EFTA01353692.pdf

(including interest, "Tax" means any present or future tax, levy, impoSt, duty, charge, assessment or fee of any nature authority in respect of any penalties and additions thereto) that is imposed by any government or other taxing payment under this Agreement other than a stamp. registration, documentation or similar tax. "Tax Event" has the meaning specified in Section 5(b). "Tar Event Upon Merger" has the meaning specified in Section 5(b). Illegality or "Terminated Transactions" means, with respect to any Early Termination Date. (a) if resulting from an in the notice given pursuant to Section 6(bXiv), (b) if a Force Majeure Event, all Affected Transactions specified Event, all Affected Transactions and (c) if resulting from an Event of Default, resulting from any other Termination all Transactions in effect either immediately before theeffectiveness of the notice designating that Early Termination Date or, if Automatic Early Termination applies, immediately before that Early Termination Date. currency is freely "Termination Currency" means (a) if a Termination Currency is specified in the Schedule and that available, that currency, and (b) otherwise, euro if this Agreement is expressed to be governed by English law or is expressed to be governed by the laws of the State of New York. United States Dollars if this Agreement "Termination Currency Equivalent" means, in respect of any amount denominated in the Termination Currency, than the such Termination Currency amount and, in respect of any amount denominated in a currency other Termination Currency (the "Other Currency"), the amount in the Termination Currency determined by the party as being required to purchase such amount of such Other Currency as at the making the relevant determination Date, or, if the relevant Close-out Amount is determined as of a later date, that later date, relevant Early Termination (selected as with the Termination Currency at the rate equal to the spot exchange rate of the foreign exchange agent Currency at or about 11:00 a.m. (in provided below) for the purchase of such Other Currency with the Termination date as would be customary for the determination of the city in which such foreign exchange agent is located) on such such a rate for the purchase of such Other Currency for value on the relevant Early Termination Date or that later be date. The foreign exchange agent will, if only one party is obliged to make a determination under Section 6(e), selected in good faith by that party and otherwise will be agreed by the parties. "Termination Event" means an Illegality, a Force Majeure Event, a Tax Event, a Tax Event Upon Merger or, if specified to be applicable, a Credit Event Upon Merger or an Additional Termination Event. "Termination Rate" means a rate per annum equal to the arithmetic mean of the cost (without proof or evidence of any actual cost) to each party (as certified by such party) if it were to fund or of funding such amounts. "Threshold Amount" means the amount, if any. specified as such in the Schedule. "Transaction" has the meaning specified in the preamble. "Unpaid Amounts" owing to any party means, with respect to an Early Termination Date, the aggregate of (a) in respect of all Terminated Transactions, the amounts that became payable (or that would have become payable but for Section 2(a)(iii) or due but for Section 5(d)) to such party under Section 2(aXi) or 2(dXiX4) on or prior to such Early Termination Date and which remain unpaid as at such Early Termination Date. (b) in respect of each Terminated Transaction, for each obligation under Section 2(aXi) which was (or would have been but for Section 2(aXiii) or 5(d)) required to be settled by delivery to such party on or prior to such Early Termination Date and which has not been so settled as at such Early Termination Date, an amount equal to the fair market value of that which was (or would have been) required to be delivered and (c) if the Early Termination Date results from an Event of Default, a Credit Event Upon Merger or an Additional Termination Event in respect of which all outstanding Transactions arc Affected Transactions, any Early Termination Amount due prior to such Early Termination Date and which remains unpaid as of such Early Termination Date, in each case together with any amount of interest accrued or other 27 ISDA. 2002 CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) DB-SDNY-0038167 CONFIDENTIAL SDNY_GM_00184351 EFTA01353692