EXHIBIT 10.73
(MULTICURRENCY - CROSS BORDER)
ISDA(R)
INTERNATIONAL SWAP DEALERS ASSOCIATION, INC.
MASTER AGREEMENT
DATED AS OF OCTOBER 13, 2005
MERRILL LYNCH CAPITAL SERVICES, INC. GENERAL CABLE CORPORATION
("PARTY A") ("PARTY B")
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming those
Transactions.
Accordingly, the parties agree as follows:-
1. INTERPRETATION
(a) DEFINITIONS. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) INCONSISTENCY. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) SINGLE AGREEMENT. All Transactions are entered into in reliance on the fact
that this Master Agreement and all Confirmations form a single agreement between
the parties (collectively referred to as this "Agreement"), and the parties
would not otherwise enter into any Transactions.
2. OBLIGATIONS
(a) GENERAL CONDITIONS.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the required
currency. Where settlement is by delivery (that is, other than by payment),
such delivery will be made for receipt on the due date in the manner
customary for the relevant obligation unless otherwise specified in the
relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to (1)
the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing, (2)
the condition precedent that no Early Termination Date in respect of the
relevant Transaction has occurred or been effectively designated and (3)
each other applicable condition precedent specified in this Agreement.
COPYRIGHT (C) 1992 BY INTERNATIONAL SWAP DEALERS ASSOCIATION, INC.
value of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or would
have been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b) above
shall be reasonably determined by the party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average of
the Termination Currency Equivalents of the fair market values reasonably
determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
MERRILL LYNCH CAPITAL SERVICES, INC. GENERAL CABLE CORPORATION
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date: Date:
------------------------------- ----------------------------------
ISDA (R) 1992
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SCHEDULE
TO THE
MASTER AGREEMENT
DATED AS OF OCTOBER 13, 2005
BETWEEN
MERRILL LYNCH CAPITAL SERVICES, INC., A CORPORATION
ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE
("PARTY A")
AND
GENERAL CABLE CORPORATION, A CORPORATION ORGANIZED UNDER
THE LAWS OF THE STATE OF DELAWARE
("PARTY B")
PART 1
TERMINATION PROVISIONS
In this Agreement:-
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of:-
Section 5(a)(v), Not Applicable
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
Section 5(b)(iv), Not Applicable
in relation to Party B for the purpose of:-
Section 5(a)(v), Not Applicable
Section 5(a)(vi), Not Applicable
Section 5(a)(vii), Not Applicable
Section 5(b)(iv), Not Applicable
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14 of
this Agreement.
(c) The "CROSS DEFAULT" provisions of Section 5(a)(vi) will apply to Party A
and to Party B.
If such provisions apply:-
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"SPECIFIED INDEBTEDNESS" will have the meaning specified in Section 14 of this
Agreement, and, in addition, "Specified Indebtedness" as applied to Party B
shall also include any payment obligation of Party B under that certain Credit
Agreement dated as of October 22, 2004 (as amended, supplemented or otherwise
modified from time to time, including, without limitation, the Limited Consent
with Respect to Amended and Restated Credit Agreement, dated as of October 12,
2005, as amended and restated by the Second Amended and Restated Credit
Agreement, dated as of November 23, 2005, collectively, the "Credit Agreement")
among General Cable Industries, Inc., as Borrower, General Cable Corporation and
the other Guarantors party thereto, as Guarantors, Merrill Lynch Capital, a
division of Merrill Lynch Business Financial Services Inc., individually as a
Lender, collateral agent and as security trustee for the Secured Parties, and as
syndication agent, Merrill Lynch Capital, a division of Merrill Lynch Business
Financial Services INC. and UBS Securities LLC, as joint lead arrangers, Fleet
Capital Corporation, as a co-documentation agent, GMAC Commercial Finance LLC,
as a co-documentation agent, General Electric Capital Corporation, as a
co-documentation agent, UBS Loan Finance LLC, as a Lender and as swingline
lender, UBS AG, Stamford Branch, in its individual capacity, as issuing bank,
and as administrative agent for the Lenders and the financial institutions from
time to time parties thereto as lenders thereunder.
"THRESHOLD AMOUNT" means, in respect of Party A, USD 100,000,000 or its
equivalent in other currencies, and in respect of Party B, USD 100,000 or its
equivalent in other currencies, provided that, in respect of Party B, the
Threshold Amount applicable to an Event of Default under the Credit Agreement
shall mean zero (0).
(d) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv) will apply to
Party A and Party B. Section 5(b)(iv) of this Agreement shall be amended to
read as follows: "Credit Event Upon Merger" means that a Designated Event
(as defined below) occurs with respect to a party, any Credit Support
Provider of such party, or any Specified Entity of such party and such
action does not constitute an event described in Section 5(a)(viii) but, in
the reasonable opinion of the other party, the creditworthiness of the
successor, surviving or transferee entity, taking into account any
applicable Credit Support Document (except any applicable Credit Support
Annex or other agreement providing for the pledge of collateral or any
similar agreement) (in which case the party or its successor or transferee,
as appropriate, will be the Affected Party) is materially weaker than that
of its predecessor, immediately prior to the occurrence of the Designated
Event. For purposes hereof, a Designated Event means that, after the Trade
Date of any Transaction:
(i) the party, any Credit Support Provider of the party or any Specified
Entity of the party 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 of that party)
to, or reorganizes, incorporates, reincorporates, or reconstitutes
into or as, another entity, or another entity consolidates or
amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, or reorganizes, incorporates,
reincorporates, reconstitutes into or as, such party; or
(ii) any person or entity acquires directly or indirectly the beneficial
ownership of equity securities having the power to elect a majority of
the board of directors of the party, any Credit Support Provider of
the party or any applicable Specified Entity of the party; or
(iii) the party, any Credit Support Provider of the party, or any
applicable Specified Entity of the party enters into any agreement
providing for any of the foregoing.
(e) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a) will not apply
to either Party A or to Party B.
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(f) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e) of this
Agreement:-
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "TERMINATION CURRENCY" means United States Dollars.
(H) ADDITIONAL TERMINATION EVENT will apply.
(i) TERMINATION OF REVOLVING COMMITMENTS. If, upon the termination of all
Revolving Commitments, the repayment of all outstanding Loans (as such
terms are defined in the Credit Agreement) and the release of all
liens securing the same (collectively, "Release"), this Agreement is
in effect, the Parties hereto, at Party A's option, and written notice
thereof to Party B, shall, within five (5) business days of the
Release, execute and deliver a Credit Support Annex in the form
attached hereto as Exhibit "C" and post collateral to Party A pursuant
to the terms of the Credit Support Annex.
