Exhibit 10.43


 


ISDAÒ


International Swaps and Derivatives Association, Inc.


 


2002 MASTER AGREEMENT


 


dated as of January 20, 2009


 


	
  JPMORGAN CHASE BANK, N.A.

  	
  and

  	
   

  	
  TRIMAS COMPANY LLC

  



 


have entered and/or anticipate
entering into one or more transactions (each a “Transaction”) that are or will
be governed by this 2002 Master Agreement, which includes the schedule (the “Schedule”),
and the documents and other confirming evidence (each a “Confirmation”)
exchanged between the parties or otherwise effective for the purpose of
confirming or evidencing those Transactions. This 2002 Master Agreement and the
Schedule are together referred to as this “Master Agreement”.


 


Accordingly, the parties agree as
follows:—


 


1.                                      Interpretation


 


(a)                                  Definitions. The terms defined in Section 14 and elsewhere in
this Master Agreement 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, 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.


 


Copyright © 2002  by International Swaps and Derivatives
Association, Inc.


 

















 


(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 condition specified in this
Agreement to be a condition precedent for the purpose of this Section 2(a)(iii).


 


(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 Settlement 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 of Payments. 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 which 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 and payment obligation will be determined in
respect of all amounts payable on the same date in the same currency in respect
of those Transactions, regardless of whether such amounts are payable in
respect of the same Transaction. The election may be made in the Schedule or
any Confirmation by specifying that “Multiple Transaction Payment Netting”
applies to the Transactions identified as being subject to the election (in
which case clause (ii) above will not apply to such Transactions). If Multiple
Transaction Payment Netting is applicable to Transactions, it will apply to
those Transactions with effect from the starting date specified in the Schedule
or such Confirmation, or, if a starting date is not specified in the Schedule
or such Confirmation, the starting date otherwise agreed by the parties in
writing.  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


 


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(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,
after 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.


 


(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)).


 


3.                                      Representations


 


Each party makes the representations contained in
Sections 3(a), 3(b), 3(c), 3(d), 3(e) and 3(f) and, if specified in
the Schedule as applying, 3(g) 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).  If any “Additional Representation” is
specified in the Schedule or any Confirmation as applying, the party or parties
specified for such Additional Representation will make and, if applicable, be
deemed to repeat such Additional Representation at the time or times specified
for such Additional Representation.


 


(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;


 


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(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)).


 


(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, any of its Credit Support Providers or any of its applicable
Specified Entities 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.


 


(g)                                 No Agency. It is entering into this Agreement,
including each Transaction, as principal and not as agent of any person or
entity.


 


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 clause (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


 


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(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,
organised, managed and controlled or considered to have its seat, or where an 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 (subject to Sections
5(c) and 6(e)(iv)) 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
9(h)(i)(2) or (4) required to be made by it if such failure is not
remedied on or before the first Local Business Day in the case of any such
payment or the first Local Delivery Day in the case of any such delivery after,
in each case, notice of such failure is given to the party;


 


(ii)               Breach
of Agreement; Repudiation of Agreement..


 


(1)                      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
9(h)(i)(2) or (4) 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 within 30 days after notice of such failure is
given to the party; or


 


(2)                      the party disaffirms,
disclaims, repudiates or rejects, in whole or in part, or challenges the validity
of, this Master Agreement, any Confirmation executed and delivered by that
party or any


 


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Transaction evidenced by such a Confirmation (or
such action is taken by any person or entity appointed or empowered to operate
it or act on its behalf);


 


(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, or any security interest granted by such party or such
Credit Support Provider to the other party pursuant to any such Credit Support
Document, to be in full force and effect for the purpose of this Agreement (in
each 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 (or
such action is taken by any person or entity appointed or empowered to operate
it or act on its behalf);


 


(iv)           Misrepresentation. A representation
(other than a representation under Section 3(e) or 3(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 (other than
by failing to make a delivery) under a Specified Transaction or any credit
support arrangement relating to a Specified Transaction and, after giving
effect to any applicable notice requirement or grace period, such default
results in 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 due on the last payment or exchange date of, or any payment on early
termination of, a Specified Transaction (or, if there is no applicable notice
requirement or grace period, such default continues for at least one Local
Business Day);


 


(3)                             defaults in making any
delivery due under (including any delivery due on the last delivery or exchange
date of) a Specified Transaction or any credit support arrangement relating to
a Specified Transaction and, after giving effect to any applicable notice
requirement or grace period, such default results in a liquidation of, an
acceleration of obligations under, or an early termination of, all transactions
outstanding under the documentation applicable to that Specified Transaction;
or


 


(4)                             disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the validity of, a
Specified Transaction or any credit support arrangement relating to a Specified
Transaction that is, in either case, confirmed or evidenced by a document or
other confirming evidence executed and delivered by that party, Credit Support
Provider or Specified Entity (or such action is taken by any person or entity
appointed or empowered to operate it or act on its behalf);


 


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(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 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) where the aggregate principal amount of such agreements or
instruments, either alone or together with the amount, if any, referred to in
clause (2) below is 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 under such agreements or instruments
on the due date for payment (after giving effect to any applicable notice
requirement or grace period) in an aggregate amount, either alone or together
with the amount, if any, referred to in clause (1) above, of not less than
the applicable Threshold Amount;


 


(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)(A) institutes
or has instituted against it, by a regulator, supervisor or any similar
official with primary insolvency, rehabilitative or regulatory jurisdiction
over it in the jurisdiction of its incorporation or organisation or the
jurisdiction of its head or home office, 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 by it or such regulator, supervisor or
similar official, or (B) 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 such proceeding or
petition is instituted or presented by a person or entity not described in
clause (A) above and either (I) 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 (II) is not dismissed, discharged, stayed
or restrained in each case within 15 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 15 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) above (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


 


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(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, or
reorganises, reincorporates or reconstitutes into or as, another entity and, at
the time of such consolidation, amalgamation, merger, transfer, reorganisation,
reincorporation or reconstitution:—


 


(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; 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 (subject to Section 5(c))
an Illegality if the event is specified in clause (i) below, a Force
Majeure Event if the event is specified in clause (ii) below, a Tax Event
if the event is specified in clause (iii) below, a Tax Event Upon Merger
if the event is specified in clause (iv) below, and, if specified to be
applicable, a Credit Event Upon Merger if the event is specified pursuant to
clause (v) below or an Additional Termination Event if the event is
specified pursuant to clause (vi) below:—


 


(i)                  Illegality. After giving effect to
any applicable provision, disruption fallback or remedy specified in, or
pursuant to, the relevant Confirmation or elsewhere in this Agreement, due to
an event or circumstance (other than any action taken by a party or, if
applicable, any Credit Support Provider of such party) occurring after a
Transaction is entered into, it becomes unlawful under any applicable law
(including without limitation the laws of any country in which payment,
delivery or compliance is required by either party or any Credit Support
Provider, as the case may be), on any day, or it would be unlawful if the
relevant payment, delivery or compliance were required on that day (in each
case, other than as a result of a breach by the party of Section 4(b)):—


 


(1)                      for the Office through
which such party (which will be the Affected Party) makes and receives payments
or deliveries with respect to such Transaction to perform any absolute or contingent
obligation to make a payment or delivery in respect of such Transaction, 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)                      for such party or any
Credit Support Provider of such party (which will be the Affected Party) to
perform any absolute or contingent obligation to make a payment or delivery
which such party or Credit Support Provider has under any Credit Support
Document relating to such Transaction, to receive a payment or delivery under
such Credit Support Document or to comply with any other material provision of
such Credit Support Document;


 


(ii)               Force
Majeure Event. After giving effect to any applicable provision, disruption
fallback or remedy specified in, or pursuant to, the relevant Confirmation or
elsewhere in this Agreement, by reason of force majeure or act of state
occurring after a Transaction is entered into, on any day:—


 


(1)                      the Office through
which such party (which will be the Affected Party) makes and receives payments
or deliveries with respect to such Transaction is prevented from performing any
absolute or contingent obligation to make a payment or delivery in respect of
such Transaction, from receiving a payment or delivery in respect of such
Transaction or from complying with any other material provision of this
Agreement relating to such Transaction (or would be so prevented if such payment,
delivery or compliance were required on that day), or it becomes impossible or


 


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impracticable for such Office so to perform, receive
or comply (or it would be impossible or impracticable for such Office so to
perform, receive or comply if such payment, delivery or compliance were
required on that day); or


 


(2)                      such party or any
Credit Support Provider of such party (which will be the Affected Party) is
prevented from performing any absolute or contingent obligation to make a
payment or delivery which such party or Credit Support Provider has under any
Credit Support Document relating to such Transaction, from receiving a payment
or delivery under such Credit Support Document or from complying with any other
material provision of such Credit Support Document (or would be so prevented if
such payment, delivery or compliance were required on that day), or it becomes impossible
or impracticable for such party or Credit Support Provider so to perform,
receive or comply (or it would be impossible or impracticable for such party or
Credit Support Provider so to perform, receive or comply if such payment,
delivery or compliance were required on that day),


