---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

•

In October 2013, we acquired Onyx, a biopharmaceutical company engaged in the development and commercialization of innovative therapies for improving the lives of people with cancer. Onyx has an important and growing multiple myeloma franchise, with Kyprolis® (carfilzomib) for Injection already approved in the United States, and with oprozomib being evaluated in clinical trials for patients with hematologic malignancies. In addition, Onyx has collaborations with Bayer HealthCare Pharmaceuticals, Inc., for two of Bayer’s marketed oncology products: Nexavar® (sorafenib) tablets, for which Onyx and Bayer have a profit-sharing relationship, and Stivarga® (regorafenib) tablets, for which Onyx receives sales-based royalties from Bayer.  Onyx also has a collaboration with Pfizer related to palbociclib, an oncology product being developed by Pfizer for which Onyx will receive sales-based royalties. See Note 12, Subsequent event to the condensed consolidated financial statements.

•	The FOCUS trial, which could support the EU filing for the indication of relapsed/refractory multiple myeloma, is expected to read out in the first half of 2014.

•	The ASPIRE trial is the confirmatory trial for full U.S. approval as well as a registration-enabling study for relapsed multiple myeloma in the United States and the EU. The Independent Data Monitoring Committee review of interim analysis is projected to occur in the first half of 2014.

•	The ENDEAVOR trial compares Kyprolis® with Velcade® (bortezomib) in patients with relapsed multiple myeloma who have received one to three prior therapies.

•	The CLARION trial compares Kyprolis® with Velcade® in patients with newly diagnosed multiple myeloma.

•

In September 2013, we presented results from the phase 3 ASPECCT ('763) trial comparing Vectibix® with Erbitux® (cetuximab) for the treatment of wild-type KRAS metastatic colorectal cancer in patients who have not responded to chemotherapy. The study met its primary endpoint, demonstrating that panitumumab was non-inferior to cetuximab for overall survival. In Europe, the ASPECCT trial is a Specific Obligation for Vectibix® as part of the European Medicine Agency's conditional marketing authorization.

•	In October 2013, we announced that the primary analysis of the event-driven overall survival secondary endpoint from the ongoing pivotal phase 3 study in recurrent ovarian cancer (TRINOVA-1) is projected to occur in the second half of 2014.

•	In October 2013, we announced that enrollment has been closed in a phase 3 study in recurrent ovarian cancer (TRINOVA-2) due to DOXIL® (doxorubicin HCl liposome injection) supply issues.

•	In October 2013, we discussed that enrollment will be reduced in the phase 3 study in first-line ovarian cancer (TRINOVA-3) while maintaining the integrity of the primary endpoint (progression-free survival).

•	In October 2013, we announced that all of the pivotal lipid lowering studies of evolocumab have completed enrollment and that data are expected in the first quarter of 2014.

•	In October 2013, we announced that all phase 3 studies in subjects with psoriasis have completed enrollment and that data are expected in 2014.

---

•	In August 2013, we obtained the commercial rights in the United States to Servier's novel oral drug ivabradine. Ivabradine is approved in the EU for chronic heart failure and stable angina in patients with elevated heart rates, as well as approved in more than 100 other countries, excluding the United States.

•	In October 2013, we announced that we commenced a pivotal study in subjects with psoriasis for our biosimilar Humira® (adalimumab).

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

---

A.	Company and Provider entered into that certain agreement titled Integrated Facilities Management Services Agreement effective as of February 4, 2009 and identified by contract number CSV-09-51444 pursuant to which Provider is to be performing integrated facilities services with respect to facilities operations and maintenance and general services as set forth therein (“Original Agreement”).

B.

Thereafter, Company and Provider amended the Original Agreement through that certain Amendment Number 1 entered into as of March 31, 2010, Amendment Number 2 entered into as of May 12, 2011, Amendment Number 3 entered into as of Jul 1, 2011, and Amendment Number 4 entered into as of Mar 20, 2013 (the Original Agreement together with the above-referenced amendments shall be referred to hereinafter as the “Agreement”).

C.	Company and Provider desire, and are willing, to amend the Agreement as set forth herein.

1.	DEFINITIONS

2.	AMENDMENTS TO THE AGREEMENT

---

---

(i)

Shared Savings at Term: Company shall pay Provider the Shared Savings at Term (“Shared Savings at Term”), which is a portion of the Savings over the 2015 Cost Guaranty by site, as set forth in Exhibit D Attachment D2 (“Incremental Savings at Term”).The Shared Savings at Term shall be equal to the amount of the Incremental Savings at Term, reduced by any Incremental Savings at Term achieved in the prior year (if applicable,) multiplied by the applicable Shared Savings Multiplier set forth in the Shared Savings at Term Payout Table at section 2.7(iii) below.

(ii)	Early Savings. If prior year Actual Cost less current year Actual Cost (“Actual Savings”) exceed the prior year Cost Guaranty less the current year Cost Guaranty, then Company will pay to Provider a portion of this savings (“Early Savings”), which shall be equal to five percent (5%) multiplied by the Early Savings amount (“Early Shared Savings”).

(iii)	Shared Savings at Term Payout Table:

(iv)	Provider’s Shared Savings: Provider’s Shared Savings at Term and Provider’s Early Shared Savings combined are defined as Provider’s Shared Savings (“Provider’s Shared Savings”)

---

3.	CONCLUSION

---

1.	GENERAL

1.1	Introduction

---

1.3	Commencement of Obligations

1.3.1	Provider shall be responsible for measuring, reporting, and achieving the KPIs beginning on the Effective Date.

1.4	Management Fee at Risk

1.4.1	The Management Fee at Risk for the applicable Measurement Period shall be established in accordance with Exhibit D. Provider’s Management Fee at Risk shall be contingent and at risk during each Measurement Period, and shall be earned based upon performance of KPIs as provided in this Exhibit C.

1.4.2	For each Measurement Period, Provider will earn a portion of the Management Fee at Risk equal to the aggregate of the MFAR Amounts Earned for all of the KPIs, not to be less than 0 or more than 100% of the Management Fee at Risk for such measure Period (also referred to as the “Management Fee at Risk Earned”).

1.5	Company Right to Reallocate Management Fee at Risk.

1.5.1

Company, in its sole discretion, may allocate and reallocate the respective Allocated MFAR Portions of the Management Fee at Risk among the KPIs. Company’s initial allocation of Allocated MFAR Portions to the initial KPIs are set forth in the KPI Scorecard attached as Attachment C.1. Company may change Allocated MFAR Portions of the Management Fee at Risk at any time by providing written notice to Provider, provided such changes will not

---

1.5.2

Company, in its sole discretion, may change the weightings of the KPI Scores attributable to respective KPI performance levels in the KPI Scorecard at any time, provided that the weighting of any KPI is reasonably balanced to business needs, by providing written notice to Provider, provided such changes will not go into effect until the Measurement Period immediately following that Measurement Period in which the delivery of notice of such change took place.

1.6	Measurement and Reporting Tools

1.6.1	Unless otherwise specified in the KPI Scorecard, Provider shall have operational, administrative, maintenance, and financial responsibility for all tools required to measure and report its performance against the KPIs.

1.6.2	Provider will develop reports that meet the requirements as specified by Company and provide an accurate account of Provider’s performance against KPIs and use the latest technology in producing reports. If Company is not satisfied with the reporting process and/or report format, Provider will make commercially reasonable efforts to accommodate Company’s reporting request(s) and desired format.

1.6.3

Provider shall implement and utilize the measurement and monitoring tools and procedures described in the KPIs outlined in Attachment C.1 to measure and report its performance against the KPIs. All performance measurement and monitoring shall permit reporting at a level of detail sufficient to verify compliance with the KPI metrics, and the data underlying the reports and Provider’s performance shall be subject to audit by Company. Provider shall provide Company with information and access to such tools and procedures upon request.

1.6.4

If, after the Effective Date, Provider desires to use a different measuring tool or procedure for any KPI, Provider shall provide written notice to Company, proposing the new tool and any reasonable adjustments to the KPI s that are necessary to account for any increased or decreased sensitivity in the new measuring tools or procedures. Provider may utilize such different measuring tools or procedures only to the extent the tools or procedures, and any associated KPI adjustments, are approved in advance and in writing by Company.

1.6.5	Where a KPI includes multiple conditions or components (e.g., components x, y and z), satisfaction of all such conditions or components is necessary to meet the corresponding KPI.

1.7	Reports and Supporting Information.

1.7.1	Provider shall provide Company with mutually agreed upon reports as outlined in this document and in any relevant attachments and exhibits to this document. At a minimum, the KPI Scorecard reports shall include the following:

i.	Performance reports for each individual KPI metric in Attachment C.1

ii.	Identification of any individual KPI Target that Provider failed to meet.

1.7.2	Upon Company’s request, Provider shall provide supporting information as requested by Company to verify the accuracy of each KPI measurement.

---

2.	KPI SCORING METHODOLOGY

2.1

Scoring Methodology. The Parties have prepared the initial KPIs, together with their respective weightings and scoring methodology, set forth in Attachment C.1 attached hereto and made a part hereof (the initial “KPI Table”), and will prepare subsequent KPI Tables annually, with the aim that they be clear, concise, measurable, reflect Company’s business needs and provide an incentive for Provider to provide the best service possible. Each KPI Table will include the following basic components:

i.	KPI Name. Column 1 sets forth the name of the KPI.

ii.

Allocated MFAR Portion. Column 2 sets forth the Allocated MFAR Portion for each manufacturing site (AML, ARI, and ACO) and for all remaining GFO & Other Sites. Company shall have 100 percentage points of Management Fee at Risk to allocate to the respective Allocated MFAR Portions for the KPIs. Company, in its sole discretion, may reallocate these 100 percentage points among the individual KPIs by providing Provider with written notice, provided that the weighting of any KPI is reasonably balanced to business needs. Such reallocations shall go into effect in the next Measurement Period following the Measurement Period in which Company provides such notice.

iii.	MFAR Amount at Risk.     Column 3 sets forth the Allocated MFAR Amount at Risk. For each KPI, the “MFAR Amount at Risk” is an amount equal to the Allocated MFAR Portion for such KPI multiplied times the Provider Management Fee at Risk for the applicable Measurement Period. This is the portion of the Management Fee at Risk allocated to the respective KPI for the applicable Measurement Period.

iv.	KPI Target.     Column 4 sets forth the KPI Target for the applicable KPI, expressed as a KPI Score of 3.0.

v.	Performance Results Scoring Table. Column 5 sets forth a table indicating the range of potential performance results that Provider may achieve with respect to each KPI and the KPI Score corresponding to each potential range of result.

vi.	Performance Result. Column 6 sets forth Provider’s actual performance result, as measured for each KPI.

vii.

KPI Score. Column 7 sets forth the score (on a scale of 1 to 5, with increments of 0.1) for each KPI that corresponds to the actual performance result for the KPI for the Measurement Period (the “KPI Score”) is set forth in the KPI Scorecard. If Provider’s performance with respect to any particular KPI creates a result that falls between two KPI Score increments, the KPI Score will be rounded up or down to the nearest 0.1 as appropriate (for example any score between 1.01 - 1.04 shall be rounded down to 1.0 while any score from 1.05 to 1.09 shall be rounded up to 1.1).

viii.	KPI Multiplier. Each possible KPI Score for a KPI will correspond to a percentage multiplier (the “KPI Multiplier”), which will be multiplied by the MFAR Amount at Risk for such KPI to determine the MFAR Amount Earned for the KPI. The KPI Multipliers for each potential KPI Score increment are set forth in the KPI Multiplier Table set forth in the KPI Scorecard.

ix.	MFAR Amount Earned. Column 9 sets forth the MFAR Amount Earned for the respective KPI. For each KPI for each Measurement Period, the “MFAR Amount Earned” is the product of the KPI Multiplier corresponding to the actual KPI Score achieved for the respective KPI, multiplied by the Allocated MFAR Portion for such KPI

x.	Method. Column 10 sets forth the method of scoring by site. “Site” means actual KPI Performance Result at each individual manufacturing site (AML, ARI, and ACO) and one for all remaining GFO & Other Sites. “Portfolio” means actual Aggregate KPI Performance Result of all sites (AML, ARI, ACO, and GFO & Other Sites).

---

3.	TERMINATION FOR KPI DEFAULT

3.1	Termination for KPI default. Upon a KPI Default, Company shall have the right to terminate the Agreement, in accordance with the Term and Termination article of the Agreement.

4.	QUALITY ASSURANCE AND IMPROVEMENT PROGRAMS

4.1	KPI Failure Corrective Action. Without limiting Company remedies for a KPI Failure pursuant to the terms of the Agreement, following each KPI Failure, Provider shall:

i.	investigate, assemble and preserve pertinent information with respect to, and report on the causes of, the failure;

ii.	prepare and deliver to Company within 30 days of the reporting of the applicable KPI Failure a written plan to setting forth remedial and corrective measures to improve Provider’s performance and correct the KPI Failure;

iii.	advise Company, as and to the extent requested by Company, of the status of remedial efforts being undertaken with respect to correcting the KPI Failure;

iv.	minimize the impact of and correct the KPI Failure and begin meeting the KPI Target; and

v.	take appropriate preventive measures so that the KPI Failure does not recur.

4.2

Quality Assurance. Provider shall provide continuous quality assurance and quality improvement with respect to the KPIs through: (a) the identification and implementation of proven techniques and tools from other installations within Provider’s operations (i.e., "Best Practices"); (b) the identification and application of fast-path implementation and detailed timelines for implementation of the Services; and (c) the implementation of Provider programs, practices and measures designed to improve performance with respect to KPIs. Such procedures will include checkpoint reviews, testing, and other procedures for Company to confirm the quality of Provider’s performance. Provider will utilize project management tools, including productivity aids and project management systems, as appropriate in performing the Services. KPI performance measurements for determining KPI Scores shall be appropriately revised upward by Company from time to time in order to measure and give effect to such continuous quality improvement.