The Credit Support Annex shall not take effect unless and until there
is a termination of all Revolving Commitments, the repayment of all
outstanding Loans and the release of all liens securing the same.
(ii) PARI PASSU OBLIGATIONS. If any obligation due and owing by Party B to
Party A under this Agreement fails to rank at least pari passu with
any obligation due and owing by Party B to any of its unsecured debt
holders.
Failure by Party B to comply with the terms of either Part 1(h)(i) or
1(h)(ii) shall constitute an Additional Termination Event pursuant to
Section 5(b)(v), and Party B shall be the sole Affected Party in
either case.
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PART 2
TAX REPRESENTATIONS
(a) PAYER REPRESENTATIONS. For the purpose of Section 3(e) of this Agreement,
Party A will make the following representation and Party B will make the
following representation:-
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 2(e), 6(d)(ii) or 6(e) 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, provided that
it shall not be a breach of this representation where reliance is placed on
clause (ii) 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.
(b) PAYEE REPRESENTATIONS. For the purpose of Section 3(f) of this Agreement,
Party A and Party B make the representations specified below:-
(i) The following representation applies to Party A:-
Party A is a corporation organized under the laws of the State of
Delaware.
(ii) The following representation applies to Party B:-
Party B is a corporation organized under the laws of the State of
Delaware.
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PART 3
AGREEMENT TO DELIVER DOCUMENTS
For the purpose of Section 4(a)(i) and (ii) of this Agreement, each party agrees
to deliver the following documents as applicable:-
(a) Tax forms, documents or certificates to be delivered are:-
PARTY REQUIRED TO
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE DATE BY WHICH TO BE DELIVERED
- ----------------- -------------------------------- -------------------------------------
Party A/Party B A correct, complete and executed (i) Before the first Payment Date
U.S. Internal Revenue Service under this Agreement, (ii) promptly
Form W-9 (or any successor upon reasonable demand by Party A,
thereto), including appropriate and (iii) promptly upon learning that
attachments, that eliminates any such form previously provided by
U.S. federal backup withholding Party B has become obsolete or
tax on payments under this incorrect.
Agreement.
(b) Other Documents to be delivered are:-
PARTY REQUIRED COVERED BY
TO DELIVER FORM/DOCUMENT/ DATE BY WHICH SECTION 3(D)
DOCUMENT CERTIFICATE TO BE DELIVERED REPRESENTATION
-------------- --------------------------------------------- ----------------------- --------------
Party A/Party B. Annual audited financial statements (or, in Promptly after request. Yes.
the case of Party A, of its Credit Support
Provider) prepared in accordance with
generally accepted accounting principles in
the country in which the party (or, in the
case of Party A, its Credit Support Provider)
is organized.
Party A/Party B. Quarterly unaudited financial statements (or, Promptly after request. Yes.
in the case of Party A, of its Credit Support
Provider) prepared in accordance with
generally accepted accounting principles in
the country in which the party (or, in the
case of Party A, its Credit Support Provider)
is organized.
Party A/Party B. Credit Support Document, if any, specified in Concurrently with the No.
Part 4 of the Schedule, such Credit Support execution of this
Document being duly executed if required. Agreement.
The collateralized Guarantee of General Cable
Industries, Inc. shall be in a form
acceptable to Party A.
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PARTY REQUIRED COVERED BY
TO DELIVER FORM/DOCUMENT/ DATE BY WHICH SECTION 3(D)
DOCUMENT CERTIFICATE TO BE DELIVERED REPRESENTATION
- -------------- --------------------------------------------- ----------------------- --------------
Party A/Party B. Certified copies of the resolution(s) of its Concurrently with the Yes.
board of directors or other documents execution of this
authorizing the execution and delivery of Agreement.
this Agreement.
Party A/Party B. Incumbency certificate or other documents Concurrently with the Yes.
evidencing the authority of the party execution of this
entering into this Agreement or any other Agreement or of any
document executed in connection with this other documents
Agreement. executed in connection
with this Agreement.
Party A. An opinion of counsel with respect to Party A Concurrently with the No.
in a form acceptable to Party B. execution of this
Agreement.
Party A. An opinion of counsel with respect to Party Concurrently with the No.
A's Credit Support Provider in a form execution of this
acceptable to Party B. Agreement.
Party B. An opinion of counsel with respect to Party B Concurrently with the No.
substantially in the form attached hereto as execution of this
Exhibit B and otherwise in a form acceptable Agreement.
to Party A.
Party B. An opinion of counsel with respect to Party Concurrently with the No.
B's Credit Support Provider in a form execution of this
acceptable to Party A. Agreement.
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PART 4
MISCELLANEOUS
(a) ADDRESSES FOR NOTICES: For the purpose of Section 12(a) of this Agreement:-
Address for notices or communications to PARTY A:-
Address: MERRILL LYNCH WORLD HEADQUARTERS
4 WORLD FINANCIAL CENTER, 18TH FLOOR
NEW YORK, NEW YORK 10080
Attention: SWAP GROUP
Facsimile No.: 917-778-0836
Telephone No.: 212 449-2467
(For all purposes)
Additionally, a copy of all notices pursuant to Sections 5, 6, and 7 as well as
any changes to counterparty's address, telephone number or facsimile number
should be sent to:
GMI COUNSEL
MERRILL LYNCH WORLD HEADQUARTERS
4 WORLD FINANCIAL CENTER, 12TH FLOOR
NEW YORK, NEW YORK 10080
ATTENTION: SWAPS LEGAL
FACSIMILE NO.: 212 449-6993
Address for notices or communications to PARTY B:-
Address: General Cable Corporation
4 Tesseneer Drive
Highland Heights, Kentucky 41076
Attention: Chief Financial Officer
Facsimile No.: (859) 572-8440
Telephone No.: (859) 572-8000
(For all purposes)
(b) PROCESS AGENT. For the purpose of Section 13(c):-
Party A appoints as its Process Agent: Not Applicable.
Party B appoints as its Process Agent: Not Applicable.
(c) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10(c) of this Agreement:
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
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(e) CALCULATION AGENT. The Calculation Agent is Party A, unless either Party A
is in default hereunder, in which event Party B shall select the
Calculation Agent with the consent of Party A (which consent shall not be
unreasonably withheld), or a different Calculation Agent is otherwise
specified in a Confirmation in relation to the relevant Transaction.
