Exhibit
10.79


 


(Multicurrency — Cross Border)


 





 


MASTER
AGREEMENT


 


dated as of November 20, 2003


 


 


Credit Suisse First Boston International  and
        Priceline.com
Incorporated      


 


have entered and/or
anticipate entering into one or more transactions (each a “Transaction”) that
are or will be governed by this Master Agreement, which includes the schedule
(the “Schedule”), and the documents and other confirming evidence (each a
“Confirmation”) exchanged between the parties confirming those Transactions.


 


Accordingly, the parties
agree as follows: —


 


1.                                      Interpretation


 


(a)                                  Definitions. The terms defined in Section 14 and in the
Schedule will have the meanings therein specified for the purpose of this
Master Agreement.


 


(b)                                 Inconsistency.  In
the event of any inconsistency between the provisions of the Schedule and the
other provisions of this Master Agreement, the Schedule will prevail. In the
event of any inconsistency between the provisions of any Confirmation and this
Master Agreement (including the Schedule), such Confirmation will prevail for
the purpose of the relevant Transaction.


 


(c)                                  Single
Agreement.  All Transactions are entered into in
reliance on the fact that this Master Agreement and all Confirmations form a
single agreement between the parties (collectively referred to as this
“Agreement”), and the parties would not otherwise enter into any Transactions.


 


2.                                      Obligations


 


(a)                                  General
Conditions.


 


(i)             Each party will make each payment or delivery
specified in each Confirmation to be made by it, subject to the other
provisions of this Agreement.


 


(ii)          Payments under this Agreement will be made on
the due date for value on that date in the place of the account specified in
the relevant Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the required
currency. Where settlement is by delivery (that is, other than by payment),
such delivery will be made for receipt on the due date in the manner customary
for the relevant obligation unless otherwise specified in the relevant
Confirmation or elsewhere in this Agreement.


 


(iii)       Each obligation of each party under Section
2(a)(i) is subject to (1) the condition precedent that no Event of Default or
Potential Event of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination Date in
respect of the relevant Transaction has occurred or been effectively designated
and (3) each other applicable condition precedent specified in this Agreement.


 

















 


(b)           Change
of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.


 


(c)           Netting.
If on any date amounts would otherwise be payable:—


 


(i)             in the same currency; and


 


(ii)          in respect of the same Transaction,


 


by each party to the other,
then, on such date, each party’s obligation to make payment of any such amount
will be automatically satisfied and discharged and, if the aggregate amount
that would otherwise have been payable by one party exceeds the aggregate amount
that would otherwise have been payable by the other party, replaced by an
obligation upon the party by whom the larger aggregate amount would have been
payable to pay to the other party the excess of the larger aggregate amount
over the smaller aggregate amount.


 


The parties may elect in
respect of two or more Transactions that a net amount will be determined in
respect of all amounts payable on the same date in the same currency in respect
of such Transactions, regardless of whether such amounts are payable in respect
of the same Transaction. The election may be made in the Schedule or a
Confirmation by specifying that subparagraph (ii) above will not apply to the
Transactions identified as being subject to the election, together with the
starting date (in which case subparagraph (ii) above will not, or will cease
to, apply to such Transactions from such date). This election may be made
separately for different groups of Transactions and will apply separately to
each pairing of Offices through which the parties make and receive payments or
deliveries.


 


(d)                                 Deduction
or Withholding for Tax.


 


(i)             Gross-Up. All payments under this Agreement will be
made without any deduction or withholding for or on account of any Tax unless
such deduction or withholding is required by any applicable law, as modified by
the practice of any relevant governmental revenue authority, then in effect. If
a party is so required to deduct or withhold, then that party (“X”) will:—


 


(1)  promptly notify the other
party (“Y”) of such requirement;


 


(2)  pay to the relevant
authorities the full amount required to be deducted or withheld (including the
full amount required to be deducted or withheld from any additional amount paid
by X to Y under this Section 2(d)) promptly upon the earlier of determining
that such deduction or withholding is required or receiving notice that such
amount has been assessed against Y;


 


(3)  promptly forward to Y an
official receipt (or a certified copy), or other documentation reasonably
acceptable to Y, evidencing such payment to such authorities; and


 


(4)  if such Tax is an
Indemnifiable Tax, pay to Y, in addition to the payment to which Y is otherwise
entitled under this Agreement, such additional amount as is necessary to ensure
that the net amount actually received by Y (free and clear of Indemnifiable
Taxes, whether assessed against X or Y) will equal the full amount Y would have
received had no such deduction or withholding been required. However, X will
not be required to pay any additional amount to Y to the extent that it would
not be required to be paid but for:—


 


(A)  the failure by Y to comply with or perform
any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d); or


 


(B)  the failure of a representation made by Y
pursuant to Section 3(f) to be accurate and true unless such failure would not
have occurred but for (I) any action taken by a taxing authority, or brought in
a court of competent jurisdiction, on or after the date on which a Transaction
is entered into (regardless of whether such action is taken or brought with
respect to a party to this Agreement) or (II) a Change in Tax Law.


 


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(ii)          Liability. If: —


 


(1)  X is required by any
applicable law, as modified by the practice of any relevant governmental
revenue authority, to make any deduction or withholding in respect of which X
would not be required to pay an additional amount to Y under Section
2(d)(i)(4);


 


(2)  X does not so deduct or
withhold; and


 


(3)  a liability resulting from
such Tax is assessed directly against X,


 


then,
except to the extent Y has satisfied or then satisfies the liability resulting
from such Tax, Y will promptly pay to X the amount of such liability (including
any related liability for interest, but including any related liability for
penalties only if Y has failed to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d)).


 


(e)                                  Default
Interest; Other Amounts. Prior
to the occurrence or effective designation of an Early Termination Date in
respect of the relevant Transaction, a party that defaults in the performance
of any payment obligation will, to the extent permitted by law and subject to
Section 6(c), be required to pay interest (before as well as after judgment) on
the overdue amount to the other party on demand in the same currency as such
overdue amount, for the period from (and including) the original due date for
payment to (but excluding) the date of actual payment, at the Default Rate.
Such interest will be calculated on the basis of daily compounding and the
actual number of days elapsed. If, prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant
Transaction, a party defaults in the performance of any obligation required to
be settled by delivery, it will compensate the other party on demand if and to
the extent provided for in the relevant Confirmation or elsewhere in this
Agreement.


