EFTA01450005.pdf

DRAFT and each transaction of a type described in (I) and (II) will be a Transaction for the purpose of this Agreement whether or not a Confinnation 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 Transaction(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." (k) 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 referring to Party A and Party B. (m) Master Representations. The representations set forth in Section 3(a)(ii)-(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 ER1SA, 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 la(18XA)(i) 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. 42 Confidmlial CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) DB-SDNY-0105516 CONFIDENTIAL SDNY GM_00251700 EFTA01450005