 


so
long as the force majeure or act of state is beyond the control of such Office,
such party or such Credit Support Provider, as appropriate, and such Office,
party or Credit Support Provider could not, after using all reasonable efforts
(which will not require such party or Credit Support Provider to incur a loss,
other than immaterial, incidental expenses), overcome such prevention,
impossibility or impracticability;


 


(iii)            Tax
Event.  Due to (1) any
action taken by a taxing authority, or brought in a court of competent jurisdiction,
after a Transaction is entered into (regardless of whether such action is taken
or brought with respect to a party to this Agreement) or (2) 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
Settlement Date (A) 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 9(h)) or (B) 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 9(h)) 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));


 


(iv)           Tax Event Upon Merger. The party (the “Burdened
Party”) on the next succeeding Scheduled Settlement 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 9(h)) or (2) receive a payment
from which an amount has been deducted or withheld for or on account of any 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 (or any
substantial part of the assets comprising the business conducted by it as of
the date of this Master Agreement) to, or reorganising, reincorporating or
reconstituting into or as, another entity (which will be the Affected Party)
where such action does not constitute a Merger Without Assumption;


 


(v)              Credit Event Upon Merger. If “Credit Event Upon
Merger” is specified in the Schedule as applying to the party, a Designated
Event (as defined below) occurs with respect to such party, any Credit Support
Provider of such party or any applicable Specified Entity of such party (in
each case, “X”) and such Designated Event does not constitute a Merger Without
Assumption, and the creditworthiness of X or, if applicable, the successor,
surviving or transferee entity of X, after taking into account any applicable
Credit Support Document, is materially weaker immediately after the occurrence
of such Designated Event than that of X immediately prior to the occurrence of
such Designated Event (and, in any such event, such party or its successor,
surviving or transferee entity, as appropriate, will be the Affected Party). A “Designated
Event” with respect to X means that:—


 


(1)                      X consolidates or
amalgamates with, or merges with or into, or transfers all or substantially all
its assets (or any substantial part of the assets comprising the business
conducted by X as of the


 


9

















 


date of this Master Agreement) to, or reorganises,
reincorporates or reconstitutes into or as, another entity;


 


(2)                      any person, related
group of persons or entity acquires directly or indirectly the beneficial ownership
of (A) equity securities having the power to elect a majority of the board
of directors (or its equivalent) of X or (B) any other ownership interest
enabling it to exercise control of X; or


 


(3)                      X effects any
substantial change in its capital structure by means of the issuance, incurrence
or guarantee of debt or the issuance of (A) preferred stock or other
securities convertible into or exchangeable for debt or preferred stock or (B) in
the case of entities other than corporations, any other form of ownership interest;
or


 


(vi)                              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 will be as specified for such Additional Termination Event in the
Schedule or such Confirmation).


 


(c)                                  Hierarchy of Events.


 


(i)                                     An event or circumstance that constitutes
or gives rise to an Illegality or a Force Majeure Event will not, for so long
as that is the case, also constitute or give rise to an Event of Default under Section 5(a)(i),
5(a)(ii)(1) or 5(a)(iii)(1) insofar as such event or circumstance
relates to the failure to make any payment or delivery or a failure to comply
with any other material provision of this Agreement or a Credit Support Document,
as the case may be.


 


(ii)                                  Except in circumstances contemplated by
clause (i) above, if an event or circumstance which would otherwise
constitute or give rise to an Illegality or a Force Majeure Event also
constitutes an Event of Default or any other Termination Event, it will be
treated as an Event of Default or such other Termination Event, as the case may
be, and will not constitute or give rise to an Illegality or a Force Majeure
Event.


 


(iii)                               If an event or circumstance which would
otherwise constitute or give rise to a Force Majeure Event also constitutes an
Illegality, it will be treated as an Illegality, except as described in clause (ii) above,
and not a Force Majeure Event.


 


(d)                                 Deferral of Payments and
Deliveries During Waiting Period.  If an
Illegality or a Force Majeure Event has occurred and is continuing with respect
to a Transaction, each payment or delivery which would otherwise be required to
be made under that Transaction will be deferred to, and will not be due until:—


 


(i)                                     the first Local Business Day or, in the
case of a delivery, the first Local Delivery Day (or the first day that would
have been a Local Business Day or Local Delivery Day, as appropriate, but for
the occurrence of the event or circumstance constituting or giving rise to that
Illegality or Force Majeure Event) following the end of any applicable Waiting
Period in respect of that Illegality or Force Majeure Event, as the case may
be; or


 


(ii)                                  if earlier, the date on which the event
or circumstance constituting or giving rise to that Illegality or Force Majeure
Event ceases to exist or, if such date is not a Local Business Day or, in the
case of a delivery, a Local Delivery Day, the first following day that is a
Local Business Day or Local Delivery Day, as appropriate.


 


(e)                                  Inability of Head or Home
Office to Perform Obligations of Branch. If (i) an Illegality or a Force Majeure Event
occurs under Section 5(b)(i)(1) or 5(b)(ii)(1) and the relevant
Office is not the Affected Party’s head or home office, (ii) Section 10(a) applies,
(iii) the other party seeks performance of the relevant obligation or


 


10

















 


compliance with the
relevant provision by the Affected Party’s head or home office and (iv) the
Affected Party’s head or home office fails so to perform or comply due to the
occurrence of an event or circumstance which would, if that head or home office
were the Office through which the Affected Party makes and receives payments
and deliveries with respect to the relevant Transaction, constitute or give
rise to an Illegality or a Force Majeure Event, and such failure would
otherwise constitute an Event of Default under Section 5(a)(i) or
5(a)(iii)(1) with respect to such party, then, for so long as the relevant
event or circumstance continues to exist with respect to both the Office
referred to in Section 5(b)(i)(1) or 5(b)(ii)(1), as the case may be,
and the Affected Party’s head or home office, such failure will not constitute
an Event of Default under Section 5(a)(i) or 5(a)(iii)(1).


 


6.                                      Early Termination;
Close-Out Netting


 


(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 other than a Force Majeure 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 the
other party such other information about that Termination Event as the other
party may reasonably require. If a Force Majeure Event occurs, each party will,
promptly upon becoming aware of it, use all reasonable efforts to notify the
other party, specifying the nature of that Force Majeure Event, and will also
give the other party such other information about that Force Majeure Event as
the other party may reasonably require.


 


(ii)               Transfer
to Avoid Termination Event. 
If 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, other than 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 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 of such occurrence is
given under Section 6(b)(i) to avoid that Termination Event.


 


11














 


(iv)           Right to Terminate.


 


(1)                                              If:—


 


(A)                  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


 


(B)                    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,


 


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 are two Affected Parties, or the Non- affected
Party in the case of a Credit Event Upon Merger or an Additional Termination
Event if there is only one Affected Party may, if the relevant Termination
Event is then continuing, by not more than 20 days notice to the other party,
designate a day not earlier than the day such notice is effective as an Early
Termination Date in respect of all Affected Transactions.


 


(2)               If at any time an Illegality or a
Force Majeure Event has occurred and is then continuing and any applicable
Waiting Period has expired:—


 


(A)                        Subject to clause (B) below,
either party may, by not more than 20 days notice to the other party, designate
(I) a day not earlier than the day on which such notice becomes effective
as an Early Termination Date in respect of all Affected Transactions or (II) by
specifying in that notice the Affected Transactions in respect of which it is
designating the relevant day as an Early Termination Date, a day not earlier
than two Local Business Days following the day on which such notice becomes
effective as an Early Termination Date in respect of less than all Affected
Transactions. Upon receipt of a notice designating an Early Termination Date in
respect of less than all Affected Transactions, the other party may, by notice
to the designating party, if such notice is effective on or before the day so designated,
designate that same day as an Early Termination Date in respect of any or all other
Affected Transactions.


 


(B)                          An Affected Party (if
the Illegality or Force Majeure Event relates to performance by such party or
any Credit Support Provider of such party of an obligation to make any payment
or delivery under, or to compliance with any other material provision of, the
relevant Credit Support Document) will only have the right to designate an
Early Termination Date under Section 6(b)(iv)(2)(A) as a result of an
Illegality under Section 5(b)(i)(2) or a Force Majeure Event under Section 5(b)(ii)(2) following
the prior designation by the other party of an Early Termination Date, pursuant
to Section 6(b)(iv)(2)(A), in respect of less than all Affected
Transactions.


 


(c)                                  Effect of Designation.


 


(i)                  If notice designating an Early
Termination Date is given under Section 6(a) or 6(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 9(h)(i) 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 will be determined pursuant to Sections 6(e) and
9(h)(ii).


 


12

















 


(d)                                 Calculations;
Payment Date.


