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    (Multicurrency—Cross Border)    ISDA®  International Swap Dealers Association. Inc.  MASTER AGREEMENT  dated as of April 26, 2021                 WELLS FARGO BANK, N.A. and FARMER BROS. CO.    have entered and/or anticipate entering into one or more transactions (each a “Transaction”) that are or will  be governed by this Master Agreement, which includes the schedule (the “Schedule”), and the documents  and other confirming evidence (each a “Confirmation”) exchanged between the parties confirming those  Transactions.    Accordingly, the parties agree as follows:—  1. Interpretation  (a) Definitions.  The terms defined in Section 14 and in the Schedule will have the meanings therein  specified for the purpose of this Master Agreement.    (b) Inconsistency.  In the event of any inconsistency between the provisions of the Schedule and the  other provisions of this Master Agreement, the Schedule will prevail.  In the event of any inconsistency  between the provisions of any Confirmation and this Master Agreement (including the Schedule), such  Confirmation will prevail for the purpose of the relevant Transaction.    (c) Single Agreement.  All Transactions are entered into in reliance on the fact that this Master  Agreement and all Confirmations form a single agreement between the parties (collectively referred to as  this “Agreement”), and the parties would not otherwise enter into any Transactions.     2. Obligations  (a) General Conditions.  (i) Each party will make each payment or delivery specified in each Confirmation to be made by  it, subject to the other provisions of this Agreement.    (ii) Payments under this Agreement will be made on the due date for value on that date in the place  of the account specified in the relevant Confirmation or otherwise pursuant to this Agreement, in  freely transferable funds and in the manner customary for payments in the required currency. Where  settlement is by delivery (that is, other than by payment), such delivery will be made for receipt on  the due date in the manner customary for the relevant obligation unless otherwise specified in the  relevant Confirmation or elsewhere in this Agreement.     (iii) Each obligation of each party under Section 2(a)(i) is subject to (1) the condition precedent  that no Event of Default or Potential Event of Default with respect to the other party has occurred  and is continuing, (2) the condition precedent that no Early Termination Date in respect of the  relevant Transaction has occurred or been effectively designated and (3) each other applicable  condition precedent specified in this Agreement.  Copyright ©1992 by International Swap Dealers Association, Inc.   





 






                                                   ISDA ® 1992 2  (b) Change of Account.  Either party may change its account for receiving a payment or delivery by  giving notice to the other party at least five Local Business Days prior to the scheduled date for the payment  or delivery to which such change applies unless such other party gives timely notice of a reasonable objection  to such change.    (c) Netting.  If on any date amounts would otherwise be payable:—  (i) in the same currency; and  (ii) in respect of the same Transaction,    by each party to the other, then, on such date, each party's obligation to make payment of any such amount  will be automatically satisfied and discharged and, if the aggregate amount that would otherwise have been  payable by one party exceeds the aggregate amount that would otherwise have been payable by the other  party, replaced by an obligation upon the party by whom the larger aggregate amount would have been  payable to pay to the other party the excess of the larger aggregate amount over the smaller aggregate amount.    The parties may elect in respect of two or more Transactions that a net amount will be determined in respect  of all amounts payable on the same date in the same currency in respect of such Transactions, regardless of  whether such amounts are payable in respect of the same Transaction.  The election may be made in the  Schedule or a Confirmation by specifying that subparagraph (ii) above will not apply to the Transactions  identified as being subject to the election, together with the starting date (in which case subparagraph (ii)  above will not, or will cease to, apply to such Transactions from such date).  This election may be made  separately for different groups of Transactions and will apply separately to each pairing of Offices  through  which the parties make and receive payments or deliveries.     (d) Deduction or Withholding for Tax.    (i) Gross-Up. All payments under this Agreement will be made without any deduction or  withholding for or on account of any Tax unless such deduction or withholding is required by any  applicable law, as modified by the practice of any relevant governmental revenue authority, then in  effect.  If a party is so required to deduct or withhold, then that party (“X”) will:—  (1) promptly notify the other party (“Y”) of such requirement;  (2) pay to the relevant authorities the full amount required to be deducted or withheld  (including the full amount required to be deducted or withheld from any additional amount  paid by X to Y under this Section 2(d)) promptly upon the earlier of determining that such  deduction or withholding is required or receiving notice that such amount has been assessed  against Y;  (3) promptly forward to Y an official receipt (or a certified copy), or other documentation  reasonably acceptable to Y, evidencing such payment to such authorities; and  (4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the payment to which Y is  otherwise entitled under this Agreement, such additional amount as is necessary to ensure that  the net amount actually received by Y (free and clear of Indemnifiable Taxes, whether assessed against  X or Y) will equal the full amount Y would have received had no such deduction or withholding  been required.  However, X will not be required to pay any additional amount to Y to  the  extent that it would not be required to be paid but for:—    (A) the failure by Y to comply with or perform any agreement contained in  Section 4(a)(i), 4(a)(iii) or 4(d); or  (B) the failure of a representation made by Y pursuant to Section 3(f) to be accurate and  true unless such failure would not have occurred but for (I) any action taken by a taxing  authority, or brought in a court of competent jurisdiction, on or after the date on which a  Transaction is entered into (regardless of whether such action is taken or brought with  respect to a party to this Agreement) or (II) a Change in Tax Law.  





 






                                                   ISDA ® 1992 3    (ii) Liability.  If:—  (1) X is required by any applicable law, as modified by the practice of any relevant  governmental revenue authority, to make any deduction or withholding in respect of which X  would not be required to pay an additional amount to Y under Section 2(d)(i)(4);   (2) X does not so deduct or withhold; and  (3) a liability resulting from such Tax is assessed directly against X,    then, except to the extent Y has satisfied or then sati sfies the liability resulting from such Tax, Y  will promptly pay to X the amount of such liability (including any related liability for interest, but  including any related liability for penalties only if Y has failed to comply with or perform any  agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).     (e) Default Interest; Other Amounts. Prior to the occurrence or effective designation of an Early  Termination Date in respect of the relevant Transaction, a party that defaults in the performance of any  payment obligation will, to the extent permitted by law and subject to Section 6(c), be required to pay interest  (before as well as after judgment) on the overdue amount to the other party on demand in the same currency  as such overdue amount, for the period from (and including) the original due date for payment to (but  excluding) the date of actual payment, at the Default Rate.  Such interest will be calculated on the basis of  daily compounding and the actual number of days elapsed.  If, prior to the occurrence or effective designation  of an Early Termination Date in respect of the relevant Transaction, a party defaults in the performance of any  obligation required to be settled by delivery, it will compensate the other party on demand if and to the extent  provided for in the relevant Confirmation or elsewhere in this Agreement.     3. Representations    Each party represents to the other party (which representations will be deemed to be repeated by each party on  each date on which a Transaction is entered into and, in the case of the representations in Section 3(f), at all  times until the termination of this Agreement) that:    (a) Basic Representations.  (i)   Status.  It is duly organised and validly existing under the laws of the jurisdiction of its  organisation or incorporation and, if relevant under such laws, in good standing;    (ii)   Powers.  It has the power to execute this Agreement and any other documentation relating to  this Agreement to which it is a party, to deliver this Agreement and any other documentation relating  to this Agreement that it is required by this Agreement to deliver and to perform its obligations  under this Agreement and any obligations it has under any Credit Support Document to which it is  a party and has taken all necessary action to authorise such execution, delivery and performance;     (iii)  No Violation or Conflict.  Such execution, delivery and performance do not violate or conflict  with any law applicable to it, any provision of its constitutional documents, any order or judgment  of any court or other agency of government applicable to it or any of its assets or any contractual  restriction binding on or affecting it or any of its assets;     (iv)  Consents.  All governmental and other consents that are required to have been obtained by it  with respect to this Agreement or any Credit Support Document to which it is a party have been  obtained and are in full force and effect and all conditions of any such consents have been complied  with; and    (v)  Obligations Binding.  Its obligations under this Agreement and any Credit Support Document  to which it is a party constitute its legal, valid and binding obligations, enforceable in accordance  with their respective terms (subject to applicable bankruptcy, reorganisation, insolvency,  moratorium or similar laws affecting creditors' rights generally and subject, as to enforceability, to  equitable principles of general application (regardless of whether enforcement is sought in a  proceeding in equity or at law)).    





 






                                                   ISDA ® 1992 4  (b) Absence of Certain Events.  No Event of Default or Potential Event of Default or, to its knowledge,  Termination Event with respect to it has occurred and is continuing and no such event or circumstance would  occur as a result of its entering into or performing its obligations under this  Agreement or any Credit Support  Document to which it is a party.    (c) Absence of Litigation.  There is not pending or, to its knowledge, threatened against it or any of its  Affiliates any action, suit or proceeding at law or in equity or before any court,  tribunal, governmental body,  agency or official or any arbitrator that is likely to affect the legality, validity or enforceability against it of  this Agreement or any Credit Support Document to which it is a party or its ability to perform its obligations  under this Agreement or such Credit Support Document.    (d) Accuracy of Specified Information.  All applicable information that is furnished in writing by or on  behalf of it to the other party and is identified for the purpose of this Section 3(d) in the Schedule is, as of  the date of the information, true, accurate and complete in every material respect.     (e) Payer Tax Representation.  Each representation specified in the Schedule as being made by it for the  purpose of this Section 3(e) is accurate and true.    (f) Payee Tax Representations.  Each representation specified in the Schedule as being made by it for  the purpose of this Section 3(f) is accurate and true.    4. Agreements  Each party agrees with the other that, so long as either party has or may have any obligation under this  Agreement or under any Credit Support Document to which it is a party:  (a) Furnish Specified Information.  It will deliver to the other party or, in certain cases under  subparagraph (iii) below, to such government or taxing authority as the other party reasonably directs:  (i) any forms, documents or certificates relating to taxation specified in the Schedule or any  Confirmation;  (ii) any other documents specified in the Schedule or any Confirmation; and  (iii) upon reasonable demand by such other party, any form or document that may be required or  reasonably requested in writing in order to allow such other party or its Credit Support Provider to make  a payment under this Agreement or any applicable Credit Support Document without any deduction o r  withholding for or on account of any Tax or with such deduction or withholding at a reduced rate (so  long as the completion, execution or submission of such form or document would not materially  prejudice the legal or commercial position of the party in receipt of such demand), with any such  form or document to be accurate and completed in a manner reasonably satisfactory to such other  party and to be executed and to be delivered with any reasonably required certification,   in each case by the date specified in the Schedule or such Confirmation or, if none is specified, as soon as reasonably  practicable.  (b) Maintain Authorisations.  It will use all reasonable efforts to maintain in full force and effect all  consents of any governmental or other authority that are required to be obtained by it with respect to this  Agreement or any Credit Support Document to which it is a party and will use all reasonable efforts to obtain any  that may become necessary in the future.  (c) Comply with Laws.  It will comply in all material respects with all applicable laws and orders to  which it may be subject if failure so to comply would materially impair its ability to perform its obligations  under this Agreement or any Credit Support Document to which it is a party.   (d) Tax Agreement.  It will give notice of any failure of a representation made by it under Section 3(f) to  be accurate and true promptly upon learning of such failure.   (e) Payment of Stamp Tax.  Subject to Section 11, it will pay any Stamp Tax levied or imposed upon  it or in respect of its execution or performance of this Agreement by a jurisdiction in which it is incorporated,   





