EXHIBIT 10.74
(MULTICURRENCY--CROSS BORDER)
ISDA(R)
International Swap Dealers Association. Inc.
MASTER AGREEMENT
dated as of OCTOBER 13, 2005
BANK OF AMERICA, N.A. and GENERAL CABLE CORPORATION
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.
(b) CHANGE OF ACCOUNT. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) NETTING. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) DEDUCTION OR WITHHOLDING FOR TAX.
(i) GROSS-UP. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as modified by
the practice of any relevant governmental revenue authority, then in
effect. If a party is so required to deduct or withhold, then that party
("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be
deducted or withheld from any additional amount paid by X to Y under
this Section 2(d)) promptly upon the earlier of determining that
such deduction or withholding is required or receiving notice that
such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy),
or other documentation reasonably acceptable to Y, evidencing such
payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to
the payment to which Y is otherwise entitled under this Agreement,
such additional amount as is necessary to ensure that the net amount
actually received by Y (free and clear of Indemnifiable Taxes,
whether assessed against X or Y) will equal the full amount Y would
have received had no such deduction or withholding been required.
However, X will not be required to pay any additional amount to Y to
the extent that it would not be required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure would
not have occurred but for (I) any action taken by a taxing
authority, or brought in a court of competent jurisdiction, on
or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with
respect to a party to this Agreement) or (II) a Change in Tax
Law.
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(ii) LIABILITY. If:--
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any
deduction or withholding in respect of which X would not be required
to pay an additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against
X,
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) DEFAULT INTEREST; OTHER AMOUNTS. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior to
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. REPRESENTATIONS
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(f), at all times until the
termination of this Agreement) that:--
(a) BASIC REPRESENTATIONS.
(i) STATUS. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) POWERS. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to
deliver this Agreement and any other documentation relating to this
Agreement that it is required by this Agreement to deliver and to perform
its obligations under this Agreement and any obligations it has under any
Credit Support Document to which it is a party and has taken all necessary
action to authorise such execution, delivery and performance;
(iii) NO VIOLATION OR CONFLICT. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any provision of
its constitutional documents, any order or judgment of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) CONSENTS. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in full
force and effect and all conditions of any such consents have been
complied with; and
(v) OBLIGATIONS BINDING. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal, valid
and binding obligations, enforceable in accordance with their respective
terms (subject to applicable bankruptcy, reorganisation, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding
in equity or at law)).
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(b) ABSENCE OF CERTAIN EVENTS. No Event of Default or Potential Event of Default
or, to its knowledge, Termination Event with respect to it has occurred and is
continuing and no such event or circumstance would occur as a result of its
entering into or performing its obligations under this Agreement or any Credit
Support Document to which it is a party.
(c) ABSENCE OF LITIGATION. There is not pending or, to its knowledge, threatened
against it or any of its Affiliates any action, suit or proceeding at law or in
equity or before any court, tribunal, governmental body, agency or official or
any arbitrator that is likely to affect the legality, validity or enforceability
against it of this Agreement or any Credit Support Document to which it is a
party or its ability to perform its obligations under this Agreement or such
Credit Support Document.
(d) ACCURACY OF SPECIFIED INFORMATION. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) PAYER TAX REPRESENTATION. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) PAYEE TAX REPRESENTATIONS. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(f) is accurate and true.
4. AGREEMENTS
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:--
(a) FURNISH SPECIFIED INFORMATION. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:--
(i) any forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation;
and
(iii) upon reasonable demand by such other party, any form or document
that may be required or reasonably requested in writing in order to allow
such other party or its Credit Support Provider to make a payment under
this Agreement or any applicable Credit Support Document without any
deduction or withholding for or on account of any Tax or with such
deduction or withholding at a reduced rate (so long as the completion,
execution or submission of such form or document would not materially
prejudice the legal or commercial position of the party in receipt of such
demand), with any such form or document to be accurate and completed in a
manner reasonably satisfactory to such other party and to be executed and
to be delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) MAINTAIN AUTHORISATIONS. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority that
are required to be obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party and will use all reasonable efforts to
obtain any that may become necessary in the future.
(c) COMPLY WITH LAWS. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) TAX AGREEMENT. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of such
failure.
(e) PAYMENT OF STAMP TAX. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated,
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organised, managed and controlled, or considered to have its seat, or in which a
branch or office through which it is acting for the purpose of this Agreement is
located ("Stamp Tax Jurisdiction") and will indemnify the other party against
any Stamp Tax levied or imposed upon the other party or in respect of the other
party's execution or performance of this Agreement by any such Stamp Tax
Jurisdiction which is not also a Stamp Tax Jurisdiction with respect to the
other party.
5. EVENTS OF DEFAULT AND TERMINATION EVENTS
(a) EVENTS OF DEFAULT. The occurrence at any time with respect to a party or, if
applicable, any Credit Support Provider of such party or any Specified Entity of
such party of any of the following events constitutes an event of default (an
"Event of Default") with respect to such party:--
(i) FAILURE TO PAY OR DELIVER. Failure by the party to make, when due, any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
(ii) BREACH OF AGREEMENT. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party
in accordance with this Agreement if such failure is not remedied on or
before the thirtieth day after notice of such failure is given to the
party;
(iii) CREDIT SUPPORT DEFAULT.