 


(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 any quotations, market data
or information from internal sources used in making such calculations), (2) specifying
(except where there are two Affected Parties) any Early Termination Amount
payable and (3) 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 or market data obtained in determining a Close-out Amount,
the records of the party obtaining such quotation or market data will be
conclusive evidence of the existence and accuracy of such quotation or market
data.


 


(ii)               Payment
Date. An Early Termination Amount due in respect of any Early
Termination Date will, together with any amount of interest payable pursuant to
Section 9(h)(ii)(2), be payable (1) on the day on which 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 (2) on the day
which is two Local Business Days after the day on which notice of the amount
payable is effective (or, if there are two Affected Parties, after the day on which
the statement provided pursuant to clause (i) above by the second party to
provide such a statement is effective) in the case of an Early Termination Date
which is designated as a result of a Termination Event.


 


(e)                                  Payments on Early
Termination. If an
Early Termination Date occurs, the amount, if any, payable in respect of that
Early Termination Date (the “Early Termination Amount”) will be determined
pursuant to this Section 6(e) and will be subject to Section 6(f).


 


(i)                  Events
of Default. If the Early Termination Date
results from an Event of Default, the Early Termination Amount will be an
amount equal to (1) the sum of (A) the Termination Currency
Equivalent of the Close-out Amount or Close-out Amounts (whether positive or
negative) determined by the Non- defaulting Party for each Terminated
Transaction or group of Terminated Transactions, as the case may be, and (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party less (2) the Termination Currency Equivalent of the
Unpaid Amounts owing to the Defaulting Party. If the Early Termination 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 the Early Termination Amount to the Defaulting Party.


 


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


 


(1)                   One Affected
Party. Subject to clause (3) below, if there is one Affected Party, the
Early Termination Amount will be determined in accordance with Section 6(e)(i),
except that references to the Defaulting Party and to the Non-defaulting Party
will be deemed to be references to the Affected Party and to the Non-affected
Party, respectively.


 


(2)                   Two Affected
Parties. Subject to clause (3) below, if there are two
Affected Parties, each party will determine an amount equal to the Termination
Currency Equivalent of the sum of the Close-out Amount or Close-out Amounts
(whether positive or negative) for each Terminated Transaction or group of
Terminated Transactions, as the case may be, and the Early Termination Amount
will be an amount equal to (A) the sum of (I) one-half of the
difference between the higher amount so determined (by party “X”) and the lower
amount so determined (by party “Y”) and (II) the Termination Currency
Equivalent of the Unpaid Amounts owing to X less (B) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y.  If the Early Termination Amount is a positive
number, Y will pay it to X; if it is a negative number, X will pay the absolute
value of the Early Termination Amount to Y.


 


13

















 


(3)                   Mid-Market
Events. If that Termination Event is an Illegality or a Force Majeure Event, then
the Early Termination Amount will be determined in accordance with clause (1) or
(2) above, as appropriate, except that, for the purpose of determining a
Close-out Amount or Close-out Amounts, the Determining Party will:—


 


(A)   if obtaining quotations from
one or more third parties (or from any of the Determining Party’s Affiliates),
ask each third party or Affiliate (I) not to take account of the current
creditworthiness of the Determining Party or any existing Credit Support Document
and (II) to provide mid-market quotations; and


 


(B)   in any other case, use
mid market values without regard to the creditworthiness of the Determining
Party.


 


(iii)            Adjustment for Bankruptcy. In circumstances where
an Early Termination Date occurs because “Automatic Early Termination” applies
in respect of a party, the Early Termination Amount will be subject to such
adjustments as are appropriate and permitted by applicable 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)           Adjustment
for Illegality or Force Majeure Event. The failure by a party or any
Credit Support Provider of such party to pay, when due, any Early Termination
Amount will not constitute an Event of Default under Section 5(a)(i) or
5(a)(iii)(1) if such failure is due to the occurrence of an event or circumstance
which would, if it occurred with respect to payment, delivery or compliance
related to a Transaction, constitute or give rise to an Illegality or a Force
Majeure Event.  Such amount will (1) accrue
interest and otherwise be treated as an Unpaid Amount owing to the other party
if subsequently an Early Termination Date results from an Event of Default, a
Credit Event Upon Merger or an Additional Termination Event in respect of which
all outstanding Transactions are Affected Transactions and (2) otherwise
accrue interest in accordance with Section 9(h)(ii)(2).


 


(v)              Pre-Estimate. The parties agree
that 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 the termination of the Terminated Transactions.


 


(f)                                    Set-Off.  Any Early Termination Amount
payable to one party (the “Payee”) by the other party (the “Payer”), in
circumstances where there is a Defaulting Party or where there is one Affected
Party in the case where either a Credit Event Upon Merger has occurred or any
other Termination Event in respect of which all outstanding Transactions are
Affected Transactions has occurred, will, at the option of the Non-defaulting
Party or the Non- affected Party, as the case may be (“X”) (and without prior
notice to the Defaulting Party or the Affected Party, as the case may be), be
reduced by its set-off against any other amounts (“Other Amounts”) payable by
the Payee to the Payer (whether or not arising under this Agreement, matured or
contingent and irrespective of the currency, place of payment or place of
booking of the obligation).  To the
extent that any Other Amounts are so set off, those Other Amounts will be
discharged promptly and in all respects. 
X will give notice to the other party of any set-off effected under this
Section 6(f).


 


For this purpose, either the Early
Termination Amount or the Other Amounts (or the relevant portion of such amounts)
may be converted by X into the currency in which the other is denominated at
the rate of exchange at which such party would be able, in good faith and using
commercially reasonable procedures, to purchase the relevant amount of such
currency.


 


14

















 


If an obligation is unascertained, X may
in good faith estimate that obligation and set off in respect of the estimate,  subject
to the relevant party accounting to the other when the obligation is
ascertained.


 


Nothing in this Section 6(f) will
be effective to create a charge or other security interest.  This Section 6(f) will be  without
prejudice and in addition to any right of set-off, offset, combination of
accounts, lien, right of retention or  withholding or
similar right or requirement to which any party is at any time otherwise
entitled or subject (whether by  operation of
law, contract or otherwise).


 


7.                                      Transfer


 


Subject to Section 6(b)(ii),
and to the extent permitted by applicable law, 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 Early Termination Amount payable to it by a
Defaulting Party, together with any amounts payable on or with respect to that
interest and any other rights associated with that interest pursuant to
Sections 8, 9(h) and 11.


 


Any purported transfer that is not
in compliance with this Section 7 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 good faith and using commercially reasonable procedures 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 clause (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 purpose of such judgment or order and the rate of exchange at which
such party is able, acting in good faith and using


 


15

















 


commercially reasonable procedures 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.


 


(c)                                  Separate Indemnities. To the extent permitted by applicable
law, the indemnities in this Section 8 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.


 


9.                                      Miscellaneous


 


(a)                                  Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter. Each of the
parties acknowledges that in entering into this Agreement it has not relied on
any oral or written representation, warranty or other assurance (except as
provided for or referred to in this Agreement) and waives all rights and
remedies which might otherwise be available to it in respect thereof, except
that nothing in this Agreement will limit or exclude any liability of a party
for fraud.


 


(b)                                 Amendments. An amendment, modification or waiver in respect of
this Agreement will only be effective if 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 by an exchange of 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 and by electronic messaging
system), 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 will 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,
by an exchange of electronic messages on an electronic messaging system or by
an exchange of e-mails, 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,
electronic message or e-mail 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.


 


16

















 


(h)                                 Interest and Compensation.


 


(i)                                     Prior to Early
Termination.
Prior to the occurrence or effective designation of an Early Termination Date
in respect of the relevant Transaction:—


 


(1)                                  Interest on Defaulted Payments. If a party defaults in the performance of
any payment obligation, it will, to the extent permitted by applicable law and
subject to Section 6(c), pay interest (before as well as after judgment)
on the overdue amount to the other party on demand in the same currency as the
overdue amount, for the period from (and including) the original due date for payment
to (but excluding) the date of actual payment (and excluding any period in
respect of which interest or compensation in respect of the overdue amount is
due pursuant to clause (3)(B) or (C) below), at the Default Rate.


 


(2)                                  Compensation for Defaulted
Deliveries. If a
party defaults in the performance of any obligation required to be settled by
delivery, it will on demand (A) compensate the other party to the extent
provided for in the relevant Confirmation or elsewhere in this Agreement and (B) unless
otherwise provided in the relevant Confirmation or elsewhere in this Agreement,
to the extent permitted by applicable law and subject to Section 6(c), pay
to the other party interest (before as well as after judgment) on an amount
equal to the fair market value of that which was required to be delivered in
the same currency as that amount, for the period from (and including) the
originally scheduled date for delivery to (but excluding) the date of actual
delivery (and excluding any period in respect of which interest or compensation
in respect of that amount is due pursuant to clause (4) below), at the Default
Rate. The fair market value of any obligation referred to above will be determined
as of the originally scheduled date for delivery, in good faith and using
commercially reasonable procedures, by the party that was entitled to take
delivery.