 






                                                   ISDA ® 1992 5  organised, managed and controlled, or considered to have its seat, or in which a branch or office through  which it is acting for the purpose of this Agreement is located (“Stamp Tax Jurisdiction”) and will indemnify  the other party against any Stamp Tax levied or imposed upon the other party or in respect of the other  party’s  execution or performance of this Agreement by any such Stamp Tax Jurisdiction which is not also a Stamp  Tax Jurisdiction with respect to the other party.    5. Events of Default and Termination Events    (a) Events of Default.  The occurrence at any time with respect to a party or, if applicable, any Credit  Support Provider of such party or any Specified Entity of such party of any of the following events constitutes  an event of default (an “Event of Default”) with respect to such party:—  (i) Failure to Pay or Deliver.  Failure by the party to make, when due, any payment under this  Agreement or delivery under Section 2(a)(i) or 2(e) required to be made by it if such failure is not  remedied on or before the third Local Business Day after notice of such failure is given to the party;   (ii) Breach of Agreement.  Failure by the party to comply with or perform any agreement or  obligation (other than an obligation to make any payment under this Agreement or delivery under  Section 2(a)(i) or 2(e) or to give notice of a Termination Event or any agreement or obligation  under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party in accordance  with this Agreement if such failure is not remedied on or before the thirtieth day after notice of  such failure is given to the party;    (iii) Credit Support Default.    (1) Failure by the party or any Credit Support Provider of such party to comply with or  perform any agreement or obligation to be complied with or performed by it in accordance  with any Credit Support Document if such failure is continuing after any applicable grace  period has elapsed;    (2) the expiration or termination of such Credit Support Document or the failing or ceasing  of such Credit Support Document to be in full force and effect for the purpose of this  Agreement  (in either case other than in accordance with its terms) prior to the satisfaction of all obligations  of such party under each Transaction to which such Credit Support Document relates without  the written consent of the other party; or    (3) the party or such Credit Support Provider disaffirms, disclaims, repudiates or rejects, in  whole or in part, or challenges the validity of, such Credit Support Document;     (iv) Misrepresentation.  A representation (other than a representation under Section 3(e) or (f))  made or repeated or deemed to have been made or repeated by the party or any Credit Support  Provider of such party in this Agreement or any Credit Support Document proves to have been  incorrect or misleading in any material respect when made or repeated or deemed to have been made  or repeated;  (v) Default under Specified Transaction.  The party, any Credit Support Provider of such party or  any applicable Specified Entity of such party (1) defaults under a Specified Transaction and, after  giving effect to any applicable notice requirement or grace period, there occurs a liquidation of, an  acceleration of obligations under, or an early termination of, that Specified Transaction, (2) defaults,  after giving effect to any applicable notice requirement or grace period, in making any payment or  delivery due on the last payment, delivery or exchange date of, or any payment on early termination  of, a Specified Transaction (or such default continues for at least three Local Business Days if there  is no applicable notice requirement or grace period) or (3) disaffirms, disclaims, repudiates or  rejects, in whole or in part, a Specified Transaction (or such action is taken by any person or entity  appointed or empowered to operate it or act on its behalf);     (vi) Cross Default.  If “Cross Default” is specified in the Schedule as applying to the party, the  occurrence or existence of (1) a default, event of default or other similar condition or event (however   





 






                                                   ISDA ® 1992 6  described) in respect of such party, any Credit Support Provider of such party or any applicable  Specified Entity of such party under one or more agreements or instruments relating to Specified  Indebtedness of any of them (individually or collectively) in an aggregate amount of not less than the   applicable Threshold Amount (as specified in the Schedule) which has resulted in such Specified  Indebtedness becoming, or becoming capable at such time of being declared, due and payable under  such agreements or instruments, before it would otherwise have been due and payable or (2) a default  by such party, such Credit Support Provider or such Specified Entity (individually or collective ly)  in making one or more payments on the due date thereof in an aggregate amount of not less than the  applicable Threshold Amount under such agreements or instruments (after giving effect to any  applicable notice requirement or grace period);     (vii) Bankruptcy. The party, any Credit Support Provider of such party or any applicable Specified  Entity of such party:—    (1) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (2) becomes  insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay  its debts as they become due; (3) makes a general assignment, arrangement or composition  with or for the benefit of its creditors; (4) institutes or has instituted against it a proceeding  seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or  insolvency law or other similar law affecting creditors' rights, or a petition is presented for its  winding-up or liquidation, and, in the case of any such proceeding or petition instituted or  presented against it, such proceeding or petition (A) results in a judgment of insolvency or  bankruptcy or the entry of an order for relief or the making of an order for its winding-up or  liquidation or (B) is not dismissed, discharged, stayed or restrained in each case within 30 days  of the institution or presentation thereof; (5) has a resolution passed for its winding-up, official  management or liquidation (other than pursuant to a consolidation, amalgamation or merger);  (6) seeks or becomes subject to the appointment of an administrator, provisional liquidator,  conservator, receiver, trustee, custodian or other similar official for it or for all or substantially  all its assets; (7) has a secured party take possession of all or substantially all its assets or has  a distress, execution, attachment, sequestration or  other legal process levied, enforced or sued  on or against all or substantially all its assets and such secured party maintains possession, or  any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days  thereafter; (8) causes or is subject to any event with respect to it which, under the applicable  laws of any jurisdiction, has an analogous effect to any of the events specified in clauses (1)  to (7) (inclusive); or (9) takes any action in furtherance of, or indicating its consent to, approval  of, or acquiescence in, any of the foregoing acts; or     (viii) Merger Without Assumption.  The party or any Credit Support Provider of such party  consolidates or amalgamates with, or merges with or into, or transfers all or substantially all its assets  to, another entity and, at the time of such consolidation, amalgamation, merger or transfer:—    (1)  the resulting, surviving or transferee entity fails to assume all the obligations  of such party  or such Credit Support Provider under this Agreement or any Credit Support Document to  which it or its predecessor was a party by operation of law or pursuant to an agreement  reasonably satisfactory to the other party to this Agreement; or    (2)  the benefits of any Credit Support Document fail to extend (without the consent of the  other party) to the performance by such resulting, surviving or transferee entity of its  obligations under this Agreement.    (b) Termination Events.  The occurrence at any time with respect to a party or, if applicable, any Credit  Support Provider of such party or any Specified Entity of such party of any event specified below constitutes  an Illegality if the event is specified in (i) below, a Tax Event if the event i s specified in (ii) below or a Tax  Event upon Merger if the event is specified in (iii) below, and, if specified to be applicable, a Credit Event  





 






                                                   ISDA ® 1992 7  Upon Merger if the event is specified pursuant to (iv) below or an Additional Termination Event if the event  is specified pursuant to (v) below:—    (i) Illegality.  Due to the adoption of, or any change in, any applicable law after the date on which  a Transaction is entered into, or due to the promulgation of, or any change in, the interpretation  by  any court, tribunal or regulatory authority with competent jurisdiction of any applicable law after  such date, it becomes unlawful (other than as a result of a breach by the party of Section 4(b)) for  such party (which will be the Affected Party):—    (1)  to perform any absolute or contingent obligation to make a payment or delivery or to  receive a payment or delivery in respect of such Transaction or to comply with any other  material provision of this Agreement relating to such Transaction; or     (2)  to perform, or for any Credit Support Provider of such party to perform, any contingent  or other obligation which the party (or such Credit Support Provider) has under any Credit  Support Document relating to such Transaction;    (ii)  Tax Event.  Due to (x) any action taken by a taxing authority, or brought in a court of competent  jurisdiction, on or after the date on which a Transaction is entered into (regardless of whether such  action is taken or brought with respect to a party to this Agreement) or (y) a Change in Tax Law,   the party (which will be the Affected Party) will, or there is a substantial likelihood that it will, on  the next succeeding Scheduled Payment Date (1) be required to pay to the other party an additional  amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest  under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a payment from which an amount is required to  be deducted or withheld for or on account of a Tax (except in respect of interest under Section 2(e),  6(d)(ii) or 6(e)) and no additional amount is required to be paid in respect of such Tax under  Section 2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A) or (B));     (iii)  Tax Event Upon Merger.  The party (the “Burdened Party”) on the next succeeding Scheduled  Payment Date will either (1) be required to pay an additional amount in respect of an Indemnifiable  Tax under Section 2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or  (2) receive a payment from which an amount has been deducted or withheld for or on account of  any Indemnifiable Tax in respect of which the other party is not required to pay an additional amount  (other than by reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a party  consolidating or amalgamating with, or merging with or into, or transferring all or substantially all  its assets to, another entity (which will be the Affected Party) where such action does not constitute  an event described in Section 5(a)(viii);    (iv)  Credit Event Upon Merger.  If “Credit Event Upon Merger” is specified in the Schedule as applying  to the party, such party (“X”), any Credit Support Provider of X or any applicable Specified Entity of X  consolidates or amalgamates with, or merges with or into, or transfers all  or substantially all its assets  to, another entity and such action does not constitute an event described in Section 5(a)(viii) but the  creditworthiness of the resulting, surviving or transferee entity is materially weaker than that of X, such  Credit Support Provider or such Specified Entity, as the case may be, immediately prior to such action  (and, in such event, X or its successor or transferee, as appropriate, will be the Affected Party); or     (v)  Additional Termination Event.   If any “Additional Termination Event” is specified in the  Schedule or any Confirmation as applying, the occurrence of such event (and, in such event, the  Affected Party or Affected Parties shall be as specified for such Additional Termination Event in  the Schedule or such Confirmation).    (c) Event of Default and Illegality.   If an event or circumstance which would otherwise constitute or  give rise to an Event of Default also constitutes an Illegality, it will be treated as an Illegality and will not  constitute an Event of Default.      