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:-
Party A: Guarantee of Merrill Lynch & Co., Inc. ("ML&Co.") in the form attached
hereto as Exhibit A.
Party B: The Continuing Unconditional Guarantee of General Cable Industries,
Inc., the Credit Agreement (as defined in Part 1 hereof) and the Security
Agreement (as defined in the Credit Agreement), and the Credit Support Annex
which supplements, forms part of, and is subject to this Agreement.
(g) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Party A, ML & Co.
Credit Support Provider means in relation to Party B, General Cable Industries,
Inc.
(h) 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.
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) of this Agreement
will not apply.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
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PART 5
OTHER PROVISIONS
(1) FINANCIAL STATEMENTS. Section 3(d) is hereby amended by adding in the third
line thereof after the word "respect" and before the period:
"or, in the case of financial statements, a fair presentation of the
financial condition of the relevant party".
(2) ADDITIONAL REPRESENTATIONS. For purposes of Section 3, the following shall
be added, immediately following paragraph (f) thereto:
(g) It is an "eligible contract participant" within the meaning of the
United States Commodity Exchange Act.
(h) It has entered into this Agreement (including each Transaction
evidenced hereby) in conjunction with its line of business (including
financial intermediation services) or the financing of its business, and,
with respect to Party B, for the purpose of hedging its interest rate
exposure.
(i) It is entering into this Agreement, any Credit Support Document to
which it is a party, each Transaction and any other documentation relating
to this Agreement or any Transaction as principal (and not as agent or in
any other capacity, fiduciary or otherwise).
In addition, the parties each represent (which representations will be deemed to
be repeated on each date on which a Transaction is entered into) that:
(j) NON-RELIANCE. 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 or amended, extended or otherwise
modified) that it is acting for its own account, and has made its own
independent decisions to enter into this Agreement and any Transaction
hereunder and as to whether this Agreement and any Transaction hereunder is
appropriate or proper for it based on its own judgment and upon advice from
such advisors 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 recommendation to enter into this Agreement or any Transaction
hereunder, it being understood that information and explanations related to
the terms and conditions of this Agreement and any Transaction hereunder
shall not be considered investment advice or a recommendation to enter into
this Agreement or any Transaction hereunder. No communication (written or
oral) received from the other party shall be deemed to be an assurance or
guarantee as to the expected results of any Transaction hereunder.
(3) TRANSFER. To the extent the following does not violate the terms of the
Credit Agreement, and notwithstanding the provisions of Section 7, Party A may
assign its rights and delegate its obligations under any Transaction, in whole
or in part, to any Affiliate (an "Assignee") of ML & Co., effective (the
"Effective Date") upon delivery to Party B of both (a) an executed acceptance
and assumption by the Assignee of the transferred obligations of Party A under
the Transaction(s) (the "Transferred Obligations"); and (b) an executed
guarantee of ML & Co., of the Transferred Obligations, substantially in the form
of Exhibit A hereto. On the Effective Date, (a) Party A shall be released from
all obligations and liabilities arising under the Transferred Obligations; and
(b) the Transferred Obligations shall cease to be Transaction(s) under this
Agreement and shall be deemed to be Transaction(s) under the master agreement
between Assignee and Party B, provided that, if at such time Assignee and Party
B have not
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entered into a master agreement, Assignee and Party B shall be deemed to have
entered into an ISDA form of Master Agreement (Multicurrency-Cross Border)
without any Schedule attached thereto.
Notwithstanding the provisions of Section 7, Party A hereby agrees to not
unreasonably withhold the right of Party B to assign it's rights and delegate
it's obligations under any Transaction, in whole or in part to a banking
counterparty which Party A has sufficient credit availability for such
transaction.
(4) METHOD OF NOTICE. Section 12(a)(ii) of the Master Agreement is deleted in
its entirety.
(5) JURISDICTION. Party B hereby irrevocably and unconditionally submits to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment. Party A and Party B agree that a final judgment is
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(6) SET-OFF.
(a) Without affecting the provisions of this Agreement requiring the
calculation of certain net payment amounts, and to the extent the following
does not violate the terms of the Credit Agreement, all payments under this
Agreement will be made without setoff or counterclaim; provided, however,
that in addition to any rights of setoff a party may have as a matter of
law or otherwise, upon the designation or deemed designation of an Early
Termination Date, the non-Defaulting Party or non-Affected party (in either
case, "X") may without prior notice set off any sum or obligation (whether
or not arising under this Agreement, whether or not matured, whether or not
contingent and regardless of the currency, place of payment or booking
office of the obligation) owed or due by the Defaulting Party or Affected
Party (in either case, "Y") to X against any sum or obligation (whether or
not arising under this Agreement, whether or not matured, whether or not
contingent and regardless of the currency, place of payment or booking
office of the obligation) owed or due by X or any Affiliate of X to Y. X
will promptly provide a detailed accounting of such Set-off amounts and
calculations.
(b) For the purposes of cross-currency set-off, X may convert into the
currency in which the other is denominated at the rate of exchange at which
such party would be able, acting in a reasonable manner and in good faith,
to purchase the relevant amount of such currency.
(c) 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.
(7) ESCROW. If by reason of the time difference between the cities in which
payments are to be made, it is not possible for simultaneous payments to be made
on any date on which both parties are required to make payments hereunder,
either party may, at its option and in its sole discretion, notify the other
party that payments on that date are to be made in escrow. In this case, deposit
of the payment due earlier on that date shall be made by 2:00 p.m. (local time
at the place for the earlier payment) on that date with an escrow agent selected
by the notifying party, accompanied by irrevocable payment instruction (i) to
release the deposited payment to the intended recipient upon receipt by the
escrow agent of the required deposit of the corresponding payment from the other
party on the same date accompanied by irrevocable payment instructions to the
same effect or (ii) if the required deposit of the corresponding payment is not
made on that same date, to return the payment deposited to the party that paid
it in escrow. The party that
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elects to have payments made in escrow shall pay the costs of the escrow
arrangements and shall cause those arrangements to provide that the intended
recipient of the payment due to be deposited first shall be entitled to interest
on that deposited payment for each day in the period of its deposit at the rate
offered by the escrow agent for that day for overnight deposits in the relevant
currency in the office where it holds that deposited payment (at 11:00 a.m.
local time on that day) if that payment is not released by 5:00 p.m. local time
on the date it is deposited for any reason, other than the intended recipient's
failure to make the escrow deposit it is required to make hereunder in a timely
fashion.
