ISDA Schedule to the 2002 Master Agreement between the Registrant and Rabobank, N.A. effective as of May 30, 2012

Part 1. 

(a)

(b)

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

(c)

The “Failure to Pay or Deliver” provisions of Section 5(a)(i) are hereby amended by inserting at the end of Section 5(a)(i):  “provided, however, that notwithstanding the foregoing, an Event of Default shall not occur if the failure to pay or deliver is caused by an error or omission of an administrative or operational nature and funds were available to such party to enable it to make the relevant payment or delivery when due and provided that such error or omission is remedied within three Local Business Days and/or three Local Delivery Days after notice of such failure being received;”.

(d)

The “Cross-Default” provisions of Section 5(a)(vi) will apply to Party A and will apply to Party B except that the following shall be inserted at the end of Section 5(a)(vi):

 

“Specified Indebtedness” means with respect to Party A and Party B, any obligation (whether present or future, contingent or otherwise as principal or surety or otherwise) for the payment or repayment of any money.

 

“Threshold Amount” means, (i) in relation to Party A for the purposes of Section 5(a)(vi), USD 100,000,000.00 and (ii) in relation to Party B for the purposes of Section 5(a)(vi), the lesser of USD 10,000.00 or 3% of stockholder equity, shareholder’s equity, membership interests, partnership interests or the equivalent, as applicable, as determined by reference to the latest audited consolidated annual report (if any) or the equivalent in any other currency.

(e)

The “Credit Event Upon Merger” provisions of Section 5(b)(v) will apply to Party A and will apply to Party B.

(f)

The “Automatic Early Termination” provision of Section 6(a) will not apply.

(g)

“Termination Currency” means United States Dollars.

(h)

“Additional Termination Event”  The following shall constitute Additional Termination Events:

 

(1) In the event the obligations created under the related Credit Agreement (excluding the obligations of Party B under this Agreement) are repaid in full, such Credit Agreement is terminated or cancelled, or Party A (or any member bank or Affiliate of Party A) as lender shall cease to remain a party thereto.  Notwithstanding the foregoing, it shall not be an Additional Termination Event if the obligations under such Credit Agreement are repaid in full (a “Refinancing”) through a refinancing facility or a replacement facility, to which refinancing or replacement facility Party A is a lender and Party B’s obligations under this Agreement are secured, guaranteed and otherwise backed by the same collateral or persons securing, guaranteeing and backing such refinancing or replacement facility on at least a pari-passu basis with the lenders of such refinancing or replacement facility.  For this Additional Termination Event, Party B shall be the sole Affected Party and the Transaction or Transactions associated with the hedging of the relevant Credit Agreement shall be the sole Affected Transaction(s), provided that if there is no other Credit Agreement outstanding, all Transactions shall be Affected Transactions.

 

(2) Any default, event of default or other similar condition or event (howsoever described) under a Credit Agreement (a) results in any indebtedness or obligation under such Credit Agreement becoming capable at such time of being declared due and payable before it would otherwise have been due and payable or (b) in making one or more payments on the due date for payment (after giving effect to any applicable notice requirement or grace period).  For this Additional Termination Event, Party B shall be the sole Affected Party and the Transaction associated with the hedging of the relevant Credit Agreement shall be the sole Affected Transaction, provided that if there is no other Credit Agreement outstanding, all Transactions shall be Affected Transactions.

Part 2. 

 

(i)

Party A makes the following representations:

 

(a)

It is a “U.S. person” (as that term is used in section 1.1441-4(a)(3)(ii) of United States Treasury Regulations) for United States federal income tax purposes and an “Exempt recipient” within the meaning of section 1.6049-4(c)(1)(ii) of United States Treasury Regulations.

 

(ii)

Party B makes the following representations:

Part 3. 

Party A and Party B

Any document or certificate reasonably requested by the other party to permit payment without (or at a reduced rate of) deduction or withholding of tax

As soon as possible after request

A correct, complete and duly executed United States Internal Revenue Service Form W-9 (or any successor applicable form), in a manner reasonably satisfactory to Party A

(i)Upon execution of the Agreement and (ii) promptly upon reasonable demand

Party A and Party B

Such evidence of the due authorisation of the person(s) signing this Agreement and each Confirmation on its behalf as the other party may reasonably request

On execution and if requested on the occasion of each transaction

 

Yes

 

Party B

A copy of a  Borrowing Resolution (Incumbency Certificate for Limited Liability Companies) of Party B approving Party B’s entering into this Agreement and transactions of the nature hereby contemplated and authorising a named person or persons to execute this Agreement and each Confirmation on its behalf and to enter into each Transaction on its behalf

On execution

Yes

Any Credit Support Document specified in Part 4(f)

On execution

Party B

Such other documents as Party A may reasonably request, including without limitation, legal opinions in form and substance satisfactory to Party A, and such other written information with respect to the business, operations, financial condition or otherwise, of Party B and any Credit Support Provider of Party B

Promptly on request

Yes

915 Highland Point Drive, Suite 350

Roseville, CA 95678

Attention:

Brett Hamilton

Telephone No.:

916 ###-###-####

Facsimile No.:

916 ###-###-####

 

In case of a notice or other communication under Section 5 or 6, to be effective, in addition to the above addressee, it must also be delivered to:

Address:

915 Highland Point Drive, Suite 350

Roseville, CA 95678

Attention:

General Counsel

Telephone No.:

916 ###-###-####

Facsimile No.:

916 ###-###-####

Address:

245 Park Avenue

New York, NY 10167, USA

Attention:

Legal Department

Address:

QAD Ortega Hill, LLC

100 Innovation Place

Santa Barbara, CA 93108

Attention:

John Neale

Facsimile No.:

805 ###-###-####

Telephone No.:

805 ###-###-####

E-mail:

***@***

(c)

Offices.  The provisions of Section 10(a) will apply to Party B and will apply to Party A.