 


3.                                      Representations


 


Each party represents to the
other party (which representations will be deemed to be repeated by each party
on each date on which a Transaction is entered into and, in the case of the
representations in Section 3(f), at all times until the termination of this
Agreement) that:—


 


(a)                                  Basic
Representations.


 


(i)             Status. It is duly organised and validly existing
under the laws of the jurisdiction of its organisation or incorporation and, if
relevant under such laws, in good standing;


 


(ii)          Powers.  It
has the power to execute this Agreement and any other documentation relating to
this Agreement to which it is a party, to deliver this Agreement and any other
documentation relating to this Agreement that it is required by this Agreement
to deliver and to perform its obligations under this Agreement and any
obligations it has under any Credit Support Document to which it is a party and
has taken all necessary action to authorise such execution, delivery and
performance;


 


(iii)       No
Violation or Conflict.
Such execution, delivery and performance do not violate or conflict with any
law applicable to it, any provision of its constitutional documents, any order
or judgment of any court or other agency of government applicable to it or any
of its assets or any contractual restriction binding on or affecting it or any
of its assets;


 


(iv)      Consents. All governmental and other consents that
are required to have been obtained by it with respect to this Agreement or any
Credit Support Document to which it is a party have been obtained and are in
full force and effect and all conditions of any such consents have been
complied with; and


 


(v)         Obligations
Binding. Its obligations
under this Agreement and any Credit Support Document to which it is a party
constitute its legal, valid and binding obligations, enforceable in accordance
with their respective terms (subject to applicable bankruptcy, reorganisation,
insolvency, moratorium or similar laws affecting creditors’ rights generally
and subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding in
equity or at law)).


 


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(b)                                 Absence of
Certain Events. No Event
of Default or Potential Event of Default or, to its knowledge, Termination
Event with respect to it has occurred and is continuing and no such event or
circumstance would occur as a result of its entering into or performing its
obligations under this Agreement or any Credit Support Document to which it is
a party.


 


(c)                                  Absence of
Litigation. There is not
pending or, to its knowledge, threatened against it or any of its Affiliates
any action, suit or proceeding at law or in equity or before any court,
tribunal, governmental body, agency or official or any arbitrator that is
likely to affect the legality, validity or enforceability against it of this
Agreement or any Credit Support Document to which it is a party or its ability
to perform its obligations under this Agreement or such Credit Support
Document.


 


(d)           Accuracy
of Specified Information. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.


 


(e)                                  Payer Tax
Representation. Each
representation specified in the Schedule as being made by it for the purpose of
this Section 3(e) is accurate and true.


 


(f)                                    Payee Tax
Representations. Each
representation specified in the Schedule as being made by it for the purpose of
this Section 3(f) is accurate and true.


 


4.                                      Agreements


 


Each party agrees with the
other that, so long as either party has or may have any obligation under this
Agreement or under any Credit Support Document to which it is a party:—


 


(a)                                  Furnish
Specified Information.
It will deliver to the other party or, in certain cases under subparagraph
(iii) below, to such government or taxing authority as the other party
reasonably directs:—


 


(i)             any forms, documents or certificates relating
to taxation specified in the Schedule or any Confirmation;


 


(ii)          any other documents specified in the Schedule
or any Confirmation; and


 


(iii)       upon reasonable demand by such other party,
any form or document that may be required or reasonably requested in writing in
order to allow such other party or its Credit Support Provider to make a
payment under this Agreement or any applicable Credit Support Document without
any deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially prejudice
the legal or commercial position of the party in receipt of such demand), with
any such form or document to be accurate and completed in a manner reasonably satisfactory
to such other party and to be executed and to be delivered with any reasonably
required certification,


 


in each case by the date
specified in the Schedule or such Confirmation or, if none is specified, as
soon as reasonably practicable.


 


(b)                                 Maintain
Authorisations. It will
use all reasonable efforts to maintain in full force and effect all consents of
any governmental or other authority that are required to be obtained by it with
respect to this Agreement or any Credit Support Document to which it is a party
and will use all reasonable efforts to obtain any that may become necessary in
the future.


 


(c)                                  Comply
with Laws. It will
comply in all material respects with all applicable laws and orders to which it
may be subject if failure so to comply would materially impair its ability to
perform its obligations under this Agreement or any Credit Support Document to
which it is a party.


 


(d)                                 Tax
Agreement. It will give
notice of any failure of a representation made by it under Section 3(f) to be
accurate and true promptly upon learning of such failure.


 


(e)                                  Payment of
Stamp Tax. Subject to
Section 11, it will pay any Stamp Tax levied or imposed upon it or in respect
of its execution or performance of this Agreement by a jurisdiction in which it
is incorporated,


 


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organised, managed and
controlled, or considered to have its seat, or in which a branch or office
through which it is acting for the purpose of this Agreement is located (“Stamp
Tax Jurisdiction”) and will indemnify the other party against any Stamp Tax
levied or imposed upon the other party or in respect of the other party’s
execution or performance of this Agreement by any such Stamp Tax Jurisdiction
which is not also a Stamp Tax Jurisdiction with respect to the other party.


 


5.                                      Events of Default and
Termination Events


 


(a)                                  Events of
Default. The occurrence
at any time with respect to a party or, if applicable, any Credit Support
Provider of such party or any Specified Entity of such party of any of the
following events constitutes an event of default (an “Event of Default”) with
respect to such party:—


 


(i)             Failure to
Pay or Deliver. Failure
by the party to make, when due, any payment under this Agreement or delivery
under Section 2(a)(i) or 2(e) required to be made by it if such failure is not
remedied on or before the third Local Business Day after notice of such failure
is given to the party;


 


(ii)          Breach of
Agreement. Failure by
the party to comply with or perform any agreement or obligation (other than an
obligation to make any payment under this Agreement or delivery under Section
2(a)(i) or 2(e) or to give notice of a Termination Event or any agreement or
obligation under Section 4(a)(i), 4(a)(iii) or 4(d)) to be complied with or
performed by the party in accordance with this Agreement if such failure is not
remedied on or before the thirtieth day after notice of such failure is given
to the party;


 


(iii)       Credit
Support Default.