(8) CONSENT TO RECORDING. The parties agree that each may electronically record
all telephonic conversations between marketing and trading personnel in
connection with this Agreement.
(9) WAIVER OF JURY TRIAL. Each party hereby irrevocably waives any and all right
to trial by jury with respect to any legal proceeding arising out of or relating
to this Agreement or any Transaction contemplated hereunder.
(10) SINGLE TRANSACTION. Party A and Party B each agree and acknowledge that the
only Transaction that is or will be governed by this Agreement is the
Transaction evidenced by the Confirmation dated October 13, 2005.
(11) REPRESENTATION OF PARTY A. Party A hereby represents that on the date of
this Agreement it is a Lender or an Affiliate of a Lender (as such terms are
defined in the Credit Agreement).
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EXHIBIT A
GUARANTEE OF MERRILL LYNCH & CO., INC.
FOR VALUE RECEIVED, receipt of which is hereby acknowledged, Merrill Lynch
& Co., Inc., a corporation duly organized and existing under the laws of the
State of Delaware ("ML & CO."), hereby unconditionally guarantees to General
Cable Corporation (the "Company"), the due and punctual payment of any and all
amounts payable by Merrill Lynch Capital Services, Inc., a corporation organized
under the laws of the State of Delaware ("MLCS"), its successors and permitted
assigns, to the extent such successors or permitted assigns are direct or
indirect subsidiaries of ML & Co., under the terms of the Master Agreement
between the Company and MLCS, dated as of October 13, 2005 (the "Agreement"),
including, in case of default, interest on any amount due, when and as the same
shall become due and payable, whether on the scheduled payment dates, at
maturity, upon declaration of termination or otherwise, according to the terms
thereof. In case of the failure of MLCS punctually to make any such payment, ML
& Co. hereby agrees to make such payment, or cause such payment to be made,
promptly upon demand made by the Company to ML & Co.; provided, however that
delay by the Company in giving such demand shall in no event affect ML & Co.'s
obligations under this Guarantee. This Guarantee shall remain in full force and
effect or shall be reinstated (as the case may be) if at any time any payment
guaranteed hereunder, in whole or in part, is rescinded or must otherwise be
returned by the Company upon the insolvency, bankruptcy or reorganization of
MLCS or otherwise, all as though such payment had not been made.
ML & Co. hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Agreement; the absence of any action to enforce the same; any waiver or consent
by the Company concerning any provisions thereof; the rendering of any judgment
against MLCS or any action to enforce the same; or any other circumstances that
might otherwise constitute a legal or equitable discharge of a guarantor or a
defense of a guarantor. ML & Co. covenants that this guarantee will not be
discharged except by complete payment of the amounts payable under the
Agreement. This Guarantee shall continue to be effective if MLCS merges or
consolidates with or into another entity, loses its separate legal identity or
ceases to exist.
ML & Co. hereby waives diligence; presentment; protest; notice of protest,
acceleration, and dishonor; filing of claims with a court in the event of
insolvency or bankruptcy of MLCS; all demands whatsoever, except as noted in the
first paragraph hereof; and any right to require a proceeding first against
MLCS.
ML & Co. hereby certifies and warrants that this Guarantee constitutes the
valid obligation of ML & Co. and complies with all applicable laws.
This Guarantee shall be governed by, and construed in accordance with, the
laws of the State of New York.
This Guarantee may be terminated at any time by notice by ML & Co. to the
Company given in accordance with the notice provisions of the Agreement,
effective upon receipt of such notice by the Company or such later date as may
be specified in such notice; provided, however, that this Guarantee shall
continue in full force and effect with respect to any obligation of MLCS under
the Agreement entered into prior to the effectiveness of such notice of
termination.
This Guarantee becomes effective concurrent with the effectiveness of the
Agreement, according to its terms.
IN WITNESS WHEREOF, ML & Co. has caused this Guarantee to be executed in
its corporate name by its duly authorized representative.
MERRILL LYNCH & CO., INC.
By:
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Name:
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Title:
---------------------------------
Date:
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(BILATERAL FORM)
(ISDA AGREEMENTS SUBJECT TO NEW YORK LAW ONLY)
EXHIBIT C
ISDA(R)
INTERNATIONAL SWAPS AND DERIVATIVES ASSOCIATION, INC.
CREDIT SUPPORT ANNEX
TO THE SCHEDULE TO THE
ISDA MASTER AGREEMENT
DATED AS OF OCTOBER 13, 2005
BETWEEN
MERRILL LYNCH CAPITAL AND GENERAL CABLE CORPORATION
SERVICES, INC. ("PARTY B")
("PARTY A")
This Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under this
Agreement with respect to each party.
Accordingly, the parties agree as follows:--
PARAGRAPH 1. INTERPRETATION
(a) DEFINITIONS AND INCONSISTENCY. Capitalized terms not otherwise defined
herein or elsewhere in this Agreement have the meanings specified pursuant to
Paragraph 12, and all references in this Annex to Paragraphs are to Paragraphs
of this Annex. In the event of any inconsistency between this Annex and the
other provisions of this Schedule, this Annex will prevail, and in the event of
any inconsistency between Paragraph 13 and the other provisions of this Annex,
Paragraph 13 will prevail.
(b) SECURED PARTY AND PLEDGOR. All references in this Annex to the "Secured
Party" will be to either party when acting in that capacity and all
corresponding references to the "Pledgor" will be to the other party when acting
in that capacity; provided, however, that if Other Posted Support is held by a
party to this Annex, all references herein to that party as the Secured Party
with respect to that Other Posted Support will be to that party as the
beneficiary thereof and will not subject that support or that party as the
beneficiary thereof to provisions of law generally relating to security
interests and secured parties.
PARAGRAPH 2. SECURITY INTEREST
Each party, as the Pledgor, hereby pledges to the other party, as the Secured
Party, as security for its Obligations, and grants to the Secured Party a first
priority continuing security interest in, lien on and right of Set-off against
all Posted Collateral Transferred to or received by the Secured Party hereunder.
Upon the Transfer by the Secured Party to the Pledgor of Posted Collateral, the
security interest and lien granted hereunder on that Posted Collateral will be
released immediately and, to the extent possible, without any further action by
either party.
COPYRIGHT (C) 1994 BY INTERNATIONAL SWAPS AND DERIVATIVES ASSOCIATION, INC.
15
PARAGRAPH 13. ELECTIONS AND VARIABLES
(a) SECURITY INTEREST FOR "OBLIGATIONS". The term "OBLIGATIONS" as used in this
Annex includes the following additional obligations: Not Applicable.