 






                                                   ISDA ® 1992 8    6. Early Termination    (a) Right to Terminate Following Event of Default.   If at any time an Event of Default with respect  to a party (the “Defaulting Party”) has occurred and is then continuing, the other party (the “Non -defaulting  Party”) may, by not more than 20 days notice to the Defaulting Party specifying the relevant Event of  Default,  designate a day not earlier than the day such notice is effective as an Early Termination Date in respect of  all outstanding Transactions.  If, however, “Automatic Early Termination” is specified in the Schedule as  applying to a party, then an Early Termination Date in respect of all outstanding Transactions will occur  immediately upon the occurrence with respect to such party of an Event of Default specified in  Section 5(a)(vii)(l), (3), (5), (6) or, to the extent analogous thereto, (8), and as of the time immediately  preceding the institution of the relevant proceeding or the presentation of the relevant petition upon the  occurrence with respect to such party of an Event of Default specified in Section 5(a)(vii)(4) or, to the extent  analogous thereto, (8).    (b) Right to Terminate Following Termination Event.    (i)  Notice.  If a Termination Event occurs, an Affected Party will, promptly upon becoming aware of  it, notify the other party, specifying the nature of that Termination Event and each Affected Transaction  and will also give such other information about that Termination Event as the other party may reasonably  require.    (ii)  Transfer to Avoid Termination Event.   If either an Illegality under Section 5(b)(i)(l) or a Tax  Event occurs and there is only one Affected Party, or if a Tax Event Upon Merger occurs and the  Burdened Party is the Affected Party, the Affected Party will, as a condition to its right to  designate  an Early Termination Date under Section 6(b)(iv), use all reasonable efforts (which will not require  such party to incur a loss, excluding immaterial, incidental expenses) to transfer within 20 days after  it gives notice under Section 6(b)(i) all its rights and obligations under this Agreement in respect of  the Affected Transactions to another of its Offices or Affiliates so that such Termination Event  ceases to exist.    If the Affected Party is not able to make such a transfer it will give notice to the other party to that  effect within such 20 day period, whereupon the other party may effect such a transfer within  30 days after notice is given under Section 6(b)(i).     Any such transfer by a party under this Section 6(b)(ii) will be subject to and conditional upon the  prior written consent of the other party, which consent will not be withheld if such other party's  policies in effect at such time would permit it to enter into transactions with the transferee on the  terms proposed.    (iii)  Two Affected Parties.  If an Illegality under Section 5(b)(i)(1) or a Tax Event occurs and there  are two Affected Parties, each party will use all reasonable efforts to reach agreement within 30 days  after notice thereof is given under Section 6(b)(i) on action to avoid tha t Termination Event.    (iv)   Right to Terminate. If:—    (1)  a transfer under Section 6(b)(ii) or an agreement under Section 6(b)(iii), as the case may be,  has not been effected with respect to all Affected Transactions within 30 days after an Affected  Party gives notice under Section 6(b)(i); or    (2)  an Illegality under Section 5(b)(i)(2), a Credit Event Upon Merger or an Additional  Termination Event occurs, or a Tax Event Upon Merger occurs and the Burdened Party is not  the Affected Party,  either party in the case of an Illegality, the Burdened Party in the case of a Tax Event Upon Merger,  any Affected Party in the case of a Tax Event or an Additional Termination Event if there is more  than one Affected Party, or the party which is not the Affected Party in the case of a Credit Event  Upon Merger or an Additional Termination Event if there is only one Affected Party may, by not  more than 20 days notice to the other party and provided that the relevant Termination Event is then   





 






                                                   ISDA ® 1992 9  continuing, designate a day not earlier than the day such notice is effective as an Early Termination  Date in respect of all Affected Transactions.  (c) Effect of Designation.    (i)  If notice designating an Early Termination Date is given under Section 6(a) or (b), the Early  Termination Date will occur on the date so designated, whether or not the relevant Event of Default  or Termination Event is then continuing.    (ii)  Upon the occurrence or effective designation of an Early Termination Date, no further  payments or deliveries under Section 2(a)(i) or 2(e) in respect of the Terminated Transactions will  be required to be made, but without prejudice to the other provisions of this Agreement. The amount  if any, payable in respect of an Early Termination Date shall be determined pursuant to S ection 6(e).    (d) Calculations.    (i)  Statement.  On or as soon as reasonably practicable following the occurrence of an Early  Termination Date, each party will make the calculations on its part, if any, contemplated by Section 6(e)  and will provide to the other party a statement (1) showing, in reasonable detail, such calculations  (including all relevant quotations and specifying any amount payable under Section 6(e)) and (2) giving  details of the relevant account to which any amount payable to it is to be paid.  In the absence of written  confirmation from the source of a quotation obtained in determining a Market Quotation, the records of  the party obtaining such quotation will be conclusive evidence of the existence and accuracy of such  quotation.    (ii)  Payment Date.  An amount calculated as being due in respect of any Early Termination Date  under Section 6(e) will be payable on the day that notice of the amount payable is effective (in the  case of an Early Termination Date which is designated or occurs as a result of an Event of Default)  and on the day which is two Local Business Days after the day on which notice of the amount payable is  effective (in the case of an Early Termination Date which is designated as a result of a Termination  Event). Such amount will be paid together with (to the extent permitted under applicable law)  interest thereon (before as well as after judgment) in the Termination Currency, from (and including)  the relevant Early Termination Date to (but excluding) the date such amount i s paid, at the  Applicable Rate. Such interest will be calculated on the basis of daily compounding and the actual  number of days elapsed.    (e) Payments on Early Termination.  If an Early Termination Date occurs. the following provisions  shall apply based on the parties' election in the Schedule of a payment measure, either “Market Quotation”  or “Loss”, and a payment method, either the “First Method” or the “Second Method”. If the parties fail to  designate a payment measure or payment method in the Schedule,  it will be deemed that “Market Quotation”  or the “Second Method”, as the case may be, shall apply. The amount, if any, payable in respect of an Early  Termination Date and determined pursuant to this Section will be subject to any Set -off.    (i)  Events of Default.  If the Early Termination Date results from an Event of Default:—  (1)  First Method and Market Quotation.  If the First Method and Market Quotation apply, the  Defaulting Party will pay to the Non-defaulting Party the excess, if a positive number, of (A) the  sum of the Settlement Amount (determined by the Non-defaulting Party) in respect of the  Terminated Transactions and the Termination Currency Equivalent of the Unpaid Amounts  owing  to the Non-defaulting Party over (B) the Termination Currency Equivalent of the Unpaid Amounts  owing to the Defaulting Party.  (2)  First Method and Loss.  If the First Method and Loss apply, the Defaulting Party will pay  to the Non-defaulting Party, if a positive number, the Non-defaulting Party's Loss in respect  of this Agreement.    (3)  Second Method and Market Quotation.  If the Second Method and Market Quotation apply,  an amount will be payable equal to (A) the sum of the Settlement Amount (determined by the   





 






                                                   ISDA ® 1992 10  Non-defaulting Party) in respect of the Terminated Transactions and the Termination Currency  Equivalent of the Unpaid Amounts owing to the Non-defaulting Party less (B) the Termination  Currency Equivalent of the Unpaid Amounts owing to the Defaulting Party. If that amount is  a positive number, the Defaulting Party will pay it to the Non-defaulting Party; if it is a negative  number, the Non-defaulting Party will pay the absolute value of that amount to the Defaulting  Party.    (4) Second Method and Loss. If the Second Method and Loss apply, an amount will be payable  equal to the Non-defaulting Party's Loss in respect of this Agreement. If that amount is a  positive number, the Defaulting Party will pay it to the Non-defaulting Party; if it is a negative  number, the Non-defaulting Party will pay the absolute value of that amount to the Defaulting  Party.    (ii) Termination Events.  If the Early Termination Date results from a Termination Event:—    (1)  One Affected Party.  If there is one Affected Party, the amount payable will be determined  in accordance with Section 6(e)(i)(3), if Market Quotation applies, or Section 6(e)(i)(4), if Loss  applies, except that, in either case, references to the Defaulting Party and to the Non-defaulting  Party will be deemed to be references to the Affected Party and the party which is not the  Affected Party, respectively, and, if Loss applies and fewer than all the Transactions are being  terminated, Loss shall be calculated in respect of all Terminated Transactions.    (2)  Two Affected Parties. If there are two Affected Parties:—    (A)  if Market Quotation applies, each party will determine a Settlement Amount in  respect of the Terminated Transactions, and an amount will be payable equal to (I) the  sum of (a) one-half of the difference between the Settlement Amount of  the party with  the higher Settlement Amount (“X”) and the Settlement Amount of the party with the  lower Settlement Amount (“Y”) and (b) the Termination Currency Equivalent of the  Unpaid Amounts owing  to X less (II) the Termination Currency Equivalent of the Unpaid  Amounts owing to Y; and    (B)  if Loss applies, each party will determine its Loss in respect of this Agreement (or,  if fewer than all the Transactions are being terminated, in respect of all Terminated  Transactions) and an amount will be payable equal to one-half of the difference between  the Loss of the party with the higher Loss (“X”) and the Loss of the party with the lower  Loss (“Y”).    If the amount payable is a positive number, Y will pay it to X; if it is a negative number, X will  pay the absolute value of that amount to Y.    (iii)  Adjustment for Bankruptcy.  In circumstances where an Early Termination Date occurs because  “Automatic Early Termination” applies in respect of a party, the amount determined under this  Section 6(e) will be subject to such adjustments as are appropriate and permitted by law to reflect  any payments or deliveries made by one party to the other under this Agreement (and retained by  such other party) during the period from the relevant Early Termination Date to the date for payment  determined under Section 6(d)(ii).    (iv)   Pre-Estimate.  The parties agree that if Market Quotation applies an amount recoverable under  this Section 6(e) is a reasonable pre-estimate of loss and not a penalty. Such amount is payable for  the loss of bargain and the loss of protection against future risks and except as otherwise provided  in this Agreement neither party will be entitled to  recover any additional damages as a consequence  of such losses.    