 


(3)                                  Interest on Deferred Payments. If:—


 


(A)                              a party does not pay any amount that, but
for Section 2(a)(iii), would have been payable, it will, to the extent
permitted by applicable law and subject to Section 6(c) and clauses (B) and
(C) below, pay interest (before as well as after judgment) on that amount to
the other party on demand (after such amount becomes payable) in the same
currency as that amount, for the period from (and including) the date the
amount would, but for Section 2(a)(iii), have been payable to (but
excluding) the date the amount actually becomes payable, at the Applicable
Deferral Rate;


 


(B)                                a payment is deferred pursuant to Section 5(d),
the party which would otherwise have been required to make that payment will,
to the extent permitted by applicable law, subject to Section 6(c) and
for so long as no Event of Default or Potential Event of Default with respect
to that party has occurred and is continuing, pay interest (before as well as after
judgment) on the amount of the deferred payment to the other party on demand
(after such amount becomes payable) in the same currency as the deferred
payment, for the period from (and including) the date the amount would, but for
Section 5(d), have been payable to (but excluding) the earlier of the date
the payment is no longer deferred pursuant to Section 5(d) and the
date during the deferral period upon which an Event of Default or Potential
Event of Default with respect to that party occurs, at the Applicable Deferral
Rate; or


 


(C)                                a party fails to make any payment due to
the occurrence of an Illegality or a Force Majeure Event (after giving effect
to any deferral period contemplated by clause (B) above), it will, to the
extent permitted by applicable law, subject to Section 6(c) and for
so long as the event or circumstance giving rise to that Illegality or Force
Majeure Event


 


17

















 


continues and no
Event of Default or Potential Event of Default with respect to that party has
occurred and is continuing, pay interest (before as well as after judgment) on
the overdue amount to the other party on demand in the same currency as the
overdue amount, for the period from (and including) the date the party fails to
make the payment due to the occurrence of the relevant Illegality or Force
Majeure Event (or, if later, the date the payment is no longer deferred
pursuant to Section 5(d)) to (but excluding) the earlier of the date the
event or circumstance giving rise to that Illegality or Force Majeure Event
ceases to exist and the date during the period upon which an Event of Default
or Potential Event of Default with respect to that party occurs (and excluding
any period in respect of which interest or compensation in respect of the
overdue amount is due pursuant to clause (B) above), at the Applicable Deferral
Rate.


 


(4)                                  Compensation for Deferred
Deliveries. If:—


 


(A)                              a party does not perform any obligation
that, but for Section 2(a)(iii), would have been required to be settled by
delivery;


 


(B)                                a delivery is deferred pursuant to Section 5(d);
or


 


(C)                                a party fails to make a delivery due to
the occurrence of an Illegality or a Force Majeure Event at a time when any
applicable Waiting Period has expired,


 


the party required
(or that would otherwise have been required) to make the delivery will, to the extent
permitted by applicable law and subject to Section 6(c), compensate and
pay interest to the other party on demand (after, in the case of clauses (A) and
(B) above, such delivery is required) if and to the extent provided for in
the relevant Confirmation or elsewhere in this Agreement


 


(ii)                                  Early Termination. Upon the occurrence or effective
designation of an Early Termination Date in respect of a Transaction:—


 


(1)                                  Unpaid Amounts. For the purpose of determining an Unpaid
Amount in respect of the relevant Transaction, and to the extent permitted by
applicable law, interest will accrue on the amount of any payment obligation or
the amount equal to the fair market value of any obligation required to be
settled by delivery included in such determination in the same currency as that
amount, for the period from (and including) the date the relevant obligation
was (or would have been but for Section 2(a)(iii) or 5(d)) required
to have been performed to (but excluding) the relevant Early Termination Date,
at the Applicable Close-out Rate.


 


(2)                                  Interest on Early Termination
Amounts. If an
Early Termination Amount is due in respect of such Early Termination Date, that
amount will, to the extent permitted by applicable law, be paid together with
interest (before as well as after judgment) on that amount in the Termination Currency,
for the period from (and including) such Early Termination Date to (but
excluding) the date the amount is paid, at the Applicable Close-out Rate.


 


(iii)                               Interest Calculation.  Any interest pursuant to this Section 9(h) will
be calculated on the basis of daily compounding and the actual number of days
elapsed.


 


18

















 


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 and agrees with the
other party that, notwithstanding the place of booking or its jurisdiction of
incorporation or organisation, its obligations are the same in terms of
recourse against it as if it had entered into the Transaction through its head
or home office, except that a party will not have recourse to the head or home
office of the other party in respect of any payment or delivery deferred
pursuant to Section 5(d) for so long as the payment or delivery is so
deferred. This representation and agreement will be deemed to be repeated by
each party on each date on which the parties enter into a Transaction.


 


(b)                                 If a party is specified as a Multibranch
Party in the Schedule, such party may, subject to clause (c) below, enter
into a Transaction through, book a Transaction in and make and receive payments
and deliveries with respect to a Transaction through any Office listed in
respect of that party in the Schedule (but not any other Office unless otherwise
agreed by the parties in writing).


 


(c)                                  The Office through which a party enters
into a Transaction will be the Office specified for that party in the relevant
Confirmation or as otherwise agreed by the parties in writing, and, if an
Office for that party is not specified in the Confirmation or otherwise agreed
by the parties in writing, its head or home office. Unless the parties otherwise
agree in writing, the Office through which a party enters into a Transaction
will also be the Office in which it books the Transaction and the Office
through which it makes and receives payments and deliveries with respect to the
Transaction. Subject to Section 6(b)(ii), neither party may change the
Office in which it books the Transaction or the Office through which it makes
and receives payments or deliveries with respect to a Transaction without the
prior written consent of the other party.


 


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, execution 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 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 described below (except that a notice or
other communication under Section 5 or 6 may not be given by electronic messaging
system or e-mail) to the address or number or in accordance with the electronic
messaging system or e-mail 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 it 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 it is delivered or its delivery is attempted;


 


(v)              if sent by electronic messaging
system, on the date it is received; or


 


19

















 


(vi)           if sent by e-mail, on the date it
is delivered,


 


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 will be deemed given and effective on the first following
day that is a Local Business Day.


 


(b)                                 Change of Details. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system or e-mail
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 any dispute arising out of or in connection with this Agreement (“Proceedings”),
each party irrevocably:—


 


(i)                  submits:—


 


(1)                            if this Agreement is
expressed to be governed by English law, to (A) the non-exclusive jurisdiction
of the English courts if the Proceedings do not involve a Convention Court and (B) the
exclusive jurisdiction of the English courts if the Proceedings do involve a
Convention Court; or


 


(2)                            if this Agreement is
expressed to be governed by the laws of the State of New York, 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;


 


(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; and


 


(iii)            agrees, to the extent permitted by
applicable law, that the bringing of Proceedings in any one or more
jurisdictions will not 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 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(a)(i), 12(a)(iii) or
12(a)(iv). Nothing in this Agreement will affect the right of either party to
serve process in any other manner permitted by applicable law.


 


(d)                                 Waiver of Immunities. Each party irrevocably waives, to the 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, or order for specific
performance or 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.


 


20














 


14.                               Definitions


 


As used in this Agreement:—


 


“Additional Representation”
has the meaning specified in Section 3.


 


“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, Force Majeure Event
Tax Event or Tax Event Upon Merger, all Transactions affected by the occurrence
of such Termination Event (which, in the case of an Illegality under Section 5(b)(i)(2) or
a Force Majeure Event under Section 5(b)(ii)(2), means all Transactions
unless the relevant Credit Support Document references only certain
Transactions, in which case those Transactions and, if the relevant Credit
Support Document constitutes a Confirmation for a Transaction, that Transaction)
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.


 


“Agreement” has the meaning
specified in Section 1(c).


