This Master Confirmation and each Supplemental Confirmation supplement, form a part of, and are subject to an agreement in the form of the 2002 ISDA Master Agreement (the Agreement) as if Dealer and Counterparty had executed the Agreement on the date of this Master Confirmation, without any Schedule, but with the elections set forth in this Master Confirmation, including:
(i) The election of New York law as the governing law (without reference to its choice of law provisions).
(ii) The election that subparagraph (ii) of Section 2(c) will not apply to the Transactions.
(iv) The election that the Cross Default provisions of Section 5(a)(vi) of the Agreement shall apply to Dealer, with a Threshold Amount of 3% of shareholders equity for Dealer (provided that (a) the phrase , or becoming capable at such time of being declared, shall be deleted from clause (1) of such Section 5(a)(vi) of the Agreement, (b) Specified Indebtedness shall have the meaning specified in Section 14 of the Agreement, except that such term shall not include obligations in respect of deposits received in the ordinary course of Dealers banking business and (c) the following sentence shall be added to the end thereof: Notwithstanding the foregoing, an Event of Default shall not occur under either (1) or (2) above if (a) the event or condition referred to in (1) or the failure to pay referred to in (2) is caused by an error or omission of an administrative or operational nature, (b) funds were available to Dealer to enable it to make the relevant payment when due, and (c) such payment is made within three Local Business Days after notice of such failure is given by Counterparty.).
(v) Affiliate will have the meaning specified in Section 14 of the Agreement, except that for purposes of Section 3(c) of the Agreement as set forth in clause (iii) above, Affiliate means, with respect to any person, any entity controlled, directly or indirectly by such person. For this purpose, control means ownership of a majority of the voting power of the entity or person.
(vi) For purposes of Section 3(f) of the Agreement, Dealer makes the following representation:
Each Transaction entered into by (i) Deutsche Bank AG, New York Branch and (ii) Deutsche Bank AG, London Branch acting through a discretionary agent in the United States as intermediary for Deutsche Bank AG, New York Branch, will be treated, solely for United States income tax purposes, as entered into by a United States corporation.
(vii) For purposes of Section 3(f) of the Agreement, Counterparty makes the following representation:
It is a U.S. person, and it is a corporation organized under the laws of the State of Delaware.
(viii) Counterparty agrees to deliver a complete and accurate United States Internal Revenue Service Form W-9 to Dealer upon execution of this Agreement.
(ix) Dealer agrees to deliver a complete and accurate United States Internal Revenue Service Form W-8IMY from Deutsche Bank AG, London Branch and withholding statement with attached United States Internal Revenue Service Form W-9 from Deutsche Bank AG, New York Branch to Counterparty upon execution of this Agreement.
The Transactions shall be the sole Transactions under the Agreement. If there exists any ISDA Master Agreement between Dealer and Counterparty or any confirmation or other agreement between Dealer and Counterparty pursuant to which an ISDA Master Agreement is deemed to exist between Dealer and Counterparty, then notwithstanding anything to the contrary in such ISDA Master Agreement, such confirmation or agreement or any other agreement to which Dealer and Counterparty are parties, the Transactions shall not be considered Transactions under, or otherwise governed by, such existing or deemed ISDA Master Agreement, and the occurrence of any Event of Default or Termination Event under the Agreement with respect to either party or any Transaction shall not, by itself, give rise to any right or obligation under any such other agreement or deemed agreement. Notwithstanding anything to the contrary in any other agreement between the parties or their Affiliates, the Transactions shall not be Specified Transactions (or similarly treated) under any other agreement between the parties or their Affiliates.