EFTA01449834.pdf

DRAFT (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 ofthe Bankruptcy Code. (1) 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". (i) Counterparts and Confirmation Section 9(e)(i) is modified by the deletion of the words "and by electronic messaging system". (j) Foreign Exchange, Currency Option, Commodity andBullion Transactions (i) 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 ISDA) (the "2005 Commodity Definitionn) will be deemed to incorporate the 2005 Commodity Definitions into the Confirmation thereof 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 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 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 41 Confidential CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) DB-SDNY-0105308 CONFIDENTIAL SDNY GM_00251492 EFTA01449834