 


“Applicable Close-out Rate” means:—


 


(a)                in respect of the determination of an Unpaid Amount:—


 


(i)                               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;


 


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


 


(iii)                         in respect of obligations deferred pursuant to Section 5(d),
if there is no Defaulting Party and for so long as the deferral period
continues, the Applicable Deferral Rate; and


 


(iv)                        in all other cases following the
occurrence of a Termination Event (except where interest accrues pursuant to
clause (iii) above), the Applicable Deferral Rate; and


 


(b)               in respect of an Early Termination Amount:—


 


(i)                               for the period from (and including) the
relevant Early Termination Date to (but excluding) the date (determined in
accordance with Section 6(d)(ii)) on which that amount is payable:—


 


(1)                                  if the Early Termination Amount is
payable by a Defaulting Party, the Default Rate;


 


(2)                                  if the Early Termination Amount is
payable by a Non-defaulting Party, the Non-default Rate; and


 


(3)                                  in all other cases, the Applicable
Deferral Rate; and


 


21

















 


(ii)                            for the period from (and including) the
date (determined in accordance with Section 6(d)(ii) on which that
amount is payable to (but excluding) the date of actual payment:—


 


(1)                                  if a party fails to pay the Early
Termination Amount due to the occurrence of an event or circumstance which
would, if it occurred with respect to a payment or delivery under a
Transaction, constitute or give rise to an Illegality or a Force Majeure Event,
and for so long as the Early Termination Amount remains unpaid due to the
continuing existence of such event or circumstance, the Applicable Deferral
Rate;


 


(2)                                  if the Early Termination Amount is
payable by a Defaulting Party (but excluding any period in respect of which
clause (1) above applies), the Default Rate;


 


(3)                                  if the Early Termination Amount is
payable by a Non-defaulting Party (but excluding any period in respect of which
clause (1) above applies), the Non-default Rate; and


 


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


 


“Applicable
Deferral Rate” means:—


 


(a)                                  for the purpose of Section 9(h)(i)(3)(A),
the rate certified by the relevant payer to be a rate offered to the payer by a
major bank in a relevant interbank market for overnight deposits in the
applicable currency, such bank to be selected in good faith by the payer for
the purpose of obtaining a representative rate that will reasonably reflect  conditions prevailing at the time in that
relevant market;


 


(b)                                 for purposes of Section 9(h)(i)(3)(B) and
clause (a)(iii) of the definition of Applicable Close-out Rate, the rate
certified by the relevant payer to be a rate offered to prime banks by a major
bank in a relevant interbank market for overnight deposits in the applicable
currency, such bank to be selected in good faith by the payer after consultation
with the other party, if practicable, for the purpose of obtaining a
representative rate that will reasonably reflect conditions prevailing at the
time in that relevant market; and


 


(c)                                  for purposes of Section 9(h)(i)(3)(C) and
clauses (a)(iv), (b)(i)(3) and (b)(ii)(1) of the definition of Applicable
Close-out Rate, a rate equal to the arithmetic mean of the rate determined
pursuant to clause (a) above and 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.


 


“Automatic
Early Termination” has the meaning specified in Section 6(a).


 


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


 


“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 after the parties enter into the relevant Transaction.


 


“Close-out Amount” means, with respect to
each Terminated Transaction or each group of Terminated Transactions and a
Determining Party, the amount of the losses or costs of the Determining Party
that are or would be incurred under then prevailing circumstances (expressed as
a positive number) or gains of the Determining Party that are or would be
realised under then prevailing circumstances (expressed as a negative number)
in replacing, or in providing for the Determining Party the economic equivalent
of, (a) the material terms of that Terminated Transaction or group of
Terminated Transactions, including the payments and deliveries by the parties
under Section 2(a)(i) in respect of that Terminated Transaction or
group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have been required after that date (assuming
satisfaction of the conditions precedent in


 


22

















 


Section 2(a)(iii)) and (b) the
option rights of the parties in respect of that Terminated Transaction or group
of Terminated Transactions.


 


Any Close-out Amount will be
determined by the Determining Party (or its agent), which will act in good
faith and use commercially reasonable procedures in order to produce a
commercially reasonable result. The Determining Party may determine a Close-out
Amount for any group of Terminated Transactions or any individual Terminated Transaction
but, in the aggregate, for not less than all Terminated Transactions. Each
Close-out Amount will be determined as of the Early Termination Date or, if
that would not be commercially reasonable, as of the date or dates following
the Early Termination Date as would be commercially reasonable.


 


Unpaid Amounts in respect of a
Terminated Transaction or group of Terminated Transactions and legal fees and
out- of-pocket expenses referred to in Section 11 are to be excluded in
all determinations of Close-out Amounts.


 


In determining a Close-out Amount,
the Determining Party may consider any relevant information, including, without
limitation, one or more of the following types of information:—


 


(i)                                     quotations (either
firm or indicative) for replacement transactions supplied by one or more third
parties that may take into account the creditworthiness of the Determining
Party at the time the quotation is provided and the terms of any relevant
documentation, including credit support documentation, between the Determining
Party and the third party providing the quotation;


 


(ii)                                  information consisting
of relevant market data in the relevant market supplied by one or more third
parties including, without limitation, relevant rates, prices, yields, yield
curves, volatilities, spreads, correlations or other relevant market data in
the relevant market; or


 


(iii)                               information of the
types described in clause (i) or (ii) above from internal sources
(including any of the Determining Party’s Affiliates) if that information is of
the same type used by the Determining Party in the regular course of its
business for the valuation of similar transactions.


 


The Determining Party will
consider, taking into account the standards and procedures described in this
definition, quotations pursuant to clause (i) above or relevant market
data pursuant to clause (ii) above unless the Determining Party reasonably
believes in good faith that such quotations or relevant market data are not
readily available or would produce a result that would not satisfy those
standards. When considering information described in clause (i), (ii) or (iii) above,
the Determining Party may include costs of funding, to the extent costs of
funding are not and would not be a component of the other information being
utilised. Third parties supplying quotations pursuant to clause (i) above or
market data pursuant to clause (ii) above may include, without limitation,
dealers in the relevant markets, end-users of the relevant product, information
vendors, brokers and other sources of market information.


 


Without duplication of amounts
calculated based on information described in clause (i), (ii) or (iii) above,
or other relevant information, and when it is commercially reasonable to do so,
the Determining Party may in addition consider in calculating a Close-out
Amount any loss or cost incurred in connection with its terminating,
liquidating or re-establishing any hedge related to a Terminated Transaction or
group of Terminated Transactions (or any gain resulting from any of them).


 


Commercially reasonable procedures
used in determining a Close-out Amount may include the following:—


 


(1)                                  application to
relevant market data from third parties pursuant to clause (ii) above or
information from internal sources pursuant to clause (iii) above of
pricing or other valuation models that are, at the time of the determination of
the Close-out Amount, used by the Determining Party in the regular course of
its business in pricing or valuing transactions between the Determining Party
and unrelated third parties that are similar to the Terminated Transaction or
group of Terminated Transactions; and


 


23

















 


(2)                                  application of
different valuation methods to Terminated Transactions or groups of Terminated
Transactions depending on the type, complexity, size or number of the
Terminated Transactions or group of Terminated Transactions.


 


“Confirmation” has the meaning
specified in the preamble.


 


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


 


“Contractual Currency” has the meaning
specified in Section 8(a).


 


“Convention Court” means any court which
is bound to apply to the Proceedings either Article 17 of the 1968 Brussels
Convention on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters or Article 17 of the 1988 Lugano Convention on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.


 


“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.


 


“Cross-Default” means the event
specified in Section 5(a)(vi).


 


“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.


 


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


 


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


 


“Determining Party” means the party
determining a Close-out Amount.


 


“Early Termination Amount”
has the meaning specified in Section 6(e).


 


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


 


“electronic messages” does not include
e-mails but does include documents expressed in markup languages, and “electronic messaging system” will
be construed accordingly.


 


“English law” means the law of
England and Wales, and “English” will
be construed accordingly.


 


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


 


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


 


“General Business Day” means a day on which
commercial banks are open for general business (including dealings in foreign
exchange and foreign currency deposits).


 


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


 


24

















 


“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 “unlawful” will be construed
accordingly.


 


“Local Business Day” means (a) in
relation to any obligation under Section 2(a)(i), a General Business Day
in the place or places specified in the relevant Confirmation and a day on which
a relevant settlement system is open or operating as specified in the relevant
Confirmation or, if a place or a settlement system is 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) for the
purpose of determining when a Waiting Period expires, a General Business Day in
the place where the event or circumstance that constitutes or gives rise to the
Illegality or Force Majeure Event, as the case may be, occurs, (c) in
relation to any other payment, a General Business Day 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,  and,
if that currency does not have a single recognised principal financial centre,
a day on which the settlement system necessary to accomplish such payment is
open, (d) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), a General Business Day (or a day that
would have been a General Business Day but for the occurrence of an event or
circumstance which would, if it occurred with respect to payment, delivery or
compliance related to a Transaction, constitute or give rise to an Illegality
or a Force Majeure Event) in the place 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 (e) in
relation to Section 5(a)(v)(2), a General Business Day in the relevant
locations for performance with respect to such Specified Transaction.


 


“Local Delivery Day” means, for purposes of
Sections 5(a)(i) and 5(d), a day on which settlement systems necessary to
accomplish the relevant delivery are generally open for business so that the
delivery is capable of being accomplished in accordance with customary market
practice, in the place specified in the relevant Confirmation or, if not so
specified, in a location as determined in accordance with customary market
practice for the relevant delivery.


 


“Master Agreement” has the meaning
specified in the preamble.


 


“Merger Without Assumption”
means the event specified in Section 5(a)(viii).


 


“Multiple Transaction
Payment Netting” has the meaning specified in Section 2(c).


 


“Non-affected Party” means, so long as
there is only one Affected Party, the other party.