(1) Failure by the party or any Credit Support Provider of such
party to comply with or perform any agreement or obligation to be
complied with or performed by it in accordance with any Credit
Support Document if such failure is continuing after any applicable
grace period has elapsed;
(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in either case
other than in accordance with its terms) prior to the satisfaction
of all obligations of such party under each Transaction to which
such Credit Support Document relates without the written consent of
the other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the
validity of, such Credit Support Document;
(iv) MISREPRESENTATION. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
(V) DEFAULT UNDER SPECIFIED TRANSACTION. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party
(1) defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of, an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment, delivery or exchange date of, or any payment on early
termination of, a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
rejects, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) CROSS DEFAULT. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
of default or other similar condition or event (however
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described) in respect of such party, any Credit Support Provider of such
party or any applicable Specified Entity of such party under one or more
agreements or instruments relating to Specified Indebtedness of any of
them (individually or collectively) in an aggregate amount of not less
than the applicable Threshold Amount (as specified in the Schedule) which
has resulted in such Specified Indebtedness becoming, or becoming capable
at such time of being declared, due and payable under such agreements or
instruments, before it would otherwise have been due and payable or (2) a
default by such party, such Credit Support Provider or such Specified
Entity (individually or collectively) in making one or more payments on
the due date thereof in an aggregate amount of not less than the
applicable Threshold Amount under such agreements or instruments (after
giving effect to any applicable notice requirement or grace period);
(vii) BANKRUPTCY. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:--
(1) is dissolved (other than pursuant to a consolidation,
amalgamation or merger); (2) becomes insolvent or is unable to pay
its debts or fails or admits in writing its inability generally to
pay its debts as they become due; (3) makes a general assignment,
arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a
judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting
creditors' rights, or a petition is presented for its winding-up or
liquidation, and, in the case of any such proceeding or petition
instituted or presented against it, such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an
order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or
restrained in each case within 30 days of the institution or
presentation thereof; (5) has a resolution passed for its
winding-up, official management or liquidation (other than pursuant
to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional
liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets;
(7) has a secured party take possession of all or substantially all
its assets or has a distress, execution, attachment, sequestration
or other legal process levied, enforced or sued on or against all or
substantially all its assets and such secured party maintains
possession, or any such process is not dismissed, discharged, stayed
or restrained, in each case within 30 days thereafter; (8) causes or
is subject to any event with respect to it which, under the
applicable laws of any jurisdiction, has an analogous effect to any
of the events specified in clauses (1) to (7) (inclusive); or (9)
takes any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the foregoing acts; or
(viii) MERGER WITHOUT ASSUMPTION. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at
the time of such consolidation, amalgamation, merger or transfer:--
(1) the resulting, surviving or transferee entity fails to assume
all the obligations of such party or such Credit Support Provider
under this Agreement or any Credit Support Document to which it or
its predecessor was a party by operation of law or pursuant to an
agreement reasonably satisfactory to the other party to this
Agreement; or
(2) the benefits of any Credit Support Document fail to extend
(without the consent of the other party) to the performance by such
resulting, surviving or transferee entity of its obligations under
this Agreement.
(b) TERMINATION EVENTS. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified Entity
of such party of any event specified below constitutes an Illegality if the
event is specified in (i) below, a Tax Event if the event is specified in (ii)
below or a Tax Event upon Merger if the event is specified in (iii) below, and,
if specified to be applicable, a Credit Event
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Upon Merger if the event is specified pursuant to (iv) below or an Additional
Termination Event if the event is specified pursuant to (v) below:--
(i) ILLEGALITY. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a
result of a breach by the party of Section 4(b)) for such party (which
will be the Affected Party):--
(1) to perform any absolute or contingent obligation to make a
payment or delivery or to receive a payment or delivery in respect
of such Transaction or to comply with any other material provision
of this Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document
relating to such Transaction;
(ii) TAX EVENT. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action is
taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will, or
there is a substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other party an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is
required to be paid in respect of such Tax under Section 2(d)(i)(4) (other
than by reason of Section 2(d)(i)(4)(A) or (B));
(iii) TAX EVENT UPON MERGER. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which
the other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) CREDIT EVENT UPON MERGER. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to, another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate,
will be the Affected Party); or
(v) ADDITIONAL TERMINATION EVENT. If any "Additional Termination Event" is
specified in the Schedule or any Confirmation as applying, the occurrence
of such event (and, in such event, the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in the
Schedule or such Confirmation).
(c) EVENT OF DEFAULT AND ILLEGALITY. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes an
Illegality, it will be treated as an Illegality and will not constitute an Event
of Default.
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6. EARLY TERMINATION
(a) RIGHT TO TERMINATE FOLLOWING EVENT OF DEFAULT. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(l), (3), (5), (6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) RIGHT TO TERMINATE FOLLOWING TERMINATION EVENT.
(i) NOTICE. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) TRANSFER TO AVOID TERMINATION EVENT. If either an Illegality under
Section 5(b)(i)(l) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days
after it gives notice under Section 6(b)(i) all its rights and obligations
under this Agreement in respect of the Affected Transactions to another of
its Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject
to and conditional upon the prior written consent of the other party,
which consent will not be withheld if such other party's policies in
effect at such time would permit it to enter into transactions with the
transferee on the terms proposed.
(iii) TWO AFFECTED PARTIES. If an Illegality under Section 5(b)(i)(1) or a
Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) RIGHT TO TERMINATE. If:--
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to
all Affected Transactions within 30 days after an Affected Party
gives notice under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon
Merger or an Additional Termination Event occurs, or a Tax Event
Upon Merger occurs and the Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a
Credit Event Upon Merger or an Additional Termination Event if there is
only one Affected Party may, by not more than 20 days notice to the other
party and provided that the relevant Termination Event is then
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continuing, designate a day not earlier than the day such notice is
effective as an Early Termination Date in respect of all Affected
Transactions.
