ISDA International Swaps and Derivatives Association, Inc. SCHEDULE to the 2002 Master Agreement dated as of June 7, 2010 between

 

a public limited company incorporated

with a Board of Directors

(société anonyine a conseil d’administration)

under the laws of the Republic of France

(“Party A”)

and

 

a limited liability company formed
under the laws of the State of Delaware

 

 

(“Party B”)

“Specified Transaction” will have the meaning specified in Section 14 of this Agreement.

The “Cross-Default” provisions of Section 5(a)(vi) will apply to Party A and to Party B; provided, however, that the words “, or becoming capable at such time of being declared,” shall be deleted from Section 5(a)(vi)(1) and that the following shall be added at the end of Section 5(a)(vi): “provided, however, that notwithstanding anything in this Section 5(a)(vi), an Event of

The “Credit Event Upon Merger” provisions of Section 5(b)(v) will apply to Party A and Party B but if “X” is Party A, “materially weaker” shall mean that the successor, surviving or transferee entity is an entity whose long-term, unsecured, unsubordinated debt securities are rated “BBB+” or below by Standard & Poor’s Corporation (“S&P”) or “Baal “ or below by Moody’s Investors Service, Inc. (“Moody’s”).

The “Automatic Early Termination” provision of Section 6(a) will not apply to Party A or Party B.

“Termination Currency” means United States Dollars (USD).

“Additional Termination Event” provision of Section 5(b) will not apply to Party A and will apply to Party B. The following shall constitute an Additional Termination Event in respect of which Party B shall be the sole Affected Party:

 

(i)

Party A and Party B each make the following representation:—

Payee Representations. For the purpose of Section 3(f) of this Agreement, Party A and Party B make the following representations:

 

(i)

Party A makes the following representations:

 

(1)

It is a “foreign person” as that term is used in United States Treasury Regulation section 1 .6041-4(a)(4) and, unless Party A otherwise provides written notice to Party B with respect to a particular Transaction, each payment made to Party B or received from Party B with respect to any Transaction under this Agreement will be effectively connected with its conduct of a trade or business in the United States of America; and .

 

(2)

If Party A provides written notice to Party B that payments received or to be received by Party B with respect to a particular Transaction will not be effectively connected with Party A’s conduct of a trade or business in the United States of America, Party A represents that it is a “foreign person” within the meaning of United States Treasury Regulation section 1.6041-4(a)(4) and a “non-US branch

 

(3)

Party A makes no other Payee Tax Representations.

 

(ii)

Party B makes the following representations:

 

(1)

It is a corporation duly incorporated, organized or formed under the laws of the State of Delaware and is a United States resident for United States federal income tax purposes.

 

(2)

Party B makes no other Payee Tax Representations.

Party A and Party B

A correct, complete and executed original executed United States Internal revenue Service Form W-8BEN, W-8ECI, W-8IMY or W-9, as applicable (or any successor form) that eliminates U.S. federal withholding and backup withholding payments under this Agreement.

(i) Before the first payment Date on which any such payment is made, (ii) promptly upon reasonable demand, and (iii) promptly upon learning that any previously-provided form has become obsolete or incorrect.

Party A

A certificate of authority and specimen signature of the persons authorized to execute this Agreement and each Confirmation on behalf of Party A.

Upon execution of this Agreement and thereafter upon the reasonable request of Party B.

Yes

Party B

A certificate of incumbency and a certified copy of the resolutions adopted by the Board of Directors of Party B, authorizing the execution and delivery of this Agreement and each Confirmation and the performance by Party B of its obligations hereunder and thereunder.

Upon execution of this Agreement and thereafter upon the reasonable request of Party A.

Yes

Party A

A copy of its most recent annual report containing audited financial statement; provided that with respect to Party A, Party A’s annual report and audited financial statements are publicly available and may be accessed by Party B at http://www.natixis.com and for so long as such annual reports and audited financial statements are publicly available, Party A shall not be independently required to deliver its annual reports or audited financial statements to Party B hereunder.s.