 






                                                   ISDA ® 1992 11    7. Transfer    Subject to Section 6(b)(ii), neither this Agreement nor any interest or obligation in or under this Agreement  may be transferred (whether by way of security or otherwise) by either party without the prior written consent  of the other party, except that:—    (a) a party may make such a transfer of this Agreement pursuant to a consolidation or amalgamation  with, or merger with or into, or transfer of all or substantially all its assets to, another entity (but without  prejudice to any other right or remedy under this Agreement); and    (b) a party may make such a transfer of all or any part of its interest in any amount payable to it from  a Defaulting Party under Section 6(e).   Any purported transfer that is not in compliance with this Section will be void.   8. Contractual Currency  (a) Payment in the Contractual Currency.  Each payment under this Agreement will be made in the  relevant currency specified in this Agreement for that payment (the “Contractual Currency”). To the extent  permitted by applicable law, any obligation to make payments under this Agreement in the Contractual  Currency will not be discharged or satisfied by any tender in any currency other than the Contractual  Currency, except to the extent such tender results in the actual receipt by the party to which payment is owed,  acting in a reasonable manner and in good faith in converting the currency so tendered into this Contractual  Currency, of the full amount in the Contractual Currency of all amounts payable in respect of this Agreement.  If for any reason the amount in the Contractual Currency so received falls short of the amount in the  Contractual Currency payable in respect of this Agreement, the party required to make the payment will, to  the extent permitted by applicable law, immediately pay such additional amount in the Contractual Currency  as may be necessary to compensate for the shortfall. If for any reason the amount in the Contractual Currency  so received exceeds the amount in the Contractual Currency payable in respect of this Agreement, the party  receiving the payment will refund promptly the amount of such excess.    (b) Judgments.  To the extent permitted by applicable law, if any judgment or order expressed in a  currency other than the Contractual Currency is rendered (i) for the payment of any amount owing in respect  of this Agreement, (ii) for the payment of any amount relating to any early termination in respect of this  Agreement or (iii) in respect of a judgment or order of another court for the payment of any amount described  in (i) or (ii) above, the party seeking recovery, after recovery in full of the aggregate amount to which such  party is entitled pursuant to the judgment or order, will be entitled to receive immediately from the other party  the amount of any shortfall of the Contractual Currency received by such party as a consequence of sums paid  in such other currency and will refund promptly to the other party any excess of the Contractual Currency  received by such party as a consequence of sums paid in such other currency if such shortfall or such excess  arises or results from any variation between the rate of exchange at which the Contractual Currency is  converted into the currency of the judgment or order for the purposes of such judgment or order and the rate  of exchange at which such party is able, acting in a reasonable manner and in good faith in converting the  currency received into the Contractual Currency, to purchase the Contractual Currency with the amount of the  currency of the judgment or order actually received by such party. The term “rate of exchange” includes,  without limitation, any premiums and costs of exchange payable in connection with the purchase of or  conversion into the Contractual Currency.    (c ) Separate Indemnities. To the extent permitted by applicable law, these indemnities constitute  separate and independent obligations from the other obligations in this Agreement, will be enforceable as  separate and independent causes of action, will apply notwithstanding any indulgence granted by the party  to which any payment is owed and will not be affected by judgment being obtained or claim or proof being  made for any other sums payable in respect of this Agreement.     (d) Evidence of Loss.  For the purpose of this Section 8, it will be sufficient for a party to demonstrate  that it would have suffered a loss had an actual exchange or purchase been made.    





 






                                                   ISDA ® 1992 12  9. Miscellaneous  (a) Entire Agreement.  This Agreement constitutes the entire agreement and understanding of the parties  with respect to its subject matter and supersedes all oral communication and prior writings wit h respect  thereto.  (b) Amendments.  No amendment, modification or waiver in respect of this Agreement will be effective  unless in writing (including a writing evidenced by a facsimile transmission) and executed by each of the  parties or confirmed by an exchange of telexes or electronic messages on an electronic messaging system.   (c) Survival of Obligations.  Without prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations of  the  parties under this Agreement will survive the termination of any Transacti on.  (d) Remedies Cumulative.  Except as provided in this Agreement, the rights, powers, remedies and  privileges provided in this Agreement are cumulative and not exclusive of any rights, powers, remedies  and privileges provided by law.    (e) Counterparts and Confirmations.  (i)  This Agreement (and each amendment, modification and waiver in respect of it) may be  executed and delivered in counterparts (including by facsimile transmission), each of which will be  deemed an original.  (ii)  The parties intend that they are legally bound by the terms of each Transaction from the moment  they agree to those terms (whether orally or otherwise). A Confirmation shall be entered into as  soon as practicable and may be executed and delivered in counterparts (including by facsimile  transmission) or be created by an exchange of telexes or by an exchange of electronic messages on  an electronic messaging system, which in each case will be sufficient for all purposes to evidence  a binding supplement to this Agreement. The parties will specify therein or through another effective  means that any such counterpart, telex or electronic message constitutes a Confirmation.     (f) No Waiver of Rights.  A failure or delay in exercising any right, power or privilege in respect of this  Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power  or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or  privilege or the exercise of any other right, power or privilege.    (g) Headings.  The headings used in this Agreement are for convenience of reference only and are  not to  affect the construction of or to be taken into consideration in interpreting this Agreement.     10.  Offices; Multibranch Parties  (a) If Section 10(a) is specified in the Schedule as applying, each party that enters into a Transaction  through an Office other than its head or home office represents to the other party that, notwithstanding the  place of booking office or jurisdiction of incorporation or organisation of such party, the obligations of such  party are the same as if it had entered into the Transaction through its head or home office. This representation  will be deemed to be repeated by such party on each date on which a Transaction is entered into.  (b) Neither party may change the Office through which it makes and receives payments or deliveries  for the purpose of a Transaction without the prior written consent of the other party.     (c) If a party is specified as a Multibranch Party in the Schedule, such Multibranch Party may make  and receive payments or deliveries under any Transaction through any Office listed in the Schedule, and the  Office through which it makes and receives payments or deliveries with respect to a Transaction wi ll be  specified in the relevant Confirmation.  11. Expenses  A Defaulting Party will, on demand, indemnify and hold harmless the other party for and against all  reasonable out-of-pocket expenses, including legal fees and Stamp Tax, incurred by such other par ty by  reason of the enforcement and protection of its rights under this Agreement or any Credit Support Document   





 






                                                   ISDA ® 1992 13  to which the Defaulting Party is a party or by reason of the early termination of any Transaction, including,  but not limited to, costs of collection.    12. Notices  (a) Effectiveness.  Any notice or other communication in respect of this Agreement may be given in any  manner set forth below (except that a notice or other communication under Section 5 or 6 may not be given  by facsimile transmission or electronic messaging system) to the address or number or in accordance with  the electronic messaging system details provided (see the Schedule) and will be deemed effective as  indicated:—  (i)  if in writing and delivered in person or by courier, on the date it is delivered;    (ii)  if sent by telex, on the date the recipient's answerback is received;     (iii)  if sent by facsimile transmission, on the date that transmission is received by a responsible  employee of the recipient in legible form (it being agreed that the burden of proving receipt will be  on the sender and will not be met by a transmission report generated by the sender's facsimile  machine);    (iv)  if sent by certified or registered mail (airmail, if overseas) or the equivalent (return receipt   requested), on the date that mail is delivered or its delivery is attempted; or     (v)  if sent by electronic messaging system, on the date that electronic message is received,   unless the date of that delivery (or attempted delivery) or that receipt, as app licable, is not a Local Business  Day or that communication is delivered (or attempted) or received, as applicable, after the close of business  on a Local Business Day, in which case that communication shall be deemed given and effective on the first  following day that is a Local Business Day.  (b) Change of Addresses.  Either party may by notice to the other change the address, telex or facsimile  number or electronic messaging system details at which notices or other communications are to be given to  it.    13. Governing Law and Jurisdiction  (a) Governing Law. This Agreement will be governed by and construed in accordance with the law  specified in the Schedule.    (b) Jurisdiction.  With respect to any suit, action or proceedings relating to this Agreement  (“Proceedings”), each party irrevocably:—    (i)  submits to the jurisdiction of the English courts, if this Agreement is expressed to be governed by  English law, or to the non-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, if this  Agreement is expressed to be governed by the laws of the State of New York; and     (ii)  waives any objection 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.     Nothing in this Agreement precludes either party from bringing Proceedings in any other jurisdiction  (outside, if this Agreement is expressed to be governed by English law, the Contracting States, as defined  in Section 1(3) of the Civil Jurisdiction and Judgments Ac t 1982 or any modification, extension or  re-enactment thereof for the time being in force) nor will the bringing of Proceedings in any one or more  jurisdictions preclude the bringing of Proceedings in any other jurisdiction.     (c) Service of Process.  Each party irrevocably appoints the Process Agent (if any) specified opposite  its name in the Schedule to receive, for it and on its behalf, service of process in any Proceedings.  If for any   





 






                                                   ISDA ® 1992 14  reason any party's Process Agent is unable to act as such,  such par ty will promptly notify the other party  and within 30 days appoint a substitute process agent acceptable to the other party. The parties irrevocably  consent to service of process given in the manner provided for notices in Section 12. Nothing in this  Agreement will affect the right of either party to serve process in any other manner permitted by law.   (d) Waiver of Immunities.  Each party irrevocably waives, to the fullest extent permitted by applicable  law, with respect to itself and its revenues and assets (irrespective of their use or intended use), all immunity  on the grounds of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief  by way of injunction, order for specific performance or for recovery of property,  (iv) attachment of its assets  (whether before or after judgment) and (v) execution or enforcement of any judgment to which it or its  revenues or assets might otherwise be entitled in any Proceedings in the courts of any jurisdiction and  irrevocably agrees, to the extent permitted by applicable law, that it will not claim any such immunity in any  Proceedings.  14. Definitions  As used in this Agreement:—   “Additional Termination Event” has the meaning specified in Section 5(b).  “Affected Party” has the meaning specified in Section 5(b).  “Affected Transactions” means (a) with respect to any Termination Event consisting of an Illegality, Tax  Event or Tax Event Upon Merger, all Transactions affected by the occurrence of such Termination Event  and (b) with respect to any other Termination Event, all Transactions.   “Affiliate” means, subject to the Schedule, in relation to any person, any entity controlled, directly or  indirectly, by the person, any entity that controls, directly or indirectly, the person or any enti ty directly or  indirectly under common control with the person. For this purpose, “control” of any entity or person means  ownership of a majority of the voting power of the entity or person.   “Applicable Rate” means:—  (a) in respect of obligations payable or deliverable (or which would have been but for Section 2(a)(iii))  by a Defaulting Party, the Default Rate;  (b) in respect of an obligation to pay an amount under Section 6(e) of either party from and after the date  (determined in accordance with Section 6(d)(ii)) on which that amount is payable, the Default Rate;  (c) in respect of all other obligations payable or deliverable (or which would have been but for  Section 2(a)(iii)) by a Non-defaulting Party, the Non-default Rate; and  (d) in all other cases, the Termination Rate.    “Burdened Party” has the meaning specified in Section 5(b).    “Change in Tax Law” means the enactment, promulgation, execution or ratification of, or any change in or  amendment to, any law (or in the application or official interpretation of any law) that occurs on or after the  date on which the relevant Transaction is entered into.  “consent” includes a consent, approval, action, authorisation, exemption, notice, filing, registration or  exchange control consent.  “Credit Event Upon Merger” has the meaning specified in Section 5(b).  “Credit Support Document” means any agreement or instrument that is specified as such in this Agreement.   “Credit Support Provider” has the meaning specified in the Schedule.  “Default Rate” means a rate per annum equal to the cost (without proof or evidence of any actual cost) to  the relevant payee (as certified by it) if it were to fund or of funding the relevant amount plus 1% per annum.       