(c) EFFECT OF DESIGNATION.
(i) If notice designating an Early Termination Date is given under Section
6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount if
any, payable in respect of an Early Termination Date shall be determined
pursuant to Section 6(e).
(d) CALCULATIONS.
(i) STATEMENT. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence of
written confirmation from the source of a quotation obtained in
determining a Market Quotation, the records of the party obtaining such
quotation will be conclusive evidence of the existence and accuracy of
such quotation.
(ii) PAYMENT DATE. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event).
Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early Termination
Date to (but excluding) the date such amount is paid, at the Applicable
Rate. Such interest will be calculated on the basis of daily compounding
and the actual number of days elapsed.
(e) PAYMENTS ON EARLY TERMINATION. If an Early Termination Date occurs. the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) EVENTS OF DEFAULT. If the Early Termination Date results from an Event
of Default:--
(1) First Method and Market Quotation. If the First Method and
Market Quotation apply, the Defaulting Party will pay to the
Non-defaulting Party the excess, if a positive number, of (A) the
sum of the Settlement Amount (determined by the Non-defaulting
Party) in respect of the Terminated Transactions and the Termination
Currency Equivalent of the Unpaid Amounts owing to the
Non-defaulting Party over (B) the Termination Currency Equivalent of
the Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-defaulting Party's Loss in respect of this
Agreement.
(3) Second Method and Market Quotation. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the
sum of the Settlement Amount (determined by the
ISDA (R) 1992
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Non-defaulting Party) in respect of the Terminated Transactions and
the Termination Currency Equivalent of the Unpaid Amounts owing to
the Non-defaulting Party less (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting Party. If
that amount is a positive number, the Defaulting Party will pay it
to the Non-defaulting Party; if it is a negative number, the
Non-defaulting Party will pay the absolute value of that amount to
the Defaulting Party.
(4) Second Method and Loss. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute
value of that amount to the Defaulting Party.
(ii) TERMINATION EVENTS. If the Early Termination Date results from a
Termination Event:--
(1) One Affected Party. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the Defaulting Party and
to the Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected Party,
respectively, and, if Loss applies and fewer than all the
Transactions are being terminated, Loss shall be calculated in
respect of all Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:--
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions,
and an amount will be payable equal to (I) the sum of (a)
one-half of the difference between the Settlement Amount of
the party with the higher Settlement Amount ("X") and the
Settlement Amount of the party with the lower Settlement
Amount ("Y") and (b) the Termination Currency Equivalent of
the Unpaid Amounts owing to X less (II) the Termination
Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in
respect of this Agreement (or, if fewer than all the
Transactions are being terminated, in respect of all
Terminated Transactions) and an amount will be payable equal
to one-half of the difference between the Loss of the party
with the higher Loss ("X") and the Loss of the party with the
lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if
it is a negative number, X will pay the absolute value of that
amount to Y.
(iii) ADJUSTMENT FOR BANKRUPTCY. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) PRE-ESTIMATE. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate of
loss and not a penalty. Such amount is payable for the loss of bargain and
the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
ISDA (R) 1992
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7. TRANSFER
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that:--
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to any
other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in any
amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be void.
8. CONTRACTUAL CURRENCY
(a) PAYMENT IN THE CONTRACTUAL CURRENCY. Each payment under this Agreement will
be made in the relevant currency specified in this Agreement for that payment
(the "Contractual Currency"). To the extent permitted by applicable law, any
obligation to make payments under this Agreement in the Contractual Currency
will not be discharged or satisfied by any tender in any currency other than the
Contractual Currency, except to the extent such tender results in the actual
receipt by the party to which payment is owed, acting in a reasonable manner and
in good faith in converting the currency so tendered into this Contractual
Currency, of the full amount in the Contractual Currency of all amounts payable
in respect of this Agreement. If for any reason the amount in the Contractual
Currency so received falls short of the amount in the Contractual Currency
payable in respect of this Agreement, the party required to make the payment
will, to the extent permitted by applicable law, immediately pay such additional
amount in the Contractual Currency as may be necessary to compensate for the
shortfall. If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount of
such excess.
(b) JUDGMENTS. To the extent permitted by applicable law, if any judgment or
order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a consequence of sums paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term "rate of exchange" includes, without limitation, any premiums and costs
of exchange payable in connection with the purchase of or conversion into the
Contractual Currency.
(c) SEPARATE INDEMNITIES. To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) EVIDENCE OF LOSS. For the purpose of this Section 8, it will be sufficient
for a party to demonstrate that it would have suffered a loss had an actual
exchange or purchase been made.
ISDA (R) 1992
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9. MISCELLANEOUS
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and supersedes
all oral communication and prior writings with respect thereto.
(b) AMENDMENTS. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) SURVIVAL OF OBLIGATIONS. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) REMEDIES CUMULATIVE. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) COUNTERPARTS AND CONFIRMATIONS.
(i) This Agreement (and each amendment, modification and waiver in respect
of it) may be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable
and may be executed and delivered in counterparts (including by facsimile
transmission) or be created by an exchange of telexes or by an exchange of
electronic messages on an electronic messaging system, which in each case
will be sufficient for all purposes to evidence a binding supplement to
this Agreement. The parties will specify therein or through another
effective means that any such counterpart, telex or electronic message
constitutes a Confirmation.
(f) NO WAIVER OF RIGHTS. A failure or delay in exercising any right, power or
privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) HEADINGS. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration in interpreting this Agreement.
