party. "Non-default Rate" means the rate certified by the Non-defaulting Party to be a rate offered to the Non•defaulting Party by a major bank in a relevant interbank market for overnight deposits in the applicable currency, such bank to be selected in good faith by the Non-defaulting Party for the purpose of obtaining a representative rate that will reasonably reflect conditions prevailing at the time in that relevant market. "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. "Other Amounts" has the meaning specified in Section 6(f). 25 ISDA. 2002 CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) aSsikagi134 EFfA_000200O4 EFTA00169731 "Payee" has the meaning specified in Section 6(0. "Payer" has the meaning specified in Section 6(f). "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. "Proceedings" has the meaning specified in Section 13(b). "Process Agent" has the meaning specified in the Schedule. "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. "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. "Schedule" has the meaning specified in the preamble. "Scheduled Settlement Date" means a date on which a payment or delivery is to be made under Section 2(a)(i) with respect to a Transaction. "Specified Entity" has the meaning specified in the Schedule. "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 to any such transaction) 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 not a Transaction under this Agreement but (i) which is a rate swap transaction, swap option, 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, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, weather index transaction or forward purchase or sale of a security, commodity or other financial in or interest (including any option with respect to any of these transactions) or (ii) which is a type of transaction that is similar to any transaction referred to in clause (i) above that is currently, or in the future becomes, recurrently entered into in the financial markets (including terms and conditions incorporated by reference in such agreement) and which is a forward, swap, future, option or other derivative on one or more rates, currencies, commodities, equity securities or other equity instruments, debt securities or other debt instruments, economic indices or measures of economic risk or value, or other benchmarks against which payments or deliveries are to he made. (b) any combination of these transactions and (c) any other transaction identified as a Specified Transaction in this Agreement or the relevant confirmation. "Stamp Tar" means any stamp, registration, documentation or similar tax. "Stamp Tax Jurisdiction" has the meaning specified in Section 4(e). 26 ISDA. 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) elaStsingl135 EFTA_00020005 EFTA00169732 "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 an Illegality or a Force Majeure Event, all Affected Transactions specified in the notice given pursuant to Section 6(b)(iv), (b) if resulting from any other Termination Event. all Affected Transactions and (c) if resulting from an Event of Default, all Transactions in effect either immediately before the effectiveness of the notice designating that Early Termination Date or, if Automatic Early lamination applies, immediately before that Early Termination Date. "Termination Currency" means (a) if a Termination Currency is specified in the Schedule and that currency is freely available, that currency, and (b) otherwise, euro if this Agreement is expressed to be governed by English law or United States Dollars if this Agreement is expressed to be governed by the laws of the State of New York. "Termktation 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 Close-out Amount 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 Force Majeure Event, a Tax Event, 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. "Threshold Amount" means the amount, if any, specified as such in the Schedule. "Transaction" has the meaning specified in the preamble. "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(aXiii) or due but for Section 5(d)) to such party under Section 2(aXi) or 2(d)(i)(4) on or prior to such Early Termination Date and which remain unpaid as at such Early Termination Date, (b) in respect of each Terminated Transaction, for each obligation under Section 2(aXi) which was (or would have been but for Section 2(a)(iii) or 5(d)) 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 value of that which was (or would have been) required to be delivered and (c) if the Early Termination Date results from an Event of Default, a Credit Event Upon Merger or an Additional Termination Event in respect of which all outstanding Transactions arc Affected Transactions, any Early Termination Amount due prior to such Early Termination Date and which remains unpaid as of such Early Termination Date, in each case together with any amount of interest accrued or other 27 ISDA. 2002 CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) aStW3,01136 EFTA_00020006 EFTA00169733 compensation in respect of that obligation or deferred obligation, as the case may be, pursuant to Section 9(hXiiX1) or (2), as appropriate. The fair market value of any obligation referred to in clause (b) above will be determined as of the originally schedule date for delivery, in good faith and using commercially reasonable procedures, by the party obliged to make the determination under Section 6(e) or, if each party is so obliged, it will be the average of the Termination Currency Equivalents of the fair market values so determined by both parties. "Waiting Period" means:— (a) in respect of an event or circumstance under Section 5(bXi), other than in the case of Section 5(b)(i)(2) where the relevant payment, delivery or compliance is actually required on the relevant day (in which case no Waiting Period will apply), a period of three Local Business Days (or days that would have been Local Business Days but for the occurrence of that event or circumstance) following the occurrence of that event or circumstance; and (c) in respect of any event or circumstance under Section 5(bXii), other than in the case of Section 5(b)(ii)(2) where the relevant payment, delivery or compliance is actually required on the relevant day (in which case no Waiting Period will apply), a period of eight Local Business Days (or days that would have been local Business Days but for the occurrence of that event or circumstance) following the occurrence of that event of circumstance. 