 






                                                   ISDA ® 1992 15  “Defaulting Party” has the meaning specified in Section 6(a).    “Early Termination Date” means the date determined in accordance with Section 6(a) or 6(b)(iv).    “Event of Default” has the meaning specified in Section 5(a) and, if applicable, in the Schedule.    “Illegality” has the meaning specified in Section 5(b).    “Indemnifiable Tax” means any Tax other than a Tax that would not be imposed in respect of a payment  under this Agreement but for a present or former connection between the jurisdiction of the government or  taxation authority imposing such Tax and the recipient of such payment or a person related to such recipient  (including, without limitation, a connection arising from such recipient or related person being or having been  a citizen or resident of such jurisdiction, or being or having been organised, present or engaged  in a trade or  business in such jurisdiction, or having or having had a permanent establishment or fixed place of business in  such jurisdiction, but excluding a connection arising solely from such recipient or related person having  executed, delivered, performed its obligations or received a payment under, or enforced, this Agreement or a  Credit Support Document).       “law” includes any treaty, law, rule or regulation (as modified, in the case of tax matters, by the practice of  any relevant governmental revenue authority) and “lawful” and “unlawful” will be construed accordingly.    “Local Business Day” means, subject to the Schedule, a day on which commercial banks are open for   business (including dealings in foreign exchange and foreign currency deposits) (a) in relation to any  obligation under Section 2(a)(i), in the place(s) specified in the relevant Confirmation or, if not so specified,  as otherwise agreed by the parties in writing or determined pursuant to provisions contained, or incorporated  by reference, in this Agreement, (b) in relation to any other payment, in the place where the relevant account  is located and, if different, in the principal financial centre, if any, of the currency of such payment, (c) in  relation to any notice or other communication, including notice contemplated under Section 5(a)(i), in the  city specified in the address for notice provided by the recipient and, in the case of a notice contemplated  by Section 2(b), in the place where the relevant new account is to be located and (d) in relation to  Section 5(a)(v)(2), in the relevant locations for performance with respect to such Specified Transaction.     “Loss” means, with respect to this Agreement or one or more Terminated Transactions, as the case may be, and  a party, the Termination Currency Equivalent of an amount that party reasonably determines in good faith to be  its total losses and costs (or gain, in which case expressed as a negative number) in connection with this Agreement  or that Terminated Transaction or group of Terminated Transactions, as the case may be, including any loss of  bargain, cost of funding or, at the election of such party but without duplication, loss or cost incurred as a result  of its terminating, liquidating, obtaining or reestablishing any hedge or related trading position (or any gain  resulting from any of them). Loss includes losses and costs (or gains) in respect of any payment or delivery  required to have been made (assuming satisfaction of each applicable condition precedent) on or before the   relevant Early Termination Date and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3) or  6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and out-of-pocket expenses referred to under  Section 11. A party will determine its Loss as of the relevant Early Termination Date, or, if that is not reasonably  practicable, as of the earliest date thereafter as is reasonably practicable. A party may (but need not) determine its  Loss by reference to quotations of relevant rates or prices from one or more leading dealers in the relevant  markets.    “Market Quotation” means, with respect to one or more Terminated Transactions and a party making the  determination, an amount determined on the basis of quotations from Reference Market -makers. Each  quotation will be for an amount, if any, that would be paid to such party (expressed as a negative number)  or by such party (expressed as a positive number) in consideration of an agreement between such party (taking  into account any existing Credit Support Document with respect to the obligations of such party) and the  quoting Reference Market-maker to enter into a transaction (the “Replacement Transaction”) that would  have the effect of preserving for such party the economic equivalent of any paym ent or delivery (whether  the underlying obligation was absolute or contingent and assuming the satisfaction of each applicable  condition precedent) by the parties under Section 2(a)(i) in respect of such Terminated Transaction or group  of Terminated Transactions that would, but for the occurrence of the relevant Early Termination Date, have   





 






                                                   ISDA ® 1992 16  been required after that date. For this purpose, Unpaid Amounts in respect of the Terminated Transaction or  group of Terminated Transactions are to be excluded but, without limitation, any payment or delivery that  would, but for the relevant Early Termination Date, have been required (assuming satisfaction of each  applicable condition precedent) after that Early Termination Date is to be included. The Replacement  Transaction would be subject to such documentation as such party and the Reference Market -maker may, in  good faith, agree. The party making the determination (or its agent) will request each Reference  Market-maker to provide its quotation to the extent reasonably practicable as of the same day and time  (without regard to different time zones) on or as soon as reasonably practicable after the relevant Early  Termination Date.  The day and time as of which those quotations are to be obtained will be selected in good   faith by the party obliged to make a determination under Section 6(e), and, if each party is so obliged, after  consultation with the other. If more than three quotations are provided, the Market Quotation will be the  arithmetic mean of the quotations, without regard to the quotations having the highest and lowest values.  If  exactly three such quotations are provided, the Market Quotation will be the quotation remaining after  disregarding the highest and lowest quotations.  For this purpose, if more than one quotation has the same  highest value or lowest value, then one of such quotations shall be disregarded.  If fewer than three quotations  are provided, it will be deemed that the Market Quotation in respect of such Terminated Transaction or group  of Terminated Transactions cannot be determined.    “Non-default Rate” means a rate per annum equal to the cost (without proof or evidence of any actual cost)  to the Non-defaulting Party (as certified by it) if it were to fund the relevant amount.     “Non-defaulting Party” has the meaning specified in Section 6(a).    “Office” means a branch or office of a party, which may be such party's head or home office.     “Potential Event of Default” means any event which, with the giving of notice or the lapse of time or both,  would constitute an Event of Default.    “Reference Market-makers” means four leading dealers in the relevant market selected by the party  determining a Market Quotation in good faith (a) from among dealers of the highest credit standing which  satisfy all the criteria that such party applies generally at the time in deciding whether to offer or to make  an extension of credit and (b) to the extent practicable, from among such dealers having an office in the same  city.  “Relevant Jurisdiction” means, with respect to a party, the jurisdictions (a) in which the party is  incorporated, organised, managed and controlled or considered to have its seat, (b) where an Office through  which the party is acting for purposes of this Agreement is located, (c) in which the party executes this  Agreement and (d) in relation to any payment, from or through which such payment is made.   “Scheduled Payment Date” means a date on which a payment or delivery is to be made under Section 2(a)(i)  with respect to a Transaction.    “Set-off” means set-off, offset, combination of accounts, right of retention or withholding or similar right  or requirement to which the payer of an amount under Section 6 is entitled or subject (whether arising  under  this Agreement, another contract, applicable law or otherwise) that is exercised by, or imposed on, such  payer.    “Settlement Amount” means, with respect to a party and any Early Termination Date, the sum of:—  (a) the Termination Currency Equivalent of the Market Quotations (whether positive or negative) for each  Terminated Transaction or group of Terminated Transactions for which a Market Quotation is determined;  and  (b) such party's Loss (whether positive or negative and without reference to any Unpaid Amounts) for  each Terminated Transaction or group of Terminated Transactions for which a Market Quotation cannot be  determined or would not (in the reasonable belief of the party making the determination) produce a  commercially reasonable result.  “Specified Entity” has the meaning specified in the Schedule.    





 






                                                   ISDA ® 1992 17  “Specified Indebtedness” means, subject to the Schedule, any obligation (whether present or future,  contingent or otherwise, as principal or surety or otherwise) in respect of borrowed money.     “Specified Transaction” means, subject to the Schedule, (a) any transaction (including an agreement with respect  thereto) now existing or hereafter entered into between one party to this Agreement (or any Credit Support  Provider of such party or any applicable Specified Entity of such party) and the other party to this Agreement (or  any Credit Support Provider of such other party or any applicable Specified Entity of such other party) which is  a rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or  equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction,  cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap  transaction, currency option or any other similar transaction (including any option with respect to any of these  transactions), (b) any combination of these transactions and (c) any other transaction identified as a Specified  Transaction in this Agreement or the relevant confirmation.    “Stamp Tax” means any stamp, registration, documentation or similar tax.    “Tax” means any present or future tax, levy, impost, duty, charge, assessment or fee of any nature (including  interest, penalties and additions thereto) that is imposed by any government or other taxing auth ority in  respect of any payment under this Agreement other than a stamp, registration, documentation or similar tax.     “Tax Event” has the meaning specified in Section 5(b).    “Tax Event Upon Merger” has the meaning specified in Section 5(b).    “Terminated Transactions” means with respect to any Early Termination Date (a) if resulting from a  Termination Event, all Affected Transactions and (b) if resulting from an Event of Default, all Transactions  (in either case) in effect immediately before the effectiveness of the notice designating that Early Termination  Date (or, if “Automatic Early Termination” applies, immediately before that Early Termination Date).     “Termination Currency” has the meaning specified in the Schedule.    “Termination Currency Equivalent” means, in respect of any amount denominated in the Termination  Currency, such Termination Currency amount and, in respect of any amount denominated in a currency other  than the Termination Currency (the “Other Currency”), the amount in the Termination Curren cy determined  by the party making the relevant determination as being required to purchase such amount of such Other  Currency as at the relevant Early Termination Date, or, if the relevant Market Quotation or Loss (as the case  may be), is determined as of a later date, that later date, with the Termination Currency at the rate equal to  the spot exchange rate of the foreign exchange agent (selected as provided below) for the purchase of such  Other Currency with the Termination Currency at or about 11:00 a.m. (in the city in which such foreign  exchange agent is located) on such date as would be customary for the determination of such a rate for the  purchase of such Other Currency for value on the relevant Early Termination Date or that later date.  The  foreign exchange agent will, if only one party is obliged to make a determination under Section 6(e), be  selected in good faith by that party and otherwise will be agreed by the parties.     “Termination Event” means an Illegality, a Tax Event or a Tax Event Upon Merger or, if specified to be  applicable, a Credit Event Upon Merger or an Additional Termination Event.     “Termination Rate” means a rate per annum equal to the arithmetic mean of the cost (without proof or  evidence of any actual cost) to each party (as certified by such party) if it were to fund or of funding such  amounts.    “Unpaid Amounts” owing to any party means, with respect to an Early Termination Date, the aggregate of (a)  in respect of all Terminated Transactions, the amounts that became payable (or that would have become  payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early Termination  Date and which remain unpaid as at such Early Termination Date and (b) in respect of each Terminated  Transaction, for each obligation under Section 2(a)(i) which was (or would have been but for  Section 2(a)(iii)) required to be settled by delivery to such party on or prior to such Early Termination Date  and which has not been so settled as at such Early Termination Date, an amount equal to the fair market  





 






Kim V. Farr Authorized Signatory 4/26/2021 





 