10. OFFICES; MULTIBRANCH PARTIES
(a) If Section 10(a) is specified in the Schedule as applying, each party that
enters into a Transaction through an Office other than its head or home office
represents to the other party that, notwithstanding the place of booking office
or jurisdiction of incorporation or organisation of such party, the obligations
of such party are the same as if it had entered into the Transaction through its
head or home office. This representation will be deemed to be repeated by such
party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
11. EXPENSES
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including legal fees and
Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document
ISDA (R) 1992
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to which the Defaulting Party is a party or by reason of the early termination
of any Transaction, including, but not limited to, costs of collection.
12. NOTICES
(a) EFFECTIVENESS. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:--
(i) if in writing and delivered in person or by courier, on the date it is
delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and
will not be met by a transmission report generated by the sender's
facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered
or its delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt, as
applicable, is not a Local Business Day or that communication is delivered (or
attempted) or received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) CHANGE OF ADDRESSES. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. GOVERNING LAW AND JURISDICTION
(a) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) JURISDICTION. With respect to any suit, action or proceedings relating to
this Agreement ("Proceedings"), each party irrevocably:--
(i) submits to the jurisdiction of the English courts, if this Agreement
is expressed to be governed by English law, or to the non-exclusive
jurisdiction of the courts of the State of New York and the United States
District Court located in the Borough of Manhattan in New York City, if
this Agreement is expressed to be governed by the laws of the State of New
York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that
such Proceedings have been brought in an inconvenient forum and further
waives the right to object, with respect to such Proceedings, that such
court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings in
any other jurisdiction (outside, if this Agreement is expressed to be governed
by English law, the Contracting States, as defined in Section 1(3) of the Civil
Jurisdiction and Judgments Act 1982 or any modification, extension or
re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) SERVICE OF PROCESS. Each party irrevocably appoints the Process Agent (if
any) specified opposite its name in the Schedule to receive, for it and on its
behalf, service of process in any Proceedings. If for any
ISDA (R) 1992
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reason any party's Process Agent is unable to act as such, such party will
promptly notify the other party and within 30 days appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to service
of process given in the manner provided for notices in Section 12. Nothing in
this Agreement will affect the right of either party to serve process in any
other manner permitted by law.
(d) WAIVER OF IMMUNITIES. Each party irrevocably waives, to the fullest extent
permitted by applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. DEFINITIONS
As used in this Agreement:--
"ADDITIONAL TERMINATION EVENT" has the meaning specified in Section 5(b).
"AFFECTED PARTY" has the meaning specified in Section 5(b).
"AFFECTED TRANSACTIONS" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b) with
respect to any other Termination Event, all Transactions.
"AFFILIATE" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control" of
any entity or person means ownership of a majority of the voting power of the
entity or person.
"APPLICABLE RATE" means:--
(a) in respect of obligations payable or deliverable (or which would have been
but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of either
party from and after the date (determined in accordance with Section 6(d)(ii))
on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which would
have been but for Section 2(a)(iii)) by a Non-defaulting Party, the Non-default
Rate; and
(d) in all other cases, the Termination Rate.
"BURDENED PARTY" has the meaning specified in Section 5(b).
"CHANGE IN TAX LAW" means the enactment, promulgation, execution or ratification
of, or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"CONSENT" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"CREDIT EVENT UPON MERGER" has the meaning specified in Section 5(b).
"CREDIT SUPPORT DOCUMENT" means any agreement or instrument that is specified as
such in this Agreement.
"CREDIT SUPPORT PROVIDER" has the meaning specified in the Schedule.
"DEFAULT RATE" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
ISDA (R) 1992
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"DEFAULTING PARTY" has the meaning specified in Section 6(a).
"EARLY TERMINATION DATE" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"EVENT OF DEFAULT" has the meaning specified in Section 5(a) and, if applicable,
in the Schedule.
"ILLEGALITY" has the meaning specified in Section 5(b).
"INDEMNIFIABLE TAX" means any Tax other than a Tax that would not be imposed in
respect of a payment under this Agreement but for a present or former connection
between the jurisdiction of the government or taxation authority imposing such
Tax and the recipient of such payment or a person related to such recipient
(including, without limitation, a connection arising from such recipient or
related person being or having been a citizen or resident of such jurisdiction,
or being or having been organised, present or engaged in a trade or business in
such jurisdiction, or having or having had a permanent establishment or fixed
place of business in such jurisdiction, but excluding a connection arising
solely from such recipient or related person having executed, delivered,
performed its obligations or received a payment under, or enforced, this
Agreement or a Credit Support Document).
"LAW" includes any treaty, law, rule or regulation (as modified, in the case of
tax matters, by the practice of any relevant governmental revenue authority) and
"LAWFUL" and "UNLAWFUL" will be construed accordingly.
"LOCAL BUSINESS DAY" means, subject to the Schedule, a day on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified, as
otherwise agreed by the parties in writing or determined pursuant to provisions
contained, or incorporated by reference, in this Agreement, (b) in relation to
any other payment, in the place where the relevant account is located and, if
different, in the principal financial centre, if any, of the currency of such
payment, (c) in relation to any notice or other communication, including notice
contemplated under Section 5(a)(i), in the city specified in the address for
notice provided by the recipient and, in the case of a notice contemplated by
Section 2(b), in the place where the relevant new account is to be located and
(d) in relation to Section 5(a)(v)(2), in the relevant locations for performance
with respect to such Specified Transaction.