 


(1)  Failure by the party or any Credit Support
Provider of such party to comply with or perform any agreement or obligation to
be complied with or performed by it in accordance with any Credit Support
Document if such failure is continuing after any applicable grace period has
elapsed;


 


(2)  the expiration or termination of such Credit
Support Document or the failing or ceasing of such Credit Support Document to
be in full force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction of all obligations
of such party under each Transaction to which such Credit Support Document
relates without the written consent of the other party; or


 


(3)  the party or such Credit Support Provider
disaffirms, disclaims, repudiates or rejects, in whole or in part, or
challenges the validity of, such Credit Support Document;


 


(iv)      Misrepresentation. A representation (other than a
representation under Section 3(e) or (f)) made or repeated or deemed to have
been made or repeated by the party or any Credit Support Provider of such party
in this Agreement or any Credit Support Document proves to have been incorrect
or misleading in any material respect when made or repeated or deemed to have
been made or repeated;


 


(v)         Default
under Specified Transaction.
The party, any Credit Support Provider of such party or any applicable
Specified Entity of such party (1) defaults under a Specified Transaction and,
after giving effect to any applicable notice requirement or grace period, there
occurs a liquidation of, an acceleration of obligations under, or an early
termination of, that Specified Transaction, (2) defaults, after giving effect
to any applicable notice requirement or grace period, in making any payment or
delivery due on the last payment, delivery or exchange date of, or any payment
on early termination of, a Specified Transaction (or such default continues for
at least three Local Business Days if there is no applicable notice requirement
or grace period) or (3) disaffirms, disclaims, repudiates or rejects, in whole
or in part, a Specified Transaction (or such action is taken by any person or
entity appointed or empowered to operate it or act on its behalf);


 


(vi)      Cross
Default. If “Cross
Default” is specified in the Schedule as applying to the party, the occurrence
or existence of (1) a default, event of default or other similar condition or
event (however


 


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described)
in respect of such party, any Credit Support Provider of such party or any
applicable Specified Entity of such party under one or more agreements or
instruments relating to Specified Indebtedness of any of them (individually or
collectively) in an aggregate amount of not less than the applicable Threshold
Amount (as specified in the Schedule) which has resulted in such Specified
Indebtedness becoming, or becoming capable at such time of being declared, due
and payable under such agreements or instruments, before it would otherwise
have been due and payable or (2) a default by such party, such Credit Support Provider
or such Specified Entity (individually or collectively) in making one or more
payments on the due date thereof in an aggregate amount of not less than the
applicable Threshold Amount under such agreements or instruments (after giving
effect to any applicable notice requirement or grace period);


 


(vii)
Bankruptcy.
The party, any Credit Support Provider of such party or any applicable
Specified Entity of such party: —


 


(1) is dissolved (other than pursuant to a consolidation, amalgamation
or merger); (2) becomes insolvent or is unable to pay its debts or fails or
admits in writing its inability generally to pay its debts as they become due;
(3) makes a general assignment, arrangement or composition with or for the
benefit of its creditors; (4) institutes or has instituted against it a
proceeding seeking a judgment of insolvency or bankruptcy or any other relief
under any bankruptcy or insolvency law or other similar law affecting
creditors’ rights, or a petition is presented for its winding-up or liquidation,
and, in the case of any such proceeding or petition instituted or presented
against it, such proceeding or petition (A) results in a judgment of insolvency
or bankruptcy or the entry of an order for relief or the making of an order for
its winding-up or liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or presentation
thereof; (5) has a resolution passed for its winding-up, official management or
liquidation (other than pursuant to a consolidation, amalgamation or merger);
(6) seeks or becomes subject to the appointment of an administrator,
provisional liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets; (7) has a
secured party take possession of all or substantially all its assets or has a
distress, execution, attachment, sequestration or other legal process levied,
enforced or sued on or against all or substantially all its assets and such
secured party maintains possession, or any such process is not dismissed,
discharged, stayed or restrained, in each case within 30 days thereafter; (8)
causes or is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to any of the
events specified in clauses (1) to (7) (inclusive); or (9) takes any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the foregoing acts; or


 


(viii)
Merger Without
Assumption. The party or any Credit Support Provider of such
party consolidates or amalgamates with, or merges with or into, or transfers
all or substantially all its assets to, another entity and, at the time of such
consolidation, amalgamation, merger or transfer: —


 


(1)  the resulting, surviving or
transferee entity fails to assume all the obligations of such party or such
Credit Support Provider under this Agreement or any Credit Support Document to
which it or its predecessor was a party by operation of law or pursuant to an agreement
reasonably satisfactory to the other party to this Agreement; or


 


(2)  the benefits of any Credit
Support Document fail to extend (without the consent of the other party) to the
performance by such resulting, surviving or transferee entity of its
obligations under this Agreement.


 


(b)                                 Termination
Events. The occurrence
at any time with respect to a party or, if applicable, any Credit Support
Provider of such party or any Specified Entity of such party of any event
specified below constitutes an Illegality if the event is specified in (i)
below, a Tax Event if the event is specified in (ii) below or a Tax Event Upon
Merger if the event is specified in (iii) below, and, if specified to be
applicable, a Credit Event


 


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Upon Merger if the event is
specified pursuant to (iv) below or an Additional Termination Event if the
event is specified pursuant to (v) below:—


 


(i)             Illegality. Due to the adoption of, or any change in,
any applicable law after the date on which a Transaction is entered into, or
due to the promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any applicable
law after such date, it becomes unlawful (other than as a result of a breach by
the party of Section 4(b)) for such party (which will be the Affected Party): —


 


(1)  to perform any absolute or
contingent obligation to make a payment or delivery or to receive a payment or
delivery in respect of such Transaction or to comply with any other material
provision of this Agreement relating to such Transaction; or


 


(2)  to perform, or for any
Credit Support Provider of such party to perform, any contingent or other
obligation which the party (or such Credit Support Provider) has under any
Credit Support Document relating to such Transaction;


 


(ii)          Tax Event. Due to (x) any action taken by a taxing
authority, or brought in a court of competent jurisdiction, on or after the
date on which a Transaction is entered into (regardless of whether such action
is taken or brought with respect to a party to this Agreement) or (y) a Change
in Tax Law, the party (which will be the Affected Party) will, or there is a
substantial likelihood that it will, on the next succeeding Scheduled Payment
Date (1) be required to pay to the other party an additional amount in respect
of an Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest
under Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a payment from which an
amount is required to be deducted or withheld for or on account of a Tax
(except in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) and no
additional amount is required to be paid in respect of such Tax under Section
2(d)(i)(4) (other than by reason of Section 2(d)(i)(4)(A) or (B));


 


(iii)       Tax Event
Upon Merger. The party
(the “Burdened Party”) on the next succeeding Scheduled Payment Date will
either (1) be required to pay an additional amount in respect of an
Indemnifiable Tax under Section 2(d)(i)(4) (except in respect of interest under
Section 2(e), 6(d)(ii) or 6(e)) or (2) receive a payment from which an amount
has been deducted or withheld for or on account of any Indemnifiable Tax in
respect of which the other party is not required to pay an additional amount
(other than by reason of Section 2(d)(i)(4)(A) or (B)), in either case as a
result of a party consolidating or amalgamating with, or merging with or into,
or transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);