(e)

Calculation Agent.  The Calculation Agent is Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank International”.

(f)

Credit Support Document.  Details of any Credit Support Document:

(g)

Credit Support Provider.  With respect to Party B, each party to a Credit Support Document, now existing or hereafter arising, as a borrower, guarantor, grantor, pledgor or in a similar role, other than Party B.

(h)

Governing Law.  This Agreement and any matter arising out of or relating to 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 doctrine other than Sections 5-1401 and 5-1402 of the New York General Obligations Law).

(i)

Netting of Payments.   "Multiple Transaction Payment Netting" will not apply for the purpose of Section 2(c) of this Agreement.

(j)

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

(m)

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

 

(A)

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 or Rabobank International or any of their respective affiliates 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, Rabobank International, or any of their respective affiliates, will be deemed to be an assurance or guarantee as to the expected results of that Transaction.

 

(B)

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.

 

(C)

Status of Parties.  None of Party A, Party B, Rabobank International, or any of their respective affiliates, is acting as a fiduciary for or an adviser to either Party A or Party B in respect of that Transaction.

 

(D)

Non-Speculative Purpose.  Party B is entering into each Transaction in connection with its line of business and to manage the risk associated with an asset or liability owned or incurred or reasonably likely to be owned or incurred by itself in the conduct of its business and not for purposes of speculation.

(E)

Eligible Contract Participant, Eligible Swap Participant and Transaction Formation.  Each of Party A and Party B is an "eligible contract participant" as defined in the Commodity Exchange Act, as amended ("CEA"), 7 U.S.C. and the material terms of each Transaction will be individually negotiated and tailored by it.  Each of Party A and Party B is an “eligible swap participant” as defined in 17 C.F.R. 35.1.  Neither Party A nor Party B has executed, entered into, or traded, and neither party will execute, enter into, or trade, any Transaction on a "trading facility" as such term is defined in the CEA.   Each Transaction hereunder constitutes a “swap agreement” as defined in Section 206A of the Gramm-Leach-Bliley Act.

(n)

ERISA. Party B represent it is not, and is not acting on behalf of, and for so long as this Agreement is in force and effect, it covenants it shall not be, or act on behalf of, (1) an "employee benefit plan" within the meaning of Section 3(3) of ERISA that is subject to Part 4 of Subtitle B of Title I of ERISA ("Title I"), (2) a "plan" within the meaning of Section 4975(e)(1) of the Tax Code, to which Section 4975 of the Tax Code applies,  (3) a "governmental plan" as defined in ERISA or the Tax Code (or an entity that includes the assets of a governmental plan) that is subject to any federal, state, or local law that is substantively similar, or of similar effect to, Section 406 of ERISA or Section 4975 of the Tax Code, or (4) an entity whose underlying assets include "plan assets" subject to Title I or Section 4975 of the Tax Code by reason of Section 3(42) of ERISA and, as applicable, 29 CFR § 2510.3-101 or otherwise.

(o)

(p)

Change of Account. The following wording shall be added at the end of Section 2(b) of this Agreement: “If such new account shall not be in the same tax jurisdiction as the original account the prior written consent of the other party is required for such change.”

 

The 2006 ISDA Definitions as published by International Swaps and Derivatives Association, Inc, are incorporated by reference herein.  In the event of any inconsistency between the provisions of this Agreement and the ISDA Definitions, this Agreement will prevail.

(b)

 

Reference is made to the 1998 ISDA FX and Currency Option Definitions (the "FX Definitions") published by ISDA, which are incorporated by reference in this Agreement. Unless agreed otherwise, any foreign exchange transaction or currency option (an "FX Transaction") into which the parties may enter or may have entered into prior to the date hereof shall be subject to the terms of this Agreement. Each such FX Transaction shall constitute a Transaction and any documents exchanged between the parties confirming those transactions shall be a Confirmation for the purposes of this Agreement.

(c)

 

(g)  Amendment to this Agreement.  Party B agrees that in the event of a Refinancing, Party B shall amend this Agreement within 15 days of the Refinancing to revise, inter alia, the Credit Support Documents and Credit Support Providers.”

(f)

Set-off.  Section 6(f) of this Agreement is hereby amended replaced in its entirety by the following:

(h)

(i)

(j)

OFAC and USA PATRIOT Act Representations. Each party represents that (a) it is not in material violation of any applicable laws or regulations relating to terrorism, money laundering, trade embargos, other restrictions on trade or restrictions on dealings with sanctioned persons (a "Sanctioned Person") or sanctioned countries, including laws and regulations, as applicable per jurisdiction, such as those administered by the United States Treasury Department's Office of Foreign Asset Control, the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (the “Patriot Act”) and any such laws and regulations promulgated or administered by United Nations, Switzerland or the European Union and (b) it is not a Sanctioned Person.

(k)

USA PATRIOT Act Notice. Party A hereby notifies Party B that pursuant to the Patriot Act, it is required to obtain, verify and record information that identifies Party B, which information includes the name and address of Party B and other information that will allow Party A to identify Party B in accordance with the Patriot Act.