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 docume DEUTSCHE BANK AG By: Name: Title: By: Name: Title: Cynthia Cuccrio :)irectc. 'LEEN YOKE DIRECTOR 28 SOUTH APANY, INC. By Name: 73-Orq sa, Title: t' -'t ilk col By: Name: Title: CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) iolAWN137 EFTA_00020007 EFTA00169734 SCHEDULE to the 2002 ISDA Master Agreement dated as of October 28, 2013 among Deutsche Bank AG ("Party A"), and Southern Trust Company, Inc., a corporation incorporated under the laws of United States Virgin Islands ("Party B") Part 1. Termination Provisions. (a) "Specyled Entity" means: in relation to Party A: Not Applicable and in relation to Party B for the purpose of: Section 5(aXv): Section 5(a)(vi): Section 5(a)(vii): Section 5(bXv): Not Applicable Not Applicable Not Applicable Not Applicable (b) The definition of "Specified Transaction" in Section 14 of this Agreement is hereby amended by: (i) deleting in the second through the fourth lines thereof the words "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" and replacing them with the words "(i) in the case of Party A, between Party A (or any Credit Support Provider of such party or any applicable Specified Entity of such party) and Party B (or any Credit Support Provider of such party or any applicable Specified Entity of such party), and (ii) in the case of Party B, between Party B (or any Credit Support Provider of such party or any applicable Specified Entity of such party) and any other person or entity, including without limitation Party A (or any Credit Support Provider of such party or any applicable Specified Entity of such party), including without limitation any"; and (ii) adding the text "prime brokerage or margin lending transaction" after the words "weather index transaction" in the tenth line thereof. (c) The "Cross Default" provisions of Section 5(aXvi) will apply to both parties subject to amendment by adding at the end thereof the following words: "provided, however, that, notwithstanding the foregoing, an Event of Default shall not occur under either (1) or (2) above if (A) (I) the default, or other similar event or condition referred to in 29 Conficlatid CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) tiWOMP0q 138 EFTA_00020008 EFTA00169735 (I) or the failure to pay referred to in (2) is a failure to pay or deliver caused by an error or omission of an administrative or operational nature, and (II) funds or the asset to be delivered were available to such party to enable it to make the relevant payment or delivery when due and (III) such payment or delivery is made within three (3) Local Business Days following receipt of written notice from an interested party of such failure to pay, or (B) such party was precluded from paying, or was unable to pay, using reasonable means, through the office of the party through which it was acting for purposes of the relevant Specified Indebtedness, by reason of force majeure. act of State, illegality or impossibility." If such provisions apply: "Specified Indebtedness" shall mean any obligation (whether present or future, contingent or otherwise, as principal or surety or otherwise) in respect of borrowed money other than indebtedness in respect of bank deposits received in the ordinary course of business. With regard to Party A, "Threshold Amount" means three percent (3%) of its shareholders' equity (as calculated in accordance with generally accepted accountancy principles applicable to Party A). With regard to Party II, any applicable Specified Entity of Party B or any Credit Support Provider of Party B "Threshold Amount" means the lesser of (i) USD 1,000,000 or (ii) three percent (3%) of the shareholders' equity of Party B (as calculated in accordance with generally accepted accountancy principles applicable to Party B. (d) The "Credit Event Upon Merger" provision in Section 5(bXv) will apply Party A and Party B. (e) The "Bankruptcy" provisions of Section 5(aXvii) shall apply to Party A and Party B. (1) The "Automatic Early Termination" provisions of Section 6(a) will not apply to Party A or Party B. (g) "Termination Currency" means United States Dollars. (h) Additional Termination Events. The occurrence of any of the following events shall constitute a Termination Event: (i) Maintenance Of Ownership. Jeffrey Epstein at any time ceases to own, whether directly or indirectly 51% of the paid-up share capital of Party B or if at any time the number of persons holding paid up capital in Party B exceeds 10. (ii) An Adverse Regulatory Change occurs and is continuing. "Adverse Regulatory Change" means the adoption of, or any change in, any applicable law after the date on which a Transaction is entered into, or issuance of any directive or the promulgation of, or any change in, the interpretation, whether formal or informal, of any law or directive (or any requests, whether or not having the force of law) made by any court, tribunal or regulatory authority with competent jurisdiction after such date which, in respect of a Transaction or any assets or hedge incidental thereto, in Party A's good faith determination, has the effect with regard to either party of: (A) imposing or adversely modifying, in any material respect, any reserve, special deposit, or similar requirement; or (B) materially affecting the amount of regulatory capital to be maintained by such 30 Confidential CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) iMla 901139 EFTA_00020009 EFTA00169736 party or (C) subjecting such party to any material loss due to the re-characterization of any payments or deliveries to be made under such Transaction; or (iii) In the reasonable opinion of Party A, there is a material adverse change in the financial condition or credit standing of Party B or the Credit Support Provider of Party B from either the date of this Agreement or the date of the most recent financial statements of Party B or the Credit Support Provider of Party B delivered to Party A. (iv) Party B's net worth at any time is less than USD 15,000,000; net worth of Party 13 equals the assets of Party B minus the liabilities of Party B as reflected in the most recent financial statements of Party B delivered to Party A; or (v) If at any time Party B's Liquidity as defined herein as the aggregate sum of all cash plus cash equivalents in accordance with generally accepted accounting principles, held by Party B, falls below USD 15,000,000. For the purpose of the foregoing Termination Events specified in clauses (i) through (v) above, Party B shall be deemed to be the Affected Party and Party A shall not be an Affected Party. Part 2. Tax Representations. (a) Payer Tax Representations. For the purposes of Section 3(e) of this Agreement, Party A and Party B will each make the following representations to the other: 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 9(h) of this Agreement) to be made by it to the other party under this Agreement. In making this representation, each party may rely on: the accuracy of any representations made by the other party pursuant to Section 3(f) of this Agreement; (ii) the satisfaction of the agreement of the other party contained in Section 4(aXi) or 4(aXiii) of this Agreement and the accuracy and effectiveness of any document provided by the other party pursuant to Section 4(aXi) or 4(aXiii) of this Agreement, and (iii) the satisfaction of the agreement of the other party contained in Section 4(d) of this Agreement, except that it will not be a breach of this representation where reliance is placed on clause (ii) 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. (i) For purposes of Section 3(f) of this Agreement, Party A makes the following representations: 31 Confidential CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) WANN1)28140 EFTA_000200 10 EFTA00169737 (I) Each Transaction entered into by (i) Deutsche Bank AG, New York branch and (ii) Deutsche Bank AG, London branch acting through Deutsche Bank Securities Inc. or Deutsche Bank AG, New York branch, will be treated, solely for United States income tax purposes, as entered into by a United States corporation. (2) In respect of all Transactions (other than those described in (I) above),it is a "foreign person" within the meaning of the applicable U.S. Treasury Regulations concerning information reporting and backup withholding tax. No payment received or to be received by it in connection with this Agreement is attributable to a trade or business carried on by it through a permanent establishment in the United States. (3) (a) In respect of each Transaction it enters into through a branch office in the jurisdiction from which payment is made or which will be allocated to a trade or business in that jurisdiction for the purposes of its income tax, each payment received or to be received by it under such Transaction will be derived in carrying on business through a permanent establishment of itself in that jurisdiction (b) In respect of all Transactions other than those described in subsection (a) above, 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, "Dividends" provision or the "Other Income" provision (if any) of the Specified Treaty with respect to any payment described in such provision and received or to be received 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. "Specified Treaty" means the income tax treaty, if any, between Germany and the jurisdiction from which Party B is making payment. "Specified Jurisdiction" means the jurisdiction from which Party B is making payment. (4) In respect of all Transactions where payments made by Party B to Party A are subject to United States Dividend Equivalent Tax, other than payments made to Party A's New York branch or payments made with respect to Transactions entered into by Party A's London branch acting through Deutsche Bank Securities Inc. or Deutsche Bank AG, New York branch, 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, "Dividends" provision or the "Other Income" provision of the Income Tax Convention between the United States and Germany with respect to any payment described in such provisions and received or to be received by it in connection with this Agreement. (ii) For purposes of Section 3(f) of this Agreement, Party B makes the following representations: (I) It is a U.S. person, and it is a corporation that is the beneficial owner of all payments to be made to it under this Agreement, or it is a S-corporation, organized under the laws of US Virgin Islands, and its taxpayer identification number is 66-0779861. Part 3. Agreement to Deliver Documents. (a) For the purpose of Section 4(aXi), the documents to be delivered are: Party required to deliver Fomi/Document/ Date by which to be 32 Confidadial CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) D$-S IMI141 EFTA_0002001 1 EFTA00169738 document Party A Party B Party A and Party 0 (b) Certificate A property executed: United States Internal Revenue Service Form W-9 (or any successor thereto), a United States Internal Revenue Service Form W- 81MY and withholding statement with attached Form W-9 tram and a United States Internal Revenue Service Form W-SBEN (or any successor forms thereto). A properly executed United States Internal Revenue Service Form W-9 (or any successor thereto) Any forms required to be delivered pursuant to section 14710:9 or section 1472(6)(1) of the Internal