4842-4172-0804 v.2          SCHEDULE  to the  1992 ISDA MASTER AGREEMENT  dated as of April 26, 2021 between  WELLS FARGO BANK, N.A. (“Party A”)  and FARMER BROS. CO. (“Party B”)    Part 1.  Termination Provisions    (a) “Specified Entity” means, with respect to Party A and Party B for all purposes of this Agreement, none  specified.    (b) “Specified Transaction” has its meaning as defined in Section 14.    (c)  “Cross Default” applies to both parties, subject to the Cross Default Proviso below.     “Specified Indebtedness” has the meaning set forth in Section 14 (excluding indebtedness in respect of  bank deposits received in the ordinary course of business).    “Threshold Amount” means, (i) with respect to Party A, an amount (including its equivalent in another  currency) equal to 3% of its Shareholders Equity, and (ii) with respect to Party B, an amount (including its  equivalent in another currency) equal to $10,000,000.    “Shareholders Equity” means an amount equal to Party A’s total assets minus its total liabilities, as  reflected on  Party A’s fourth quarter Call Report filed with the FDIC as of Party A’s most recent calendar  year.    Cross Default Proviso.  For purposes of Section 5(a)(vi), (x) the phrase “or becoming capable at such time  of being declared” shall be deleted from clause (1) of such Section 5(a)(vi), and (y) an Event of Default  shall not occur with respect to a party under Section 5(a)(vi) when the failure to pay or deliver, or the  default, event of default or other similar condition or event, as the case may be, arises (i) out of a wire  transfer problem or an operational or administrative error or omission (so long as the required funds or  property required to make that payment or delivery were otherwise available to that party), or (ii) from the  general unavailability of the relevant currency due to exchange controls or other similar governmental  action, but in either case only if the payment or delivery is made within three Local Business Days after the  problem has been corrected, the error or omission has been discovered or the currency becomes generally  available.    (d) “Credit Event Upon Merger” applies to both parties.      (e) “Automatic Early Termination” does not apply to either party.    (f) Payments on Early Termination.  Except as otherwise provided herein, “Market Quotation” and the  “Second Method” apply.    In the case of any Terminated Transaction that is, or is subject to, any unexercised option, the words  “economic equivalent of any payment or delivery” appearing in the definition of “Market Quotation” shall  be construed to take into account the economic equivalent of the option.    (g) “Termination Currency” means U.S. Dollars.  





 






4842-4172-0804 v.2   2    (h) Additional Termination Event applies to Party B. “Additional Termination Event” means, with respect  to Party B (which will be the Affected Party), the occurrence of any of the following events:      (i) The Credit Agreement ceases to be in full force and effect or any commitment by Party A to lend or  otherwise extend credit thereunder shall terminate; Party B ceases to have any obligations to Party A under  the Credit Agreement (or under any promissory note or other evidence of indebtedness issued in connection  therewith), whether as the result of the repayment, discharge or satisfaction of such obligations, the sale or  transfer to a third party of Party A’s rights or interests in the Credit Agreement (or any promissory note or  other evidence of indebtedness issued in connection therewith), or otherwise; or either Party A or Party B  ceases to be a party to the Credit Agreement.    (ii) (A) Party B’s obligations to Party A under this Agreement fail at any time to be secured by the collateral  which secures the loans under the Credit Agreement from time to time (“Collateral”) on a pari passu and  pro rata basis with the principal of such loans (being the most senior class of loans if there is more than one  class); or    (B) any notice or consent is given or any action is taken that (I) would cause the Collateral, or the security  interest in or lien on the Collateral, to be released, realized upon, liquidated, sold, transferred, conveyed or  otherwise disposed of, or (II) would adversely alter or impair any of Party A’s rights, interests or benefits  in or pertaining to the Collateral under the Credit Agreement, any Collateral Document or any other  document executed in connection therewith in any material respect;    in each case, other than in connection with any release of collateral permitted or contemplated under the  Credit Agreement, any assignment by Party A or any refinancing, amendment or restatement of the Credit  Agreement or replacement with a new credit agreement in respect of which Party A or any Affiliate of Party  A is a party, or if Party A otherwise provides its written consent to an event that would otherwise constitute  an Additional Termination Event or to any refinancing, amendment or restatement that effects or would  result in any such event.  For the avoidance of doubt, the failure of any Guarantor (as defined in the Credit  Agreement) to be an “Eligible Contract Participant” (as defined in the Commodity Exchange Act, as  amended, and the applicable rules issued by the Commodity Futures Trading Commission) at the time its  guaranty becomes effective with respect to a Transaction shall not give rise to an Additional Termination  Event under this Part 1(h).     “Credit Agreement” means that certain Credit Agreement to be executed on or about April 26, 2021 by  and among Farmer Bros. Co., as Parent and as a Borrower, the other Borrowers party thereto, Wells Fargo  Bank, National Association, as Agent, the Lenders party thereto (and their successors and assigns), as the  same may be amended, supplemented, restated, renewed, extended, replaced or otherwise modified from  time to time.     “Collateral Document” means the Guaranty and Security Agreement, and Party B hereby irrevocably  agrees and consents to the disclosure by Party A of information relating to this Agreement, any Transactions  or any related credit support arrangements to each other Credit Support Provider, to any party to the Credit  Agreement, any such Collateral Document or any other Credit Support Document, to any secured party or  beneficiary thereof, and (solely to the extent reasonably required in connection with the Transactions or the  transactions contemplated under the Credit Agreement, and subject to obtaining reasonable and customary  confidentiality undertakings in respect thereof from such parties) to their respective agents, advisors and  third party providers, and to communicate with each of them in connection therewith.     (i) Bankruptcy.  Section 5(a)(vii) of this Agreement is hereby amended by (i) replacing each occurrence of  the words “30 days” with the words “60 days”, (ii) deleting subclauses (1), (5) and (6) thereof and (iii)  deleting the words “becomes insolvent or” in subclause (2) thereof.    





 






4842-4172-0804 v.2   3  Part 2.  Tax Representations    (a) Payer Tax Representations.  For the purpose of Section 3(e) of this Agreement, each party makes the  following representation:    It is not required by any applicable law, as modified by the practice of any relevant governmental revenue  authority, of any Relevant Jurisdiction to make any deduction or withholding for or on account of any Tax  from any payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) of this Agreement) to be made by  it to the other party under this Agreement.    In making this representation, a party may rely on (i) the accuracy of any representations made by the other  party pursuant to Section 3(f) of this Agreement, (ii) the satisfaction of the agreement contained in Section  4(a)(i) or 4(a)(iii) of this Agreement, and the accuracy and effectiveness of any document provided by the  other party pursuant to Section 4(a)(i) or 4(a)(iii) of this Agreement, and (iii) the satisfaction of the  agreement of the other party contained in Section 4(d) of this Agreement, except that it shall not be a breach  of this representation where reliance is placed on clause (ii) above and the other party does not deliver a  form or document under Section 4(a)(iii) by reason of material prejudice to its legal or commercial position.    (b) Payee Tax Representations.   For the purpose of Section 3(f) of this Agreement:    (i) Party A makes the following representation(s):    (A) It is a national banking association organized or formed under the laws of the United States and  is a United States person for United States federal income tax purposes.      (B) Party A makes no other Payee Tax Representations.     (ii) Party B makes the following representation(s):     (A) It is organized or formed under the laws of a state within the United States, and it is (or, if Party  B is disregarded for United States federal income tax purposes, its beneficial owner is) a United  States person for United States federal income tax purposes.       (B) Party B makes no other Payee Tax Representations.    Part 3.  Documents    (a) Tax Forms.     (i) Delivery of Tax Forms.  For the purpose of Section 4(a)(i), and without limiting Section 4(a)(iii), each  party agrees to duly complete, execute and deliver to the other party the tax forms specified below with  respect to it (A) before the first Payment Date under this Agreement, (B) promptly upon reasonable demand  by the other party and (C) promptly upon learning that any such form previously provided by the party has  become obsolete or incorrect.        (ii) Tax Forms to be Delivered by Party A:     None specified.     (iii) Tax forms to be Delivered by Party B:     A correct, complete and duly executed U.S. Internal Revenue Service Form W-9 (or successor  thereto) that eliminates U.S. federal backup withholding tax on payments to Party B under this  





 






4842-4172-0804 v.2   4  Agreement.    (b) Delivery of Documents. When it delivers this Agreement, each party shall also deliver its closing  documents to the other party in form and substance reasonably satisfactory to the other party.    Party  Documents to be delivered by such party Delivery due date Covered  by §3(d)   Party B A duly executed incumbency certificate of  Party B certifying the name, true signature  and authority of each person authorized to  execute this Agreement (including  Confirmations).  Upon execution of this Agreement,  and for any Confirmation, promptly  upon request.  Yes  Party B A certified copy of the resolutions or  unanimous consent of Party B’s board of  directors authorizing the execution, delivery  and performance of this Agreement  (including Confirmations)   Upon execution of this Agreement. Yes    (c) Financial Statements.  Party B agrees to furnish Party A hereunder with a copy of the financial statements  required to be delivered under the Credit Agreement as and when they are required to be delivered.     Notwithstanding the foregoing, Party B shall be deemed to have satisfied its obligations to deliver such  financial statements within the relevant time periods if such financial statements are publicly available  during such time periods on Party B’s internet home page  or on the Securities and Exchange Commission’s  EDGAR system, or if substantially similar financial statements are delivered or made available to the  Administrative Agent (as defined in the Credit Agreement) under and in accordance with the Credit  Agreement.    Part 4.  Miscellaneous    (a) Addresses for Notices.      (i) To Party A.  For purposes of Section 12(a) of this Agreement, all notices or communications to Party  A shall, with respect to any particular Transaction, be sent or delivered to the address specified by Party A  in the relevant Confirmation (or if not so specified, as specified by Party A in writing for that Transaction  or type of Transaction, or if not so specified, then to its address specified below), and otherwise with respect  to this Agreement, as specified below, provided that any notice under Section 5 or 6 of this Agreement shall  be sent or delivered to Party A at the address specified below as required by Section 12(a).    Wells Fargo Bank, N.A.  45 Fremont Street  30th Floor   MAC A0194-300   San Francisco, CA  94105  Facsimile No.: (877) 564-8524  Attention: Derivatives Documentation Manager     (ii) To Party B.  For purposes of Section 12(a) of this Agreement, all notices or communications to Party  B shall, with respect to any particular Transaction, be sent or delivered to the address specified by Party B  in the relevant Confirmation (or if not so specified, as specified by Party B in writing for that Transaction  or type of Transaction, or if not so specified, then to its address specified below), and otherwise with respect  to this Agreement, as specified below, provided that any notice under Section 5 or 6 of this Agreement shall  be sent or delivered to Party B at its address specified below as required by Section 12(a).    