4.3

Adjusting KPIs. Without limiting Company’s right to adjust KPIs from time to time, as part of the annual budgeting process, in response to changes in Company’s business needs, or to reflect changes in or evolution of the Services, when requested by Company the Parties shall add and/or modify the KPIs so that they provide a fair, accurate and consistent measurement of the full range of Provider’s performance of the Services.

5.	SERVICE LEVEL AGREEMENTS

5.1

SLA. Provider shall meet or exceed the SLAs during the Term. The Parties have identified and agreed upon the SLAs set forth in this Exhibit C, with the aim that they be clear, concise and measurable, reflect Company’s business needs and encourage Provider to provide the best Services possible. Attachment C.2 provides the individual SLA metrics against which Provider’s performance shall be measured.

5.2	Commencement of Obligations. Provider shall be responsible for measuring, reporting, and achieving the SLAs in accordance with this Exhibit C beginning on the Effective Date.

5.3	Adjusting SLAs. As part of the annual budgeting process, in response to changes in Company’s business needs, or to reflect changes in or evolution of the Services, when requested by Company the Parties shall add and/or modify the SLAs so that they provide a fair, accurate and consistent measurement of the full range of Provider’s performance of the Services.

5.4	SLA Weightings. Company shall have 100 percentage points to allocate among the SLAs. Company, in its sole discretion, may reallocate these 100 percentage points among the individual SLAs by site or at the

---

5.5	SLA Measurement and Reporting Tools.

i.	Unless otherwise specified in the SLA Scorecard, Provider shall have operational, administrative, maintenance, and financial responsibility for all tools required to measure and report its performance against the SLAs.

ii.	Provider will develop reports to the requirements as specified by Company and use the latest technology in producing reports. If Company is not satisfied with the reporting process and/or report format, Provider will make commercially reasonable efforts to accommodate Company’s reporting request(s) and desired format.

iii.

Provider shall implement and utilize the measurement and monitoring tools and procedures described in the SLAs to measure and report its performance against the SLAs. All performance measurement and monitoring shall permit reporting at a level of detail sufficient to verify compliance with the SLA performance metrics, and shall be subject to audit by Company. Provider shall provide Company with information and access to such tools and procedures upon request.

iv.

If, after the Effective Date, Provider desires to use a different measuring tool or procedure for any SLA, Provider shall provide written notice to Company, proposing the new tool and any reasonable adjustments to the SLA s that are necessary to account for any increased or decreased sensitivity in the new measuring tools or procedures. Provider may utilize such different measuring tools or procedures only to the extent the tools or procedures, and any associated SLA adjustments, are approved in advance in writing by Company.

v.	Where an SLA includes multiple conditions or components (e.g., components x, y and z), satisfaction of all such conditions or components is necessary to meet the corresponding SLA.

5.6	Reports and Supporting Information

i.	Provider shall provide Company with mutually agreed upon reports as outlined in this Exhibit C and in any relevant Attachments. At a minimum, the SLA Scorecard reports shall include the following:

•	Performance reports for each individual SLA metric in the SLA Scorecard; and

•	Identification of any SLA Failures during the applicable Measurement Period.

ii.	Upon Company’s request, Provider shall provide supporting information as requested by Company to verify the accuracy of each SLA measurement.

5.7	SLA Evaluation process. Provider’s SLA adherence / performance will be evaluated on a site-by-site basis each Measurement Period.

i.	Each site will have an SLA Scorecard that will track Provider’s performance.

ii.	The initial SLA Scorecard is provided as Attachment C.3. Sites are given a weighting by budgeted Reimbursable Costs for that site relative to the overall budgeted Reimbursable Costs for the scope of Services, and individual SLA scores are calculated and averaged according to that weighting. Individual SLAs are also weighted according to importance.

---

iii.	These scores will then roll-up into a master SLA Scorecard. Provider shall provide Company with a summary SLA Scorecard each Measurement Period in a format that is mutually agreed upon by both Parties.

iv.	The following rating scale shall be used by Company to evaluate Provider satisfaction of SLAs:

•	5 - Service is Exceptional

•	4 - Service Exceeds Expectations

•	3 - Service Meets Expectations

•	2 - Service Partially Meets Expectations

•	1 - Service Fails Expectations/Needs Improvement

v.	If Provider scores less than 2.0 for an SLA at any GFO & Other Site, that will be the score for SLA adherence for that particular SLA for GFO & Other Sites.

vi.	If Provider scores less than 2.0 for total site SLA adherence at any one site, that will become the score for the Aggregate SLA Score.

vii.	The initial site weightings, SLA weightings, and an example of the calculations are provided in the initial SLA Scorecard attached hereto as Attachment C.2.

viii.	The Aggregate SLA Score for each Measurement Period shall be a KPI performance score in accordance with the KPI Scorecard.

ix.

For SLA 1.1 and SLA 1.3, a SLA Failure at any GFO & Other Site will fail the entire SLA component for all GFO & Other Sites. For SLAs 1.1, 1.3 and 3.1, if a GFO & Other Site does not have scope in the SLA components, and if any other GFO & Other Site has an SLA Failure in that SLA component, then that site SLA Failure will not cascade to the GFO & Other Sites not in scope. The decision to cascade SLA component Failures across GFO & Other Sites in that SLA component for SLA 3.1 will be subjective. The decision to cascade that single site SLA Failure across GFO & Other Sites will be based on (a) severity and/or impact to business and (b) frequency and/or repetition.

6.	QUALIFYING CONDITIONS

6.1

Disqualifying Event. There are minimum levels of safety and performance required to qualify for any portion of the Management Fee at Risk for the Measurement Period. Notwithstanding anything to the contrary in this Exhibit or elsewhere in the Agreement, if any of the Disqualifying Events set forth below occur during a Measurement Period, Provider shall receive no portion of the Management Fee at Risk for the applicable Measurement Period, regardless of KPI Scores, and the Aggregate Management Fee at Risk Earned for all KPIs shall equal zero for such Measurement Period. Any of the following shall constitute a “Disqualifying Event”:

i.	Provider Services result in a safety incident resulting in any fatality or serious injury caused by Provider or Provider Personnel. If an individual has three or more hospitalizations due to a single incident, such incident shall constitute a “serious injury” hereunder.

ii.

Provider’s performance of the Services results in a major incident or a serious compliance infraction, including, without limitation, major community or Company public relations impact; community evacuation; release of hazardous substances in amount equal to or greater than the reportable quantity; damage to infrastructure, Company product or property in excess of $500,000 in the aggregate; major internal infrastructure outage causing Company loss or loss of production in excess of $500,000 in the aggregate; or Federal Drug Administration or other governmental investigation, violation of Applicable Law that results in material adverse impact on the Services, the Company or Company operations; or corrective action or penalties costing in excess of $500,000 in the aggregate.

---

iii.	Provider has an Aggregate SLA Score of 2.0 or less for two consecutive Measurement Periods.

iv.	Provider has an Aggregate KPI Score of 2.5 or less for two consecutive Measurement Periods.

v.	Company terminates the Agreement for cause.

6.2	For clauses 6.1 iii and 6.1 iv above, the failure shall constitute a Disqualifying Event for all of the consecutive failure periods, including the first Measurement Period. If any Management Fee at Risk Earned has been paid prior to determination of a Disqualifying Event applicable to a Measurement Period, Provider shall promptly refund the applicable payment.

---

1.	Baseline Parameters:

1.1

Preliminary Cost Baselines are listed in Exhibit D Attachment D1.a. Preliminary Cost Baselines provided by Company shall be validated by Provider no later than March 31, 2014 for the GFO & Other Sites. Manufacturing Sites timelines will be developed on individual basis. During the validation period, if an annualized variance of over + / - $25,000 cumulative for a site is discovered; the Preliminary Cost Baseline(s) shall be adjusted in the same proportion of the annualized variance. To the extent that Preliminary Cost Baselines impact scope or cost assumptions, this adjustment will also impact the value of the Minimum Guaranteed Savings. The analysis of any baseline variance will also include the impact of Puerto Rico Tax law changes, and the AML baseline will be adjusted to reflect those changes.

1.2	Preliminary Cost Baselines calculations shall not include Managed Contracts, Food Services and Janitorial Services spend.

1.3	Four individual Cost Baselines shall be developed and approved, subject to the provisions in 1.1 above. One baseline for each manufacturing site (AML, ARI, and ACO,) and one baseline for all remaining GFO & Other Sites.

---

---

1.	Definitions:

2.	Minimum Savings:

2.1	The Preliminary Minimum % Savings “Minimum % Savings” guaranteed by Provider is equal to the blended rate shown below:

2.2	In case the Budgeted Costs for a Fiscal Year set forth in the section 2.4 of the Amendment 5 is less than $100,000,000 the Blended Rate shall be decrease by 0.27%

2.3	The Guaranteed % Savings for a specific Site shall be revised if the Cost Baseline for such Site increases or decreases by more than $3,000,000.

2.4	At a portfolio level, Provider shall guarantee the Minimum Savings set forth in 2.1 above. Minimum Savings shall be calculated by the sum of each site Cost Baseline set forth in Exhibit D Attachment D1, multiplied by the Minimum % Savings.

2.5

In addition to the requirements described in 2.1 above, Provider shall guarantee a site-by-site Minimum Savings, which shall be calculated by multiplying each site Minimum % Savings (“Site Minimum % Savings”) by each site Cost Baseline set forth in Exhibit D Attachment D1. For AML, ACO, and ARI the Site Minimum % Savings shall be 75% of Minimum % Savings; and for GFO & Other Sites the Site Minimum % Savings shall be equal to the Minimum % Savings set forth in 2.1.

3.	For any additional Services as a result of a new Order(s), with Cost Baseline higher USD $ 3,000,000, the Minimum Savings for such additional Services shall equal at least 10% of the respective additional Service Cost Baseline, with the 10% prorated to adjust to the number of months left on the Agreement or 10% savings over the 24 months following the Cost Baseline adjustment.

3.1	In the event Company does not accept Provider’s proposal on a viable Labor Model, as part of USD $3,000,000 aggregate cost above, the Minimum Savings guaranteed by Provider shall be adjusted based on the Labor Model contained in the approved strategy.

4.	In the event Company overrides Provider’s recommendation on a Major Vendor sourcing initiative with annual savings higher than USD 25,000, the Minimum Savings guaranteed by Provider shall be adjusted in the same proportion of the savings NOT achieved as a result of Company’s revised recommendation.

---

1.	GENERAL.

1.1	This Attachment D.6 is for illustrative purposes only. In the event of a conflict between this Attachment D.6 and Exhibit D, the terms of Exhibit D will control.

2.	Summary Example Calculations

•	The key elements of the pricing model used in the following examples are summarized in the table above.

i.	WAAAKPI is the Weighted Average Aggregate Annual Key Performance Indicator Score

ii.	KPI OPB is the Key Performance Indicator Out Performance Bonus

iii.	BMF is the Base Management Fee portion of the Potential Management Fee

iv.	MFAR is the Management Fee at Risk portion of the Potential Management Fee

---

3.	Example 1: Early Savings, no Term Savings, no CCRs

3.1	In this example, Early Savings is generated in 2014 since Actual 2014 Cost < Cost Guaranty. Savings is shared at 5% for 2014. No term savings have been generated since 2015 Actual cost is equal to 2015 Guaranty.

---

4.	Example 2: Early Savings, Term Savings in 2014, no CCRs

4.1

In this example, there are both Early Savings and Savings at Term. Early Savings exists in 2014, as Actual 2014 costs < Cost Guaranty. In addition, 2014 Actual Costs are below the 2015 Cost Guaranty (end of term), and Shared Savings at Term results in 2014. Note for 2015, the Actual Costs are also below Term, but no Shared Savings at Term are created since that amount was recognized and paid out in 2014.

---

5.	Example 3: Early Savings, with CCRs

---

6.	Example 4: Actual cost > Cost Guaranty

6.1	In this example, Actual 2014 Costs are > Cost Guaranty, resulting in a potential payment to Company by Provider. There are several payout scenarios:

6.1.1.	Portfolio achieves overall guarantee, GFO Site misses guarantee: payment is made to site in the amount of missed savings

6.1.2.	Portfolio achieves overall guarantee, non-GFO site (e.g., AML) does not achieve savings: payment is made to the site up to 75% of the guarantee (if savings is between 75% and 100% of guarantee, no payments are made)

6.2	Portfolio does not achieve overall guarantee, and non-GFO site (e.g., AML) does not achieve savings: payment is made to the site up to 75% of the guarantee, additional payment made to bring portfolio to required savings.