(b) CREDIT SUPPORT OBLIGATIONS.
(i) DELIVERY AMOUNT, RETURN AMOUNT AND CREDIT SUPPORT AMOUNT.
(A) "DELIVERY AMOUNT" has the meaning specified in Paragraph 3(a).
(B) "RETURN AMOUNT" has the meaning specified in Paragraph 3(b).
(C) "CREDIT SUPPORT AMOUNT" means, for any Valuation Date (i) the
Secured Party's Exposure for that Valuation Date plus (ii) the
aggregate of all Independent Amounts applicable to the Pledgor, if
any, minus (iii) the Pledgor's Threshold; provided, however, that (x)
in the case where the sum of the Independent Amounts applicable to the
Pledgor exceeds zero, the Credit Support Amount will not be less than
the sum of all Independent Amounts applicable to the Pledgor and (y)
in all other cases, the Credit Support Amount will be deemed to be
zero whenever the calculation of Credit Support Amount yields an
amount less than zero.
(ii) ELIGIBLE COLLATERAL. The following items will qualify as "ELIGIBLE
COLLATERAL":
VALUATION
PERCENTAGE
----------
(A) Cash 100%
(iii) OTHER ELIGIBLE SUPPORT. There shall be no "OTHER ELIGIBLE SUPPORT"
for either Party A or Party B.
(iv) THRESHOLDS.
(A) "INDEPENDENT AMOUNT" means, for Party B, with respect to each
Transaction, zero (unless a different amount is specified in the
Confirmation of that Transaction as that party's Independent Amount).
(B) "THRESHOLD" means, with respect to Party B, Infinity, provided,
that if an Event of Default or Specified Condition has occurred and is
continuing with respect to Party B, the Threshold with respect to
Party B shall be zero.
(C) "MINIMUM TRANSFER AMOUNT" means, with respect to a party, USD
100,000; provided, that if an Event of Default or Specified Condition
has occurred and is continuing with respect to Party B, the Minimum
Transfer Amount with respect to Party B shall be zero.
16
(D) "ROUNDING". The Delivery Amount and the Return Amount will be
rounded up or down respectively to the nearest integral multiple of
USD 10,000.
(c) VALUATION AND TIMING.
(i) "VALUATION AGENT" means, for purposes of Paragraph 3 and 5, the party
making the demand under Paragraph 3; for the purpose of Paragraph
4(d)(ii), the Secured Party receiving the Substitute Credit Support;
and for purposes of Paragraph 6(d), the Secured Party receiving or
deemed to receive the Distributions or the Interest Amount, as
applicable.
(ii) "VALUATION DATE" means each Local Business Day.
(iii) "VALUATION TIME" means the close of business in the city of the
Valuation Agent on the Local Business Day preceding the Valuation Date
or date of calculation, as applicable; provided that the calculations
of Value and Exposure will be made as of approximately the same time
on the same date.
(iv) "NOTIFICATION TIME" means 10:00 a.m., New York time, on a Local
Business Day.
(d) CONDITIONS PRECEDENT AND SECURED PARTY'S RIGHTS AND REMEDIES. For purposes
of Paragraph 8(a), each Termination Event will constitute a Specified
Condition with respect to Pledgor, if the Pledgor fails to pay when due any
amount payable by it in connection with an Early Termination Date
designated in connection with that Termination Event. For all other
purposes of this Annex, each Termination Event specified below with respect
to a party will be a "SPECIFIED CONDITION" for that party.
Credit Event Upon Merger (with respect to General Cable Corporation) [X]
Additional Termination Events (if any) [X]
(e) SUBSTITUTION.
(i) "SUBSTITUTION DATE" has the meaning specified in Paragraph 4(d)(ii).
(ii) "CONSENT." The Pledgor may not substitute Eligible Credit Support
pursuant to Paragraph 4(d) without consent from the Secured Party.
(f) DISPUTE RESOLUTION.
(i) "RESOLUTION TIME" means 1:00 p.m., New York time, on the first Local
Business Day following the date on which notice of a dispute is given
under Paragraph 5.
(ii) "VALUE." For the purpose of Paragraph 5(i)(C) and 5(ii), the Value of
Eligible Collateral other than Cash will be calculated as follows: Not
Applicable.
(iii) "ALTERNATIVE." Not Applicable.
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(g) HOLDING AND USING POSTED COLLATERAL.
(i) "ELIGIBILITY TO HOLD POSTED COLLATERAL; CUSTODIANS." As long as the
conditions set forth in clause (A) below are satisfied, Party A shall
be entitled to hold Posted Collateral pursuant to Paragraph 6(b). As
long as the condition set forth in clause (B) below are satisfied, any
Custodian for Party A shall be entitled to hold Posted Collateral
pursuant to Paragraph 6(b).
(A) Party A: (a) The long-term, unsecured, unsubordinated debt ratings
of ML & Co. are at least BBB+ (in the case of S&P) and Baa1 (in the
case of Moody's) and (b) Party A is not a Defaulting Party.
(B) The Custodian: The Custodian is either: (a) a wholly owned, direct
or indirect, Affiliate of ML & Co. or (b) a bank or trust company
located in the State of New York having total assets of at least USD
10,000,000,000.
Initially, the CUSTODIAN for Party A is: Merrill Lynch, Pierce, Fenner
& Smith Inc.
(ii) "USE OF POSTED COLLATERAL." The provisions of Paragraph 6(c) will
apply.
(h) DISTRIBUTIONS AND INTEREST AMOUNT.
(i) "INTEREST RATE." The Interest Rate will be the rate per annum equal to
the overnight Federal Funds Rate (the "Fed Funds Rate") for each day
cash is held by the Secured Party as reported in Federal Reserve
Publication H.15-519.
(ii) "TRANSFER OF INTEREST AMOUNT." The Transfer of the Interest Amount
will be made on the last Local Business Day of each calendar month and
on any Local Business Day that Posted Collateral in the form of Cash
is Transferred to the Pledgor pursuant to Paragraph 3(b).
(iii) "ALTERNATIVE TO INTEREST AMOUNT." Not Applicable.
(i) ADDITIONAL REPRESENTATION(S). Not Applicable.
(j) "OTHER ELIGIBLE SUPPORT AND OTHER POSTED SUPPORT."
(i) "VALUE" with respect to Other Eligible Support and Other Posted
Support means: Not Applicable.
(ii) "TRANSFER" with respect to Other Eligible Support and Other Posted
Support means: Not Applicable.
