EFTA01450118.pdf

DRAFT restrictions on transfer (including so-called "control securities- ) under the Securities Act (as defined above) or otherwise. This representation will be deemed repeated at the time of such delivery. (iv) Additional Representations of Pasty R 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 Part• 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 ands of Part• B do not and will not constitute the assets of any "governmental plan" within the meaning of Section 3(32) ofERISA 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 I) 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 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 andior warranties untrue, incorrect or incomplete, and Party ll 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 andor warranties untrue, incorrect or incomplete. !please confirm non apply as Party B is not a Special Entity( Part 5. Other Provisions. (a) Elective Termination Unless a conlimution of a Transaction otherwise provides, either party (the "Electing Parry•", the other party being the "Non-electing Parry•') 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 ofDefault. 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 ofcalculating amounts due under this Part 5(a), the Electing Party dull 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 musatis inufandi. (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 39 Conlidagial CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) DB-SDNY-0105642 CONFIDENTIAL SONY GM_00251826 EFTA01450118