 


(iv)      Credit
Event Upon Merger. If
“Credit Event Upon Merger” is specified in the Schedule as applying to the
party, such party (“X”), any Credit Support Provider of X or any applicable
Specified Entity of X consolidates or amalgamates with, or merges with or into,
or transfers all or substantially all its assets to, another entity and such
action does not constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is materially
weaker than that of X, such Credit Support Provider or such Specified Entity,
as the case may be, immediately prior to such action (and, in such event, X or
its successor or transferee, as appropriate, will be the Affected Party); or


 


(v)         Additional
Termination Event. If
any “Additional Termination Event” is specified in the Schedule or any
Confirmation as applying, the occurrence of such event (and, in such event, the
Affected Party or Affected Parties shall be as specified for such Additional
Termination Event in the Schedule or such Confirmation).


 


(c)                                 Event of
Default and Illegality.
If an event or circumstance which would otherwise constitute or give rise to an
Event of Default also constitutes an Illegality, it will be treated as an
Illegality and will not constitute an Event of Default.


 


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6.                                      Early Termination


 


(a)                                  Right to
Terminate Following Event of Default. If at any time an Event of Default with respect to a party (the
“Defaulting Party”) has occurred and is then continuing, the other party (the
“Non-defaulting Party”) may, by not more than 20 days notice to the Defaulting
Party specifying the relevant Event of Default, designate a day not earlier
than the day such notice is effective as an Early Termination Date in respect
of all outstanding Transactions. If, however, “Automatic Early Termination” is
specified in the Schedule as applying to a party, then an Early Termination
Date in respect of all outstanding Transactions will occur immediately upon the
occurrence with respect to such party of an Event of Default specified in
Section 5(a)(vii)(1), (3), (5), (6) or, to the extent analogous thereto, (8),
and as of the time immediately preceding the institution of the relevant
proceeding or the presentation of the relevant petition upon the occurrence
with respect to such party of an Event of Default specified in Section
5(a)(vii)(4) or, to the extent analogous thereto, (8).


 


(b)                                 Right to
Terminate Following Termination Event.


 


(i)             Notice. If a Termination Event occurs, an Affected
Party will, promptly upon becoming aware of it, notify the other party,
specifying the nature of that Termination Event and each Affected Transaction
and will also give such other information about that Termination Event as the
other party may reasonably require.


 


(ii)          Transfer
to Avoid Termination Event.
If either an Illegality under Section 5(b)(i)(1) or a Tax Event occurs and
there is only one Affected Party, or if a Tax Event Upon Merger occurs and the
Burdened Party is the Affected Party, the Affected Party will, as a condition
to its right to designate an Early Termination Date under Section 6(b)(iv), use
all reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days after it
gives notice under Section 6(b)(i) all its rights and obligations under this
Agreement in respect of the Affected Transactions to another of its Offices or
Affiliates so that such Termination Event ceases to exist.


 


If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period, whereupon
the other party may effect such a transfer within 30 days after the notice is
given under Section 6(b)(i).


 


Any such transfer by a party under this Section 6(b)(ii) will be
subject to and conditional upon the prior written consent of the other party,
which consent will not be withheld if such other party’s policies in effect at
such time would permit it to enter into transactions with the transferee on the
terms proposed.


 


(iii)       Two
Affected Parties. If an
Illegality under Section 5(b)(i)(1) or a Tax Event occurs and there are two
Affected Parties, each party will use all reasonable efforts to reach agreement
within 30 days after notice thereof is given under Section 6(b)(i) on action to
avoid that Termination Event.


 


(iv)      Right to
Terminate. If: —


 


(1)  a transfer under Section
6(b)(ii) or an agreement under Section 6(b)(iii), as the case may be, has not
been effected with respect to all Affected Transactions within 30 days after an
Affected Party gives notice under Section 6(b)(i); or


 


(2)  an Illegality under Section 5(b)(i)(2), a
Credit Event Upon Merger or an Additional Termination Event occurs, or a Tax
Event Upon Merger occurs and the Burdened Party is not the Affected Party,


 


either party in the case of an Illegality, the Burdened Party in the
case of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected Party, or
the party which is not the Affected Party in the case of a Credit Event Upon
Merger or an Additional Termination Event if there is only one Affected Party
may, by not more than 20 days notice to the other party and provided that the
relevant Termination Event is then


 


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continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected Transactions.


 


(c)                                  Effect of
Designation.


 


(i)             If notice designating an Early Termination
Date is given under Section 6(a) or (b), the Early Termination Date will occur
on the date so designated, whether or not the relevant Event of Default or
Termination Event is then continuing.


 


(ii)          Upon the occurrence or effective designation
of an Early Termination Date, no further payments or deliveries under Section
2(a)(i) or 2(e) in respect of the Terminated Transactions will be required to
be made, but without prejudice to the other provisions of this Agreement. The
amount, if any, payable in respect of an Early Termination Date shall be
determined pursuant to Section 6(e).


 


(d)                                 Calculations.


 


(i)             Statement. On or as soon as reasonably practicable
following the occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will provide
to the other party a statement (1) showing, in reasonable detail, such
calculations (including all relevant quotations and specifying any amount
payable under Section 6(e)) and (2) giving details of the relevant account to
which any amount payable to it is to be paid. In the absence of written
confirmation from the source of a quotation obtained in determining a Market
Quotation, the records of the party obtaining such quotation will be conclusive
evidence of the existence and accuracy of such quotation.


 


(ii)          Payment
Date. An amount
calculated as being due in respect of any Early Termination Date under Section
6(e) will be payable on the day that notice of the amount payable is effective
(in the case of an Early Termination Date which is designated or occurs as a
result of an Event of Default) and on the day which is two Local Business Days
after the day on which notice of the amount payable is effective (in the case
of an Early Termination Date which is designated as a result of a Termination
Event). Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early Termination Date
to (but excluding) the date such amount is paid, at the Applicable Rate. Such
interest will be calculated on the basis of daily compounding and the actual
number of days elapsed.