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(k) DEMANDS AND NOTICES. All demands, specifications and notices made by a
party to this Annex will be made as follows:
Party A: Merrill Lynch World Headquarters
4 World Financial Center, 18th Floor
New York, New York 10080
Attention: Swap Group
Facsimile No.: (917) 778-0836
Telephone No.: (212) 449-2467
Party B: General Cable Corporation
4 Tesseneer Drive
Highland Heights, Kentucky 41076
Attention: Chief Financial Officer
Facsimile No.: (859) 572-8440
Telephone No.: (859) 572-8000
(l) ADDRESSES FOR TRANSFERS. Not Applicable.
(m) OTHER PROVISIONS.
(i) AGREEMENT AS TO SINGLE SECURED PARTY AND PLEDGOR. Party A and Party B
agree that, notwithstanding anything to the contrary in the recital to
this Annex, Paragraph 1(b) or Paragraph 2 or the definitions in
Paragraph 12, (a) the term "Secured Party" as used in this Annex means
only Party A, (b) the term "Pledgor" as used in this Annex means only
Party B, (c) only Party B makes the pledge and grant in Paragraph 2,
the acknowledgment in the final sentence of Paragraph 8(a) and the
representations in Paragraph 9 and (d) only Party B will be required
to make Transfers of Eligible Credit Support hereunder. Party A and
Party B further agree that, notwithstanding anything to the contrary
in the recital to this Annex or Paragraph 7, this Annex will
constitute a Credit Support Document only with respect to Party B, and
the Events of Default in Paragraph 7 will only apply to Party B.
(ii) ADDITIONS TO PARAGRAPH 3. The following subparagraph (c) is hereby
added to Paragraph 3 of this Annex:
(c) NO OFFSET. On any Valuation Date, if either (i) each party is
required to make a Transfer under Paragraph 3(a) or (ii) each party is
required to make a Transfer under Paragraph 3(b), then the amounts of
those obligations will not offset each other.
(iii) POSTED COLLATERAL. The definition of Posted Collateral shall also
include any and all accounts in which Cash Collateral is held.
19
CONTINUING UNCONDITIONAL GUARANTY
THIS CONTINUING UNCONDITIONAL GUARANTY (this "GUARANTY") is made as of
January 25, 2006 and is effective as of October 13, 2005 by GENERAL CABLE
INDUSTRIES, INC., a Delaware corporation ("GUARANTOR"), to and for the benefit
of MERRILL LYNCH CAPITAL SERVICES, INC., a Delaware corporation
("COUNTERPARTY").
WHEREAS, GENERAL CABLE CORPORATION ("PRIMARY OBLIGOR") and Counterparty
have entered into that certain ISDA Master Agreement dated as of October 13,
2005 between Primary Obligor and Counterparty; that certain Schedule to such
ISDA Master Agreement dated as of October 13, 2005; a Confirmation with a trade
date of October 13, 2005 (such ISDA Master Agreement, Schedule, Confirmation,
and a Credit Support Annex (as defined in and subject to the provisions of the
Schedule) together, as any of them may be amended, supplemented, modified or
restated from time to time, the "SWAP AGREEMENT"), pursuant to which Primary
Obligor and Counterparty have entered into a certain foreign currency swap
transaction, all more completely described in and subject to the terms and
conditions set forth in the Swap Agreement and all of the other agreements,
documents, instruments, certificates, reports and financing statements
heretofore or hereafter executed or delivered in connection therewith
(specifically including without limitation any Credit Support Annex), as the
same may be amended, supplemented, modified or restated from time to time (all
of such agreements, etc., together with the Swap Agreement, collectively
referred to herein as the "SWAP DOCUMENTS");
WHEREAS, Guarantor is a wholly-owned indirect subsidiary of Primary
Obligor and, pursuant to Counterparty's request, as an incident to the
obligation of Counterparty to enter into the Swap Agreement with Primary
Obligor, is required, and has agreed, to execute and deliver this Agreement of
even date herewith;
WHEREAS, Guarantor acknowledges and confirms that, as wholly-owned
subsidiary of Primary Obligor, (a) it will benefit from the foreign currency
swap transactions entered into by Primary Obligor and Counterparty pursuant to
the Swap Agreement, (b) the undertakings and obligations of Counterparty in
favor of Primary Obligor under the Swap Agreement constitute valuable
consideration to Guarantor, (c) it was agreed by Primary Obligor and
Counterparty at the time the Swap Agreement was entered into that, as an
inducement to Counterparty to enter into the foreign currency swap transactions
provided for therein, that Primary Obligor would cause Guarantor to provide a
guaranty of the obligations and undertakings of Primary Obligor in favor of
Counterparty under the Swap Agreement, and (d) Counterparty relied on such
agreement entering into the Swap Agreement and the foreign currency swap
transactions provided for thereunder.
NOW, THEREFORE, for value received and in consideration of the entry by
Counterparty into and of the undertakings and obligations of Counterparty in
favor of Primary Obligor under the Swap Agreement the undersigned Guarantor
unconditionally guaranties and agrees to stand surety for (i) the full and
prompt payment when due, whether at maturity or earlier, by reason of early
termination, acceleration or otherwise, and at all times thereafter, of all
20
of the indebtedness, liabilities and obligations of every kind and nature of
Primary Obligor to Counterparty under the Swap Agreement and the other Swap
Documents, howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, joint or several, now or hereafter existing, or due or
to become due, and howsoever owned, held or acquired by Counterparty (including
without limitation any interest, fees or expenses accruing following the
commencement of any insolvency, receivership, reorganization or bankruptcy case
or proceeding relating to Primary Obligor, whether or not a claim for
post-petition interest, fees or expenses is allowed in such case or proceeding),
and (ii) the prompt, full and faithful discharge by Primary Obligor of each and
every term, condition, agreement, representation and warranty now or hereafter
made by Primary Obligor to Counterparty under the Swap Agreement and the other
Swap Documents (all such indebtedness, liabilities and obligations being
hereinafter referred to as the "PRIMARY OBLIGOR'S LIABILITIES"). Guarantor
further agrees to pay all reasonable costs and expenses, including, without
limitation, all court costs and reasonable attorneys' and paralegals' fees paid
or incurred by Counterparty in endeavoring to collect all or any part of Primary
Obligor's Liabilities from, or in prosecuting any action against, Guarantor or
any other guarantor of all or any part of Primary Obligor's Liabilities. All
amounts payable by Guarantor under this Guaranty shall be payable upon demand by
Counterparty upon the occurrence of an Event of Default under the Swap Agreement
or any other Swap Document and shall be made in lawful money of the United
States, in immediately available funds.