Revenue Code of 1986 or to any other domestic or international law or intergovernmental agreement which brings such sections into force in the Relevant Jurisdictions, as amended. and any other documentation reasonably requested by the other party as it relates thereto. delivered (i) Upon execution of this Agreement, (ii) promptly upon reasonable demand by Party B and (iii) promptly upon learning that any such form previously provided by Party A has become obsolete or incorrect. (i) Upon execution of this Agreement, (ii) promptly upon reasonable demand by Party A and (iii) promptly upon learning that any such form previously provided by Party B has become obsolete or incorrect. On or before the date such forms arc prescribed by law to be supplied and otherwise at the time or times reasonably requested by the other party, but in no event before the form and content of such forms or other documentation are made known by the IRS. For the purposes of Section 4(aXii), the other documents to be delivered (which will be covered by the representation in Section 3(d) of the Agreement if specified) are: Party required to deliver document Party A and Party B Party B Party A and Party B Form/Document/ Certificate Evidence of the authority. incumbency and specimen signature of each person executing this Agreement or any Confirmation, Credit Support Document or other document entered into in connection with this Agreement on its behalf or otherwise, as the case may be. Its most recent Articles of Incorporation along with bylaws (if any) Date by whirh to be delivered Upon or prior to the execution and delivery of this Agreement and, with respect to any Confirmation upon request by the other party. As of execution of this Agreement, or upon any material change in such documents. A copy of the most recent annual Promptly after request by the report containing consolidated other party. 33 Confidential Covered by Section 3(d) Representation Yes Yes Yes CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) i-.)Mh`P331)8i 142 EFTA_000200 12 EFTA00169739 Party required to deliver Form/Document/ Date by whkh to be Covered by Section document Certificate delivered 3(d) Representation financial statements of each party and such other public information respecting the condition or operations, financial or otherwise of such party. as the other party may reasonably request from time to time. Party B A copy of the resolution of the Upon execution of this Yes Dowd of Directors of Party B Agreement. approving the awing into of this Agreanent and the Transactions contemplated hereby certified by an authorised officer of Party B (as the case may be) that such documents am in MI force and effect. Party B A legal opinion in a fora Upon execution of this No satisfactory to Party A with respect Agreement and any Credit to Party B. Support Document Party A and Party B A duly executed and delivered As of execution of this Yes copy of the Credit Support Agreement Document. Part 4. Miscellaneous. (a) Address for Notices. For the purpose of Section 12(a) of this Agreement, the addresses for notices and communications to Party A and Party B shall be as follows: (i) TO PARTY A: All notices to Party A under Sections 5 or 6 of the Agreement (other than notices under Section 5(axi)) shall be sent to: Deutsche Bank AG, Head Office Taunusanlage 12 60325 Frankfurt GERMANY Attention: Legal Department Fax: 0049 69 910 36097 All notices to Party A shall be sent directly to the office through which Party A is acting for the relevant Transaction, using the address and contact particulars specified in the Confirmation of that Transaction or otherwise notified. TO PARTY B: Southern Trust Company, Inc. 34 Confidatal CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) D$-SONY1)81143 EFTA_00020013 EFTA00169740 6100 Red }look Quarter, B3 St. Thomas 00802 Virgin Islands (U.S) Attention: Harry B II r Jeffrey Epstein Fax No.: (b) Process Agent. For the purpose of Section 13(c) of this Agreement: Party A appoints as its Process Agent: Deutsche Bank AG — Ncw York branch 60 Wall Street New York, NY 10005 Party B appoints as Process Agent: Darren K. lndyke Darren K. lndyke, PLLC 575 Lexington Avenue, 4th Floor New York, New York 10022 (c) Offices. The provisions of Section 10(a) will apply to this Agreement. (d) Multibranch Party. For the purpose of Section 10(b) of this Agreement: Party A is a Multibranch Party and may act through the following Offices: Its New York, London, Tokyo, Paris, Singapore, Brussels, Sydney, Amsterdam, Vienna, Canada (Toronto), New Zealand (Auckland), and Zurich Branches, and its Frankfurt Head Office. Party B is not a Multibranch Party. (e) Calculation Agent The Calculation Agent shall be Party A. (f) Credit Support Document. Details of any Credit Support Document: The ISDA Credit Support Annex and supplementary "Paragraph 13 - Elections & Variables" in the form appended hereto shall constitute a "Credit Support Document" in relation to each party, respectively, with respect to all of the obligations of the parties and for all purposes of this Agreement. Credit Support Provider. Not applicable. Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York (without reference to its choice of law doctrine). Multiple Transaction Payment Netting. Multiple Transaction Payment Netting will apply separately as agreed in writing from time to time. Absence of Litigation. For the purpose of Section 3(c): "Specified Entity" means in relation to Party A, None. "Specified Entity" means in relation to Party B. None. (k) No Agency. The provisions of Section 3(g) will apply to this Agreement. 