 


(e)                                  Payments
on Early Termination. If
an Early Termination Date occurs, the following provisions shall apply based on
the parties’ election in the Schedule of a payment measure, either “Market
Quotation” or “Loss”, and a payment method, either the “First Method” or the
“Second Method”. If the parties fail to designate a payment measure or payment
method in the Schedule, it will be deemed that “Market Quotation” or the
“Second Method”, as the case may be, shall apply. The amount, if any, payable
in respect of an Early Termination Date and determined pursuant to this Section
will be subject to any Set-off.


 


(i)             Events of
Default. If the Early
Termination Date results from an Event of Default: —


 


(1)  First
Method and Market Quotation. If the First Method and Market
Quotation apply, the Defaulting Party will pay to the Non-defaulting Party the
excess, if a positive number, of (A) the sum of the Settlement Amount (determined
by the Non-defaulting Party) in respect of the Terminated Transactions and the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent of the Unpaid
Amounts owing to the Defaulting Party.


 


(2)  First
Method and Loss. If the First Method and Loss apply, the Defaulting
Party will pay to the Non-defaulting Party, if a positive number, the
Non-defaulting Party’s Loss in respect of this Agreement.


 


(3)  Second
Method and Market Quotation. If the Second Method and Market
Quotation apply, an amount will be payable equal to (A) the sum of the
Settlement Amount (determined by the


 


9

















 


Non-defaulting
Party) in respect of the Terminated Transactions and the Termination Currency
Equivalent of the Unpaid Amounts owing to the Non-defaulting Party less (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to the Defaulting
Party. If that amount is a positive number, the Defaulting Party will pay it to
the Non-defaulting Party; if it is a negative number, the Non-defaulting Party
will pay the absolute value of that amount to the Defaulting Party.


 


(4)  Second
Method and Loss. If the Second Method and Loss apply, an amount will
be payable equal to the Non-defaulting Party’s Loss in respect of this
Agreement. If that amount is a positive number, the Defaulting Party will pay
it to the Non-defaulting Party; if it is a negative number, the Non-defaulting
Party will pay the absolute value of that amount to the Defaulting Party.


 


(ii)          Termination
Events.  If the Early Termination Date results from a
Termination Event: —


 


(1)  One
Affected Party. If there is one Affected Party, the amount payable
will be determined in accordance with Section 6(e)(i)(3), if Market Quotation
applies, or Section 6(e)(i)(4), if Loss applies, except that, in either case,
references to the Defaulting Party and to the Non-defaulting Party will be
deemed to be references to the Affected Party and the party which is not the
Affected Party, respectively, and, if Loss applies and fewer than all the
Transactions are being terminated, Loss shall be calculated in respect of all
Terminated Transactions.


 


(2)  Two
Affected Parties. If
there are two Affected Parties: —


 


(A)
if Market Quotation applies, each party will determine a Settlement Amount in
respect of the Terminated Transactions, and an amount will be payable equal to
(I) the sum of (a) one-half of the difference between the Settlement Amount of
the party with the higher Settlement Amount (“X”) and the Settlement Amount of
the party with the lower Settlement Amount (“Y”) and (b) the Termination
Currency Equivalent of the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and


 


(B)
if Loss applies, each party will determine its Loss in respect of this
Agreement (or, if fewer than all the Transactions are being terminated, in
respect of all Terminated Transactions) and an amount will be payable equal to
one-half of the difference between the Loss of the party with the higher Loss
(“X”) and the Loss of the party with the lower Loss (“Y”).


 


If
the amount payable is a positive number, Y will pay it to X; if it is a
negative number, X will pay the absolute value of that amount to Y.


 


(iii)       Adjustment
for Bankruptcy. In
circumstances where an Early Termination Date occurs because “Automatic Early
Termination” applies in respect of a party, the amount determined under this
Section 6(e) will be subject to such adjustments as are appropriate and
permitted by law to reflect any payments or deliveries made by one party to the
other under this Agreement (and retained by such other party) during the period
from the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).


 


(iv) Pre-Estimate.
The parties agree that if Market Quotation applies an amount recoverable under
this Section 6(e) is a reasonable pre-estimate of loss and not a penalty. Such
amount is payable for the loss of bargain and the loss of protection against
future risks and except as otherwise provided in this Agreement neither party
will be entitled to recover any additional damages as a consequence of such
losses.


 


10

















 


7.                                      Transfer


 


Subject to Section 6(b)(ii),
neither this Agreement nor any interest or obligation in or under this
Agreement may be transferred (whether by way of security or otherwise) by
either party without the prior written consent of the other party, except that:
—


 


(a)                                  a party may make such a transfer of this
Agreement pursuant to a consolidation or amalgamation with, or merger with or
into, or transfer of all or substantially all its assets to, another entity
(but without prejudice to any other right or remedy under this Agreement); and


 


(b)                                 a party may make such a transfer of all or
any part of its interest in any amount payable to it from a Defaulting Party
under Section 6(e).


 


Any purported transfer that
is not in compliance with this Section will be void.


 


8.                                      Contractual Currency


 


(a)                                  Payment in
the Contractual Currency.
Each payment under this Agreement will be made in the relevant currency
specified in this Agreement for that payment (the “Contractual Currency”). To
the extent permitted by applicable law, any obligation to make payments under
this Agreement in the Contractual Currency will not be discharged or satisfied
by any tender in any currency other than the Contractual Currency, except to
the extent such tender results in the actual receipt by the party to which payment
is owed, acting in a reasonable manner and in good faith in converting the
currency so tendered into the Contractual Currency, of the full amount in the
Contractual Currency of all amounts payable in respect of this Agreement. If
for any reason the amount in the Contractual Currency so received falls short
of the amount in the Contractual Currency payable in respect of this Agreement,
the party required to make the payment will, to the extent permitted by
applicable law, immediately pay such additional amount in the Contractual
Currency as may be necessary to compensate for the shortfall. If for any reason
the amount in the Contractual Currency so received exceeds the amount in the
Contractual Currency payable in respect of this Agreement, the party receiving
the payment will refund promptly the amount of such excess.


 


(b)                                 Judgments. To the extent permitted by applicable law,
if any judgment or order expressed in a currency other than the Contractual
Currency is rendered (i) for the payment of any amount owing in respect of this
Agreement, (ii) for the payment of any amount relating to any early termination
in respect of this Agreement or (iii) in respect of a judgment or order of
another court for the payment of any amount described in (i) or (ii) above, the
party seeking recovery, after recovery in full of the aggregate amount to which
such party is entitled pursuant to the judgment or order, will be entitled to
receive immediately from the other party the amount of any shortfall of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency and will refund promptly to the other party any excess of
the Contractual Currency received by such party as a consequence of sums paid
in such other currency if such shortfall or such excess arises or results from
any variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term “rate of exchange” includes, without limitation, any premiums and
costs of exchange payable in connection with the purchase of or conversion into
the Contractual Currency.