Notwithstanding any provision of this Guaranty to the contrary, it is
intended that this Guaranty, and any liens and security interests granted by
Guarantor to secure this Guaranty, not constitute a "Fraudulent Conveyance" (as
defined below). Consequently, Guarantor agrees that if the Guaranty, or any
liens or security interests securing this Guaranty, would, but for the
application of this sentence, constitute a Fraudulent Conveyance, this Guaranty
and each such lien and security interest shall be valid and enforceable only to
the maximum extent that would not cause this Guaranty or such lien or security
interest to constitute a Fraudulent Conveyance, and this Guaranty shall
automatically be deemed to have been amended accordingly at all relevant times.
For purposes hereof, "FRAUDULENT CONVEYANCE" means a fraudulent conveyance under
Section 548 of the "Bankruptcy Code" (as hereinafter defined) or a fraudulent
conveyance or fraudulent transfer under the provisions of any applicable
fraudulent conveyance or fraudulent transfer law or similar law of any state,
nation or other governmental unit, as in effect from time to time.
Guarantor hereby agrees that its obligations under this Guaranty shall be
unconditional, irrespective of (i) the validity or enforceability of Primary
Obligor's Liabilities or any part thereof, or of any Swap Document, promissory
note or other document evidencing all or any part of Primary Obligor's
Liabilities, (ii) the absence of any attempt to collect Primary Obligor's
Liabilities from Primary Obligor or any other guarantor or other action to
enforce the same, (iii) the waiver or consent by Counterparty with respect to
any provision of any instrument evidencing Primary Obligor's Liabilities, or any
part thereof, or any other agreement heretofore, now or hereafter executed by
Primary Obligor and delivered to Counterparty, (iv) the institution of any
proceeding under Chapter 11 of Title 11 of the United States Code (11 U.S.C.
Section 101 et seq.), as amended (the "BANKRUPTCY CODE"), or any similar
proceeding, by or against Primary Obligor, or Counterparty's election in any
such proceeding of the application of Section 1111(b)(2) of the Bankruptcy Code,
(v) any borrowing or grant of a security interest by Primary Obligor as
debtor-in-possession, under Section 364 of the Bankruptcy Code, (vi) the
disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of
Counterparty's
21
claim(s) for repayment of Primary Obligor's Liabilities, or (vii) any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor.
Guarantor hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of receivership or bankruptcy of Primary
Obligor, protest or notice with respect to Primary Obligor's Liabilities and all
demands whatsoever, and covenants that this Guaranty will not be discharged,
except by complete performance of the obligations and liabilities contained
herein. Upon any default by Primary Obligor as provided in the Swap Agreement or
any other Swap Document, Counterparty may, at its sole election, proceed
directly and at once, without notice, against Guarantor to collect and recover
the full amount or any portion of Primary Obligor's Liabilities, without first
proceeding against Primary Obligor, or any other person, firm, or corporation,
or against any security or collateral for Primary Obligor's Liabilities.
Guarantor agrees that this Guaranty constitutes a guarantee of payment when due
and not of collection.
Counterparty is hereby authorized, without notice or demand and without
affecting the liability of Guarantor hereunder, to at any time and from time to
time (i) renew, extend, accelerate or otherwise change the time for payment of,
or other terms relating to, Primary Obligor's Liabilities or otherwise modify,
amend or change the terms of the Swap Agreement or any other Swap Document now
or hereafter executed by Primary Obligor and delivered to Counterparty; (ii)
accept partial payments on Primary Obligor's Liabilities; (iii) take and hold
security or collateral for the payment of Primary Obligor's Liabilities
guaranteed hereby, or for the payment of this Guaranty, or for the payment of
any other guaranties of Primary Obligor's Liabilities, and exchange, waive and
release any such security or collateral; (iv) apply such security or collateral
and direct the order or manner of sale thereof as in its sole discretion it may
determine; and (v) settle, release, compromise, collect or otherwise liquidate
Primary Obligor's Liabilities and any security or collateral therefor in any
manner, without affecting or impairing the obligations of Guarantor hereunder.
Counterparty shall have the exclusive right to determine the time and manner of
application of any payments or credits, whether received from Primary Obligor or
any other source, and such determination shall be binding on Guarantor. All such
payments and credits may be applied, reversed and reapplied, in whole or in
part, to any of Primary Obligor's Liabilities as Counterparty shall determine in
its sole discretion without affecting the validity or enforceability of this
Guaranty.
Guarantor hereby assumes responsibility for keeping itself informed of the
financial condition of Primary Obligor, and any and all endorsers and/or other
guarantor of any instrument or document evidencing all or any part of Primary
Obligor's Liabilities and of all other circumstances bearing upon the risk of
nonpayment of Primary Obligor's Liabilities or any part thereof that diligent
inquiry would reveal and Guarantor hereby agrees that Counterparty shall have no
duty to advise Guarantor of information known to Counterparty regarding such
condition or any such circumstances or to undertake any investigation not a part
of its regular business routine. If Counterparty, in its sole discretion,
undertakes at any time or from time to time to provide any such information to
Guarantor, Counterparty shall be under no obligation to update any such
information or to provide any such information to Guarantor on any subsequent
occasion.
Guarantor consents and agrees that Counterparty shall be under no
obligation to marshal any assets in favor of Guarantor or against or in payment
of any or all of Primary
22
Obligor's Liabilities. Guarantor further agrees that, to the extent that Primary
Obligor makes a payment or payments to Counterparty, or Counterparty receives
any proceeds of collateral, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to Primary Obligor, its estate, trustee, receiver
or any other party, including, without limitation, Guarantor under any
bankruptcy law, state or federal law, common law or equitable theory, then to
the extent of such payment or repayment, Primary Obligor's Liabilities or the
part thereof which has been paid, reduced or satisfied by such amount, and
Guarantor's obligations hereunder with respect to such portion of Primary
Obligor's Liabilities, shall be reinstated and continued in full force and
effect as of the date such initial payment, reduction or satisfaction occurred.
Guarantor agrees that any and all claims of Guarantor against Primary
Obligor, any endorser or any other guarantor of all or any part of Primary
Obligor's Liabilities, or against any of Primary Obligor's properties, whether
arising by reason of any payment by Guarantor to Counterparty pursuant to the
provisions hereof, or otherwise, shall be subordinate and subject in right of
payment to the prior payment, in full, of all of Primary Obligor's Liabilities.