1.	Applicability

2.	Definitions

(a)

“Act of Insolvency”, with respect to any party, (i) the commencement by such party as debtor of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, moratorium, dissolution, delinquency or similar law, or such party seeking the appointment or election of a receiver, conservator, trustee, custodian or similar official for such party or any substantial part of its property, or the convening of any meeting of creditors for purposes of commencing any such case or proceeding or seeking such an appointment or election, (ii) the commencement of any such case or proceeding against such party, or another seeking such an appointment or election, or the filing against a party of an application for a protective decree under the provisions of the Securities Investor Protection Act of 1970, as amended, which (A) is consented to or not timely contested by such party, (B) results in the entry of an order for relief, such an appointment or election, the issuance of such a protective decree or the entry of an order having a similar effect, or (C) is not dismissed within 15 days, (iii) the making by such party of a general assignment for the benefit of creditors, or (iv) the admission in writing by such party of such party’s inability to pay such party’s debts as they become due;

(b)	“Additional Purchased Securities”, Securities provided by Seller to Buyer pursuant to Paragraph 4(a) hereof;

(c)	“Buyer’s Margin Amount”, with respect to any Transaction as of any date, the amount obtained by application of the Buyer’s Margin Percentage to the Repurchase Price for such Transaction as of such date;

---

(d)	“Buyer’s Margin Percentage”, with respect to any Transaction as of any date, a percentage (which may be equal to the Seller’s Margin Percentage) agreed to by Buyer and Seller or, in the absence of any such agreement, the percentage obtained by dividing the Market Value of the Purchased Securities on the Purchase Date by the Purchase Price on the Purchase Date for such Transaction;

(e)	“Confirmation”, the meaning specified in Paragraph 3(b) hereof;

(f)	“Income”, with respect to any Security at any time, any principal thereof and all interest, dividends or other distributions thereon;

(g)	“Margin Deficit”, the meaning specified in Paragraph 4(a) hereof;

(h)	“Margin Excess”, the meaning specified in Paragraph 4(b) hereof;

(i)	“Margin Notice Deadline”, the time agreed to by the parties in the relevant Confirmation, Annex I hereto or otherwise as the deadline for giving notice requiring same-day satisfaction of margin maintenance obligations as provided in Paragraph 4 hereof (or, in the absence of any such agreement, the deadline for such purposes established in accordance with market practice);

(j)

“Market Value”, with respect to any Securities as of any date, the price for such Securities on such date obtained from a generally recognized source agreed to by the parties or the most recent closing bid quotation from such a source, plus accrued Income to the extent not included therein (other than any Income credited or transferred to, or applied to the obligations of, Seller pursuant to Paragraph 5 hereof) as of such date (unless contrary to market practice for such Securities);

(k)

“Price Differential”, with respect to any Transaction as of any date, the aggregate amount obtained by daily application of the Pricing Rate for such Transaction to the Purchase Price for such Transaction on a 360 day per year basis for the actual number of days during the period commencing on (and including) the Purchase Date for such Transaction and ending on (but excluding) the date of determination (reduced by any amount of such Price Differential previously paid by Seller to Buyer with respect to such Transaction);

(l)	“Pricing Rate”, the per annum percentage rate for determination of the Price Differential;

(m)	“Prime Rate”, the prime rate of U.S. commercial banks as published in The Wall Street Journal (or, if more than one such rate is published, the average of such rates);

(n)	“Purchase Date”, the date on which Purchased Securities are to be transferred by Seller to Buyer;

(o)	“Purchase Price”, (i) on the Purchase Date, the price at which Purchased Securities are transferred by Seller to Buyer, and (ii) thereafter, except where Buyer and Seller agree otherwise, such price increased by the amount of any cash transferred by

---

(p)

“Purchased Securities”, the Securities transferred by Seller to Buyer in a Transaction hereunder, and any Securities substituted therefor in accordance with Paragraph 9 hereof. The term “Purchased Securities” with respect to any Transaction at any time also shall include Additional Purchased Securities delivered pursuant to Paragraph 4(a) hereof and shall exclude Securities returned pursuant to Paragraph 4(b) hereof;

(q)	“Repurchase Date”, the date on which Seller is to repurchase the Purchased Securities from Buyer, including any date determined by application of the provisions of Paragraph 3(c) or 11 hereof;

(r)	“Repurchase Price”, the price at which Purchased Securities are to be transferred from Buyer to Seller upon termination of a Transaction, which will be determined in each case (including Transactions terminable upon demand) as the sum of the Purchase Price and the Price Differential as of the date of such determination;

(s)	“Seller’s Margin Amount”, with respect to any Transaction as of any date, the amount obtained by application of the Seller’s Margin Percentage to the Repurchase Price for such Transaction as of such date; and

(t)	“Seller’s Margin Percentage”, with respect to any Transaction as of any date, a percentage (which may be equal to the Buyer’s Margin Percentage) agreed to by Buyer and Seller or, in the absence of any such agreement, the percentage obtained by dividing the Market Value of the Purchased Securities on the Purchase Date by the Purchase Price on the Purchase Date for such Transaction.

3.	Initiation; Confirmation; Termination

(a)	An agreement to enter into a Transaction may be made orally or in writing at the initiation of either Buyer or Seller. On the Purchase Date for the Transaction, the Purchased Securities shall be transferred to Buyer or its agent against the transfer of the Purchase Price to an account of Seller.

(b)

Upon agreeing to enter into a Transaction hereunder, Buyer or Seller (or both), as shall be agreed, shall promptly deliver to the other party a written confirmation of each Transaction (a “Confirmation”). The Confirmation shall describe the Purchased Securities (including CUSIP number, if any), identify Buyer and Seller and set forth (i) the Purchase Date, (ii) the Purchase Price, (iii) the Repurchase Date, unless the Transaction is to be terminable on demand, (iv) the Pricing Rate or Repurchase Price applicable to the Transaction, and (v) any additional terms or conditions of the Transaction not inconsistent with this Agreement. The Confirmation, together with this Agreement, shall constitute conclusive evidence of the terms agreed between Buyer and Seller with respect to the Transaction to which the Confirmation relates, unless with respect to the Confirmation specific objection

---

(c)

In the case of Transactions terminable upon demand, such demand shall be made by Buyer or Seller, no later than such time as is customary in accordance with market practice, by telephone or otherwise on or prior to the business day on which such termination will be effective. On the date specified in such demand, or on the date fixed for termination in the case of Transactions having a fixed term, termination of the Transaction will be effected by transfer to Seller or its agent of the Purchased Securities and any Income in respect thereof received by Buyer (and not previously credited or transferred to, or applied to the obligations of, Seller pursuant to Paragraph 5 hereof) against the transfer of the Repurchase Price to an account of Buyer.

4.	Margin Maintenance

(a)

If at any time the aggregate Market Value of all Purchased Securities subject to all Transactions in which a particular party hereto is acting as Buyer is less than the aggregate Buyer’s Margin Amount for all such Transactions (a “Margin Deficit”), then Buyer may by notice to Seller require Seller in such Transactions, at Seller’s option, to transfer to Buyer cash or additional Securities reasonably acceptable to Buyer (“Additional Purchased Securities”), so that the cash and aggregate Market Value of the Purchased Securities, including any such Additional Purchased Securities, will thereupon equal or exceed such aggregate Buyer’s Margin Amount (decreased by the amount of any Margin Deficit as of such date arising from any Transactions in which such Buyer is acting as Seller).

(b)

If at any time the aggregate Market Value of all Purchased Securities subject to all Transactions in which a particular party hereto is acting as Seller exceeds the aggregate Seller’s Margin Amount for all such Transactions at such time (a “Margin Excess”), then Seller may by notice to Buyer require Buyer in such Transactions, at Buyer’s option, to transfer cash or Purchased Securities to Seller, so that the aggregate Market Value of the Purchased Securities, after deduction of any such cash or any Purchased Securities so transferred, will thereupon not exceed such aggregate Seller’s Margin Amount (increased by the amount of any Margin Excess as of such date arising from any Transactions in which such Seller is acting as Buyer).

(c)

If any notice is given by Buyer or Seller under subparagraph (a) or (b) of this Paragraph at or before the Margin Notice Deadline on any business day, the party receiving such notice shall transfer cash or Additional Purchased Securities as provided in such subparagraph no later than the close of business in the relevant market on such day. If any such notice is given after the Margin Notice Deadline, the party receiving such notice shall transfer such cash or Securities no later than the close of business in the relevant market on the next business day following such notice.

(d)	Any cash transferred pursuant to this Paragraph shall be attributed to such Transactions as shall be agreed upon by Buyer and Seller.

---

(e)

Seller and Buyer may agree, with respect to any or all Transactions hereunder, that the respective rights of Buyer or Seller (or both) under subparagraphs (a) and (b) of this Paragraph may be exercised only where a Margin Deficit or Margin Excess, as the case may be, exceeds a specified dollar amount or a specified percentage of the Repurchase Prices for such Transactions (which amount or percentage shall be agreed to by Buyer and Seller prior to entering into any such Transactions).

(f)

Seller and Buyer may agree, with respect to any or all Transactions hereunder, that the respective rights of Buyer and Seller under subparagraphs (a) and (b) of this Paragraph to require the elimination of a Margin Deficit or a Margin Excess, as the case may be, may be exercised whenever such a Margin Deficit or Margin Excess exists with respect to any single Transaction hereunder (calculated without regard to any other Transaction outstanding under this Agreement).

5.	Income Payments

6.	Security Interest

7.	Payment and Transfer

---

8.	Segregation of Purchased Securities

9.	Substitution

(a)	Seller may, subject to agreement with and acceptance by Buyer, substitute other Securities for any Purchased Securities. Such substitution shall be made by transfer to Buyer of such other Securities and transfer to Seller of such Purchased Securities. After substitution, the substituted Securities shall be deemed to be Purchased Securities.

(b)	In Transactions in which Seller retains custody of Purchased Securities, the parties expressly agree that Buyer shall be deemed, for purposes of subparagraph (a) of this

---

10.	Representations

11.	Events of Default

(a)

The nondefaulting party may, at its option (which option shall be deemed to have been exercised immediately upon the occurrence of an Act of Insolvency), declare an Event of Default to have occurred hereunder and, upon the exercise or deemed exercise of such option, the Repurchase Date for each Transaction hereunder shall, if it has not already occurred, be deemed immediately to occur (except that, in the event that the Purchase Date for any Transaction has not yet occurred as of the date of such exercise or deemed exercise, such Transaction shall be deemed immediately canceled). The nondefaulting party shall (except upon the occurrence of an Act of Insolvency) give notice to the defaulting party of the exercise of such option as promptly as practicable.

(b)	In all Transactions in which the defaulting party is acting as Seller, if the nondefaulting party exercises or is deemed to have exercised the option referred to in subparagraph (a) of this Paragraph, (i) the defaulting party’s obligations in such Transactions to repurchase all Purchased Securities, at the Repurchase Price

---

(c)

In all Transactions in which the defaulting party is acting as Buyer, upon tender by the nondefaulting party of payment of the aggregate Repurchase Prices for all such Transactions, all right, title and interest in and entitlement to all Purchased Securities subject to such Transactions shall be deemed transferred to the nondefaulting party, and the defaulting party shall deliver all such Purchased Securities to the nondefaulting party.

(d)	If the nondefaulting party exercises or is deemed to have exercised the option referred to in subparagraph (a) of this Paragraph, the nondefaulting party, without prior notice to the defaulting party, may:

(i)

as to Transactions in which the defaulting party is acting as Seller, (A) immediately sell, in a recognized market (or otherwise in a commercially reasonable manner) at such price or prices as the nondefaulting party may reasonably deem satisfactory, any or all Purchased Securities subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by the defaulting party hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Securities, to give the defaulting party credit for such Purchased Securities in an amount equal to the price therefor on such date, obtained from a generally recognized source or the most recent closing bid quotation from such a source, against the aggregate unpaid Repurchase Prices and any other amounts owing by the defaulting party hereunder; and

(ii)

as to Transactions in which the defaulting party is acting as Buyer, (A) immediately purchase, in a recognized market (or otherwise in a commercially reasonable manner) at such price or prices as the nondefaulting party may reasonably deem satisfactory, securities (“Replacement Securities”) of the same class and amount as any Purchased Securities that are not delivered by the defaulting party to the nondefaulting party as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Securities, to be deemed to have purchased Replacement Securities at the price therefor on such date, obtained from a generally recognized source or the most recent closing offer quotation from such a source.

---

(e)

As to Transactions in which the defaulting party is acting as Buyer, the defaulting party shall be liable to the nondefaulting party for any excess of the price paid (or deemed paid) by the nondefaulting party for Replacement Securities over the Repurchase Price for the Purchased Securities replaced thereby and for any amounts payable by the defaulting party under Paragraph 5 hereof or otherwise hereunder.

(f)	For purposes of this Paragraph 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is acting as Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the nondefaulting party of the option referred to in subparagraph (a) of this Paragraph.

(g)

The defaulting party shall be liable to the nondefaulting party for (i) the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a result of an Event of Default, (ii) damages in an amount equal to the cost (including all fees, expenses and commissions) of entering into replacement transactions and entering into or terminating hedge transactions in connection with or as a result of an Event of Default, and (iii) any other loss, damage, cost or expense directly arising or resulting from the occurrence of an Event of Default in respect of a Transaction.

(h)

To the extent permitted by applicable law, the defaulting party shall be liable to the nondefaulting party for interest on any amounts owing by the defaulting party hereunder, from the date the defaulting party becomes liable for such amounts hereunder until such amounts are (i) paid in full by the defaulting party or (ii) satisfied in full by the exercise of the nondefaulting party’s rights hereunder. Interest on any sum payable by the defaulting party to the nondefaulting party under this Paragraph 11(h) shall be at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate.

(i)	The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law.

12.	Single Agreement

---

13.	Notices and Other Communications

14.	Entire Agreement; Severability

15.	Non-assignability; Termination

(a)

The rights and obligations of the parties under this Agreement and under any Transaction shall not be assigned by either party without the prior written consent of the other party, and any such assignment without the prior written consent of the other party shall be null and void. Subject to the foregoing, this Agreement and any Transactions shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. This Agreement may be terminated by either party upon giving written notice to the other, except that this Agreement shall, notwithstanding such notice, remain applicable to any Transactions then outstanding.

(b)	Subparagraph (a) of this Paragraph 15 shall not preclude a party from assigning, charging or otherwise dealing with all or any part of its interest in any sum payable to it under Paragraph 11 hereof.