35 Confidential CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) D$-SONY1)21144 EFTA_000200 14 EFTA00169741 Additional Representation will apply. For the purpose of Section 3 of this Agreement each of the following will constitute an Additional Representation: (i) Representations of All Portia Each party will be deemed to represent and warrant to the other party on and as of the date that it enters into a Transaction (which representations and warranties shall be deemed repeated on and as of each date that any Transaction remains outstanding) that (absent a written agreement between the parties that expressly imposes affirmative obligations to the contrary for that Transaction): (A) Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into that Transaction and as to whether that Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) 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 to be investment advice or a recommendation to enter into that Transaction. No communication (written or oral) received from the other party shall be deemed to be an assurance or guarantee as to the expected results of that Transaction. (B) Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts the terms and conditions and risks of that Transaction. It is also capable of assuming, and assumes, the risks of that Transaction. (C) Status of Parties. The other party is not acting as a fiduciary for or adviser to it in respect of that Transaction. (ii) Securities Act Representation. 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) that: (A) it acknowledges that certain Transactions under the Agreement may involve the purchase or sale of "securities" as defined under the U.S. Securities Act of 1933. as amended (the "Securities Act") and understands that any such purchase or sale of securities will not be registered under the Securities Act and that any such securities may not be reoffered, resold, pledged or otherwise transferred except (1) pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from the registration requirements of the Securities Act and (2) in accordance with any applicable securities laws of any state of the United States of America. (B) it is a "Institutional Account" as defined by FINRA Rule 2111 , or an "accredited investor" as defined under the Securities Act; and (C) unless otherwise expressly provided in a Confirmation for a Transaction, any securities it is required to deliver under this Agreement and any Transaction will not at the time of such delivery constitute "restricted securities" or be subject to restrictions on transfer (including so-called "control securities") under the 36 Confidential CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) Inial 145 EFTA_000200 15 EFTA00169742 Securities Act (as defined above) or otherwise. This representation will be deemed repeated at the time of such delivery. (iii) Additional Representations of Party B. Party B on and as of the date hereof and at all times until the termination of this Agreement and the Transactions, that (A) the assets of Party B do not and, prior to termination of this Agreement and the Transactions, will not constitute "plan assets" under Section 3(42) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and, together with the Agreement and the Transactions, are not and will not be subject to Part 4, Subtitle B, Title I of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended ("Code"); (B) either (x) the assets of Party B do not and will not constitute the assets of any "governmental plan" within the meaning of Section 3(32) of F.RISA and, together with the Agreement and the Transactions, will not be subject to any law, rule or other restriction applicable to the assets of any such governmental plan ("Governmental Plan Law") or (y) the execution, delivery and performance of this Agreement and the Transactions do not and will not violate any Governmental Plan Law; and (C) Party B is not and, prior to termination of this Agreement and the Transactions, will not be, a "Special Entity" as defined under Title VII, Sections 731 or 764 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 ("Reform Act") (or the amendments affected thereby). Party B will not take or permit any action (including, without limitation, permitting or effecting withdrawals from Party B or transfers of interests in Party B) during the term of this Agreement that may render any of the foregoing representations and/or warranties untrue, incorrect or incomplete, and Party B shall promptly notify Party A in writing if it becomes aware that any event, condition or circumstance has occurred or will occur that may render (or has rendered) any of the foregoing representations and/or warranties untrue, incorrect or incomplete. Part 5. Other Provision (a) Elective Termination. Unless a confirmation of a Transaction otherwise provides, either party (the "Electing Party", the other party being the "Non-electing Party") may elect to terminate any Transaction (which shall be deemed to be the only Affected Transaction) on the second (2") anniversary of the Trade Date of such Transaction and annually thereafter (which date shall be the Early Termination Date with respect to such Transaction) by at least five (5) days' prior notice, provided that no other Event of Default, Potential Event of Default, or Termination Event shall have occurred and then be continuing under this Agreement on such Early Termination Date (any such termination, an "Elective Termination"). For purposes of calculating amounts due under this Part 5(a), the Electing Party shall be treated as if it were the Affected Party and the Non-electing Party shall be treated as if it were the Non- affected Party. For the purposes of calculating amounts due under an Elective Termination, all references to Additional Termination Event under Sections 6(b), (c), (d), and (e) should be read as references to an Elective Termination and should apply mutates mutandi. (b) Consent to Recording. Each party (i) consents to the recording of the telephone conversations of trading and marketing and/or other personnel of the parties and their Affiliates in connection with this Agreement or any potential Transaction (ii) agrees to obtain any necessary consent of and give notice of such recording to such personnel of it and its Affiliates; and (iii) agrees that recordings may be submitted in evidence in any Proceedings relating to this Agreement. 