 






4842-4172-0804 v.2   5  FARMER BROS. CO.  20333 South Normandie Avenue  Torrance, CA 90502  Attention: Jeffrey Wahba  Phone: 310-787-5241  Email: jwahba@farmerbros.com    (b) Process Agent.   For the purpose of Section 13(c) of this Agreement, neither party appoints a Process Agent  hereunder.    (c) Offices.  Section 10(a) applies.    (d) Multibranch Party.    (i) Party A is a Multibranch Party and may act through its San Francisco or Charlotte Office or its London  Branch, as specified in the relevant Confirmation.  If any Confirmation for a Transaction is sent or executed  by Party A without specifying its Office, it will be presumed that Party A’s Office for that Transaction is  its San Francisco Office, absent notice to the contrary from Party A.    (ii) Party B is not a Multibranch Party.    (e) “Calculation Agent”  means Party A, unless an Event of Default has occurred and is continuing with  respect to Party A, in which case, upon the request of Party B, the Calculation Agent will be a mutually  acceptable Leading Independent Dealer (“Replacement Calculation Agent”). If the parties cannot agree on  a Replacement Calculation Agent, then each party shall, by the close of business on the New York Business  Day following Party B’s initial request, select a Leading Independent Dealer, which in turn shall select a  third Leading Independent Dealer to be the Replacement Calculation Agent.  In the event that only one  party selects a Leading Independent Dealer, such Leading Independent Dealer shall act as the Replacement  Calculation Agent. The reasonable costs of employing the Replacement Calculation Agent shall be borne  equally by both parties.    “Leading Independent Dealer” means a leading swap dealer in the relevant market that is independent of  either party and its Affiliates.     (f) “Credit Support Document” means, with respect to Party B, the Guaranty and Security Agreement as  defined in the Credit Agreement, provided that (i) a release of collateral that is specifically permitted or  contemplated by the Credit Agreement or consented to by Required Lenders or other necessary parties  under the Credit Agreement, (ii) any assignmement by Party A or any refinancing, amendment or  restatement of the Credit Agreement or replacement with a new credit agreement in respect of which Party  A or any affiliate is a party, or (iii) any such event or any refinancing, amendment or restatement that effects  or would result in any such event to which Party A has provided its written consent, shall not constitute an  Event of Default under Section 5(a)(iii)(2) of the Agreement.     (g) “Credit Support Provider” means, with respect to Party B, each Guarantor as defined in the Credit  Agreement; provided that no person providing a guaranty of the performance or obligations of Party B  (each such person, a “Guarantor”) shall be deemed to be a guarantor of Party B’s performance or obligations  under this Agreement or in connection with any Transaction (a “Swap Obligation”) if such Guarantor is not  an “Eligible Contract Participant” as defined in § 1(a)(18) of the Commodity Exchange Act and the  applicable rules issued by the Commodity Futures Trading Commission and/or the Securities and Exchange  Commission (collectively, and as now or hereafter in effect, the “ECP Rules”) at the time such guaranty  became effective with respect to such Swap Obligation and to the extent that the providing of such guaranty  by such Guarantor would violate the ECP Rules..    





 






4842-4172-0804 v.2   6  (h) Governing Law and Jurisdiction.  To the extent not otherwise preempted by U.S. Federal law, this  Agreement and all matters arising out of or relating to this Agreement will be governed by and construed  in accordance with the law of the State of New York (without giving effect to any provision of New York  law that would cause another jurisdiction’s laws to be applied). Section 13(b) of the Agreement is hereby  amended by deleting the word “non-exclusive” appearing in subparagraph (i) thereof and substituting  therefor the word “exclusive”, provided that nothing in Section 13(b) shall prohibit a party from bringing  an action to enforce a money judgment in any other jurisdiction.    (i) WAIVER OF JURY TRIAL.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH  PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY  LEGAL PROCEEDING IN CONNECTION WITH THIS AGREEMENT, ANY CREDIT  SUPPORT DOCUMENT TO WHICH IT IS A PARTY, OR ANY TRANSACTION.      If any existing or future agreement, document, transaction or facility to which either party or an affiliate is  a party provides for arbitration to apply to other agreements, documents, transactions or facilities between  the relevant parties or their affiliates, or to any dispute arising out of or relating to any such other agreement,  document, transaction or facility, then it is hereby agreed that such provision for arbitration shall not apply  to, or to any dispute arising out of or relating to, this Agreement or any Transaction, notwithstanding  anything to the contrary contained in any such existing or future agreement, document, transaction or  facility.    (j) Netting of Payments.   Section 2(c) will apply in respect of all Transactions from the date of this  Agreement, provided that Section 2(c)(ii) of the Agreement will not apply with respect to each of the  following groups of Transactions, in respect of which multiple transaction payment netting will apply for  payments due on that date solely among transactions in each such group.    (i) Rate Swap Transactions, Cross Currency Rate Swap Transactions or Forward Rate Transactions  entered into by the parties;  (ii) Rate Cap Transactions; Rate Floor Transactions and Rate Collar Transactions entered into by the  parties;   (iii) FX Transactions entered into by the parties;  (iv) Currency Option Transactions entered into by the parties;  (v) Commodity Option Transactions entered into by the parties (on a Commodity by Commodity basis  to the extent operationally feasible); and  (vi) Commodity Transactions other than Option Transactions (on a Commodity by Commodity basis  to the extent operationally feasible).    The starting date for the election commences upon entering the first Transaction under the Agreement with  respect to either of the above groups of Transactions.    (k) “Affiliate” has its meaning as defined in Section 14.    (l) Financial Statements.  Section 3(d) is hereby amended by adding in the third line thereof after the word  “respect” and before the period:  “or, in the case of financial statements, a fair presentation of the financial  condition of the relevant party”.    (m) Conditions Precedent.     (i) The condition precedent in Section 2(a)(iii)(1) of this Agreement does not apply to a  payment and delivery owing by a party if the other party shall have satisfied in full all its payment  or delivery obligations under Section 2(a)(i) of this Agreement and shall at the relevant time have  no future payment or delivery obligations, whether absolute or contingent, under Section 2(a)(i) of  this Agreement.  





 






4842-4172-0804 v.2   7     (ii) Section 2 is hereby amended by the addition of the following new subsection 2(a)(iv):    “If an Event of Default has occurred and is continuing in relation to a party (“X”), then the condition  precedent specified in Section 2(a)(iii)(1) will cease to be a condition precedent to each obligation  of the other party (“Y”) under Section 2(a)(i) on the first Local Business Day following the date  falling ninety (90) calendar days after the first date on which Y does not make a payment or delivery  otherwise due from it (after the application of Section 2(c)) in reliance on the condition precedent  in Section 2(a)(iii)(1) following written notice by X of the occurrence of the relevant Event of  Default if Y has not designated an Early Termination Date with respect to such Event of Default.    Notwithstanding the foregoing, in no event shall the obligations of Y under Section 2(a)(i) be  subject to the condition precedent that no Potential Event of Default relating to Section 5(a)(ii) with  respect to X has occurred and is continuing.”    Part 5.  Other Provisions    (a) 2006 ISDA Definitions. This Agreement and each Transaction are subject to the 2006 ISDA Definitions  published by the International Swaps and Derivatives Association, Inc. (the “2006 ISDA Definitions”) and  will be governed by the provisions of the 2006 ISDA Definitions. The provisions of the 2006 ISDA  Definitions are incorporated by reference in, and shall form part of, this Agreement and each Confirmation.  Any reference to a “Swap Transaction” in the 2006 ISDA Definitions is deemed to be a reference to a  “Transaction” for purposes of this Agreement or any Confirmation, and any reference to a “Transaction”  in this Agreement or any Confirmation is deemed to be a reference to a “Swap Transaction” for purposes  of the 2006 ISDA Definitions. The provisions of this Agreement (exclusive of the 2006 ISDA Definitions)  shall prevail in the event of any conflict between such provisions and the 2006 ISDA Definitions.      (b) Scope of Agreement. Any Specified Transaction now existing or hereafter entered into between the parties  (whether or not evidenced by a Confirmation) shall constitute a “Transaction” under this Agreement and  shall be subject to, governed by, and construed in accordance with the terms of this Agreement, unless the  confirming document(s) exchanged or otherwise effective between the parties for that transaction expressly  provide(s) otherwise. For any Transaction entered into but not yet evidenced by a Confirmation, such  Transaction shall be subject to the terms of this Agreement, including Section 2(a)(i) as though the reference  to “Confirmation” therein were to “Transaction”.    (c) Additional Representations.  In addition to the representations under Section 3, the following  representations will apply:    (i) Relationship Between Parties.  Each party will be deemed to represent to the other party on the date  on which it enters into a Relevant Agreement that:    (1) Non-Reliance.  It is acting for its own account, and it has made its own independent decisions to  enter into the Relevant Agreement and as to whether the Relevant Agreement is appropriate or  proper for it based solely 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  any of its affiliates (or its respective representatives) as investment advice or as a recommendation  to enter into the Relevant Agreement, it being understood that information and explanations related  to the terms and conditions of any Relevant Agreement will not be considered investment advice  or a recommendation to enter into the Relevant Agreement.  No communication (written or oral)  received from the other party or any of its affiliates (or its respective representatives) will be  deemed to be an assurance or guarantee as to the expected results of the Relevant Agreement.    (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,  





 