16.	Governing Law

17.	No Waivers, Etc.

---

18.	Use of Employee Plan Assets

(a)

If assets of an employee benefit plan subject to any provision of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) are intended to be used by either party hereto (the “Plan Party”) in a Transaction, the Plan Party shall so notify the other party prior to the Transaction. The Plan Party shall represent in writing to the other party that the Transaction does not constitute a prohibited transaction under ERISA or is otherwise exempt therefrom, and the other party may proceed in reliance thereon but shall not be required so to proceed.

(b)	Subject to the last sentence of subparagraph (a) of this Paragraph, any such Transaction shall proceed only if Seller furnishes or has furnished to Buyer its most recent available audited statement of its financial condition and its most recent subsequent unaudited statement of its financial condition.

(c)

By entering into a Transaction pursuant to this Paragraph, Seller shall be deemed (i) to represent to Buyer that since the date of Seller’s latest such financial statements, there has been no material adverse change in Seller’s financial condition which Seller has not disclosed to Buyer, and (ii) to agree to provide Buyer with future audited and unaudited statements of its financial condition as they are issued, so long as it is a Seller in any outstanding Transaction involving a Plan Party.

19.	Intent

(a)

The parties recognize that each Transaction is a “repurchase agreement” as that term is defined in Section 101 of Title 11 of the United States Code, as amended (except insofar as the type of Securities subject to such Transaction or the term of such Transaction would render such definition inapplicable), and a “securities contract” as that term is defined in Section 741 of Title 11 of the United States Code, as amended (except insofar as the type of assets subject to such Transaction would render such definition inapplicable).

(b)

It is understood that either party’s right to liquidate Securities delivered to it in connection with Transactions hereunder or to exercise any other remedies pursuant to Paragraph 11 hereof is a contractual right to liquidate such Transaction as described in Sections 555, 559 and 561 of Title 11 of the United States Code, as amended, and that this Agreement constitutes a “master netting agreement” as defined in Section 101(38A) of Title 11 of the United States Code, as amended.

(c)	The parties agree and acknowledge that if a party hereto is an “insured depository institution,” as such term is defined in the Federal Deposit Insurance Act, as amended (“FDIA”), then each Transaction hereunder is a “qualified financial contract,” as that term is defined in FDIA and any rules, orders or policy statements

---

(d)

It is understood that this Agreement constitutes a “netting contract” as defined in and subject to Title IV of the Federal Deposit Insurance Corporation Improvement Act of 1991, as amended (“FDICIA”) and each payment entitlement and payment obligation under any Transaction hereunder shall constitute a “covered contractual payment entitlement” or “covered contractual payment obligation”, respectively, as defined in and subject to FDICIA (except insofar as one or both of the parties is not a “financial institution” as that term is defined in FDICIA).

20.	Disclosure Relating to Certain Federal Protections

(a)

in the case of Transactions in which one of the parties is a broker or dealer registered with the Securities and Exchange Commission (“SEC”) under Section 15 of the Securities Exchange Act of 1934, as amended (“1934 Act”), the Securities Investor Protection Corporation has taken the position that the provisions of the Securities Investor Protection Act of 1970, as amended (“SIPA”) do not protect the other party with respect to any Transaction hereunder;

(b)	in the case of Transactions in which one of the parties is a government securities broker or a government securities dealer registered with the SEC under Section 15C of the 1934 Act, SIPA will not provide protection to the other party with respect to any Transaction hereunder; and

(c)	in the case of Transactions in which one of the parties is a financial institution, funds held by the financial institution pursuant to a Transaction hereunder are not a deposit and therefore are not insured by the Federal Deposit Insurance Corporation or the National Credit Union Share Insurance Fund, as applicable.

---

---

1.	Other Applicable Annexes. In addition to this Annex I and Annex II, the following Annexes and any Schedules thereto shall form a part of the Agreement and shall be applicable thereunder:

2.	Definitions.

(a)	For purposes of the Agreement and this Annex I, the following terms shall have the following meanings:

---

---

(i)	if Buyer is the defaulting party, the amount which, in the reasonable opinion of Seller, represents the fair market value of the Purchased Securities, having regard to such pricing sources and methods (which may include, without limitation, available quotations for the Purchased Securities) as Seller considers appropriate.

(ii)	if Seller is the defaulting party:

(A)

if any of the Purchased Securities are sold through the Valuation Process on or prior to the Valuation Process Cut-Off Date, then the Net Value in respect of such Purchased Securities shall be the net proceeds received by Buyer in respect of such Purchased Securities at the conclusion of the Valuation Process, net of all reasonable costs, commissions, fees and expenses incurred by Buyer in connection with the Valuation Process;

(B)

if any of the Purchased Securities have not been sold through the Valuation Process on or prior to the Valuation Process Cut-Off Date, then the Net Value in respect of such Purchased Securities shall be the amount which, in the reasonable opinion of Buyer, represents their fair market value, having regard to such pricing sources and methods (which may include, without limitation, available quotations for the Purchased Securities) as Buyer considers appropriate;

---

(i)	Buyer shall deliver written notice to Seller that Buyer has elected to determine the Net Value of the Purchased Securities, which notice shall include the Net Value determined by Buyer as if clause (ii)(B) of the definition of Net Value were applicable;

(ii)

following such notification, Seller may elect, by notice to Buyer (which notice shall state that Buyer will avail itself of the Valuation Process but need not identify a financial institution or provide the price or other terms of any offer for the Purchased Securities) on or prior to the third Business Day following Buyer’s notice pursuant to clause (i), to designate a nationally or internationally recognized financial institution to propose a firm price at which it will offer to purchase the Purchased Securities from Buyer pursuant to customary documentation reasonably satisfactory to Buyer, the terms of which (a) will provide that such financial institution will be liable for and pay any share transfer payments due upon transfer of the Purchased Security to it, (b) will include customary representations of Buyer

---

(iii)

if the financial institution designated by Seller has a combined capital and surplus of $500 million and a Thomson BankWatch Rating at the relevant time of “B” or better, then Buyer shall negotiate in good faith with such financial institution and use its commercially reasonable efforts to consummate the sale of the Purchased Securities to such financial institution on or prior to the Valuation Process Cut-Off Date; and

(b)	Paragraphs 2(a), 2(c), 2(d), 2(e), 2(g), 2(h), 2(i), 2(k), 2(o), 2(p), 2(q), 2(r), 2(s) and 2(t) of the Agreement are hereby deleted.

3.	[Reserved].

4.	Initiation; Effectiveness; Conditions; Confirmation; Termination.

5.

Purchase Price Maintenance. Provided that no Event of Default with respect to Seller has occurred and is continuing, the parties agree that in any Transaction hereunder whose term extends over an Income Payment Date for the Securities subject to such Transaction, Buyer shall (including by causing its custodian, if any, to take such actions on its behalf), on the first Business Day following the Income Payment Date, transfer to or credit to the account of Seller an amount equal to such Income payment or payments pursuant to Paragraph 5(i) of the Agreement and Buyer shall not apply the Income payment or payments to reduce the amount to be transferred to Buyer by Seller upon termination of the Transaction pursuant to Paragraph 5(ii) of the Agreement; provided, however, that any Income paid as consideration for a redemption of the Purchased Securities, regardless whether the Repurchase Date shall have been accelerated, shall be applied first to reduce the Repurchase Price and shall only be transferred to or credited for the account of Seller to the extent that such further application would reduce the Repurchase Price, as of the Income Payment Date, below zero.

6.	Margin Maintenance. Paragraph 4 of the Agreement is hereby deleted in its entirety.

7.

No Recognized Market. Notwithstanding anything to the contrary in the Agreement but subject to the Valuation Process to the extent it is applicable, Seller and Buyer acknowledge and agree that the Purchased Securities subject to the Transaction hereunder are not instruments traded in a recognized market and therefore the nondefaulting party may establish the Net Value acting in a commercially reasonable manner.

---

8.

Income Payments. Paragraph 5 of the Agreement is hereby amended (a) by replacing the words “on the date such Income is paid or distributed” in the second sentence thereof with the following words: “on the date that is the first Business Day after the applicable Income Payment Date”; (b) by deleting Clause (A) thereof; (c) by replacing the second occurrence of the word “Buyer” in the second sentence thereof with the word “Seller”; and (d) by replacing the words “such Income” in clause (i) of the second sentence thereof with the words “all such Income received by it”

9.	Security Interest. Paragraph 6 of the Agreement is hereby deleted and replaced with the following:

“6.

Security Interest. Although the parties intend that all Transactions hereunder be sales and purchases and not loans, in the event any such Transactions are deemed to be loans, Seller shall be deemed to have pledged or charged to Buyer as security for the performance by Seller of its obligations under each such Transaction, and shall be deemed to have granted to Buyer a security interest in, all of Seller’s right, title and interest in and to the Purchased Securities with respect to all Transactions hereunder, all securities accounts to which the Purchased Securities are credited and all security entitlements with respect thereto and all Income on and other proceeds of the foregoing.”

10.	Segregation of Purchased Securities. Paragraph 8 of the Agreement is hereby amended by deleting the words “ 3, 4, or” in the twelfth line thereof.

11.	Substitution. Clause (b) of Paragraph 9 of the Agreement is hereby deleted in its entirety.

12.	Representations. Paragraph 10 of the Agreement is hereby deleted and replaced with the following:

“10.	Representations.

(a)

Each of Buyer and Seller represents and warrants to the other that (i) it is duly authorized to execute and deliver this Agreement, to enter into Transactions contemplated hereunder and to perform its obligations hereunder and has taken all necessary action to authorize such execution, delivery and performance, (ii) it will engage in such Transactions as principal (or, if agreed in writing, in the form of an annex hereto or otherwise, in advance of any Transaction by the other party hereto, as agent for a disclosed principal), (iii) the person executing and delivering this Agreement on its behalf was at the time of execution and delivery duly authorized to do so on its behalf (or on behalf of any such disclosed principal), (iv) it has obtained all authorizations of any governmental body required in connection with this Agreement and the Transactions hereunder and such authorizations are in full force and effect and (v) the execution, delivery and performance of this Agreement and the Transactions hereunder will not violate any law, ordinance, charter, by-law or rule applicable to it or any agreement by which it is bound or by which any of its assets are affected, except, in the case of clauses (iv) and (v), as would not reasonably be expected to have a material adverse effect on the Unaffiliated Holders or the Buyer or any of their officers, directors and agents.

(b)	Buyer warrants and represents that (i) it is a Delaware trust duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite trust power and authority to own the Purchased Securities and to enter into and perform its

---

13.	Events of Default

(a)	The first paragraph in Paragraph 11 of the Agreement is hereby deleted and replaced with the following:

(b)	Paragraph 11(a) of the Agreement is hereby amended by inserting the words “ of the Seller” after the first occurrence of the words “Act of Insolvency” and by inserting the words “ as to the defaulting party” after the first occurrence of the words “Event of Default”;

(c)	Paragraph 11(b) of the Agreement is hereby amended by inserting after the words “at the Repurchase Price therefor” the following words: “, together with all unpaid Price Differential,”;

---

(d)	Paragraph 11(c) of the Agreement is hereby amended by inserting after the words “aggregate Repurchase Prices” the following words: “, together with all accrued unpaid Price Differential,”;

(e)

Paragraph 11(d)(i) is hereby amended by deleting subparagraph (B) in its entirety and substituting the following words therefor: “(B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Securities, to commence the Valuation Process and, upon determination of the Net Value following the Valuation Process Cut-Off Date, give the defaulting party credit for such Purchased Securities in an amount equal to the Net Value therefor on such date of determination against the aggregate unpaid Repurchase Price and any other amounts owing by the defaulting party hereunder”; and

(f)	Paragraph 11(d)(ii) is hereby replaced with the following:

“(ii)	as to Transactions in which the defaulting party is acting as Buyer, determine in a commercially reasonable manner an amount equal to the Net Value of the Purchased Securities that are not delivered by the defaulting party to the nondefaulting party as required hereunder.”

(g)

The last sentence of Paragraph 11(d) is hereby replaced with the following: “The parties acknowledge and agree that (1) in the absence of a generally recognized source for prices or bid or offer quotations for any Security, the nondefaulting party may establish the source therefor in a commercially reasonable manner and (2) all prices, bids and offers shall be determined together with accrued Income (except to the extent contrary to market practice with respect to the relevant Securities).”

(h)	Paragraph 11(e) is hereby replaced with the following:

(i)	Paragraph 11(g) is hereby deleted in its entirety.

---

(j)	For purposes of Paragraph 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is acting as Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the nondefaulting party of the option referred to in Paragraph 11(a) (as amended herein).

14.	Payments by Seller to Buyer.

(a)	Seller shall pay to Buyer on each Price Differential Payment Date following the Purchase Date an amount equal to the accrued unpaid Price Differential.

(b)	[Reserved].

(c)

Any and all payments by Seller to or for the account of Buyer or its permitted assigns under the Agreement or the Ancillary Agreement shall be made free and clear of and without deduction for any and all Taxes, except as required by applicable Law. If Seller shall be required by any Law to deduct any Taxes from or in respect of any sum payable under this Agreement or the Ancillary Agreement to Buyer or its permitted assigns, (i) the sum payable shall be increased as necessary so that after making all required deductions for Indemnified Taxes (including deductions applicable to additional sums payable under this paragraph 14(c) of Annex I), Buyer or its permitted assigns receive an amount equal to the sum it would have received had no such deductions been made, (ii) Seller shall make such deductions, (iii) Seller shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable Law, and (iv) within 30 days after the date of such payment, Seller shall furnish to Buyer or its permitted assigns the original or a certified copy of a receipt evidencing payment thereof (to the extent available).

15.