 


(c)                                  Separate
Indemnities. To the
extent permitted by applicable law, these indemnities constitute separate and
independent obligations from the other obligations in this Agreement, will be
enforceable as separate and independent causes of action, will apply
notwithstanding any indulgence granted by the party to which any payment is
owed and will not be affected by judgment being obtained or claim or proof
being made for any other sums payable in respect of this Agreement.


 


(d)                                 Evidence
of Loss. For tbe purpose
of this Section 8, it will be sufficient for a party to demonstrate that it
would have suffered a loss had an actual exchange or purchase been made.


 


11

















 


9.                                      Miscellaneous


 


(a)                                  Entire
Agreement. This
Agreement constitutes the entire agreement and understanding of the parties with
respect to its subject matter and supersedes all oral communication and prior
writings with respect thereto.


 


(b)                                 Amendments. No amendment, modification or waiver in
respect of this Agreement will be effective unless in writing (including a
writing evidenced by a facsimile transmission) and executed by each of the
parties or confirmed by an exchange of telexes or electronic messages on an
electronic messaging system.


 


(c)                                  Survival
of Obligations. Without
prejudice to Sections 2(a)(iii) and 6(c)(ii), the obligations of the parties
under this Agreement will survive the termination of any Transaction.


 


(d)                                 Remedies
Cumulative. Except as
provided in this Agreement, the rights, powers, remedies and privileges
provided in this Agreement are cumulative and not exclusive of any rights,
powers, remedies and privileges provided by law.


 


(e)                                  Counterparts
and Confirmations.


 


(i)
This Agreement (and each amendment, modification and waiver in respect of it)
may be executed and delivered in counterparts (including by facsimile
transmission), each of which will be deemed an original.


 


(ii)
The parties intend that they are legally bound by the terms of each Transaction
from the moment they agree to those terms (whether orally or otherwise). A
Confirmation shall he entered into as soon as practicable and may he executed
and delivered in counterparts (including by facsimile transmission) or be
created by an exchange of telexes or by an exchange of electronic messages on
an electronic messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The parties will
specify therein or through another effective means that any such counterpart,
telex or electronic message constitutes a Confirmation.


 


(f)                                    No Waiver
of Rights. A failure or
delay in exercising any right, power or privilege in respect of this Agreement
will not be presumed to operate as a waiver, and a single or partial exercise
of any right, power or privilege will not be presumed to preclude any
subsequent or further exercise, of that right, power or privilege or the
exercise of any other right, power or privilege.


 


(g)                                 Headings. The headings used in this Agreement are for
convenience of reference only and are not to affect the construction of or to
be taken into consideration in interpreting this Agreement.


 


10.                               Offices; Multibranch Parties


 


(a)                                  If Section 10(a) is specified in the Schedule
as applying, each party that enters into a Transaction through an Office other
than its head or home office represents to the other party that,
notwithstanding the place of booking office or jurisdiction of incorporation or
organisation of such party, the obligations of such party are the same as if it
had entered into the Transaction through its head or home office. This representation
will be deemed to be repeated by such party on each date on which a Transaction
is entered into.


 


(b)                                 Neither party may change the Office through
which it makes and receives payments or deliveries for the purpose of a
Transaction without the prior written consent of the other party.


 


(c)                                  If a party is specified as a Multibranch
Party in the Schedule, such Multibranch Party may make and receive payments or
deliveries under any Transaction through any Office listed in the Schedule, and
the Office through which it makes and receives payments or deliveries with
respect to a Transaction will be specified in the relevant Confirmation.


 


11.                               Expenses


 


A Defaulting Party will, on
demand, indemnify and hold harmless the other party for and against all reasonable
out-of-pocket expenses, including legal fees and Stamp Tax, incurred by such
other party by reason of the enforcement and protection of its rights under
this Agreement or any Credit Support Document


 


12

















 


to which the Defaulting
Party is a party or by reason of the early termination of any Transaction,
including, but not limited to, costs of collection.


 


12.                               Notices


 


(a)                                  Effectiveness. Any notice or other communication in
respect of this Agreement may be given in any manner set forth below (except
that a notice or other communication under Section 5 or 6 may not be given by
facsimile transmission or electronic messaging system) to the address or number
or in accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:—


 


(i)             if in writing and delivered in person or by
courier, on the date it is delivered;


 


(ii)          if sent by telex, on the date the recipient’s
answerback is received;


 


(iii)       if sent by facsimile transmission, on the
date that transmission is received by a responsible employee of the recipient
in legible form (it being agreed that the burden of proving receipt will be on
the sender and will not be met by a transmission report generated by the
sender’s facsimile machine);


 


(iv)      if sent by certified or registered mail
(airmail, if overseas) or the equivalent (return receipt requested), on the
date that mail is delivered or its delivery is attempted; or


 


(v)         if sent by electronic messaging system, on
the date that electronic message is received,


 


unless the date of that
delivery (or attempted delivery) or that receipt, as applicable, is not a Local
Business Day or that communication is delivered (or attempted) or received, as
applicable, after the close of business on a Local Business Day, in which case
that communication shall be deemed given and effective on the first following
day that is a Local Business Day.


 


(b)                                 Change of
Addresses. Either party
may by notice to the other change the address, telex or facsimile number or
electronic messaging system details at which notices or other communications
are to be given to it.


 


13.                               Governing Law and
Jurisdiction


 


(a)                                  Governing
Law. This Agreement will
be governed by and construed in accordance with the law specified in the
Schedule.


 


(b)                                 Jurisdiction. With respect to any suit, action or
proceedings relating to this Agreement (“Proceedings”), each party
irrevocably:—


 


(i)             submits to the jurisdiction of the English
courts, if this Agreement is expressed to be governed by English law, or to the
non-exclusive jurisdiction of the courts of the State of New York and the
United States District Court located in the Borough of Manhattan in New York
City, if this Agreement is expressed to be governed by the laws of the State of
New York; and


 


(ii)          waives any objection which it may have at any
time to the laying of venue of any Proceedings brought in any such court,
waives any claim that such Proceedings have been brought in an inconvenient
forum and further waives the right to object, with respect to such Proceedings,
that such court does not have any jurisdiction over such party.