Counterparty may, without notice to anyone, sell or assign Primary
Obligor's Liabilities or any part thereof, or grant participations therein, and
in any such event each and every immediate or remote assignee or holder of, or
participant in, all or any of Primary Obligor's Liabilities shall have the right
to enforce this Guaranty, by suit or otherwise for the benefit of such assignee,
holder, or participant, as fully as if herein by name specifically given such
right, but Counterparty shall have an unimpaired right, prior and superior to
that of any such assignee, holder or participant, to enforce this Guaranty for
the benefit of Counterparty, as to any part of Primary Obligor's Liabilities
retained by Counterparty.
This Guaranty shall be binding upon Guarantor and upon the successors
(including without limitation, any receiver, trustee or debtor in possession of
or for Guarantor) of Guarantor and shall inure to the benefit of Counterparty
and its successors and assigns; provided, however, that Guarantor's obligations
hereunder may not be delegated or assigned without Counterparty's prior written
consent. If there is more than one signatory hereto, all references to Guarantor
herein shall include each and every Guarantor and each and every obligation of
Guarantor hereunder shall be the joint and several obligation of each Guarantor.
Guarantor (and each of them, if there be more than one) represents and
warrants (which representations and warranties shall survive the execution and
delivery hereof) to Counterparty that:
(A) It has the legal capacity and corporate authority to execute, deliver
and perform this Guaranty, and the transactions contemplated hereby;
(B) No consent of any person (including, without limitation, creditors of
Guarantor), and no consent, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with, any
governmental authority is required in connection with the execution, delivery,
performance, validity or enforceability of this Guaranty and the transactions
contemplated hereby;
23
(C) This Guaranty constitutes the legal, valid and binding obligation of
Guarantor, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights generally; and
(D) The execution, delivery and performance of this Guaranty will not
violate the certificate of incorporation or bylaws of Guarantor or any
requirement of law applicable to or material contractual obligation of
Guarantor.
This Guaranty shall continue in full force and effect until such time as
all of Primary Obligor's Liabilities have been paid in full and discharged, and
the Swap Agreement and the other Swap Documents have been terminated.
Wherever possible each provision of this Guaranty shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Guaranty shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or the remaining
provisions of this Guaranty.
THIS GUARANTY AND ALL MATTERS RELATING HERETO AND ARISING HEREFROM
(WHETHER ARISING UNDER CONTRACT LAW, TORT LAW OR OTHERWISE) SHALL BE GOVERNED
BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD
REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
THE UNDERSIGNED GUARANTOR HEREBY CONSENTS TO THE NON-EXCLUSIVE
JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK AND OF THE U.S.
DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK LOCATED IN THE BOROUGH OF
MANHATTAN, AND ANY APPELLATE COURT THEREOF, AND IRREVOCABLY AGREES THAT, SUBJECT
TO COUNTERPARTY'S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS GUARANTY SHALL BE LITIGATED IN SUCH COURTS, UNLESS NONE OF SUCH
COURTS HAS LAWFUL JURISDICTION OVER SUCH PROCEEDINGS. THE UNDERSIGNED GUARANTOR
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS. EACH OF THE GUARANTOR AND THE COUNTERPARTY IRREVOCABLY AGREES TO BE
BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS GUARANTY OR
THE OBLIGATIONS OF GUARANTOR HEREUNDER.
THE UNDERSIGNED GUARANTOR CONSENTS TO SERVICE OF PROCESS IN THE MANNER AND
METHODS SET FORTH BELOW FOR THE GIVING OF NOTICES UNDER THIS GUARANTY.
24
EACH OF THE UNDERSIGNED GUARANTOR AND COUNTERPARTY HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS GUARANTY. EACH OF THE UNDERSIGNED GUARANTOR AND COUNTERPARTY
ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS
GUARANTY AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED
FUTURE DEALINGS. EACH OF THE UNDERSIGNED GUARANTOR AND COUNTERPARTY FURTHER
WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL,
AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL.
Any notices to be given by one party to the other under this Guaranty
shall be given by the notifying party by hand delivery or nationally recognized
overnight courier delivered to the notice address for the party to whom notice
is being given set forth on the signature page hereto (or such other notice
address as such party to whom notice is being given may have given notice of to
the other party in accordance with the provisions of this paragraph after the
date hereof). Any such notice shall be effective and deemed to have been given
when delivered to such address of the party to whom notice is being given.
This Guaranty represents the entire understanding and agreement between
Guarantor, on the one hand, and Counterparty, on the other hand, with respect to
the subject matter contained herein, and there are no other existing agreements
or understandings, whether oral or written, between or among such parties as to
such subject matter.
All rights and remedies hereunder and under the Swap Agreement and the
other Swap Documents are cumulative and not alternative, and Counterparty may
proceed in any order from time to time against Primary Obligor, the Guarantor or
any other guarantor of all or any part of the Primary Obligor's Liabilities
and/or the obligations or liabilities of any of them under any Swap Document and
their respective assets. Counterparty shall not have any obligation to proceed
at any time or in any manner against, or exhaust any or all of Counterparty's
rights against, Primary Obligor, or the Guarantor or any other guarantor of all
or any part of the Primary Obligor's Liabilities prior to proceeding against
Guarantor hereunder. No failure or delay on the part of Counterparty in the
exercise of any power, right or privilege shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence therein,
nor shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other right, power or
privilege. No amendment, modification or waiver of any provision of this
Guaranty, or consent to any departure by Guarantor therefrom, shall be effective
unless the same shall be in writing and signed by Counterparty and Guarantor.
Each amendment, modification or waiver shall be effective only in the specific
instance and for the specific purpose for which it was given.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Guaranty has been duly executed by the
undersigned Guarantor as of this 25 day of January, 2006, and is effective as of
October 13, 2005.
GENERAL CABLE INDUSTRIES, INC.
By:
-------------------------------
Name:
Title:
Address for Notices:
4 Tesseneer Drive
Highland Heights, KY 41076
Accepted:
MERRILL LYNCH CAPITAL SERVICES, INC.
By:
-------------------------------
Name:
Title:
Address for Notices:
Merrill Lynch World Headquarters
4 World Financial Center, 18th Floor
New York, NY 10080
Attention: Swap Group
Fax No.: 646-805-0218
Tel. No.: 212-449-7403
[Signature Page to Guaranty Re October 2005 Foreign Currency Swap with
General Cable Corporation]
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