Overdue Payments. If a party does not pay any amount on the date due (without regard to any applicable grace periods), including without limitation any Price Differential or any amount payable by Buyer under Paragraph 5 of the Agreement (as amended herein) or under paragraph 5 of Annex I, such party will, to the extent permitted by applicable law, pay interest on that amount to the other party in the same currency as that amount, for the period from (and including) the date the amount becomes due to (but excluding) the date the amount is actually paid, by daily application of the greater of the Pricing Rate and the Prime Rate to such amount. Notwithstanding the above, upon the declaration of an Event of Default, Paragraph 11(h) shall apply in lieu of this paragraph.

16.	Dividends, Distributions, etc.

(a)

In accordance with Paragraph 5 of the Agreement (as amended herein) and paragraph 5 of Annex I, but subject to subparagraph (d) of this paragraph 16 of Annex I, Seller shall be entitled to receive an amount equal to all Income (including any return of capital in respect of the liquidation of the issuer thereof and any proceeds received upon the redemption of such Security by the issuer thereof) paid or distributed on or in respect of Purchased Securities that is not otherwise received by Seller, to the full extent it would be so entitled if Purchased Securities had not been sold to Buyer, except as provided in Paragraph 5 of the Agreement (as amended herein) and paragraph 5 of Annex I, with respect to Income paid as consideration for a redemption of the Purchased Securities. The parties expressly acknowledge and agree, for the avoidance of doubt, that Income shall include, but is not

---

(b)	Income paid or distributed on or in respect of Purchased Securities, which Seller is entitled to receive pursuant to subparagraph (a) of this paragraph, shall be treated in accordance with Paragraph 5 of the Agreement (as amended herein) and paragraph 5 of Annex I, as supplemented and modified herein.

(c)

Any and all payments by Buyer to or for the account of Seller hereunder shall be made subject to deduction for any and all applicable future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of the Buyer, (i) income or franchise taxes imposed on (or measured by) its net income or net profits by the United States of America or by the jurisdiction (or any political subdivision of any such jurisdiction) under the laws of which Buyer is organized, in which its principal office (or other fixed place of business) is located or in which it is otherwise engaged in a trade or business as a result of transactions unrelated to the Transactions, (ii) any branch profits tax or any similar tax that is imposed on Buyer with respect to Buyer’s income or profits by any jurisdiction described in clause (i) above (all such non excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities in respect of payments hereunder being hereinafter referred to as “Non-Excluded Taxes”). Buyer shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law. In the event that Buyer shall make a payment to or for the account of Seller that is subsequently determined to be subject to Non-Excluded Taxes, Seller shall promptly reimburse Buyer for the amount of such Non-Excluded Taxes together with all costs and expenses associated therewith.

(d)

Notwithstanding anything to the contrary in Paragraph 5 of the Agreement (as amended herein), paragraph 5 of Annex I or subparagraphs (a) (b) and (c) above, in the event that Seller fails to pay Buyer the Price Differential on the related Price Differential Payment Date and such failure is not remedied on or before the third Business Day following such Price Differential Payment Date, then Buyer may, without exercising its option to declare an Event of Default to have occurred under the Agreement and only for as long as such failure is continuing, retain Income paid or distributed after such Price Differential Payment Date and apply it to the amount of any accrued but unpaid Price Differential and, in each case, any interest thereon.

17.	Rights in Purchased Securities. For the avoidance of doubt, Seller waives any right to vote, or to provide any consent or to take any similar action with respect to, Purchased Securities in the event that the record date or deadline for such vote, consent or other action falls during the term of the Transaction.

18.

Covered Transaction. Each party acknowledges and agrees that the transactions evidenced by the Confirmation shall be the only Transaction governed by the Agreement. The Seller and the Buyer shall not enter into any other Confirmations or Transactions hereunder. The parties hereby expressly agree that any TBMA Master Agreement entered into between them after the date hereof shall not supersede the Agreement or the Transaction hereunder.

---

19.

Limited Recourse. Except as expressly set forth herein, the obligations of each party under the Agreement and the Transaction are solely the corporate obligations of such party. Except as expressly set forth herein, no recourse shall be had for the payment of any amount owing by a party under the Agreement or for the payment by such party of any fee or any other obligation or claim of or against such party arising out of or based upon the Agreement, against any trustee, adviser, employee, officer, director, incorporator, manager or affiliate of such party. The provisions of this paragraph shall survive the termination of the Agreement.

20.	No Recourse against ATL Holdings Limited. Notwithstanding any condition relating to ATL Holdings Limited or any other provision of this Agreement, nothing herein shall be construed as creating any obligation of ATL Holdings Limited to Buyer under this Agreement.

21.

Other Documents. Each party shall deliver to the other, upon request, such financial information, evidence of capacity, authority, incumbency and specimen signatures and other documentation as are required by law or are reasonably requested in order to enable a party to comply with legal or regulatory requirements, except to the extent that such party is prohibited from disclosing such information as a result of applicable law, rule or regulation.

22.	Submission to Jurisdiction and Waivers.

(a)

Each party irrevocably and unconditionally (i) submits to the exclusive jurisdiction of any United States Federal or New York State court sitting in the Borough of Manhattan and any appellate court from any such court solely for the purpose of any suit, action or proceeding brought to enforce its obligations under the Agreement or relating in any way to the Agreement or any Transaction under the Agreement, and (ii) waives, to the fullest extent it may effectively do so, any defense of an inconvenient forum to the maintenance of such action or proceeding in any such court and any right of jurisdiction on account of its place of residence or domicile. Notwithstanding anything in this paragraph 22(a) of Annex I, each party may commence and maintain legal proceedings in Bermuda in connection with the Purchased Securities, ATL Holdings Limited, the organizational documents of ATL Holdings Limited, and matters related thereto.

(b)

Each party hereby irrevocably agrees that the summons and complaint or any other process in any action in any jurisdiction may be served by mailing (using certified or registered mail, postage prepaid) to the notice address for it set forth herein or by hand delivery to a person of suitable age and discretion at such address. Each party may also be served in any other manner permitted by law, in which event its time to respond shall be the time provided by law.

(c)

To the extent that either party has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding from jurisdiction of any court or from set off or any legal process (whether service or notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment, or otherwise) with respect to itself or any of its property, such party hereby irrevocably waives and agrees not to plead or claim such immunity in respect of any action brought to enforce its obligations under the Agreement or relating in any way to the Agreement or any Transaction hereunder.

---

23.	WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT OR ANY TRANSACTION HEREUNDER.

24.

Business Day. If any payment shall be required by the terms of the Agreement to be made on a day that is not a Business Day, such payment shall be made on the immediately succeeding Business Day and no further Price Differential (with respect to a payment of Price Differential) or interest (with respect to any other payment due hereunder) shall accumulate or accrue after the day on which payment was required.

25.	Counterparts. The Agreement (and each amendment, modification and waiver in respect of it) may be executed and delivered in any number of counterparts, each of which counterparts shall be deemed to be an original and such counterparts shall constitute but one and the same instrument.

26.	Tax Matters.

(a)

Seller and Buyer understand and intend that the Transaction provided for in the Agreement will be treated as a loan secured by the Purchased Securities for U.S. federal income tax and state and local income and franchise tax purposes and will file any tax returns, tax reports and other tax filings in each case required to be filed under applicable U.S. federal income tax or state or local income or franchise tax purposes, in a manner consistent with such understanding and intent and will not take any U.S. tax position inconsistent therewith. Nothing in Paragraphs 6 and 19(a) of the Agreement (as amended herein) shall be read to imply anything to the contrary, and the statements therein shall be understood to be construed as subject to this paragraph 26(a) of Annex I.

(b)

As a condition of executing the Agreement, Buyer will deliver or cause to be delivered to Seller on or before the date it becomes a party to the Agreement a correct, complete and duly executed Internal Revenue Service Form W-8IMY along with an associated W-8ECI form. Within 20 days of the earlier of the date on which Buyer has Actual Knowledge of, and the date on which Seller requests in writing such form after the occurrence of obsolescence or invalidity of any Internal Revenue Service Form W-8IMY previously delivered by Buyer, Buyer will deliver to Seller a correct, complete and duly executed Internal Revenue Service Form W-8IMY or any successor forms. In the event that any assignee of Buyer is a U.S. person, as defined in Internal Revenue Code section 7701(a)(30), the assignee shall deliver to Seller an Internal Revenue Service Form W-9 or any applicable successor form in lieu of Internal Revenue Service Form W-8IMY. In the event that any assignee of Buyer is not a U.S. person, as defined, the assignee shall deliver to Seller an Internal Revenue Service Form W-8BEN or W-8ECI, as appropriate, or other applicable form, or any successor form.

(c)

Upon request, Seller shall deliver to Buyer a correct, complete and duly executed Internal Revenue Form W-9. Within 20 days of the earlier of the date on which Seller has knowledge of, and the date on which Buyer requests in writing such form after the occurrence of obsolescence or invalidity of any Internal Revenue Form W-9 previously delivered by Seller, Seller will deliver to Buyer a correct, complete and duly executed Internal Revenue Service Form W-9 as appropriate, or any successor form.

---

27.	Accounts for Payment. Payments shall be made to the following accounts, or to such other account as may hereafter be notified to Seller or Buyer in writing by Buyer or Seller respectively.

28.

USA PATRIOT Act Required Notice. Buyer hereby notifies Seller that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies Seller, which information includes the name and address of Seller and information that will allow Buyer to identify Seller in accordance with the Act. Seller shall, promptly following a request by the Buyer, provide all documentation and other information that Buyer requests in order to comply with its ongoing obligations under applicable “know your customer” an anti-money laundering rules and regulations, including the Act.

29.	Notices and Other Communications.

30.	Non-assignability; Termination.

“(a)	The rights and obligations of the parties under the Agreement and under any Transaction shall not be assigned by either party without the prior written consent of the other party. The Seller will not unreasonably withhold its consent to any transfer by the Buyer that shall satisfy the following conditions:

(i)	the proposed transferee would not be required to withhold amounts on account of any Taxes from any payments that it is required to make to the Seller pursuant to paragraph 16(a) of Annex I of this Agreement in excess of such amounts that the Buyer would be required to withhold at the time the assignment or transfer would occur;

(ii)	the Buyer shall not have made any previous transfer of any of its right, title and interest hereunder;

---

(iii)	the Buyer shall not transfer less than all of its right, title and interest hereunder;

(iv)	the transferee shall be a lender under the Material Revolving Credit Facility (as such term is defined in the Certificate) as of the time of the proposed transfer;

(v)	the proposed transfer shall not occur prior to the second anniversary of the Purchase Date;

(vi)	the proposed transfer shall occur within four days prior to the filing date of Seller’s Form 10-K or 10-Q under the Securities and Exchange Act of 1934, as amended;

(vii)	the unsecured senior long-term debt obligations of the proposed transferee shall be rated at or higher than BBB- by Standard & Poor’s, Baa3 by Moody’s, or an equivalent rating by another rating agency;

(viii)	the proposed transfer could not reasonably be expected to result in Seller having to comply with any additional legal or regulatory requirement if such compliance would have an adverse effect on the Seller;

(ix)

such transfer is completed at no cost or expense to the Seller (other than the Seller’s incidental costs and expenses, not to exceed $5,000, relating to the review and execution of transfer documentation and the registration of the Purchased Securities in the name of the transferee) and does not otherwise increase the Seller’s costs and expenses in respect of the Agreement and the Transaction thereunder;

(x)	the Seller shall have received 30 calendar days’ prior notice of such proposed transfer;

(xi)	such transfer does not result in the Seller’s being obligated to withhold amounts in respect of any withholding tax or other Taxes from any payment to such transferee; and

(xii)	the proposed transferee shall be organized under the laws of the United States of America or a jurisdiction located in the United States of America, Germany, Switzerland, Japan or France;

---

(b)

Buyer agrees that any transfer of its rights and obligations under the Agreement shall be effected by novation pursuant to and in accordance with the terms of a novation agreement substantially in the form of Exhibit I hereto (a “Novation Agreement”), which contemplates the transfer of a portion of Buyer’s rights and interest in this Agreement and the Purchased Securities and in accordance with Paragraph 15(a) of the Agreement (as amended herein), and a voting agreement substantially in the form of Exhibit II hereto. Any transfer in violation of this subparagraph (b) shall be null and void.

(c)	Subparagraph (a) of Paragraph 15 of the Agreement (as amended herein) shall not preclude a party from assigning, charging or otherwise dealing with all or any part of its interest in any sum payable to it under Paragraph 11 of the Agreement (as amended herein).”

31.	No Waivers, Etc. The last sentence of Paragraph 17 shall be deleted in its entirety.

32.	Intent.

“(a)	The parties recognize that each Transaction is a “securities contract” as that term is defined in section 741 of Title 11 of the United States Code, as amended (except insofar as the type of assets subject to such Transaction would render such definition inapplicable).”