37 Confidential CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) D$-SONY b214146 EFTA_000200 16 EFTA00169743 (c) Tax Provisions. (1) ISDA 2010 Short Form HIRE Act Protocol. The parties agree that solely as between Party A and Party B, the definitions and provisions contained in the ISDA 2010 Short Form HIRE Act Protocol published by the International Swaps and Derivatives Association, Inc. on November 30, 2010, including the Attachment thereto ("Short Form Protocol"), will be deemed to be incorporated herein mutatis mutandis, as though such definitions and provisions were set out in full herein, with any such conforming changes as are necessary to deal with what would otherwise be inappropriate or incorrect cross references. The parties further agree that the Implementation Date (as such term is defined in the Short Form Protocol) shall be the date of execution of this Agreement. (2) Withholding Tax imposed on payments to non-US counterpartles under the United States Foreign Account Tax Compliance Act. "Tax" as used in Part 2(a) of this Schedule (Payer Tax Representation) and "Indemnifiable Tax" as defined in Section 14 of this Agreement shall not include any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the "Code"), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a "FATCA Withholding Tax"). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of this Agreement. (d) Party B Representations and Acknowledgements, Non-Reliance, Etc. Party B hereby represents, warrants and acknowledges to Party A as of the date of this Agreement and will be deemed to represent to Party A on the date that Party B enters into a Transaction that (absent a written agreement between the parties that expressly imposes affirmative obligations to the contrary for that Transaction) that: (i) Party B understands that (x) that Transactions may at times be volatile and are subject to complex and substantial risks that may arise without warning and (y) losses in value for Party B's position in that Transactions may occur quickly and in unanticipated magnitude. (ii) Party A has made no representations, guarantees, or assurances whatsoever as to the expected or projected profitability, return, success, performance result, effect, consequence or benefit (whether legal, regulatory, tax, financial, accounting or otherwise) of that Transaction. Party B will be relying upon its own judgment and its own advisors with respect to that Transaction and Party B has not sought and is not relying on any views of Party A with respect to that Transaction. All terms of, and the documentation evidencing, this Agreement and that Transaction have been the result of arm's-length negotiations between the parties. (iii)Party A shall not be liable to Party B for any losses, costs, expenses, fees, charges, amounts, liabilities, claims, damages, penalties, interest, taxes, or fines associated with that Transaction, including the failure of that Transaction to achieve Party B's legal, regulatory, tax, business, investment, financial, or accounting objectives, other thani Party A's own gross negligence and/or willful misconduct. Leo.- 38 Confidential CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) aVaiizt7 EFTA_00020017 EFTA00169744 (iv) Party B entered into this Agreement and is entering into that Transaction for Party B's own account as principal (and not as agent or in any other capacity, fiduciary or otherwise). (v) Party B has, as of such date, (x) total assets at least equal to USD 15,000,000; (y) net worth (as defined in Part I of this Schedule) at least equal to USD 15,000,000; and (z) liquid assets at least equal to USD 15,000,000. Party B is prepared to bear, and will be capable of bearing (financially and otherwise) all risks associated with that Transaction and all other Transactions and has sufficient financial wherewithal to incur any loss associated with entering into and performing its obligations under that Transaction and all other Transactions. (vi) Party B's entrance into this Agreement and that Transaction complied and will comply in all respects with all applicable laws, rules, regulations, interpretations, guidelines, and governmental and regulatory authorities affecting Party B. (vii) The financial information of Party B heretofore furnished to Party A fairly presents the financial condition of Party Bon the dates and for the periods covered thereby. As of the date of this Agreement, Party B does not have any material liability or contingent obligation not shown on such statements. Since the date of such financial information there has been no material adverse change in the financial condition, operations, assets, and prospects of Party B. (e) Set OJT Section 6(f) of this Agreement is deleted in its entirety and replaced with the following: "(f) Upon the designation of any Early Termination Date, the party that is not the Defaulting Party or Affected Party ("X") may, without prior notice to the Defaulting or Affected Party ("Y"), set off any sum or obligation (whether or not arising under this Agreement, whether matured or unmatured, whether or not contingent and irrespective of the currency, place of payment or booking office of the sum or obligation) owed by Y to X or any Affiliate of X (the "X Set Off Amount") against any sum or obligation (whether or not arising under this Agreement, whether matured or unmatured, whether or not contingent and irrespective of the currency, place of payment or booking office of the sum or obligation) owed by X or any Affiliate of X to Y (the "V Set Off Amount"). X will give notice to the other party of any set off effected under this Section 6(f). For this purpose, either the X Set Off Amount or the Y Set Off Amount (or the relevant portion of such set off amounts) may be converted by X into the currency in which the other set off amount is denominated at the rate of exchange at which