 


Nothing in this Agreement
precludes either party from bringing Proceedings in any other jurisdiction
(outside, if this Agreement is expressed to be governed by English law, the
Contracting States, as defined in Section 1(3) of the Civil Jurisdiction and
Judgments Act 1982 or any modification, extension or re-enactment thereof for
the time being in force) nor will the bringing of Proceedings in any one or
more jurisdictions preclude the bringing of Proceedings in any other
jurisdiction.


 


(c)                                  Service of
Process. Each party
irrevocably appoints the Process Agent (if any) specified opposite its name in
the Schedule to receive, for it and on its behalf, service of process in any
Proceedings.  If for any


 


13

















 


reason any party’s Process
Agent is unable to act as such, such party will promptly notify the other party
and within 30 days appoint a substitute process agent acceptable to the other
party. The parties irrevocably consent to service of process given in the
manner provided for notices in Section 12. Nothing in this Agreement will
affect the right of either party to serve process in any other manner permitted
by law.


 


(d)                                 Waiver of
Immunities. Each party
irrevocably waives, to the fullest extent permitted by applicable law, with
respect to itself and its revenues and assets (irrespective of their use or
intended use), all immunity on the grounds of sovereignty or other similar
grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of
injunction, order for specific performance or for recovery of property, (iv)
attachment of its assets (whether before or after judgment) and (v) execution
or enforcement of any judgment to which it or its revenues or assets might
otherwise be entitled in any Proceedings in the courts of any jurisdiction and
irrevocably agrees, to the extent permitted by applicable law, that it will not
claim any such immunity in any Proceedings.


 


14.                               Definitions


 


As used in this Agreement:—


 


“Additional Termination Event” has the meaning specified in Section 5(b).


 


“Affected Party” has the meaning specified in Section 5(b).


 


“Affected Transactions” means (a) with respect to any Termination Event consisting of an
Illegality, Tax Event or Tax Event Upon Merger, all Transactions affected by
the occurrence of such Termination Event and (b) with respect to any other
Termination Event, all Transactions.


 


“Affiliate”
means, subject to the Schedule, in relation to any person, any entity
controlled, directly or indirectly, by the person, any entity that controls,
directly or indirectly, the person or any entity directly or indirectly under
common control with the person. For this purpose, “control” of any entity or
person means ownership of a majority of the voting power of the entity or
person.


 


“Applicable Rate” means:—


 


(a)                                  in respect of obligations payable or
deliverable (or which would have been but for Section 2(a)(iii)) by a
Defaulting Party, the Default Rate;


 


(b)                                 in respect of an obligation to pay an amount
under Section 6(e) of either party from and after the date (determined in
accordance with Section 6(d)(ii)) on which that amount is payable, the Default
Rate;


 


(c)                                  in respect of all other obligations payable
or deliverable (or which would have been but for Section 2(a)(iii)) by a
Non-defaulting Party, the Non-default Rate; and


 


(d)                                 in all other cases, the Termination Rate.


 


“Burdened Party” has the meaning specified in Section 5(b).


 


“Change in Tax Law” means the enactment, promulgation, execution or ratification of, or
any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.


 


“consent”
includes a consent, approval, action, authorisation, exemption, notice, filing,
registration or exchange control consent.


 


“Credit Event Upon Merger” has the meaning specified in Section 5(b).


 


“Credit Support Document” means any agreement or instrument that is specified as such in this
Agreement.


 


“Credit Support Provider” has the meaning specified in the Schedule.


 


“Default Rate” means a rate per annum equal to the cost (without proof or evidence of
any actual cost) to the relevant payee (as certified by it) if it were to fund
or of funding the relevant amount plus 1% per annum.


 


14

















 


“Defaulting Party” has the meaning specified in Section 6(a).


 


“Early Termination Date” means the date determined in accordance with Section 6(a) or 6(b)(iv).


 


“Event of Default” has the meaning specified in Section 5(a) and, if applicable, in the
Schedule.


 


“Illegality”
has the meaning specified in Section 5(b).


 


“Indemnifiable Tax” means any Tax other than a Tax that would not be imposed in respect of
a payment under this Agreement but for a present or former connection between
the jurisdiction of the government or taxation authority imposing such Tax and
the recipient of such payment or a person related to such recipient (including,
without limitation, a connection arising from such recipient or related person
being or having been a citizen or resident of such jurisdiction, or being or
having been organised, present or engaged in a trade or business in such
jurisdiction, or having or having had a permanent establishment or fixed place
of business in such jurisdiction, but excluding a connection arising solely
from such recipient or related person having executed, delivered, performed its
obligations or received a payment under, or enforced, this Agreement or a
Credit Support Document).


 


“law”
includes any treaty, law, rule or regulation (as modified, in the case of tax
matters, by the practice of any relevant governmental revenue authority) and “lawful” and “unlawful” will be
construed accordingly.


 


“Local Business Day” means, subject to the Schedule, a day on which commercial banks are
open for business (including dealings in foreign exchange and foreign currency
deposits) (a) in relation to any obligation under Section 2(a)(i), in the
place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for
performance with respect to such Specified Transaction.


 


“Loss”
means, with respect to this Agreement or one or more Terminated Transactions,
as the case may be, and a party, the Termination Currency Equivalent of an
amount that party reasonably determines in good faith to be its total losses
and costs (or gain, in which case expressed as a negative number) in connection
with this Agreement or that Terminated Transaction or group of Terminated
Transactions, as the case may be, including any loss of bargain, cost of
funding or, at the election of such party but without duplication, loss or cost
incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting
from any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination
Date and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or
(3) or 6(e)(ii)(2)(A) applies. Loss does not include a party’s legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.


 


“Market Quotation” means, with respect to one or more Terminated Transactions and a party
making the determination, an amount determined on the basis of quotations from
Reference Market-makers. Each quotation will be for an amount, if any, that
would be paid to such party (expressed as a negative number) or by such party
(expressed as a positive number) in consideration of an agreement between such
party (taking into account any existing Credit Support Document with respect to
the obligations of such party) and the quoting Reference Market-maker to enter
into a transaction (the “Replacement Transaction”) that would have the effect
of preserving for such party the economic equivalent of any payment or delivery
(whether the underlying obligation was absolute or contingent and assuming the
satisfaction of each applicable condition precedent) by the parties under
Section 2(a)(i) in respect of such Terminated Transaction or group of
Terminated Transactions that would, but for the occurrence of the relevant
Early Termination Date, have


 


15

















 


been required after that
date. For this purpose, Unpaid Amounts in respect of the Terminated Transaction
or group of Terminated Transactions are to be excluded but, without limitation,
any payment or delivery that would, but for the relevant Early Termination
Date, have been required (assuming satisfaction of each applicable condition
precedent) after that Early Termination Date is to be included. The Replacement
Transaction would be subject to such documentation as such party and the
Reference Market-maker may, in good faith, agree. The party making the
determination (or its agent) will request each Reference Market-maker to
provide its quotation to the extent reasonably practicable as of the same day
and time (without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and time as of
which those quotations are to be obtained will be selected in good faith by the
party obliged to make a determination under Section 6(e), and, if each party is
so obliged, after consultation with the other. If more than three quotations
are provided, the Market Quotation will be the arithmetic mean of the
quotations, without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market Quotation
will be the quotation remaining after disregarding the highest and lowest
quotations. For this purpose, if more than one quotation has the same highest
value or lowest value, then one of such quotations shall be disregarded. If
fewer than three quotations are provided, it will be deemed that the Market
Quotation in respect of such Terminated Transaction or group of Terminated
Transactions cannot be determined.