"LOSS" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain, in which case expressed as a negative number)
in connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result of its terminating, liquidating, obtaining or
reestablishing any hedge or related trading position (or any gain resulting from
any of them). Loss includes losses and costs (or gains) in respect of any
payment or delivery required to have been made (assuming satisfaction of each
applicable condition precedent) on or before the relevant Early Termination Date
and not made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3)
or 6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable, as of the earliest date thereafter as is reasonably practicable. A
party may (but need not) determine its Loss by reference to quotations of
relevant rates or prices from one or more leading dealers in the relevant
markets.
"MARKET QUOTATION" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an amount,
if any, that would be paid to such party (expressed as a negative number) or by
such party (expressed as a positive number) in consideration of an agreement
between such party (taking into account any existing Credit Support Document
with respect to the obligations of such party) and the quoting Reference
Market-maker to enter into a transaction (the "Replacement Transaction") that
would have the effect of preserving for such party the economic equivalent of
any payment or delivery (whether the underlying obligation was absolute or
contingent and assuming the satisfaction of each applicable condition precedent)
by the parties under Section 2(a)(i) in respect of such Terminated Transaction
or group of Terminated Transactions that would, but for the occurrence of the
relevant Early Termination Date, have
ISDA (R) 1992
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been required after that date. For this purpose, Unpaid Amounts in respect of
the Terminated Transaction or group of Terminated Transactions are to be
excluded but, without limitation, any payment or delivery that would, but for
the relevant Early Termination Date, have been required (assuming satisfaction
of each applicable condition precedent) after that Early Termination Date is to
be included. The Replacement Transaction would be subject to such documentation
as such party and the Reference Market-maker may, in good faith, agree. The
party making the determination (or its agent) will request each Reference
Market-maker to provide its quotation to the extent reasonably practicable as of
the same day and time (without regard to different time zones) on or as soon as
reasonably practicable after the relevant Early Termination Date. The day and
time as of which those quotations are to be obtained will be selected in good
faith by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than three
quotations are provided, the Market Quotation will be the arithmetic mean of the
quotations, without regard to the quotations having the highest and lowest
values. If exactly three such quotations are provided, the Market Quotation will
be the quotation remaining after disregarding the highest and lowest quotations.
For this purpose, if more than one quotation has the same highest value or
lowest value, then one of such quotations shall be disregarded. If fewer than
three quotations are provided, it will be deemed that the Market Quotation in
respect of such Terminated Transaction or group of Terminated Transactions
cannot be determined.
"NON-DEFAULT RATE" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it) if
it were to fund the relevant amount.
"NON-DEFAULTING PARTY" has the meaning specified in Section 6(a).
"OFFICE" means a branch or office of a party, which may be such party's head or
home office.
"POTENTIAL EVENT OF DEFAULT" means any event which, with the giving of notice or
the lapse of time or both, would constitute an Event of Default.
"REFERENCE MARKET-MAKERS" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"RELEVANT JURISDICTION" means, with respect to a party, the jurisdictions (a) in
which the party is incorporated, organised, managed and controlled or considered
to have its seat, (b) where an Office through which the party is acting for
purposes of this Agreement is located, (c) in which the party executes this
Agreement and (d) in relation to any payment, from or through which such payment
is made.
"SCHEDULED PAYMENT DATE" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"SET-OFF" means set-off, offset, combination of accounts, right of retention or
withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or imposed
on, such payer.
"SETTLEMENT AMOUNT" means, with respect to a party and any Early Termination
Date, the sum of:--
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to any
Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not (in
the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"SPECIFIED ENTITY" has the meaning specified in the Schedule.
ISDA (R) 1992
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"SPECIFIED INDEBTEDNESS" means, subject to the Schedule, any obligation (whether
present or future, contingent or otherwise, as principal or surety or otherwise)
in respect of borrowed money.
"SPECIFIED TRANSACTION" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"STAMP TAX" means any stamp, registration, documentation or similar tax.
"TAX" means any present or future tax, levy, impost, duty, charge, assessment or
fee of any nature (including interest, penalties and additions thereto) that is
imposed by any government or other taxing authority in respect of any payment
under this Agreement other than a stamp, registration, documentation or similar
tax.
"TAX EVENT" has the meaning specified in Section 5(b).
"TAX EVENT UPON MERGER" has the meaning specified in Section 5(b).
"TERMINATED TRANSACTIONS" means with respect to any Early Termination Date (a)
if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"TERMINATION CURRENCY" has the meaning specified in the Schedule.
"TERMINATION CURRENCY EQUIVALENT" means, in respect of any amount denominated in
the Termination Currency, such Termination Currency amount and, in respect of
any amount denominated in a currency other than the Termination Currency (the
"Other Currency"), the amount in the Termination Currency determined by the
party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or, if
the relevant Market Quotation or Loss (as the case may be), is determined as of
a later date, that later date, with the Termination Currency at the rate equal
to the spot exchange rate of the foreign exchange agent (selected as provided
below) for the purchase of such Other Currency with the Termination Currency at
or about 11:00 a.m. (in the city in which such foreign exchange agent is
located) on such date as would be customary for the determination of such a rate
for the purchase of such Other Currency for value on the relevant Early
Termination Date or that later date. The foreign exchange agent will, if only
one party is obliged to make a determination under Section 6(e), be selected in
good faith by that party and otherwise will be agreed by the parties.
"TERMINATION EVENT" means an Illegality, a Tax Event or a Tax Event Upon Merger
or, if specified to be applicable, a Credit Event Upon Merger or an Additional
Termination Event.
"TERMINATION RATE" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as certified
by such party) if it were to fund or of funding such amounts.