 


“Non-default Rate” means the rate
certified by the Non-defaulting Party to be a rate offered to the
Non-defaulting Party by a major bank in a relevant interbank market for
overnight deposits in the applicable currency, such bank to be selected in good
faith by the Non-defaulting Party for the purpose of obtaining a representative
rate that will reasonably reflect conditions prevailing at the time in that
relevant market.


 


“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.


 


“Other Amounts” has the meaning
specified in Section 6(f).


 


25

















 


“Payee” has the meaning
specified in Section 6(f).


 


“Payer” has the meaning
specified in Section 6(f).


 


“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.


 


“Proceedings” has the meaning
specified in Section 13(b).


 


“Process Agent” has the meaning
specified in the Schedule.


 


“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.


 


“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.


 


“Schedule” has the meaning
specified in the preamble.


 


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


 


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


 


“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 to any
such transaction) 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 not a Transaction under this Agreement but (i) which
is a rate swap transaction, swap option, 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, credit
protection transaction, credit swap, credit default swap, credit default
option, total return swap, credit spread transaction, repurchase transaction,  reverse repurchase transaction, buy/sell-back
transaction, securities lending transaction, weather index transaction or forward
purchase or sale of a security, commodity or other financial instrument or
interest (including any option with respect to any of these transactions) or (ii) which
is a type of transaction that is similar to any transaction referred to in
clause (i) above that is currently, or in the future becomes, recurrently
entered into in the financial markets (including terms and conditions
incorporated by reference in such agreement) and which is a forward, swap,
future, option or other derivative on one or more rates, currencies,
commodities, equity securities or other equity instruments, debt securities or
other debt instruments, economic indices or measures of economic risk or value,
or other benchmarks against which payments or deliveries are to be made, (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.


 


“Stamp Tax Jurisdiction” has the meaning
specified in Section 4(e).


 


26

















 


“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 an Illegality or a
Force Majeure Event, all Affected Transactions specified in the notice given
pursuant to Section 6(b)(iv), (b) if resulting from any other
Termination Event, all Affected Transactions and (c) if resulting from an
Event of Default, all Transactions in effect either 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” means (a) if a
Termination Currency is specified in the Schedule and that currency is freely available,
that currency, and (b) otherwise, euro if this Agreement is expressed to
be governed by English law or United States Dollars if this Agreement is
expressed to be governed by the laws of the State of New York.


 


“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
Close-out Amount 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 Force Majeure Event, a Tax Event, a Tax Event Upon Merger or, if specified to
be applicable, a Credit Event Upon Merger or an Additional Termination Event.


 


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


 


“Threshold Amount” means the amount, if
any, specified as such in the Schedule.


 


“Transaction” has the meaning
specified in the preamble.


 


“Unpaid Amounts” owing to any party
means, with respect to an Early Termination Date, the aggregate of (a) in respect
of all Terminated Transactions, the amounts that became payable (or that would
have become payable but for Section 2(a)(iii) or due but for Section 5(d))
to such party under Section 2(a)(i) or 2(d)(i)(4) on or prior to
such Early Termination Date and which remain unpaid as at such Early
Termination Date, (b) in respect of each Terminated Transaction, for each
obligation under Section 2(a)(i) which was (or would have been but for
Section 2(a)(iii) or 5(d)) required to be settled by delivery to such
party on or prior to such Early Termination Date and which has not been so
settled as at such Early Termination Date, an amount equal to the fair market
value of that which was (or would have been) required to be delivered and (c) if
the Early Termination Date results from an Event of Default, a Credit Event
Upon Merger or an Additional Termination Event in respect of which all
outstanding Transactions are Affected Transactions, any Early Termination
Amount due prior to such Early Termination Date and which remains unpaid as of
such Early Termination Date, in each case together with any amount of interest
accrued or other


 


27

















 


compensation in respect of that
obligation or deferred obligation, as the case may be, pursuant to Section 9(h)(ii)(1)
or (2), as appropriate.  The fair market
value of any obligation referred to in clause (b) above will be determined
as of the originally scheduled date for delivery, in good faith and using
commercially reasonable procedures, by the party obliged to make the
determination under Section 6(e) or, if each party is so obliged, it
will be the average of the Termination Currency Equivalents of the fair market
values so determined by both parties.


 


“Waiting Period” means:—


 


(a)        in
respect of an event or circumstance under Section 5(b)(i), other than in
the case of Section 5(b)(i)(2)  where the relevant payment, delivery
or compliance is actually required on the relevant day (in which case no Waiting
Period will apply), a period of three Local Business Days (or days that would
have been Local Business Days but for the occurrence of that event or
circumstance) following the occurrence of that event or circumstance; and


 


(b)        in
respect of an event or circumstance under Section 5(b)(ii), other than in
the case of Section 5(b)(ii)(2)  where the relevant payment, delivery
or compliance is actually required on the relevant day (in which case no Waiting
Period will apply), a period of eight Local Business Days (or days that would
have been Local Business Days but for the occurrence of that event or
circumstance) following the occurrence of that event or circumstance.


 


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.


 


 


	
  JPMORGAN CHASE BANK, N.A.

  	
   

  	
  TRIMAS COMPANY LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
     /s/ Melissa
  McMahon

  	
   

  	
  By:

  	
     /s/ Robert J.
  Zalupski 

  
	
   

  	
  Name: Melissa McMahon

  	
   

  	
   

  	
  Name: Robert J. Zalupski 

  
	
   

  	
  Title: Managing Director and
  Associate

  	
   

  	
   

  	
  Title: Vice President &
  Treasurer 

  
	
   

  	
  General Counsel

  	
   

  	
   

  	
  Date: January 20, 2009

  
	
   

  	
  Date:

  	
   

  	
   

  	
   

  



 


28














 


SCHEDULE


to the


2002
MASTER AGREEMENT


 


dated as
of January 20, 2009


 


between


 




	
  JPMORGAN
  CHASE BANK,

  NATIONAL ASSOCIATION

  (“Party A”)

  	
   

  	
  and

  	
   

  	
  TRIMAS COMPANY LLC

  (“Party B”)

  






 


PART 1


Termination Provisions


 


	
  (1)

  	
   

  	
  “Specified Entity”
  means, in relation to Party A, for the purpose of:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Section 5(a)(v),
  any Affiliate of Party A;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Section 5(a)(vi),
  none;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Section 5(a)(vii),
  none; and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Section 5(b)(v),
  none;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  and, in relation to
  Party B, for the purpose of:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Section 5(a)(v),
  any Affiliate of Party B;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Section 5(a)(vi),
  none;

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Section 5(a)(vii),
  none; and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Section 5(b)(v),
  none.

  
	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  “Specified Transaction”
  will have the meaning specified in Section 14 of this Agreement.

  
	
   

  	
   

  	
   

  
	
  (3)

  	
   

  	
  The “Cross-Default” provisions of
  Section 5(a)(vi) will apply to Party A and Party B, and for such
  purpose:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)

  	
   

  	
  “Specified Indebtedness”
  will have the meaning specified in Section 14 of this Agreement, except
  that such term shall not include obligations in 

  



 

















 


	
   

  	
   

  	
   

  	
   

  	
  respect of deposits
  received in the ordinary course of a party’s banking business.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
   

  	
  “Threshold Amount”
  means, with respect to Party A, an amount equal to three percent of the
  shareholders’ equity of Party A; and with respect to Party B, USD 15,000,000,
  or the equivalent thereof in any other currency or currencies.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (c)

  	
   

  	
  Section 5(a)(vi) of
  this Agreement will be deemed to be amended to include the following at the
  end thereof:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  “Notwithstanding the
  foregoing, a default under subsection (1) or (2) hereof shall not
  constitute an Event of Default if (i) the default was caused solely by
  error or omission of an administrative or operational nature; (ii) funds
  were available to enable the party to make the payment when due; and (iii) the
  payment is made within three Local Business Days of such failure to pay.”

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (4)

  	
   

  	
  The “Credit Event Upon Merger” provisions of
  Section 5(b)(v) will not apply to Party A. The “Credit
  Event Upon Merger” provisions of
  Section 5(b)(v) will apply to Party B.

  
	
   

  	
   

  	
   

  
	
  (5)

  	
   

  	
  The “Automatic Early Termination” provision of
  Section 6(a) will not apply to Party A or Party B.

  
	
   

  	
   

  	
   

  
	
  (6)

  	
   

  	
  “Termination Currency”
  will have the meaning set forth in Section 14 of this Agreement.

  
	
   

  	
   

  	
   

  
	
  (7)

  	
   

  	
  Additional Termination Event
  will apply. The following will constitute an Additional Termination Event
  with respect to Party B as the Affected Party:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The obligations of
  Party B under this Agreement cease to be equally and ratable secured and/or
  guaranteed with the obligations of Party B under the Credit Agreement (as
  defined below).