X would be able, acting in a reasonable manner and in good faith, to purchase the relevant amount of such currency. If a sum or 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 Section 6(f) shall be effective to create a charge or other security interest. This Section 6(f) shall be without prejudice and in addition to any right of set-off, combination of accounts, lien or other rights to which any party is at any time otherwise entitled (whether by operation of law, contract or otherwise)." Escrow. On any date on which both parties are required to make payments hereunder, either party may at its option and in its sole discretion notify the other party that payments on that date 39 Confidential CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) W8441)21148 EFTA_000200 1 8 EFTA00169745 are to be made in escrow. In this case deposit of the payment due earlier on that date shall be made by 2:00 p.m. (local time at the place for the earlier payment if there is a time difference between the cities in which payments arc to be made) on that date with an escrow agent selected by the party giving the notice and reasonably acceptable to the other party, accompanied by irrevocable payment instructions (i) to release the deposited payment to the intended recipient upon receipt by the escrow agent of the required deposit of the corresponding payment from the other patty on the same date accompanied by irrevocable payment instructions to the same effect or (ii) if the required deposit of the corresponding payment is not made on that same date, to return the payment deposited to the party that paid it into escrow at such party's request. The party that elects to have payments made in escrow shall pay the costs of the escrow arrangements and shall cause those arrangements to provide that the intended recipient of the payment due to be deposited first shall be entitled to interest on that deposited payment for each day in the period of its deposit at the rate offered by the escrow agent for that day for overnight deposits in the relevant currency in the office where it holds that deposited payment (at 11:00 a.m. local time on that day) if that payment is not released by 5:00 p.m. local time on the date it is deposited for any reason other than the intended recipient's failure to make the escrow deposit it is required to make hereunder in a timely fashion. (g) (h) Additional Acknowledgments and Agreements of the Parties. Section 4 is hereby amended by adding the following new agreements: (i) Waiver of Right to Trial by Jury. Each of the parties hereby irrevocably waives any and all right to a trial by jury with respect to any legal proceeding arising out of or relating to this Agreement or any Transaction. (ii) Deutsche Bank Securities Inc. Each party acknowledges and agrees that (A) Deutsche Bank Securities Inc. or another designated Affiliate of Party A (the "Designated Agent") will act as agent for Party A in connection with certain Transactions when so specified in the Transaction Confirmation; and (B) the Designated Agent is acting solely as agent and shall have no liability for the performance of either party's obligations under this Agreement or any Transaction, or for costs, expenses, damages or claims arising out of the failure of either party to perform any such obligation. (iii) Bankruptcy Code. Without limiting the applicability if any, of any other provision of the U.S. Bankruptcy Code as amended (the "Bankruptcy Code") (including without limitation Sections 362, 546, 556, and 560 thereof and the applicable definitions in Section 101 thereof), the parties acknowledge and agree that all Transactions entered into hereunder will constitute "forward contracts" or "swap agreements" as defined in Section 101 of the Bankruptcy Code or "commodity contracts" as defined in Section 761 of the Bankruptcy Code, that this Agreement is a "master netting agreement" as defined in Section 101 of the Bankruptcy Code, that the rights of the parties under Section 6 of this Agreement will constitute contractual rights to liquidate Transactions, that any margin or collateral provided under any margin, collateral, security, pledge, or similar agreement related hereto will constitute a "margin payment" as defined in Section 101 of the Bankruptcy Code, and that the parties arc entities entitled to the rights under, and protections afforded by, Sections 362, 546, 556, and 560 of the Bankruptcy Code. Amendments. Section 9(b) is modified by the deletion of the words "or confirmed by an exchange of telexes or by an exchange of electronic messages on an electronic messaging system". 40 Confidential CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) M441)81149 EFTA_000200 19 EFTA00169746 (0 (k) Counterparts and Confirmations. Section 9(eXi) is modified by the deletion of the words "and by electronic messaging system". Foreign Exchange, Currency Option, Commodity and Bullion Transactions (0 The parties agree that any transaction that is entered into between them through an Office specified in Part 4 of the Schedule to this Agreement which is (a) outstanding between them at the date this Agreement comes into effect or (b) entered into by them on or after the date this Agreement comes into effect, and is (I) an FX Transaction or a Currency Option Transaction (as those terms are defined in the 1998 FX and Currency Option Definitions, including Annex A, published by the International Swaps and Derivatives Association, Inc. ("ISDA"), the Emerging Markets Traders Association and the Foreign Exchange Committee (the "FX Definitions")) will be deemed to incorporate the FX Definitions into the Confirmation thereof; or (II) a Transaction (as that term is defined in the 2005 ISDA Commodity Definitions (published by 1SDA) (the "2005 Commodity Definitions")) will be deemed to incorporate the 2005 Commodity Definitions into the Confirmation thereof and each transaction of a type described in (1) and (II) will be a Transaction