"UNPAID AMOUNTS" owing to any party means, with respect to an Early Termination
Date, the aggregate of (a) in respect of all Terminated Transactions, the
amounts that became payable (or that would have become payable but for Section
2(a)(iii)) to such party under Section 2(a)(i) on or prior to such Early
Termination Date and which remain unpaid as at such Early Termination Date and
(b) in respect of each Terminated Transaction, for each obligation under Section
2(a)(i) which was (or would have been but for Section 2(a)(iii)) required to be
settled by delivery to such party on or prior to such Early Termination Date and
which has not been so settled as at such Early Termination Date, an amount equal
to the fair market
ISDA (R) 1992
17
value of that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest, in the currency of such
amounts, from (and including) the date such amounts or obligations were or would
have been required to have been paid or performed to (but excluding) such Early
Termination Date, at the Applicable Rate. Such amounts of interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b) above
shall be reasonably determined by the party obliged to make the determination
under Section 6(e) or, if each party is so obliged, it shall be the average of
the Termination Currency Equivalents of the fair market values reasonably
determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
GENERAL CABLE
BANK OF AMERICA, N.A. CORPORATION
- ------------------------------------- ----------------------------------
(Name of Party) (Name of Party)
By: /s/ Timothy P. Munn By: /s/ Robert J. Siverd
--------------------------------- ------------------------------
Name: Timothy P. Munn Name: Robert J. Siverd
Title: Vice President Title: Exec. V.P., General Counsel
and Secretary
Date: February 2, 2006 Date: February 2, 2006
ISDA (R) 1992
18
(MULTICURRENCY--CROSS BORDER)
ISDA(R)
International Swap Dealers Association, Inc.
SCHEDULE
TO THE
MASTER AGREEMENT
dated as of October 13, 2005
between
BANK OF AMERICA, N.A.
("Party A")
and
GENERAL CABLE CORPORATION
("Party B")
PART 1: TERMINATION PROVISIONS
(a) "SPECIFIED ENTITY" means in relation to Party A for the purpose of
Sections 5(a)(v), 5(a)(vi), 5(a)(vii) and 5(b)(iv):
None;
"SPECIFIED ENTITY" means in relation to Party B for the purpose of
Sections 5(a)(v), 5(a)(vi), 5(a)(vii) and 5(b)(iv):
None.
(b) "SPECIFIED TRANSACTION" will have the meaning specified in Section 14.
(c) The "CROSS-DEFAULT" provisions of Section 5(a)(vi) (as amended in Part
5(i))
will apply to Party A and
will apply to Party B.
In connection therewith, "SPECIFIED INDEBTEDNESS" will not have the
meaning specified in Section 14, and such definition shall be replaced by
the following: "any obligation in respect of the payment of moneys
(whether present or future, contingent or otherwise, as principal or
surety or otherwise), except that such term shall not include obligations
in respect of deposits received in the ordinary course of a party's
banking business."
ISDA (R) 1992
19
56
"THRESHOLD AMOUNT" means with respect to Party A an amount equal to three
percent (3%) of the Shareholders' Equity of Bank of America Corporation
and with respect to Party B, $100,000.
With respect to Party B, any default (howsoever defined) under the Credit
Agreement shall be an Event of Default under this Agreement.
"CREDIT AGREEMENT" means the Amended and Restated Credit Agreement dated
as of October 22, 2004 among General Cable Industries, Inc., as Borrower;
General Cable Corporation and the other Guarantors party thereto; as
Guarantors, the Lenders party thereto; Merrill Lynch Capital, as
Collateral Agent and Syndication Agent; Fleet Capital Corporation, General
Electric Capital Corporation and GMAC Commercial Finance LLC, as
Co-Documentation Agents; Merrill Lynch Capital, and UBS Securities LLC, as
Joint Lead Arrangers; UBS AG, Stamford Branch, as Issuing Bank and
Administrative Agent and UBS Loan Finance LLC, as Swingline Lender (as
amended, extended, supplemented or otherwise modified in writing from time
to time including without limitation, the Limited Consent with respect to
the Amended and Restated Credit Agreement dated October 12, 2005 among
General Cable Industries Inc., Party B and the other parties named therein
("Limited Consent") and as further amended and restated by the Second
Amended and Restated Credit Agreement dated as of November 23, 2005 among
General Cable Industries, Inc., General Cable Corporation and the other
parties named therein ("2005 Agreement").
"SHAREHOLDERS' EQUITY" means with respect to an entity, at any time, the
sum (as shown in the most recent annual audited financial statements of
such entity) of (i) its capital stock (including preferred stock)
outstanding, taken at par value, (ii) its capital surplus and (iii) its
retained earnings, minus (iv) treasury stock, each to be determined in
accordance with generally accepted accounting principles.
(d) The "CREDIT EVENT UPON MERGER" provisions of Section 5(b)(iv)
will apply to Party A
will apply to Party B.
(e) The "AUTOMATIC EARLY TERMINATION" provision of Section 6(a)
will not apply to Party A
will not apply to Party B.
(f) PAYMENTS ON EARLY TERMINATION. For the purpose of Section 6(e):-
(i) Market Quotation will apply.
(ii) The Second Method will apply.
(g) "TERMINATION CURRENCY" means United States Dollars.
(h) ADDITIONAL TERMINATION EVENT will apply.
It shall be an Additional Termination Event hereunder, with respect to
which Party B shall be the sole Affected Party, 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
lines 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, fails, within five (5) business days of the Release, to
execute and deliver a Credit Support Annex in the form attached hereto as
Exhibit "A" and post collateral to Part A pursuant to the terms of the
Credit Support Annex.
