Exhibit 4.35


 


(Multicurrency-Cross Border)


 


ISDA®


International
Swaps & Derivatives Association, Inc.


 


MASTER AGREEMENT


 


dated as of 2
March 2004


 


The Royal Bank of Scotland plc(“Party A”)  and Knightsbridge Tankers Limited (“Party B”)


 


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


 


Accordingly, the parties agree as follows:-


 


1.             Interpretation


 


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


 


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


 


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


 


2.             Obligations


 


(a)           General Conditions.


 


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


 


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


 


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


 


Copyright Ó 1992 by International Swaps
& Derivatives Association, Inc.


 

















 


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


 


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 be entered into
as soon as practicable and may be executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange of telexes
or by an exchange of electronic messages on an electronic messaging system,
which in each case will be sufficient for all purposes to evidence a binding
supplement to this Agreement. The parties will specify therein or through
another effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.


 


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


 


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


 


10.          Offices;
Multibranch Parties


 


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


 


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


 


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


 


“lndemnifiable 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 meaning
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
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


 


17

















 


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 as a Deed on the respective dates specified below with effect from the
date specified on the first page of this document.


 


	
  The Royal Bank of Scotland plc

  	
  Knightsbridge Tankers Limited

  
	
  (Name of
  Party A)

  	
   

  	
  (Name of
  Party B)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Robert J. Manners

  	
   

  	
  By:

  	
  /s/ Nicholas Sherriff

  	
   

  
	
   

  	
   

  
	
  Name: Robert J. Manners

  	
  Name: Nicholas Sherriff

  
	
  Title:

  	
  Title:Attorney-in-fact

  
	
  Date: 2 March 2004

  	
  Date:2 March 2004

  
	
   

  	
   

  
	
   

  	
   

  
	
  Witnessed by:

  	
  /s/ Martin Bennett

  	
   

  	
  Witnessed by:

  	
  /s/ Kavita Shah

  	
   

  
	
   

  	
   

  
	
  Name: Martin Bennett

  	
  Name: Kavita Shah

  
	
  Address:

  	
  Address:

  
												



 


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