33.	Limitation on Liability.

---

---

---

---

---

1.	Applicability

2.	Definitions

(a)

“Act of Insolvency”, with respect to any party, (i) the commencement by such party as debtor of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, moratorium, dissolution, delinquency or similar law, or such party seeking the appointment or election of a receiver, conservator, trustee, custodian or similar official for such party or any substantial part of its property, or the convening of any meeting of creditors for purposes of commencing any such case or proceeding or seeking such an appointment or election, (ii) the commencement of any such case or proceeding against such party, or another seeking such an appointment or election, or the filing against a party of an application for a protective decree under the provisions of the Securities Investor Protection Act of 1970, as amended, which (A) is consented to or not timely contested by such party, (B) results in the entry of an order for relief, such an appointment or election, the issuance of such a protective decree or the entry of an order having a similar effect, or (C) is not dismissed within 15 days, (iii) the making by such party of a general assignment for the benefit of creditors, or (iv) the admission in writing by such party of such party’s inability to pay such party’s debts as they become due;

(b)	“Additional Purchased Securities”, Securities provided by Seller to Buyer pursuant to Paragraph 4(a) hereof;

(c)	“Buyer’s Margin Amount”, with respect to any Transaction as of any date, the amount obtained by application of the Buyer’s Margin Percentage to the Repurchase Price for such Transaction as of such date;

---

(d)	“Buyer’s Margin Percentage”, with respect to any Transaction as of any date, a percentage (which may be equal to the Seller’s Margin Percentage) agreed to by Buyer and Seller or, in the absence of any such agreement, the percentage obtained by dividing the Market Value of the Purchased Securities on the Purchase Date by the Purchase Price on the Purchase Date for such Transaction;

(e)	“Confirmation”, the meaning specified in Paragraph 3(b) hereof;

(f)	“Income”, with respect to any Security at any time, any principal thereof and all interest, dividends or other distributions thereon;

(g)	“Margin Deficit”, the meaning specified in Paragraph 4(a) hereof;

(h)	“Margin Excess”, the meaning specified in Paragraph 4(b) hereof;

(i)	“Margin Notice Deadline”, the time agreed to by the parties in the relevant Confirmation, Annex I hereto or otherwise as the deadline for giving notice requiring same-day satisfaction of margin maintenance obligations as provided in Paragraph 4 hereof (or, in the absence of any such agreement, the deadline for such purposes established in accordance with market practice);

(j)

“Market Value”, with respect to any Securities as of any date, the price for such Securities on such date obtained from a generally recognized source agreed to by the parties or the most recent closing bid quotation from such a source, plus accrued Income to the extent not included therein (other than any Income credited or transferred to, or applied to the obligations of, Seller pursuant to Paragraph 5 hereof) as of such date (unless contrary to market practice for such Securities);

(k)

“Price Differential”, with respect to any Transaction as of any date, the aggregate amount obtained by daily application of the Pricing Rate for such Transaction to the Purchase Price for such Transaction on a 360 day per year basis for the actual number of days during the period commencing on (and including) the Purchase Date for such Transaction and ending on (but excluding) the date of determination (reduced by any amount of such Price Differential previously paid by Seller to Buyer with respect to such Transaction);

(l)	“Pricing Rate”, the per annum percentage rate for determination of the Price Differential;

(m)	“Prime Rate”, the prime rate of U.S. commercial banks as published in The Wall Street Journal (or, if more than one such rate is published, the average of such rates);

(n)	“Purchase Date”, the date on which Purchased Securities are to be transferred by Seller to Buyer;

(o)	“Purchase Price”, (i) on the Purchase Date, the price at which Purchased Securities are transferred by Seller to Buyer, and (ii) thereafter, except where Buyer and Seller agree otherwise, such price increased by the amount of any cash transferred by

---

(p)

“Purchased Securities”, the Securities transferred by Seller to Buyer in a Transaction hereunder, and any Securities substituted therefor in accordance with Paragraph 9 hereof. The term “Purchased Securities” with respect to any Transaction at any time also shall include Additional Purchased Securities delivered pursuant to Paragraph 4(a) hereof and shall exclude Securities returned pursuant to Paragraph 4(b) hereof;

(q)	“Repurchase Date”, the date on which Seller is to repurchase the Purchased Securities from Buyer, including any date determined by application of the provisions of Paragraph 3(c) or 11 hereof;

(r)	“Repurchase Price”, the price at which Purchased Securities are to be transferred from Buyer to Seller upon termination of a Transaction, which will be determined in each case (including Transactions terminable upon demand) as the sum of the Purchase Price and the Price Differential as of the date of such determination;

(s)	“Seller’s Margin Amount”, with respect to any Transaction as of any date, the amount obtained by application of the Seller’s Margin Percentage to the Repurchase Price for such Transaction as of such date; and

(t)	“Seller’s Margin Percentage”, with respect to any Transaction as of any date, a percentage (which may be equal to the Buyer’s Margin Percentage) agreed to by Buyer and Seller or, in the absence of any such agreement, the percentage obtained by dividing the Market Value of the Purchased Securities on the Purchase Date by the Purchase Price on the Purchase Date for such Transaction.

3.	Initiation; Confirmation; Termination

(a)	An agreement to enter into a Transaction may be made orally or in writing at the initiation of either Buyer or Seller. On the Purchase Date for the Transaction, the Purchased Securities shall be transferred to Buyer or its agent against the transfer of the Purchase Price to an account of Seller.

(b)

Upon agreeing to enter into a Transaction hereunder, Buyer or Seller (or both), as shall be agreed, shall promptly deliver to the other party a written confirmation of each Transaction (a “Confirmation”). The Confirmation shall describe the Purchased Securities (including CUSIP number, if any), identify Buyer and Seller and set forth (i) the Purchase Date, (ii) the Purchase Price, (iii) the Repurchase Date, unless the Transaction is to be terminable on demand, (iv) the Pricing Rate or Repurchase Price applicable to the Transaction, and (v) any additional terms or conditions of the Transaction not inconsistent with this Agreement. The Confirmation, together with this Agreement, shall constitute conclusive evidence of the terms agreed between Buyer and Seller with respect to the Transaction to which the Confirmation relates, unless with respect to the Confirmation specific objection

---

(c)

In the case of Transactions terminable upon demand, such demand shall be made by Buyer or Seller, no later than such time as is customary in accordance with market practice, by telephone or otherwise on or prior to the business day on which such termination will be effective. On the date specified in such demand, or on the date fixed for termination in the case of Transactions having a fixed term, termination of the Transaction will be effected by transfer to Seller or its agent of the Purchased Securities and any Income in respect thereof received by Buyer (and not previously credited or transferred to, or applied to the obligations of, Seller pursuant to Paragraph 5 hereof) against the transfer of the Repurchase Price to an account of Buyer.

4.	Margin Maintenance

(a)

If at any time the aggregate Market Value of all Purchased Securities subject to all Transactions in which a particular party hereto is acting as Buyer is less than the aggregate Buyer’s Margin Amount for all such Transactions (a “Margin Deficit”), then Buyer may by notice to Seller require Seller in such Transactions, at Seller’s option, to transfer to Buyer cash or additional Securities reasonably acceptable to Buyer (“Additional Purchased Securities”), so that the cash and aggregate Market Value of the Purchased Securities, including any such Additional Purchased Securities, will thereupon equal or exceed such aggregate Buyer’s Margin Amount (decreased by the amount of any Margin Deficit as of such date arising from any Transactions in which such Buyer is acting as Seller).

(b)

If at any time the aggregate Market Value of all Purchased Securities subject to all Transactions in which a particular party hereto is acting as Seller exceeds the aggregate Seller’s Margin Amount for all such Transactions at such time (a “Margin Excess”), then Seller may by notice to Buyer require Buyer in such Transactions, at Buyer’s option, to transfer cash or Purchased Securities to Seller, so that the aggregate Market Value of the Purchased Securities, after deduction of any such cash or any Purchased Securities so transferred, will thereupon not exceed such aggregate Seller’s Margin Amount (increased by the amount of any Margin Excess as of such date arising from any Transactions in which such Seller is acting as Buyer).

(c)

If any notice is given by Buyer or Seller under subparagraph (a) or (b) of this Paragraph at or before the Margin Notice Deadline on any business day, the party receiving such notice shall transfer cash or Additional Purchased Securities as provided in such subparagraph no later than the close of business in the relevant market on such day. If any such notice is given after the Margin Notice Deadline, the party receiving such notice shall transfer such cash or Securities no later than the close of business in the relevant market on the next business day following such notice.

(d)	Any cash transferred pursuant to this Paragraph shall be attributed to such Transactions as shall be agreed upon by Buyer and Seller.

---

(e)

Seller and Buyer may agree, with respect to any or all Transactions hereunder, that the respective rights of Buyer or Seller (or both) under subparagraphs (a) and (b) of this Paragraph may be exercised only where a Margin Deficit or Margin Excess, as the case may be, exceeds a specified dollar amount or a specified percentage of the Repurchase Prices for such Transactions (which amount or percentage shall be agreed to by Buyer and Seller prior to entering into any such Transactions).

(f)

Seller and Buyer may agree, with respect to any or all Transactions hereunder, that the respective rights of Buyer and Seller under subparagraphs (a) and (b) of this Paragraph to require the elimination of a Margin Deficit or a Margin Excess, as the case may be, may be exercised whenever such a Margin Deficit or Margin Excess exists with respect to any single Transaction hereunder (calculated without regard to any other Transaction outstanding under this Agreement).

5.	Income Payments

6.	Security Interest

7.	Payment and Transfer

---

8.	Segregation of Purchased Securities

9.	Substitution

(a)	Seller may, subject to agreement with and acceptance by Buyer, substitute other Securities for any Purchased Securities. Such substitution shall be made by transfer to Buyer of such other Securities and transfer to Seller of such Purchased Securities. After substitution, the substituted Securities shall be deemed to be Purchased Securities.

(b)	In Transactions in which Seller retains custody of Purchased Securities, the parties expressly agree that Buyer shall be deemed, for purposes of subparagraph (a) of this Paragraph, to have agreed to and accepted in this Agreement substitution by Seller of other Securities for Purchased Securities; provided, however, that such other

---

10.	Representations

11.	Events of Default

(a)

The nondefaulting party may, at its option (which option shall be deemed to have been exercised immediately upon the occurrence of an Act of Insolvency), declare an Event of Default to have occurred hereunder and, upon the exercise or deemed exercise of such option, the Repurchase Date for each Transaction hereunder shall, if it has not already occurred, be deemed immediately to occur (except that, in the event that the Purchase Date for any Transaction has not yet occurred as of the date of such exercise or deemed exercise, such Transaction shall be deemed immediately canceled). The nondefaulting party shall (except upon the occurrence of an Act of Insolvency) give notice to the defaulting party of the exercise of such option as promptly as practicable.

(b)

In all Transactions in which the defaulting party is acting as Seller, if the nondefaulting party exercises or is deemed to have exercised the option referred to in subparagraph (a) of this Paragraph, (i) the defaulting party’s obligations in such Transactions to repurchase all Purchased Securities, at the Repurchase Price therefor on the Repurchase Date determined in accordance with subparagraph (a) of

---

(c)

In all Transactions in which the defaulting party is acting as Buyer, upon tender by the nondefaulting party of payment of the aggregate Repurchase Prices for all such Transactions, all right, title and interest in and entitlement to all Purchased Securities subject to such Transactions shall be deemed transferred to the nondefaulting party, and the defaulting party shall deliver all such Purchased Securities to the nondefaulting party.

(d)	If the nondefaulting party exercises or is deemed to have exercised the option referred to in subparagraph (a) of this Paragraph, the nondefaulting party, without prior notice to the defaulting party, may:

(i)

as to Transactions in which the defaulting party is acting as Seller, (A) immediately sell, in a recognized market (or otherwise in a commercially reasonable manner) at such price or prices as the nondefaulting party may reasonably deem satisfactory, any or all Purchased Securities subject to such Transactions and apply the proceeds thereof to the aggregate unpaid Repurchase Prices and any other amounts owing by the defaulting party hereunder or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Securities, to give the defaulting party credit for such Purchased Securities in an amount equal to the price therefor on such date, obtained from a generally recognized source or the most recent closing bid quotation from such a source, against the aggregate unpaid Repurchase Prices and any other amounts owing by the defaulting party hereunder; and

(ii)

as to Transactions in which the defaulting party is acting as Buyer, (A) immediately purchase, in a recognized market (or otherwise in a commercially reasonable manner) at such price or prices as the nondefaulting party may reasonably deem satisfactory, securities (“Replacement Securities”) of the same class and amount as any Purchased Securities that are not delivered by the defaulting party to the nondefaulting party as required hereunder or (B) in its sole discretion elect, in lieu of purchasing Replacement Securities, to be deemed to have purchased Replacement Securities at the price therefor on such date, obtained from a generally recognized source or the most recent closing offer quotation from such a source.

---

(e)

As to Transactions in which the defaulting party is acting as Buyer, the defaulting party shall be liable to the nondefaulting party for any excess of the price paid (or deemed paid) by the nondefaulting party for Replacement Securities over the Repurchase Price for the Purchased Securities replaced thereby and for any amounts payable by the defaulting party under Paragraph 5 hereof or otherwise hereunder.

(f)	For purposes of this Paragraph 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is acting as Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the nondefaulting party of the option referred to in subparagraph (a) of this Paragraph.

(g)

The defaulting party shall be liable to the nondefaulting party for (i) the amount of all reasonable legal or other expenses incurred by the nondefaulting party in connection with or as a result of an Event of Default, (ii) damages in an amount equal to the cost (including all fees, expenses and commissions) of entering into replacement transactions and entering into or terminating hedge transactions in connection with or as a result of an Event of Default, and (iii) any other loss, damage, cost or expense directly arising or resulting from the occurrence of an Event of Default in respect of a Transaction.

(h)

To the extent permitted by applicable law, the defaulting party shall be liable to the nondefaulting party for interest on any amounts owing by the defaulting party hereunder, from the date the defaulting party becomes liable for such amounts hereunder until such amounts are (i) paid in full by the defaulting party or (ii) satisfied in full by the exercise of the nondefaulting party’s rights hereunder. Interest on any sum payable by the defaulting party to the nondefaulting party under this Paragraph 11(h) shall be at a rate equal to the greater of the Pricing Rate for the relevant Transaction or the Prime Rate.

(i)	The nondefaulting party shall have, in addition to its rights hereunder, any rights otherwise available to it under any other agreement or applicable law.