ISDA (R) 1992
20
PART 2: TAX REPRESENTATIONS
(a) PAYER TAX REPRESENTATIONS. For the purpose of Section 3(e) of this
Agreement, Party A 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 (x) the accuracy of any
representations made by the other party pursuant to Section 3(f) of this
Agreement, (y) 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 (z) 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 (y) 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 TAX REPRESENTATIONS. For the purpose of Section 3(f) of this
Agreement, Party A and Party B will make the following representations
specified below, if any:-
(i) The following representations will apply to Party A:
Party A is a national banking association created or organized under
the laws of the United States of America and the federal taxpayer
identification number is 94-1687665.
(ii) The following representations will apply to Party B:
Party B is a corporation created or organized under the laws of the
State of Delaware and the federal taxpayer identification number is
06-1398235.
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:
ISDA (R) 1992
21
PARTY REQUIRED TO DATE BY COVERED BY SECTION
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE WHICH TO BE DELIVERED 3(d) REPRESENTATION
- ----------------- ------------------------------------------------ ---------------------------------------- -------------------
Party A Annual Report of Bank of America Corporation To be made available on Yes
containing audited, consolidated financial www.bankofamerica.com/investor/ as soon
statements certified by independent certified as available and in any event within 90
public accountants and prepared in accordance days after the end of each fiscal year
with generally accepted accounting principles of Party A
in the country in which such party is organized
Party B Annual Report of Party B and of any Credit Upon request Yes
Support Provider thereof containing audited,
consolidated financial statements certified by
independent certified public accountants and
prepared in accordance with generally accepted
accounting principles in the country in which
such party and such Credit Support Provider is
organized
Party A Quarterly Financial Statements of Bank of To be made available on Yes
America Corporation containing unaudited, www.bankofamerica.com/investor/
consolidated financial statements of such as soon as available and in any event
party's fiscal quarter prepared in accordance within 30 days after the end of each
with generally accepted accounting principles in fiscal quarter of Party A
the country in which such party is organized
Party B Quarterly Financial Statements of Party B and Upon request Yes
any Credit Support Provider thereof containing
unaudited, consolidated financial statements of
such party's fiscal quarter prepared in
accordance with generally accepted accounting
principles in the country in which such party
and such Credit Support Provider is organized
ISDA (R) 1992
22
PARTY REQUIRED TO DATE BY COVERED BY SECTION
DELIVER DOCUMENT FORM/DOCUMENT/CERTIFICATE WHICH TO BE DELIVERED 3(D) REPRESENTATION
- ----------------- ------------------------------------------------ ---------------------------------------- -------------------
Party A and Certified copies of all corporate or partnership Upon execution and delivery of this Yes
Party B authorizations, as the case may be, and any Agreement
other documents with respect to the execution,
delivery and performance of this Agreement and
any Credit Support Document
Party A and Certificate of authority and specimen signatures Upon execution and delivery of this Yes
Party B of individuals executing this Agreement and any Agreement and thereafter upon request of
Credit Support Document the other party
PART 4: MISCELLANEOUS
(a) ADDRESS FOR NOTICES. For the purpose of Section 12(a) of this Agreement:-
Address for notice or communications to Party A:
Bank of America, N.A.
Sears Tower
233 South Wacker Drive, Suite 2800
Chicago, IL 60606
Attention: Swap Operations
Telephone No.: 312-234-2732
Facsimile No.: 312-234-3603
with a copy to:
Bank of America, N.A.
100 Federal Street, MA5-100-12-04
Boston, Massachusetts 02110
Attention: Capital Markets Documentation
Facsimile No.: 617-434-3085
Address for notice or communications to Party B:
General Cable Industries, Inc.
4 Tesseneer Drive
Highland Heights, Kentucky 41076
Attention: Chris Virgulak, CFO
Telephone No.: 958-572-8877
Facsimile No.:859-572-8440
(b) PROCESS AGENT. For the purpose of Section 13(c):
ISDA (R) 1992
23
Party A appoints as its Process Agent: Not applicable.
Party B appoints as its Process Agent: Not applicable.
(b) OFFICES. The provisions of Section 10(a) will apply to this Agreement.
(d) MULTIBRANCH PARTY. For the purpose of Section 10 of this Agreement:-
Party A is a Multibranch Party and may act through its Charlotte,
North Carolina, Chicago, Illinois, San Francisco, California, New
York, New York, Boston, Massachusetts or London, England Office, or
such other Office as may be agreed to by the parties in connection
with a Transaction.
Party B is not a Multibranch Party.
(e) CALCULATION AGENT. The Calculation Agent is Party A, unless 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).
(f) CREDIT SUPPORT DOCUMENT. Details of any Credit Support Document:-
Each of the following, as amended, extended, supplemented or otherwise
modified in writing from time to time, is a "Credit Support Document":
(i) In relation to Party A: Not applicable.
(ii) In relation to Party B: (1) The Credit Agreement as defined in Part 1
of this Schedule, (2) the Security Agreement as defined in the Credit
Agreement and (3) The Continuing Unconditional Guaranty, dated as of
February 2, 2006 by and between General Cable Industries, Inc. and Bank of
America, N.A.
Party B agrees that the security interests in collateral granted to Party
A under the foregoing Credit Support Documents shall secure the
obligations of Party B to Party A under this Agreement to the extent set
forth in the Credit Agreement and the Security Agreement.
(g) CREDIT SUPPORT PROVIDER.
Credit Support Provider means in relation to Party A: Not applicable.
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
its conflict of laws doctrine.