for the purpose of this Agreement whether or not a Confirmation of such a Transaction refers to this Agreement and irrespective of any reference in a Confirmation to the "International Bullion Master Agreement", the "LBMA", or the "IBMA", provided however, if a confirmation of any such transaction expressly states that another master agreement governs, such transaction will not be a Transaction for the purpose of this Agreement. For the avoidance of doubt, FX l'ransaction(s) include foreign exchange swap(s) but not cross currency interest rate swap(s). (ii) Section 1(b) of this Agreement is amended by adding the following proviso at the end thereof: "provided, however that with respect to (i) an FX Transaction (other than one that is identified as non-deliverable in the relevant Confirmation) and (ii) a Transaction (which is confirmed using an electronic messaging system) (as each such transaction type is defined in this provision of the Schedule to this Agreement) this Agreement will prevail unless the relevant Confirmation specifically references this Agreement." Disclosure. Each party hereby consents to the communication or disclosure by the other party of information in respect of or relating to this Agreement and any Transactions hereunder to such other party's branches, subsidiaries and Affiliates and, to the extent required by law or regulation, any government or regulatory authority. (I) 2002 Master Agreement Protocol The parties agree that the provisions of the 2002 Master Agreement Protocol including Annexes 1 - 18 inclusive published by the International Swaps and Derivatives Association, Inc on 15th July 2003 (the "Protocol") are incorporated into and apply to this Agreement with the same effect as if the parties had complied with the provisions of Section 2 of the Protocol. In this respect, references in the Protocol to an "ISDA 2002 Master Agreement" will be deemed to be references to this Agreement and the term "the parties", as used in the Protocol shall be construed as 41 Confidential CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) WANNW1150 EFTA_00020020 EFTA00169747 (m) referring to Party A and Party B. Master Representations. The representations set forth in Section 3(aXii)-(iv) are hereby amended by adding to the end of each such sub-section the following: ", provided that, solely to the extent made by Party A, this representation does not apply with respect to section 406 of ERISA, section 4975 of the Code, Governmental Plan Law, or Sections 731 or 764 of the Reform Act (or the statutory amendments enacted thereunder)." (n) (A) Eligible Contract Participant Representation. (i) Party A represents to Party B on and as of the date hereof and on each date on which a Transaction is entered into between them that (a) it is a "swap dealer" as defined in Section la(49) of the Commodity Exchange Act, as amended ("CEA") and Commodity Futures Trading Commission ("CFTC") Regulation I.3(ggg) and (b) it is an "eligible contract participant" within the meaning of Section I a( ISXAXv)(1) of the CEA and CFTC Regulation 1.3(m). (ii) Party B represents to Party A on and as of the date hereof and on each date on which a Transaction is entered into between them it is an "eligible contract participant" within the meaning of Section la(18XA)5(i)of the CEA and CFTC Regulation 1.3(m). (iii) Each party agrees to promptly notify the other party in writing of any material changes to its representation(s) in this provision. (B) US Person Classification. Party B is a U.S. person as such term is defined by the CFTC in any law, order, interpretation rulemaking or release that may be promulgated by the CFTC. (C) In order to comply with certain obligations pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") and the rules, regulations, orders and interpretations that are published or issued by the CFTC to implement Dodd-Frank, Party A and Party B agree that, prior to entering into a Transaction governed by this Agreement, they (1) have or will (a) adhere to the ISDA August 2012 DE Protocol Agreement, published by International Swaps and Derivatives Association, Inc. ("ISDA") on August 13, 2012 and (b) submit the related Questionnaire (the "August 2012 DF Protocol Questionnaire") to Party A by email to dforotocol@db.com together with the related Answer Sheet in excel format and in such Questionnaire have or will agree that DF Schedule 3/4/5/6, if applicable, is incorporated in the Agreement and (2) have or will (a) adhere to the ISDA March 2013 DF Protocol Agreement, published by ISDA on March 22, 2013 and (b) submit the related Questionnaire (the "March 2013 DF Protocol Questionnaire"; and together with the August 2012 DF Protocol Questionnaire, the "Questionnaires") to Party A by email to df.protocol®db.com together with the related Answer Sheet in excel format and has elected that DF Schedules 3 and 4, if applicable, are incorporated in the Agreement In addition, if one or more Designated Evaluation Agents, Designated QIRs or Designated Fiduciaries is identified in the August 2012 DF Protocol Questionnaire, each such Designated Evaluation Agent, Designated QIR or Designated Fiduciary, as the case may be, must countersign the August 2012 DF Protocol Questionnaire where required and submit it to Party A using ISDA Amend or send the August 2012 DF Protocol Questionnaire via email to dfittrotocolAdb.com. The parties agree that if the Questionnaires are exchanged prior to the date of this Agreement, this Agreement shall be a Protocol Covered Agreement notwithstanding the terms of the respective Protocol. (signature page follows) 42 Confidential CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) i;IMIsnbbi 151 EFTA_0002002 1 EFTA00169748 DEUTSCHE BANK AG By: Name: Title: By: Name: Title: Cynthia Cuomo )rector SOUTH v TRUS COMPANY INC By: Name: Title: THLEEN YORE DIRECTOR 43 Confidential rest vlk- CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) a*A 9Abil52 EFTA_00020022 EFTA00169749