Upon execution of this Agreement and thereafter upon the reasonable request of the other party.

Yes

Party B

A copy of its most recent annual report containing audited financial statements (if such report has been produced) and an audited financial statement.

Upon execution of this Agreement and thereafter upon the reasonable request of the other party.

Yes

Party B

Opinion of independent counsel for Party B.

Upon execution and delivery of this Agreement

Yes

Party B

Article of Association/By Laws

Upon execution and delivery of this Agreement.

Yes

Offices. The provisions of Section 10(a) will apply to this Agreement.

Multibranch Party. For the purpose of Section 10(b) of this Agreement:—

Calculation Agent. The Calculation Agent is Party A, unless otherwise specified in a Confirmation m relation to the relevant Transaction

Credit Support Document. With respect to Party A: none. With respect to Party B: Loan Documents, as defined in the Credit Agreement, and any other credit support document which the

Governing Law; Jurisdiction. Sections 13(a) and (b) of the Agreement shall be deleted and replaced with the following:

 

“(a)

Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York (without reference to choice of law doctrines).

 

(b)

Jurisdiction. With respect to any suit, action, or proceedings relating to any dispute arising out of or connection with this Agreement (“Proceedings”), each party irrevocably:

 

(i)

submits to the exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City; and

 

(ii)

waives any objection to which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party.”.

Netting of Payments. Subparagraph (ii) of Section 2(c) of this Agreement will not apply to Transactions for the purposes of this Agreement.

“Affiliate” will have the meaning specified in Section 14 of this Agreement.

Absence of Litigation. For the purpose of Section 3(c):—

Additional Representation will apply. For the purpose of Section 3 of this Agreement, the following will constitute an Additional Representation:—

 

(1)

Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into that Transaction and as to whether that Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into that Transaction, it being understood that information and explanations related to the terms and conditions of a Transaction will not be considered investment advice or a recommendation to enter into that Transaction. No communication (written or oral) received from the other party will be deemed to be an assurance or guarantee as to the expected results of that Transaction.

 

(2)

Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of that Transaction. It is also capable of assuming, and assumes, the risks of that Transaction.

 

(3)

Status of Parties. The other party is not acting as a fiduciary for or an adviser to it in respect of that Transaction.

Recording of Conversations. Each party (i) consents to the recording of telephone conversations between the trading, marketing and other relevant personnel of the parties in connection with this Agreement or any potential Transaction, (ii) agrees to obtain any necessary consent of, and give any necessary notice of such recording to, its relevant personnel and (iii) agrees, to the extent permitted by applicable law, that recordings may be submitted in evidence in any Proceedings.

Section 3(a) - Basic Representations- is amended to add the following new sub-section:

 

(vi)

Eligible Contract Participant. It is an “eligible contract participant” defined in the Commodity Exchange Act, as amended.

 

(vii)

Interest Rate Protection: With respect to Party B only:

 

(viii)

ERISA. It is not (A) an employee benefit plan (an “ERISA Plan”) as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), subject to Title I of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended, (B) a person or entity acting on behalf of an ERISA Plan, or (C) a person or entity the assets of which constitute assets of an ERISA Plan.

Confirmations. Any Specified Transaction (other than a repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction and without regard to the phrase “which is not a Transaction under this Agreement but” in the definition of Specified Transaction) into which the parties have entered or may enter and in respect of which confirming evidence does not expressly exclude the application of this Agreement shall be governed by this Agreement Any such confirmation shall be a “Confirmation” and any such transaction shall be deemed to constitute a Transaction for the purpose of this Agreement. In particular, it is agreed that where in terms of standard industry practice confirmation is by electronic messaging system or SWIFT, such confirmation shall serve as a Confirmation irrespective of whether reference is made to this Agreement in such Confirmation.

Waiver of Trial by Jury. Each of the parties hereby irrevocably waives any and all right to a trial by jury with respect to any Proceeding arising out of or relating to this Agreement or any Transaction.

