EFTA01449830

DRAFT (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 (I) 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 "qualified institutional buyer" as defined in Rule 144A under the Securities Act, 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 Securities Act (as defined above) or othemisc. This representation will be deemed repeated at the time of such delivery. (iv) Additional Representations of Party B. Party B on and as of the date hereof and at all times until the tennination 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 ERISA 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 deemed 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 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 Provisions. (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 (21 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 37 Confidaitial CONFIDENTIAL — PURSUANT TO FED. R. CRIM. P. 6(e) DB-SDNY-0105304 CONFIDENTIAL SDNY GM_00251488 EFTA01449830