  
	
   

  	
   

  	
   

  
	
  (8)

  	
   

  	
  Additional Condition Precedent.
  For the purposes of Section 2(a)(iii) it shall be a condition
  precedent that no Additional Termination Event with respect to the other
  party shall have occurred and be continuing.

  



 


PART 2


Tax
Representations


 


	
  (1)

  	
   

  	
  Payer Tax Representations.
  For the purpose of Section 3(e) of this Agreement, Party A and
  Party B each hereby make the following representation:

  



 


2

















	
   

  	
   

  	
   

  
	
   

  	
   

  	
  It is not required by
  any applicable law, as modified by the practice of any relevant governmental
  revenue authority, of any Relevant Jurisdiction to make any deduction or
  withholding for or on account of any Tax from any payment (other than
  interest under Section 9(h) of this Agreement) to be made by it to
  the other party under this Agreement. 
  In making this representation, it may rely on (i) the accuracy of
  any representations made by the other party pursuant to Section 3(f) of
  this Agreement, (ii) the satisfaction of the agreement contained in Section 4(a)(i) or
  4(a)(iii) of this Agreement and the accuracy and effectiveness of any
  document provided by the other party pursuant to Section 4(a)(i) or
  4(a)(iii) of this Agreement and (iii) the satisfaction of the
  agreement of the other party contained in Section 4(d) of this
  Agreement, except that it will not be a breach of this representation where
  reliance is placed on clause (ii) above and the other party does not
  deliver a form or document under Section 4(a)(iii) by reason of
  material prejudice to its legal or commercial position.

  
	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  Payee Tax Representations.  For the purpose of Section 3(f) of
  this Agreement, Party A and Party B each hereby make the following
  representations:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  It is a United States
  Person for U.S. federal income tax purposes and either (a) is a
  financial institution or (b) is not acting as an agent for a person that
  is not a United States Person for U.S. federal income tax purposes.

  



 


PART 3


Agreement
to Deliver Documents


 


For the purpose of Sections 4(a)(i) and 4(a)(ii) of
this Agreement, each party agrees to deliver the following documents:


 


	
   

  	
   

  	
  (a)

  	
   

  	
  Tax forms, documents or
  certificates to be delivered are:

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Party B agrees to
  deliver a complete and accurate United States Internal Revenue Service Form W-9
  (or any applicable successor form), in a manner reasonably satisfactory to
  Party A, (I) upon execution of this Agreement; (II) promptly upon
  reasonable demand of Party A, and (III) promptly upon learning that any
  such form previously provided by Party B has become obsolete or incorrect
  (and each such form is hereby identified for purposes of Section 3(d) of
  this Agreement).

  



 


3

















 


	
   

  	
   

  	
  (b)

  	
   

  	
  Other documents to be
  delivered are:

  



 


	
  Party required

  to deliver

  document

  	
   

  	
  Form/Document/

  Certificate

  	
   

  	
  Date by which

  to be delivered

  	
   

  	
  Covered by

  Section 3(d)

  Representation

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Party B

  	
   

  	
  Annual Report of Party B and of its Credit Support
  Provider (as applicable) containing consolidated financial statements
  certified by independent certified public accountants and prepared in
  accordance with accounting principles that are generally accepted in the
  country or countries in which Party B and its Credit Support Provider (as
  applicable) is organized

  	
   

  	
  Upon request

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Party B

  	
   

  	
  Unaudited consolidated
  financial statements of Party B and of its Credit Support Provider (as
  applicable) for a fiscal quarter prepared in accordance with accounting
  principles that are generally accepted in the country or countries in which
  Party B and its Credit Support Provider (as applicable) is organized

  	
   

  	
  Upon request

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Party B

  	
   

  	
  Certified copies of all
  corporate authorizations and any other documents with respect to the
  execution, delivery and performance of this Agreement

  	
   

  	
  Upon execution and
  delivery of this Agreement

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Party A and Party B

  	
   

  	
  Certificate of
  authority and specimen signatures of individuals executing this Agreement,
  Confirmations and each Credit Support Document (as applicable)

  	
   

  	
  Upon execution and
  delivery of this Agreement and thereafter upon request of the other party

  	
   

  	
  Yes

  



 


4

















 


PART 4


Miscellaneous


 


	
  (1)

  	
   

  	
  Addresses for Notices.
  For the purpose of Section 12(a) of this Agreement:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address for notice or communications to Party A:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Any notice relating to a particular Transaction
  shall be delivered to the address or facsimile number specified in the
  Confirmation of such Transaction. Any notice delivered for purposes of Sections
  5 and 6 of this Agreement shall be delivered to the following address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  JPMorgan Chase Bank,
  National Association

  
	
   

  	
   

  	
  Attention: Legal
  Department- Derivatives Practice Group

  
	
   

  	
   

  	
  270 Park Avenue

  
	
   

  	
   

  	
  New York, New York
  10017-2070

  
	
   

  	
   

  	
  Facsimile No.: (212)
  270-3625

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address for notice or
  communications to Party B:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TriMas Company LLC

  
	
   

  	
   

  	
  39400 Woodward Avenue, Ste
  130

  
	
   

  	
   

  	
  Bloomfield Hills, MI 48304

  
	
   

  	
   

  	
  Attention: Joshua Sherbin,
  General Counsel

  
	
   

  	
   

  	
  Phone:
  248-631-5497

  
	
   

  	
   

  	
  Fax:
  248-631-5413

  
	
   

  	
   

  	
  M: 248-802-4301

  
	
   

  	
   

  	
  E-mail: joshsherbin@trimascorp.com

  
	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  Process Agent.  For the purpose of Section 13(c) of
  this Agreement:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Party A appoints as its
  Process Agent: Not applicable.

  
	
   

  	
   

  	
  Party B appoints as its
  Process Agent: Not applicable.

  
	
   

  	
   

  	
   

  
	
  (3)

  	
   

  	
  Offices.
  The provisions of Section 10(a) will apply to this Agreement.

  
	
   

  	
   

  	
   

  
	
  (4)

  	
   

  	
  Multibranch Party.
  For the purpose of Section 10 of this Agreement:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Party A is a
  Multibranch Party and may act through any Office specified in a Confirmation.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Party B is not a
  Multibranch Party.

  



 


5

















 


	
  (5)

  	
   

  	
  Credit Support Document.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The “Security
  Documents” (as defined in the Credit Agreement) shall constitute  “Credit Support Documents” in relation to
  all of the obligations of Party B and for all purposes of this Agreement.

  
	
   

  	
   

  	
   

  
	
  (6)

  	
   

  	
  Credit Support Provider.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Credit Support Provider
  means, in relation to Party A, not applicable.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Credit Support Provider
  means, in relation to Party B, the “guarantors” (as defined in the Credit
  Agreement).

  
	
   

  	
   

  	
   

  
	
  (7)

  	
   

  	
  Governing Law.
  This Agreement will be governed by and construed in accordance with the laws
  of the State of New York (without reference to choice of law doctrine).

  
	
   

  	
   

  	
   

  
	
  (8)

  	
   

  	
  Netting of Payments.
  “Multiple Transaction Payment Netting” will apply for the purpose of
  Section 2(c) of this Agreement to all Transactions starting from
  the date of this Agreement.

  
	
   

  	
   

  	
   

  
	
  (9)

  	
   

  	
  “Affiliate”
  will have the meaning specified in Section 14 of this Agreement.

  
	
   

  	
   

  	
   

  
	
  (10)

  	
   

  	
  Absence of Litigation.
  For the purpose of Section 3(c) of this Agreement:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  “Specified Entity”
  means, in relation to Party A, any Affiliate of Party A.

  
	
   

  	
   

  	
  “Specified
  Entity” means, in relation to Party B, any Affiliate of Party B.

  
	
   

  	
   

  	
   

  
	
  (11)

  	
   

  	
  No Agency.
  The provisions of Section 3(g) of this Agreement will apply to this
  Agreement.

  
	
   

  	
   

  	
   

  
	
  (12)

  	
   

  	
  Additional Representation
  will apply. For the purpose of Section 3 of this Agreement, the
  following will each constitute an Additional Representation:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (h)

  	
   

  	
  Relationship Between Parties.
  Each party will be deemed to represent to the other party on the date on
  which it 

  
	
   

  	
   

  	
  enters into a
  Transaction that (absent a written agreement between the parties that
  expressly imposes affirmative obligations to the contrary for that
  Transaction):

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (i)

  	
   

  	
  Non-Reliance.
  It is acting for its own account, and it has made its own independent
  decisions to enter

  
	
   

  	
   

  	
  into that Transaction
  and as to whether that Transaction is appropriate or proper for it based upon
  its own judgment and upon advice from such advisers as it has deemed
  necessary. It is not relying on any communication (written or oral) of the
  other party as investment advice or as a

  



 


6

















 


	
   

  	
   

  	
  recommendation to enter
  into that Transaction, it being understood that information and explanations
  related to the terms and conditions of a Transaction will not be considered
  investment advice or a recommendation to enter into that Transaction.  No communication (written or oral) received
  from the other party will be deemed to be an assurance or guarantee as to the
  expected results of that Transaction.