12.	Single Agreement

---

13.	Notices and Other Communications

14.	Entire Agreement; Severability

15.	Non-assignability; Termination

(a)

The rights and obligations of the parties under this Agreement and under any Transaction shall not be assigned by either party without the prior written consent of the other party, and any such assignment without the prior written consent of the other party shall be null and void. Subject to the foregoing, this Agreement and any Transactions shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. This Agreement may be terminated by either party upon giving written notice to the other, except that this Agreement shall, notwithstanding such notice, remain applicable to any Transactions then outstanding.

(b)	Subparagraph (a) of this Paragraph 15 shall not preclude a party from assigning, charging or otherwise dealing with all or any part of its interest in any sum payable to it under Paragraph 11 hereof.

16.	Governing Law

17.	No Waivers, Etc.

---

18.	Use of Employee Plan Assets

(a)

If assets of an employee benefit plan subject to any provision of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) are intended to be used by either party hereto (the “Plan Party”) in a Transaction, the Plan Party shall so notify the other party prior to the Transaction. The Plan Party shall represent in writing to the other party that the Transaction does not constitute a prohibited transaction under ERISA or is otherwise exempt therefrom, and the other party may proceed in reliance thereon but shall not be required so to proceed.

(b)	Subject to the last sentence of subparagraph (a) of this Paragraph, any such Transaction shall proceed only if Seller furnishes or has furnished to Buyer its most recent available audited statement of its financial condition and its most recent subsequent unaudited statement of its financial condition.

(c)

By entering into a Transaction pursuant to this Paragraph, Seller shall be deemed (i) to represent to Buyer that since the date of Seller’s latest such financial statements, there has been no material adverse change in Seller’s financial condition which Seller has not disclosed to Buyer, and (ii) to agree to provide Buyer with future audited and unaudited statements of its financial condition as they are issued, so long as it is a Seller in any outstanding Transaction involving a Plan Party.

19.	Intent

(a)

The parties recognize that each Transaction is a “repurchase agreement” as that term is defined in Section 101 of Title 11 of the United States Code, as amended (except insofar as the type of Securities subject to such Transaction or the term of such Transaction would render such definition inapplicable), and a “securities contract” as that term is defined in Section 741 of Title 11 of the United States Code, as amended (except insofar as the type of assets subject to such Transaction would render such definition inapplicable).

(b)

It is understood that either party’s right to liquidate Securities delivered to it in connection with Transactions hereunder or to exercise any other remedies pursuant to Paragraph 11 hereof is a contractual right to liquidate such Transaction as described in Sections 555, 559 and 561 of Title 11 of the United States Code, as amended, and that this Agreement constitutes a “master netting agreement” as defined in Section 101(38A) of Title 11 of the United States Code, as amended.

(c)

The parties agree and acknowledge that if a party hereto is an “insured depository institution,” as such term is defined in the Federal Deposit Insurance Act, as amended (“FDIA”), then each Transaction hereunder is a “qualified financial contract,” as that term is defined in FDIA and any rules, orders or policy statements thereunder (except insofar as the type of assets subject to such Transaction would render such definition inapplicable).

---

(d)

It is understood that this Agreement constitutes a “netting contract” as defined in and subject to Title IV of the Federal Deposit Insurance Corporation Improvement Act of 1991, as amended (“FDICIA”) and each payment entitlement and payment obligation under any Transaction hereunder shall constitute a “covered contractual payment entitlement” or “covered contractual payment obligation”, respectively, as defined in and subject to FDICIA (except insofar as one or both of the parties is not a “financial institution” as that term is defined in FDICIA).

20.	Disclosure Relating to Certain Federal Protections

(a)

in the case of Transactions in which one of the parties is a broker or dealer registered with the Securities and Exchange Commission (“SEC”) under Section 15 of the Securities Exchange Act of 1934, as amended (“1934 Act”), the Securities Investor Protection Corporation has taken the position that the provisions of the Securities Investor Protection Act of 1970, as amended (“SIPA”) do not protect the other party with respect to any Transaction hereunder;

(b)	in the case of Transactions in which one of the parties is a government securities broker or a government securities dealer registered with the SEC under Section 15C of the 1934 Act, SIPA will not provide protection to the other party with respect to any Transaction hereunder; and

(c)	in the case of Transactions in which one of the parties is a financial institution, funds held by the financial institution pursuant to a Transaction hereunder are not a deposit and therefore are not insured by the Federal Deposit Insurance Corporation or the National Credit Union Share Insurance Fund, as applicable.

---

---

1.	Other Applicable Annexes. In addition to this Annex I and Annex II, the following Annexes and any Schedules thereto shall form a part of the Agreement and shall be applicable thereunder:

2.	Definitions.

(a)	For purposes of the Agreement and this Annex I, the following terms shall have the following meanings:

---

---

(i)	if Buyer is the defaulting party, the amount which, in the reasonable opinion of Seller, represents the fair market value of the Purchased Securities, having regard to such pricing sources and methods (which may include, without limitation, available quotations for the Purchased Securities) as Seller considers appropriate.

(ii)	if Seller is the defaulting party:

(A)

if any of the Purchased Securities are sold through the Valuation Process on or prior to the Valuation Process Cut-Off Date, then the Net Value in respect of such Purchased Securities shall be the net proceeds received by Buyer in respect of such Purchased Securities at the conclusion of the Valuation Process, net of all reasonable costs, commissions, fees and expenses incurred by Buyer in connection with the Valuation Process;

(B)

if any of the Purchased Securities have not been sold through the Valuation Process on or prior to the Valuation Process Cut-Off Date, then the Net Value in respect of such Purchased Securities shall be the amount which, in the reasonable opinion of Buyer, represents their fair market value, having regard to such pricing sources and methods (which may include, without limitation, available quotations for the Purchased Securities) as Buyer considers appropriate;

---

(i)	Buyer shall deliver written notice to Seller that Buyer has elected to determine the     Net Value of the Purchased Securities, which notice shall include the Net Value determined by Buyer as if clause (ii)(B) of the definition of Net Value were applicable;

(ii)

following such notification, Seller may elect, by notice to Buyer (which notice shall state that Buyer will avail itself of the Valuation Process but need not identify a financial institution or provide the price or other terms of any offer for the Purchased Securities) on or prior to the third Business Day following Buyer’s notice pursuant to clause (i), to designate a nationally or internationally recognized financial institution to propose a firm price at which it will offer to purchase the Purchased Securities from Buyer pursuant to customary documentation reasonably satisfactory to Buyer, the terms of which (a) will provide that such financial institution will be liable for and pay any share transfer payments due upon transfer of the Purchased Security to it, (b) will include customary representations of Buyer regarding the conveyance of good title to the Purchased Securities, free and clear of

---

(iii)

if the financial institution designated by Seller has a combined capital and surplus of $500 million and a Thomson BankWatch Rating at the relevant time of “B” or better, then Buyer shall negotiate in good faith with such financial institution and use its commercially reasonable efforts to consummate the sale of the Purchased Securities to such financial institution on or prior to the Valuation Process Cut-Off Date; and

(b)	Paragraphs 2(a), 2(c), 2(d), 2(e), 2(g), 2(h), 2(i), 2(k), 2(o), 2(p), 2(q), 2(r), 2(s) and 2(t) of the Agreement are hereby deleted.

3.	[Reserved].

4.	Initiation; Effectiveness; Conditions; Confirmation; Termination.

5.

Purchase Price Maintenance. Provided that no Event of Default with respect to Seller has occurred and is continuing, the parties agree that in any Transaction hereunder whose term extends over an Income Payment Date for the Securities subject to such Transaction, Buyer shall (including by causing its custodian, if any, to take such actions on its behalf), on the first Business Day following the Income Payment Date, transfer to or credit to the account of Seller an amount equal to such Income payment or payments pursuant to Paragraph 5(i) of the Agreement and Buyer shall not apply the Income payment or payments to reduce the amount to be transferred to Buyer by Seller upon termination of the Transaction pursuant to Paragraph 5(ii) of the Agreement; provided, however, that any Income paid as consideration for a redemption of the Purchased Securities, regardless whether the Repurchase Date shall have been accelerated, shall be applied first to reduce the Repurchase Price and shall only be transferred to or credited for the account of Seller to the extent that such further application would reduce the Repurchase Price, as of the Income Payment Date, below zero.

6.	Margin Maintenance. Paragraph 4 of the Agreement is hereby deleted in its entirety.

7.

No Recognized Market. Notwithstanding anything to the contrary in the Agreement but subject to the Valuation Process to the extent it is applicable, Seller and Buyer acknowledge and agree that the Purchased Securities subject to the Transaction hereunder are not instruments traded in a recognized market and therefore the nondefaulting party may establish the Net Value acting in a commercially reasonable manner.

---

8.

Income Payments. Paragraph 5 of the Agreement is hereby amended (a) by replacing the words “on the date such Income is paid or distributed” in the second sentence thereof with the following words: “on the date that is the first Business Day after the applicable Income Payment Date”; (b) by deleting Clause (A) thereof; (c) by replacing the second occurrence of the word “Buyer” in the second sentence thereof with the word “Seller”; and (d) by replacing the words “such Income” in clause (i) of the second sentence thereof with the words “all such Income received by it”.

9.	Security Interest. Paragraph 6 of the Agreement is hereby deleted and replaced with the following:

“6.

Security Interest. Although the parties intend that all Transactions hereunder be sales and purchases and not loans, in the event any such Transactions are deemed to be loans, Seller shall be deemed to have pledged or charged to Buyer as security for the performance by Seller of its obligations under each such Transaction, and shall be deemed to have granted to Buyer a security interest in, all of Seller’s right, title and interest in and to the Purchased Securities with respect to all Transactions hereunder, all securities accounts to which the Purchased Securities are credited and all security entitlements with respect thereto and all Income on and other proceeds of the foregoing.”

10.	Segregation of Purchased Securities. Paragraph 8 of the Agreement is hereby amended by deleting the words “ 3, 4, or” in the twelfth line thereof.

11.	Substitution. Clause (b) of Paragraph 9 of the Agreement is hereby deleted in its entirety.

12.	Representations. Paragraph 10 of the Agreement is hereby deleted and replaced with the following:

“10.	Representations.

(a)

Each of Buyer and Seller represents and warrants to the other that (i) it is duly authorized to execute and deliver this Agreement, to enter into Transactions contemplated hereunder and to perform its obligations hereunder and has taken all necessary action to authorize such execution, delivery and performance, (ii) it will engage in such Transactions as principal (or, if agreed in writing, in the form of an annex hereto or otherwise, in advance of any Transaction by the other party hereto, as agent for a disclosed principal), (iii) the person executing and delivering this Agreement on its behalf was at the time of execution and delivery duly authorized to do so on its behalf (or on behalf of any such disclosed principal), (iv) it has obtained all authorizations of any governmental body required in connection with this Agreement and the Transactions hereunder and such authorizations are in full force and effect and (v) the execution, delivery and performance of this Agreement and the Transactions hereunder will not violate any law, ordinance, charter, by-law or rule applicable to it or any agreement by which it is bound or by which any of its assets are affected, except, in the case of clauses (iv) and (v), as would not reasonably be expected to have a material adverse effect on the Unaffiliated Holders or the Buyer or any of their officers, directors and agents.

(b)	Buyer warrants and represents that it is a national banking association organized under the laws of the United States of America.

---

13.	Events of Default

(a)	The first paragraph in Paragraph 11 of the Agreement is hereby deleted and replaced with the following:

(b)	Paragraph 11(a) of the Agreement is hereby amended by inserting the words “ of the Seller” after the first occurrence of the words “Act of Insolvency” and by inserting the words “ as to the defaulting party” after the first occurrence of the words “Event of Default”;

(c)	Paragraph 11(b) of the Agreement is hereby amended by inserting after the words “at the Repurchase Price therefor” the following words: “, together with all unpaid Price Differential,”;

(d)	Paragraph 11(c) of the Agreement is hereby amended by inserting after the words “aggregate Repurchase Prices” the following words: “, together with all accrued unpaid Price Differential,”;

(e)

Paragraph 11(d)(i) is hereby amended by deleting subparagraph (B) in its entirety and substituting the following words therefor: “(B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Securities, to commence the Valuation Process and, upon determination of the Net Value following the Valuation Process Cut-Off Date, give the defaulting party credit for such Purchased Securities in an amount equal to the Net Value therefor on such date of determination against the aggregate unpaid Repurchase Price and any other amounts owing by the defaulting party hereunder”; and

(f)	Paragraph 11(d)(ii) is hereby replaced with the following:

“(ii)	as to Transactions in which the defaulting party is acting as Buyer, determine in a commercially reasonable manner an amount equal to the Net Value of the

---

(g)

The last sentence of Paragraph 11(d) is hereby replaced with the following: “The parties acknowledge and agree that (1) in the absence of a generally recognized source for prices or bid or offer quotations for any Security, the nondefaulting party may establish the source therefor in a commercially reasonable manner and (2) all prices, bids and offers shall be determined together with accrued Income (except to the extent contrary to market practice with respect to the relevant Securities).”

(h)	Paragraph 11(e) is hereby replaced with the following:

(i)	Paragraph 11(g) is hereby deleted in its entirety.

(j)	For purposes of Paragraph 11, the Repurchase Price for each Transaction hereunder in respect of which the defaulting party is acting as Buyer shall not increase above the amount of such Repurchase Price for such Transaction determined as of the date of the exercise or deemed exercise by the nondefaulting party of the option referred to in Paragraph 11(a) (as amended herein).

14.	Payments by Seller to Buyer.

(a)	Seller shall pay to Buyer on each Price Differential Payment Date following the Purchase Date an amount equal to the accrued unpaid Price Differential.

(b)	[Reserved].