Incorporation of the ISDA 2002 Master Agreement Protocol. The parties agree that the definitions and provisions contained in Annexes 1 to 18 of the 2002 Master Agreement Protocol published by the International Swaps and Derivative Association, Inc. on July 15th 2003 are incorporated and apply to this Agreement.

Change of Account. Each Party may change its account provided that if such new account is not in the same Tax jurisdiction as the original account, the party not changing its account shall not be obliged to pay any greater amounts and shall not receive less as a result of such change than would have been the case if such change had not taken place.

Future Agreements.

Partial Early Termination. In the event that Party B pays prior to scheduled maturity (whether upon mandatory repayment, prepayment, acceleration or otherwise) a portion, but not all of the Term Loans (as defined in the Credit Agreement), either party shall have the right to partially terminate any Transaction under this Agreement (a “Partial Early Termination”) so that, after giving effect to such Partial Early Termination hereunder, the Notional Amount of all Transactions under this Agreement (together with the Notional Amount of all other Interest Rate Contracts to which Party B is a party) does not exceed the amount required under Section 7. 12 of the Credit Agreement. In the event of any Partial Early Termination under this paragraph, Party B shall partially termina te all Interest Rate Contracts on a pro rata basis and otherwise consistent with Section 7.12 of the Credit Agreement.

Third Party Rights. A person who is not a party to this Agreement has no right under the Contracts (Third Party Rights) Act 1999 to enforce any term hereof.

Printing of the ISDA Master Agreement. Sections 1 to 14 of this ISDA Master Agreement have been printed by Party A. It is the intention of Party A that the printed form provided should be on the same terms as the 2002 ISDA Master Agreement Copyright © 2002 by the International Swaps & Derivatives Association, Inc. In the event of any inconsistency between Sections 1 to 14 of the 2002 ISDA Master Agreement Copyright © 2002 by the International Swaps and Derivatives Association, Inc. and the printed document purporting to incorporate Sections 1 to 14

Bankruptcy Code. Without limiting the applicability of any other provision of Title 11 of the United States Code, 11 U.S.C. §§ 1 01 et. seq., as amended (the “Bankruptcy Code”) (including, without limitation, Sections 362, 546, 553, 556, 560, 561 and 562 of the Bankruptcy Code and the applicable definitions in Section 101 of the Bankruptcy Code) or any other applicable law, the parties acknowledge and agree that all Transactions entered into hereunder are intended to constitute “swap agreements” as defined in Section 101 (53B) of the Bankruptcy Code, that the rights and remedies of the parties under Section 6 are intended to constitute contractual rights to terminate, accelerate and liquidate Transactions, and that the parties are entities entitled to the rights under, and protections afforded by, Sections 362, 546, 55 3, 556, 560, 561 and 562 of the Bankruptcy Code and the applicable definitions in Section 1 01 of the Bankruptcy Code, and any other applicable law.

Severability. If any term, provision, covenant, or condition of this Agreement, or the application thereof to any party or circumstance, shall be held to be invalid or unenforceable (in whole or in part) for any reason, the remaining terms, provisions, covenants, and conditions hereof shall continue in full force and effect as if this Agreement had been executed with the invalid or unenforceable portion eliminated, so long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as to the subject matter of this Agreement and the deletion of such portion of this Agreement will not substantially impair the respective benefits or expectations of the parties to this Agreement and will preserve the economic value thereof; provided, however, that this severability provision shall not be applicable if a ny provision of Sections 1(c), 2, 5, 6 or 13 of this Agreement (or any definition or provision in Section 14 of this Agreement to the extent it relates to, or is used in or in connection with any such Section) shall be so held to be invalid or unenforceable.

USA PATRIOT Act Notice. Party A hereby notifies Party B that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies Party B, which information includes the name and address of Party B, the Tax-Identification Number, and other information

Statute of Frauds. The parties agree not to contest, or to enter or assert any defense or counterclaim concerning, the validity or enforceability of any Transaction on the grounds that the documentation for such Transaction fails to comply with the requirements of any jurisdiction’s (of whatever country, province, or state) statute of frauds or any other statute, regulation or judicial decision that agreements be written or signed.