  



 


	
   

  	
   

  	
   

  	
   

  	
  (ii)

  	
   

  	
  Assessment and Understanding.  It is capable of assessing the merits of
  and understanding (on its

  
	
   

  	
   

  	
  own behalf or through independent
  professional advice), and understands and accepts, the terms, conditions and
  risks of that Transaction.  It is also
  capable of assuming, and assumes, the risks of that Transaction.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (iii)

  	
   

  	
  Status of Parties.  The other party is not acting as a
  fiduciary for or an adviser to it in respect of that 

  
	
   

  	
   

  	
  Transaction.

  



 


	
   

  	
   

  	
   

  	
   

  	
  (iv)

  	
   

  	
  Other Transactions.  It understands and acknowledges that the
  other party may, either in connection

  
	
   

  	
   

  	
  with entering into a
  Transaction or from time to time thereafter, engage in open market
  transactions that are designed to hedge or reduce the risks incurred by it in
  connection with such Transaction and that the effect of such open market
  transactions may be to affect or reduce the value of such Transaction.

  



 


	
  (13)

  	
   

  	
  Eligible Contract Participant.
  Each  party represents to the other party
  (which representation will be deemed to be repeated by each party on each
  date on which a Transaction is entered into) that it is an “eligible contract
  participant”, as defined in the Commodity Futures Modernization Act of 2000.

  
	
   

  	
   

  	
   

  
	
  (14)

  	
   

  	
  Recording of Conversations.
  Each party (i) consents to the recording of telephone conversations
  between the trading, marketing and other relevant personnel of the parties
  and their Affiliates in connection with this Agreement or any potential
  Transaction, (ii) agrees to obtain any necessary consent of, and give
  any necessary notice of such recording to, its relevant personnel and
  (iii) agrees, to the extent permitted by applicable law, that recordings
  may be submitted in evidence in any Proceedings.

  



 


7

















 


PART 5


Other Provisions


 


	
  (1)

  	
   

  	
  Waiver of Jury Trial.
  Each party waives, to the fullest extent
  permitted by applicable law, any right it may have to a trial by jury in
  respect of any suit, action or proceeding relating to this Agreement or any
  Credit Support Document. Each party (i) certifies that no
  representative, agent or attorney of the other party or any Credit Support
  Provider has represented, expressly or otherwise, that such other party would
  not, in the event of such a suit, action or proceeding, seek to enforce the
  foregoing waiver and (ii) acknowledges that it and the other party have
  been induced to enter into this Agreement and provide for any Credit Support
  Document, as applicable, by, among other things, the mutual waivers and
  certifications in this Section.

  
	
   

  	
   

  	
   

  
	
  (2)

  	
   

  	
  ISDA Definitions.
  Reference is hereby made to the 2006 ISDA Definitions (the “2006
  Definitions”) and the 1998 FX and Currency Option Definitions (the “FX
  Definitions”) (collectively the “ISDA Definitions”) each as published by the
  International Swaps and Derivatives Association, Inc., which are hereby
  incorporated by reference herein. Any terms used and not otherwise defined
  herein which are contained in the ISDA Definitions shall have the meaning set
  forth therein.

  
	
   

  	
   

  	
   

  
	
  (3)

  	
   

  	
  Scope of Agreement.
  Notwithstanding anything contained in this Agreement to the contrary, any
  transaction (other than a repurchase transaction, reverse repurchase
  transaction, buy/sell-back transaction or securities lending transaction)
  which may otherwise constitute a “Specified Transaction” (without regard to
  the phrase “which is not a Transaction under this Agreement but” in the
  definition of “Specified Transaction”) for purposes of this Agreement which
  has been or will be entered into between the parties shall constitute a
  “Transaction” which is subject to, governed by, and construed in accordance
  with the terms of this Agreement, unless any Confirmation with respect to a
  Transaction entered into after the execution of this Agreement expressly
  provides otherwise.

  
	
   

  	
   

  	
   

  
	
  (4)

  	
   

  	
  Inconsistency.
  In the event of any inconsistency between any of the following documents, the
  relevant document first listed below shall govern: (i) a Confirmation;
  (ii) the Schedule and Paragraph 11 or Paragraph 13 of an ISDA Credit
  Support Annex (as applicable); (iii) the ISDA Definitions; and
  (iv) the printed form of ISDA Master Agreement and ISDA Credit Support
  Annex (as applicable). In the event of
  any inconsistency between provisions contained in the 2006 Definitions
  and the FX Definitions, the FX
  Definitions shall prevail.

  
	
   

  	
   

  	
   

  
	
  (5)

  	
   

  	
  Amendment to Section 6(f);
  Set-Off. Section 6(f) of this Agreement shall
  be amended by adding the following language immediately following the last
  line of Section 6(f):

  



 


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  “Notwithstanding
  anything to the contrary set forth in this Agreement, a party (the
  “Delivering Party”) may, in its discretion, satisfy, in whole or in part, any
  payment obligation arising under Section 6 in respect of any Early
  Termination Date which is designated or occurs as a result of an Event of
  Default in respect of which the other party is the Defaulting Party or which
  is designated as a result of a Termination Event in respect of which the
  other party is the sole Affected Party by delivering to such other party (the
  “Receiving Party”), or for the account of the Receiving Party, bond(s),
  note(s), or other debt instrument(s) issued or guaranteed by the
  Receiving Party and owned or held legally or beneficially by or on behalf of
  the Delivering Party in a face amount equal to the entirety or relevant part,
  as the case may be, of the amount of such payment obligation.  Any bond, note, or other debt instrument
  denominated in a currency other than the Termination Currency shall, for this
  purpose, be valued in an amount of Termination Currency determined by the
  Delivering Party based upon a currency exchange rate determined in a
  commercially reasonable manner. Any delivery by a Delivering Party shall be
  made in the manner customary for the relevant bond, note, or debt instrument
  (including, without limitation, through a depository institution or clearance
  system) or, if the Delivering Party deems such delivery to be impractical, in
  a commercially reasonable manner determined by the Delivering Party.

  



 


	
  (6)

  	
   

  	
  “Credit
  Agreement” means the Credit Agreement, dated as of
  June 6, 2002, as Amended and Restated as of August 2, 2006, among
  TriMas Corporation, TriMas Company LLC, the Subsidiary Term Borrowers party
  thereto, the Foreign Subsidiary Borrowers party thereto, JPMorgan Chase Bank,
  N.A., as Administrative Agent and Collateral Agent, and Comerica Bank, as
  Syndication Agent, as amended, amended and restated, supplemented, extended,
  replaced or otherwise modified from time to time; provided that if the
  obligations under the Credit Agreement are paid in full, the Credit Agreement
  is otherwise terminated or canceled, or Party A shall for any reason cease to
  remain a party thereto, Credit Agreement means the Credit Agreement as it
  existed immediately prior to such event. Capitalized terms defined therein
  and not otherwise defined herein shall have the meanings assigned in the
  Credit Agreement.

  
	
   

  	
   

  	
   

  
	
  (7)

  	
   

  	
  Further Agreements of Party B.
  Party B agrees with Party A that Party B will comply with each of the
  covenants set forth in Articles V and VI of the Credit Agreement.

  
	
   

  	
   

  	
   

  
	
  (8)

  	
   

  	
  Additional Event of Default.
  With respect to Party B, it shall constitute an Event of Default under this
  Agreement if there shall occur any Event of Default under the Credit
  Agreement.

  
	
   

  	
   

  	
   

  
	
  (9)

  	
   

  	
  Further Representations of
  Party B. Party B represents and warrants to Party A
  (which representations will be deemed to be repeated by Party B on each date
  on which a Transaction is entered into) that (i) each of the
  representations and

  



 


9

















 


	
   

  	
   

  	
  warranties made by
  Party B in Article III of the Credit Agreement is true and correct and
  no Event of Default under the Credit Agreement has occurred and is
  continuing, and (ii) this Agreement and each Transaction entered into
  hereunder constitutes a “Hedging Agreement” which has been or will be, as the
  case may be, entered into in compliance with the Credit Agreement.

  



 


 


Please confirm
your agreement to the terms of the foregoing Schedule by signing below.


 


 


	
  JPMORGAN CHASE BANK,

  NATIONAL ASSOCIATION

  	
   

  	
  TRIMAS COMPANY LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Melissa McMahon

  	
   

  	
  By:

  	
  /s/ Robert J. Zalupski

  
	
   

  	
  Name: Melissa McMahon

  	
   

  	
   

  	
  Name: Robert J. Zalupski

  
	
   

  	
  Title: Managing Director and 

  	
   

  	
   

  	
  Title: Vice President &
  Treasurer 

  
	
  Associate General Counsel

  	
   

  	
   

  	
   

  



 


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