 


“Non-default Rate” means a rate per annum equal to the cost (without proof or evidence of
any actual cost) to the Non-defaulting Party (as certified by it) if it were to
fund the relevant amount.


 


“Non-defaulting Party” has the meaning specified in Section 6(a).


 


“Office”
means a branch or office of a party, which may be such party’s head or home
office.


 


“Potential Event of Default” means any event which, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.


 


“Reference Market-makers” means four leading dealers in the relevant market selected by the
party determining a Market Quotation in good faith (a) from among dealers of
the highest credit standing which satisfy all the criteria that such party
applies generally at the time in deciding whether to offer or to make an
extension of credit and (b) to the extent practicable, from among such dealers
having an office in the same city.


 


“Relevant Jurisdiction” means, with respect to a party, the jurisdictions (a) in which the
party is incorporated, organised, managed and controlled or considered to have
its seat, (b) where an Office through which the party is acting for purposes of
this Agreement is located, (c) in which the party executes this Agreement and
(d) in relation to any payment, from or through which such payment is made.


 


“Scheduled Payment Date” means a date on which a payment or delivery is to be made under
Section 2(a)(i) with respect to a Transaction.


 


“Set-off”
means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.


 


“Settlement Amount” means, with respect to a party and any Early Termination Date, the sum
of: —


 


(a)          the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and


 


(b)         such party’s Loss (whether positive or negative and without reference
to any Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.


 


“Specified Entity” has the meanings specified in the Schedule.


 


16

















 


“Specified Indebtedness” means, subject to the Schedule, any obligation (whether present or
future, contingent or otherwise, as principal or surety or otherwise) in
respect of borrowed money.


 


“Specified Transaction” means, subject to the Schedule, (a) any transaction (including an
agreement with respect thereto) now existing or hereafter entered into between
one party to this Agreement (or any Credit Support Provider of such party or
any applicable Specified Entity of such party) and the other party to this
Agreement (or any Credit Support Provider of such other party or any applicable
Specified Entity of such other party) which is a rate swap transaction, basis
swap, forward rate transaction, commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction,
collar transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of these transactions), (b) any combination of these
transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.


 


“Stamp Tax”
means any stamp, registration, documentation or similar tax.


 


“Tax”
means any present or future tax, levy, impost, duty, charge, assessment or fee
of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.


 


“Tax Event”
has the meaning specified in Section 5(b).


 


“Tax Event Upon Merger” has the meaning specified in Section 5(b).


 


“Terminated Transactions” means with respect to any Early Termination Date (a) if resulting from
a Termination Event, all Affected Transactions and (b) if resulting from an
Event of Default, all Transactions (in either case) in effect immediately
before the effectiveness of the notice designating that Early Termination Date
(or, if “Automatic Early Termination” applies, immediately before that Early
Termination Date).


 


“Termination Currency” has the meaning specified in the Schedule.


 


“Termination Currency Equivalent” means, in respect of any amount denominated
in the Termination Currency, such Termination Currency amount and, in respect
of any amount denominated in a currency other than the Termination Currency
(the “Other Currency”), the amount in the Termination Currency determined by
the party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a
rate for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.


 


“Termination Event” means an Illegality, a Tax Event or a Tax Event Upon Merger or, if
specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.


 


“Termination Rate” means a rate per annum equal to the arithmetic mean of the cost
(without proof or evidence of any actual cost) to each party (as certified by
such party) if it were to fund or of funding such amounts.


 


“Unpaid Amounts” owing to any party means, with respect to an Early Termination Date,
the aggregate of (a) in respect of all Terminated Transactions, the amounts
that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under
Section 2(a)(i) which was (or would have been but for Section 2(a)(iii))
required to be settled by delivery to such party on or prior to such Early
Termination Date and which has not been so settled as at such Early Termination
Date, an amount equal to the fair market


 


17

















 


value of that which was (or
would have been) required to be delivered as of the originally scheduled date
for delivery, in each case together with (to the extent permitted under
applicable law) interest, in the currency of such amounts, from (and including)
the date such amounts or obligations were or would have been required to have
been paid or performed to (but excluding) such Early Termination Date, at the
Applicable Rate. Such amounts of interest will be calculated on the basis of
daily compounding and the actual number of days elapsed. The fair market value
of any obligation referred to in clause (b) above shall be reasonably
determined by the party obliged to make the determination under Section 6(e)
or, if each party is so obliged, it shall be the average of the Termination
Currency Equivalents of the fair market values reasonably determined by both
parties.


 


IN WITNESS WHEREOF the
parties have executed this document on the respective dates specified below
with effect from the date specified on the first page of this document.


 


 


	
  Credit
  Suisse First Boston International

  	
   

  	
  Priceline.com
  Incorporated

  
	
  (Name of Party)

  	
   

  	
  (Name of Party)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Paul Chelsom

  	
   

  	
  By:

  	
  /s/ Robert J. Mylod

  
	
   

  	
  Name: Paul Chelsom

  	
   

  	
   

  	
  Name: Robert J. Mylod

  
	
   

  	
  Title: Attorney-in-Fact

  	
   

  	
   

  	
  Title: Chief
  Financial Officer

  
	
   

  	
  Date: November 3,
  2003

  	
   

  	
   

  	
  Date: November 3,
  2003

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Andrew Walton

  	
   

  	
   

  
	
   

  	
  Name: Andrew Walton

  	
   

  	
   

  
	
   

  	
  Title: Attorney-in-Fact

  	
   

  	
   

  
	
   

  	
  Date: November 3, 2003

  	
   

  	
   

  



 


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