4842-4172-0804 v.2   8  conditions and risks of the Relevant Agreement based solely upon its own evaluation of the  Relevant Agreement (including the present and future results, consequences, risks, and benefits  thereof, whether financial, accounting, tax, legal, or otherwise) or that of its own advisers.  It is also  capable of assuming, and assumes, the risks of the Relevant Agreement.    It also understands that  the terms under which any Transaction may be terminated early are set forth in this Agreement (or  in the relevant Confirmation), and any early termination of a Transaction other than pursuant to  such terms is subject to mutual agreement of the parties confirmed in writing, the terms of which  may require one party to pay an early termination fee to the other party based upon market  conditions prevailing at the time of early termination.    (3) Status of Parties.  The other party is not acting as a fiduciary for or an adviser to it in respect of the  Relevant Agreement, and any agency, brokerage, advisory or fiduciary services that the other party  (or any of its affiliates) may otherwise provide to the party (or to any of its affiliates) excludes the  Relevant Agreement.    “Relevant Agreement” means this Agreement, each Transaction, each Confirmation, any Credit Support  Document, or any agreement (including any amendment, modification, transfer or early termination)  between the parties relating to this Agreement or to any Transaction, Confirmation or Credit Support  Document.    (ii) Eligibility.  Each party will be deemed to represent to the other party on the date on which it enters into  a Transaction that it is an “eligible contract participant” within the meaning of the Commodity  Exchange Act.  For the avoidance of doubt, notwithstanding anything to the contrary in any guarantee,  credit agreement, loan agreement, security agreement or otherwise, the parties hereby expressly agree  that any guaranty or other credit support provided by any Credit Support Provider of Party B shall  exclude any “Excluded Swap Obligations” as defined in the Credit Agreement.    (iii) ERISA.  Each party represents to the other party at all times hereunder that it is not (i) an employee  benefit plan as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as  amended (“ERISA”), or a plan as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986,  as amended (the “Code”), subject to Title I of ERISA or Section 4975 of the Code, or a plan as so  defined but which is not subject to Title I of ERISA or Section 4975 of the Code but is subject to another  law materially similar to Title I of ERISA or Section 4975 of the Code (each of which, an “ERISA  Plan”), (ii) a person or entity acting on behalf of an ERISA Plan, or (iii) a person or entity the assets of  which constitute assets of an ERISA Plan.    (d) Set-Off.  Any amount (“Early Termination Amount”) payable to one party (“Payee”) by the other party  (“Payer”) under Section 6(e), in circumstances where there is a Defaulting Party or one Affected Party in  the case where either a Termination Event under Section 5(b)(iv) or any other Termination Event in which  all outstanding Transactions are Affected Transactions has occurred, will, at the option of the party (“X”)  other than the Defaulting Party or the Affected Party (and without prior notice to the Defaulting Party or  the Affected Party), be reduced by means of set off against any amount(s) (“Other Agreement Amount”)  payable (whether at such time or in the future or upon the occurrence of a contingency) by the Payee to the  Payer or to any Affiliate of the Payer (irrespective of the currency, place of payment or booking office of  the obligation) under any other agreement(s) between the Payee and the Payer (or between the Payee and  any Affiliate of the Payer) or instrument(s) or undertaking(s) issued or executed by the Payee to, or in the  favor of, the Payer or any Affiliate of the Payer (and the Other Agreement Amount will be discharged  promptly and in all respects to the extent it is so set-off).  X will give notice to the other party of any set- off effected under this paragraph.    For this purpose, either the Early Termination Amount or the Other Agreement Amount (or the relevant  portion of such amounts) may be converted by X into the currency in which the other is denominated at the  rate of exchange at which such party would be able, acting in a reasonable manner and in good faith, to  





 






4842-4172-0804 v.2   9  purchase the relevant amount of such currency.  The term “rate of exchange” includes, without limitation,  any premiums and costs of exchange payable in connection with the purchase of or conversion into the  relevant currency.    Nothing in this paragraph shall be effective to create a charge or other security interest.  This paragraph  shall be without prejudice and in addition to any right of set-off, combination of accounts, lien or other right  to which any party is at any time otherwise entitled (whether by operation of law, contract or otherwise).    (e) Escrow.  If payments denominated in different currencies are due hereunder by both parties on the same  day and a party has reasonable cause to believe that the other party will not meet its payment obligation,  then as reasonable assurance of performance the party may notify the other party that payments on that date  are to be made in escrow. In this case, deposit of the payment due earlier on that date shall be made by 2:00  p.m. (local time at the place for the earlier payment) on that date with any escrow agent selected by the  party giving the notice from among major commercial banks independent of either party (and its affiliates),  accompanied by irrevocable payment instructions (i) to release the deposited payment to the intended  recipient upon receipt by the escrow agent of the required deposit of the corresponding payment from the  other party on the same date accompanied by irrevocable payment instructions to the same effect or (ii) if  the required deposit of the corresponding payment is not made on the same date, to return the payment  deposited to the party that paid in escrow.  The party that elects to have payments made in escrow shall pay  the costs of the escrow arrangements and shall make arrangements to provide that the intended recipient of  the amount due to be deposited first shall be entitled to interest on the deposited payment for each day in  the period of its deposit at the rate offered by the escrow agent for that day for overnight deposits in the  relevant currency in the office where it holds that deposited payment (at 11:00 a.m. local time on that day)  if that payment is not released by 5:00 p.m. local time on the date it is deposited for any reason other than  the intended recipient’s failure to make the escrow deposit it is required to make hereunder in a timely  fashion.    (f) Change of Account. Any account designated by a party pursuant to Section 2(b) shall be in the same legal  and tax jurisdiction as the original account.    (g) Recording of Conversations.  Each party (i) consents to the recording of telephone conversations between  the trading, marketing and other relevant personnel of the parties or any of their Affiliates in connection  with this Agreement or any Transaction or potential Transaction, (ii) agrees to obtain any necessary consent  of, and give any necessary notice of such recording to, its relevant personnel and those of its Affiliates and  (iii) agrees, to the extent permitted by applicable law, that such recordings may be submitted in evidence  in any Proceedings.     (h) Confirmation Procedures.  Each confirming document, acknowledgment or other evidence intended by  the parties to be effective for the purpose of confirming or evidencing a Transaction, whether created by  delivery or exchange of written terms that match, or by making available written terms in a manner that  permits the recipient to review and/or accept the terms, or by delivery to an agent or service provider, or  via electronic messaging system, electronic communication network, or web-based platform that confirms  the matching of such terms, shall constitute a “Confirmation” as referred to in this Agreement, provided  that both parties agree in writing or by their course of conduct to use such method with respect to  Transactions or certain types of Transactions. Confirmations for Transactions are due under Rule 23.501  of the Commodity Futures Trading Commission (“CFTC”) within the applicable time frame specified in  such rule, to the extent applicable.     (i) Foreign Account Tax Compliance Act.  The following provision shall apply in respect of this Agreement  (including the Schedule hereto, any Credit Support Annex and each Transaction that has been or will be  entered into hereunder) and shall survive the termination of any Transaction or Confirmation:     





 






4842-4172-0804 v.2   10  “Withholding Tax imposed on payments to non-U.S. counterparties under the United States Foreign  Account Tax Compliance Act. “Tax” as used in Part 2(a) of this Schedule (Payer Tax Representation) and  “Indemnifiable Tax” as defined in Section 14 of this Agreement shall not include any U.S. federal  withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue  Code of 1986, as amended (the “Code”), any current or future regulations or official interpretations thereof,  any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation,  rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the  implementation of such Sections of the Code (a "FATCA Withholding Tax"). For the avoidance of doubt,  a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law  for the purposes of Section 2(d) of this Agreement.”     (j) ISDA Dodd Frank Protocols.    (i)  ISDA August 2012 DF Protocol.  If both parties have adhered to the ISDA August 2012 DF Protocol  Agreement (“August Protocol Agreement”) and have delivered “Matched Questionnaires” (as defined  therein), then this Agreement shall be deemed to be a “Matched PCA” under the August Protocol  Agreement.    (ii)  ISDA March 2013 DF Protocol.  If both parties hereto have adhered to the ISDA March 2013 DF  Protocol Agreement (“March Protocol Agreement”) and have delivered “Matched Questionnaires” (as  defined therein), then this Agreement shall be deemed to be a “Matched PCA” under the March Protocol  Agreement.    (iii) Certain Swap Trading Relationship Documentation Terms. CFTC Regulation 23.504 requires that  Party A include in “swap trading relationship documentation” certain statements and notice provisions  regarding (i) Party A’s status (and, if applicable, Party B’s status) as an “insured depository institution,”  “financial company” or “covered financial company”, and (ii) the effect of clearing swaps on a derivatives  clearing organization.  Such statements and notice provisions are contained in Sections 2.5, 2.12 and 2.13  of March 2013 DF Schedule 2 of the ISDA March 2013 DF Supplement and in certain statements contained  in Matched Questionnaires delivered between the parties as to whether a party is an insured depository  institution or a financial company, which statements and notice provisions are incorporated herein by  reference.     (k)        ISDA 2018 U.S. Resolution Stay Protocol.   If, prior to the date of this Agreement, both parties hereto  have adhered to the ISDA 2018 U.S. Resolution Stay Protocol, as published by the International Swaps  and Derivatives Association, Inc. as of July 31, 2018 (the “ISDA U.S. QFC Protocol”), the terms of the  ISDA U.S. QFC Protocol shall be incorporated into and form a part of this Agreement.  For purposes of  incorporating the ISDA U.S. QFC Protocol,  each party shall be deemed to have the same status as  “Regulated Entity” and/or Adhering Party (as such terms are defined therein)  applicable to it under the  ISDA U.S. QFC Protocol and this Agreement shall be deemed to be a “Protocol Covered Agreement” (as  defined therein).    (l) Amendment and Restatement.  The Master Agreement (including the Schedule and any amendments  thereto) between the parties dated as of November 19, 2012 (the “Prior Agreement”) is hereby amended  and restated in its entirety in the form of this Agreement (including this Schedule). Any transaction  (however described or defined) existing under the Prior Agreement shall be a Transaction governed by this  Agreement, and any confirmation (however described or defined) under the Prior Agreement for any such  transaction shall be a Confirmation under this Agreement.  This Agreement is not intended to constitute a  novation or termination of the obligations under the Prior Agreement and any security interests created  pursuant to the Prior Agreement are intended to continue and to secure the obligations under this  Agreement.      





 






4842-4172-0804 v.2   11  Part 6.  Additional Terms for FX Transactions and Currency Options    (a) ISDA FX and Currency Option Definitions.  The 1998 FX and Currency Option Definitions published  by the International Swaps and Derivatives Association, Inc., the Emerging Markets Traders Association  and The Foreign Exchange Committee (the “FX Definitions”) are hereby incorporated by reference in, and  shall form part of, this Agreement and each Confirmation relating to any “Currency Option Transaction”  or “FX Transaction” as defined in the FX Definitions, except as otherwise specifically provided herein or  in the relevant Confirmation.    (b) Inconsistency.  In the event of any inconsistency between any of the following documents with respect to  an FX Transaction or Currency Option Transaction, the relevant document first listed shall prevail: (i) a  Confirmation, (ii) Part 6 of this Schedule, (iii) the remainder of this Schedule, (iv) the printed form of ISDA  Master Agreement, (v) the FX Definitions, and (vi) the 2006 ISDA Definitions.    (c) Notice of Exercise.  Section 3.5(g) of the FX Definitions is hereby amended by deleting “facsimile,” in the  third line thereof.    (d) Netting of FX and Currency Option Payments.  If the parties mutually agree that Section 2(c)(ii) of this  Agreement will not apply with respect to FX Transactions and/or Currency Option Transactions, then  payment netting will apply separately for each of the following groups of Transactions: (i) FX Transactions  (including FX Transactions resulting from the exercise of Currency Option Transactions), (ii) Currency  Option Transactions, and (iii) Premiums payable under Currency Option Transactions (in each case as such  terms are defined in the FX Definitions), unless otherwise specified in the relevant Confirmation.    [SIGNATURE PAGE FOLLOWS THIS PAGE]     





 






Kim V. Farr Authorized Signatory