EFTA01450002.pdf

DRAFT 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 Parn• 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 judgement 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 terns 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. (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 30,000,000; (y) net worth (as defined in Part I of this Schedule) at least equal to USD 30,000,000; and (z) liquid assets at least equal to USD 30,000,000. 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 B on 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. 39 Confidants' CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) DB-SDNY-0105513 CONFIDENTIAL SONY GM_00251697 EFTA01450002