(c)

Any and all payments by Seller to or for the account of Buyer or its permitted assigns under the Agreement or the Ancillary Agreement shall be made free and clear of and without deduction for any and all Taxes, except as required by applicable Law. If Seller shall be required by any Law to deduct any Taxes from or in respect of any sum payable under this Agreement or the Ancillary Agreement to Buyer or its permitted assigns, (i) the

---

15.

Overdue Payments. If a party does not pay any amount on the date due (without regard to any applicable grace periods), including without limitation any Price Differential or any amount payable by Buyer under Paragraph 5 of the Agreement (as amended herein) or under paragraph 5 of Annex I, such party will, to the extent permitted by applicable law, pay interest on that amount to the other party in the same currency as that amount, for the period from (and including) the date the amount becomes due to (but excluding) the date the amount is actually paid, by daily application of the greater of the Pricing Rate and the Prime Rate to such amount. Notwithstanding the above, upon the declaration of an Event of Default, Paragraph 11(h) shall apply in lieu of this paragraph.

16.	Dividends, Distributions, etc.

(a)

In accordance with Paragraph 5 of the Agreement (as amended herein) and paragraph 5 of Annex I, but subject to subparagraph (d) of this paragraph 16 of Annex I, Seller shall be entitled to receive an amount equal to all Income (including any return of capital in respect of the liquidation of the issuer thereof and any proceeds received upon the redemption of such Security by the issuer thereof) paid or distributed on or in respect of Purchased Securities that is not otherwise received by Seller, to the full extent it would be so entitled if Purchased Securities had not been sold to Buyer, except as provided in Paragraph 5 of the Agreement (as amended herein) and paragraph 5 of Annex I, with respect to Income paid as consideration for a redemption of the Purchased Securities. The parties expressly acknowledge and agree, for the avoidance of doubt, that Income shall include, but is not limited to: (i) cash and all other property, (ii) stock dividends, (iii) Securities received as a result of split ups of Purchased Securities and distributions in respect thereof, and (iv) all rights to purchase additional Securities (except to the extent that any amounts included in the foregoing clauses (i) through (iv) would be deemed to be Purchased Securities).

(b)	Income paid or distributed on or in respect of Purchased Securities, which Seller is entitled to receive pursuant to subparagraph (a) of this paragraph, shall be treated in accordance with Paragraph 5 of the Agreement (as amended herein) and paragraph 5 of Annex I, as supplemented and modified herein.

(c)

Any and all payments by Buyer to or for the account of Seller hereunder shall be made subject to deduction for any and all applicable future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding, in the case of the Buyer, (i) income or franchise taxes imposed on (or measured by) its net income or net profits by the United States of America or by the jurisdiction (or any political subdivision of any such jurisdiction) under the laws of which Buyer is organized, in which its principal office (or other fixed place of business) is located or in which it is otherwise engaged in a trade or business as a result of transactions unrelated to the Transactions, (ii) any branch

---

(d)

Notwithstanding anything to the contrary in Paragraph 5 of the Agreement (as amended herein), paragraph 5 of Annex I or subparagraphs (a) (b) and (c) above, in the event that Seller fails to pay Buyer the Price Differential on the related Price Differential Payment Date and such failure is not remedied on or before the third Business Day following such Price Differential Payment Date, then Buyer may, without exercising its option to declare an Event of Default to have occurred under the Agreement and only for as long as such failure is continuing, retain Income paid or distributed after such Price Differential Payment Date and apply it to the amount of any accrued but unpaid Price Differential and, in each case, any interest thereon.

17.	Rights in Purchased Securities. For the avoidance of doubt, Seller waives any right to vote, or to provide any consent or to take any similar action with respect to, Purchased Securities in the event that the record date or deadline for such vote, consent or other action falls during the term of the Transaction.

18.

Covered Transaction. Each party acknowledges and agrees that the transactions evidenced by the Confirmation shall be the only Transaction governed by the Agreement. The Seller and the Buyer shall not enter into any other Confirmations or Transactions hereunder. The parties hereby expressly agree that any TBMA Master Agreement entered into between them after the date hereof shall not supersede the Agreement or the Transaction hereunder.

19.

Limited Recourse. Except as expressly set forth herein, the obligations of each party under the Agreement and the Transaction are solely the corporate obligations of such party. Except as expressly set forth herein, no recourse shall be had for the payment of any amount owing by a party under the Agreement or for the payment by such party of any fee or any other obligation or claim of or against such party arising out of or based upon the Agreement, against any trustee, adviser, employee, officer, director, incorporator, manager or affiliate of such party. The provisions of this paragraph shall survive the termination of the Agreement.

20.	No Recourse against ATL Holdings Limited. Notwithstanding any condition relating to ATL Holdings Inc. or any other provision of this Agreement, nothing herein shall be construed as creating any obligation of ATL Holdings Limited to Buyer under this Agreement.

21.

Other Documents. Each party shall deliver to the other, upon request, such financial information, evidence of capacity, authority, incumbency and specimen signatures and other documentation as are required by law or are reasonably requested in order to enable a party to comply with legal or regulatory requirements, except to the extent that such party is prohibited from disclosing such information as a result of applicable law, rule or regulation.

---

22.	Submission to Jurisdiction and Waivers.

(a)

Each party irrevocably and unconditionally (i) submits to the exclusive jurisdiction of any United States Federal or New York State court sitting in the Borough of Manhattan and any appellate court from any such court solely for the purpose of any suit, action or proceeding brought to enforce its obligations under the Agreement or relating in any way to the Agreement or any Transaction under the Agreement, and (ii) waives, to the fullest extent it may effectively do so, any defense of an inconvenient forum to the maintenance of such action or proceeding in any such court and any right of jurisdiction on account of its place of residence or domicile. Notwithstanding anything in this paragraph 22(a) of Annex I, each party may commence and maintain legal proceedings in Bermuda in connection with the Purchased Securities, ATL Holdings Limited, the organizational documents of ATL Holdings Limited, and matters related thereto.

(b)

Each party hereby irrevocably agrees that the summons and complaint or any other process in any action in any jurisdiction may be served by mailing (using certified or registered mail, postage prepaid) to the notice address for it set forth herein or by hand delivery to a person of suitable age and discretion at such address. Each party may also be served in any other manner permitted by law, in which event its time to respond shall be the time provided by law.

(c)

To the extent that either party has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding from jurisdiction of any court or from set off or any legal process (whether service or notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment, or otherwise) with respect to itself or any of its property, such party hereby irrevocably waives and agrees not to plead or claim such immunity in respect of any action brought to enforce its obligations under the Agreement or relating in any way to the Agreement or any Transaction hereunder.

23.	WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT OR ANY TRANSACTION HEREUNDER.

24.

Business Day. If any payment shall be required by the terms of the Agreement to be made on a day that is not a Business Day, such payment shall be made on the immediately succeeding Business Day and no further Price Differential (with respect to a payment of Price Differential) or interest (with respect to any other payment due hereunder) shall accumulate or accrue after the day on which payment was required.

25.	Counterparts. The Agreement (and each amendment, modification and waiver in respect of it) may be executed and delivered in any number of counterparts, each of which counterparts shall be deemed to be an original and such counterparts shall constitute but one and the same instrument.

26.	Tax Matters.

(a)	Seller and Buyer understand and intend that the Transaction provided for in the Agreement will be treated as a loan secured by the Purchased Securities for U.S. federal income tax and state and local income and franchise tax purposes and will file any tax returns, tax

---

(b)

As a condition of executing the Agreement, Buyer will deliver or cause to be delivered to Seller on or before the date it becomes a party to the Agreement a correct, complete and duly executed Internal Revenue Service Form W-9, whichever is appropriate. Within 20 days of the earlier of the date on which Buyer has Actual Knowledge of, and the date on which Seller requests in writing such form after the occurrence of obsolescence or invalidity of any Internal Revenue Service Form W-9 previously delivered by Buyer, Buyer will deliver to Seller a correct, complete and duly executed Internal Revenue Service Form W-9 or any successor forms. In the event that any assignee of Buyer is a U.S. person, as defined in Internal Revenue Code section 7701(a)(30), the assignee shall deliver to Seller an Internal Revenue Service Form W-9 or any applicable successor form. In the event that any assignee of Buyer is not a U.S. person, as defined, the assignee shall deliver to Seller an Internal Revenue Service Form W-8BEN or W-8ECI, as appropriate, or other applicable form, or any successor form in lieu of Internal Revenue Service Form W-8BEN or W-8ECI.

(c)

Upon request, Seller shall deliver to Buyer a correct, complete and duly executed Internal Revenue Form W-9. Within 20 days of the earlier of the date on which Seller has knowledge of, and the date on which Buyer requests in writing such form after the occurrence of obsolescence or invalidity of any Internal Revenue Form W-9 previously delivered by Seller, Seller will deliver to Buyer a correct, complete and duly executed Internal Revenue Service Form W-9 or any successor form.

27.	Accounts for Payment. Payments shall be made to the following accounts, or to such other account as may hereafter be notified to Seller or Buyer in writing by Buyer or Seller respectively.

---

28.

USA PATRIOT Act Required Notice. Buyer hereby notifies Seller that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies Seller, which information includes the name and address of Seller and information that will allow Buyer to identify Seller in accordance with the Act. Seller shall, promptly following a request by the Buyer, provide all documentation and other information that Buyer requests in order to comply with its ongoing obligations under applicable “know your customer” an anti-money laundering rules and regulations, including the Act.

29.	Notices and Other Communications.

30.	Non-assignability; Termination.

“(a)	The rights and obligations of the parties under the Agreement and under any Transaction shall not be assigned by either party without the prior written consent of the other party. The Seller will not unreasonably withhold its consent to any transfer by the Buyer that shall satisfy the following conditions:

(i)	the proposed transferee would not be required to withhold amounts on account of any Taxes from any payments that it is required to make to the Seller pursuant to paragraph 16(a) of Annex I of this Agreement in excess of such amounts that the Buyer would be required to withhold at the time the assignment or transfer would occur;

(ii)	the Buyer shall not have made any previous transfer of any of its right, title and interest hereunder;

(iii)	the Buyer shall transfer not less than all of its right, title and interest hereunder;

(iv)	the transferee shall be a lender under the Material Revolving Credit Facility (as such term is defined in the Certificate) as of the time of the proposed transfer;

(v)	the proposed transfer shall not occur prior to the second anniversary of the Purchase Date;

(vi)	the proposed transfer shall occur within four days prior to the filing date of Seller’s Form 10-K or 10-Q under the Securities Exchange Act of 1934, as amended;

(vii)	the unsecured senior long-term debt obligations of the proposed transferee shall be rated at or higher than BBB- by Standard & Poor’s, Baa3 by Moody’s, or an equivalent rating by another rating agency;

(viii)	the proposed transfer could not reasonably be expected to result in Seller having to comply with any additional legal or regulatory requirement if such compliance would have an adverse effect on the Seller;

---

(ix)

such transfer is completed at no cost or expense to the Seller (other than the Seller’s incidental costs and expenses, not to exceed $5,000, relating to the review and execution of transfer documentation and the registration of the Purchased Securities in the name of the transferee) and does not otherwise increase the Seller’s costs and expenses in respect of the Agreement and the Transaction thereunder;

(x)	the Seller shall have received 30 calendar days’ prior notice of such proposed transfer;

(xi)	such transfer does not result in the Seller’s being obligated to withhold amounts in respect of any withholding tax or other Taxes from any payment to such transferee; and

(xii)	the proposed transferee shall be organized under the laws of the United States of America or a jurisdiction located in the United States of America, Germany, Switzerland, Japan or France;

(b)

Buyer agrees that any transfer of its rights and obligations under the Agreement shall be effected by novation pursuant to and in accordance with the terms of a novation agreement substantially in the form of Exhibit I hereto (a “Novation Agreement”), which contemplates the transfer of a portion of Buyer’s rights and interest in this Agreement and the Purchased Securities and in accordance with Paragraph 15(a) of the Agreement (as amended herein), and a voting agreement substantially in the form of Exhibit II hereto. Any transfer in violation of this subparagraph (b) shall be null and void.

(c)	Subparagraph (a) of Paragraph 15 of the Agreement (as amended herein) shall not preclude a party from assigning, charging or otherwise dealing with all or any part of its interest in any sum payable to it under Paragraph 11 of the Agreement (as amended herein).”

31.	No Waivers, Etc. The last sentence of Paragraph 17 shall be deleted in its entirety.

32.	Intent.

---

“(a)	The parties recognize that each Transaction is a “securities contract” as that term is defined in section 741 of Title 11 of the United States Code, as amended (except insofar as the type of assets subject to such Transaction would render such definition inapplicable).”

---

---

---

---

1.	I have reviewed this Quarterly Report on Form 10-Q of Amgen Inc.;

2.	Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report;

3.	Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report;

4.	The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a)	Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared;

(b)	Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c)	Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this quarterly report based on such evaluation; and

(d)	Disclosed in this quarterly report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.	The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a)	All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b)	Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

---

1.	I have reviewed this Quarterly Report on Form 10-Q of Amgen Inc.;

2.	Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report;

3.	Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report;

4.	The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a)	Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this quarterly report is being prepared;

(b)	Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c)	Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this quarterly report based on such evaluation; and

(d)	Disclosed in this quarterly report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5.	The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a)	All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b)	Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

(i)	the accompanying Quarterly Report on Form 10-Q of the Company for the period ended September 30, 2013 (the “Report”) fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and

(ii)	information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

---

(i)	the accompanying Quarterly Report on Form 10-Q of the Company for the period ended September 30, 2013 (the “Report”) fully complies with the requirements of Section 13(a) or Section 15(d), as applicable, of the Securities Exchange Act of 1934, as amended; and

(ii)	information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.