(i) NETTING OF PAYMENTS. Subparagraph (ii) of Section 2(c) shall not apply to
any Transactions; provided, however, if the parties otherwise so agree,
then subparagraph (ii) of Section 2(c) shall apply.
(j) "AFFILIATE" will have the meaning specified in Section 14 of this
Agreement.
ISDA (R) 1992
24
PART 5: OTHER PROVISIONS
(a) SET-OFF. Any amount (the "Early Termination Amount") payable to one party
(the Payee) by the other party (the Payer) under Section 6(e), in
circumstances where there is a Defaulting Party or one Affected Party in
the case where a Termination Event under Section 5(b)(iv) or (v) has
occurred, will, at the option of the party ("X") other than the Defaulting
Party or the Affected Party (and without prior notice to the Defaulting
Party or the Affected Party), be reduced by its set-off against any
amount(s) (the "Other Agreement Amount") payable (whether at such time or
in the future or upon the occurrence of a contingency) by the Payee to the
Payer (irrespective of the currency, place of payment or booking office of
the obligation) under any other agreement(s) between the Payee and the
Payer or instrument(s) or undertaking(s) issued or executed by one party
to, or in favor of, the other party (and the Other Agreement Amount will
be discharged promptly and in all respects to the extent it is so
set-off). X will give notice to the other party of any set-off effected
under this Part 5(a).
For this purpose, either the Early Termination Amount or the Other
Agreement Amount (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, acting in a reasonable
manner and in good faith, to purchase the relevant amount of such
currency.
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 Part 5(a) shall be effective to create a charge or other
security interest. This Part 5(a) shall be without prejudice and in
addition to any right of set-off, combination of accounts, lien or other
right to which any party is at any time otherwise entitled (whether by
operation of law, contract or otherwise).
(b) DELIVERY OF CONFIRMATIONS. For each Transaction entered into hereunder,
Party A shall promptly send to Party B a Confirmation via facsimile
transmission. Party B agrees to respond to such Confirmation within two
(2) Local Business Days, either confirming agreement thereto or requesting
a correction of any error(s) contained therein. Failure by Party A to send
a Confirmation or of Party B to respond within such period shall not
affect the validity or enforceability of such Transaction. Absent manifest
error, there shall be a presumption that the terms contained in such
Confirmation are the terms of the Transaction.
(c) RECORDING OF CONVERSATIONS. Each party to this Agreement acknowledges and
agrees to the tape recording of conversations between trading and
marketing personnel of the parties to this Agreement whether by one or
other or both of the parties or their agents, and that any such tape
recordings may be submitted in evidence in any proceedings relating to the
Agreement.
(d) FURNISHING SPECIFIED INFORMATION. Section 4(a)(iii) is hereby amended by
inserting "promptly upon the earlier of (i)" in lieu of the word "upon" at
the beginning thereof and inserting "or (ii) such party learning that the
form or document is required" before the word "any" on the first line
thereof.
(e) NOTICE BY FACSIMILE TRANSMISSION. Section 12(a) is hereby amended by
deleting the parenthetical "(except that a notice or other communication
under Section 5 or 6 may not be given by facsimile transmission or
electronic messaging system)".
ISDA (R) 1992
25
(f) Section 3(a) of this Agreement is amended by (i) deleting the word "and"
at the end of clause (iv); (ii) deleting the period at the end of clause
(v) and inserting therein "; and " ; and (iii) by inserting the following
additional representation:
"(vi) 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 Section
1a(12) of the U.S. Commodity Exchange Act, 7 U.S.C. Section 1a(12)."
(g) Section 3 is revised so as to add the following Section (g) at the end
thereof:
"(g) RELATIONSHIP BETWEEN PARTIES. Each party represents to the other
party and 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 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 that Transaction; it being understood that information
and explanations related to the terms and conditions of a
Transaction shall not be considered investment advice or a
recommendation to enter into that Transaction. Further, such party
has not received from the other party any assurance or guarantee as
to the expected results of that Transaction.
(ii) EVALUATION AND UNDERSTANDING. It is capable of evaluating 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 financial and other risks of that Transaction.
(iii) STATUS OF PARTIES. The other party is not acting as an agent,
fiduciary or advisor for it in respect of that Transaction."
(h) WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
(i) CROSS DEFAULT. Section 5(a)(vi) of this Agreement is hereby amended adding
the following after the semicolon at the end thereof:
"provided, however, that notwithstanding the foregoing (but subject
to any provision to the contrary contained in any such agreement or
instrument), an Event of Default shall not occur under either (1) or
(2) above if the default, event of default or other similar
condition or event referred to in (1) or the failure to pay referred
to in (2) is caused not (even in part) by the unavailability of
funds but is caused solely due to a technical or administrative
error which has been remedied within three Local Business Days after
notice of such failure is given to the party."
(j) USA PATRIOT ACT NOTICE. Party A hereby notifies Party B that pursuant to
the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the "Act"), it is required to obtain,
verify and record information that identifies
ISDA (R) 1992
26
Party B, which information includes the name and address of Party B and
other information that will allow Party A to identify Party B in
accordance with the Act.
(k) TERMINATION OF PRIOR ISDA AGREEMENT. The parties agree that upon the
execution of this Agreement, the ISDA Master Agreement dated as of
December 4, 2001 between the parties hereto shall be terminated and shall
be of no further force and effect.
(l) REPRESENTATIONS OF PARTY A. (i) Party A hereby represents that at the time
this Agreement was entered into and on the date hereof, it (or any
predecessor by merger, including Fleet Capital Corporation) was and is now
a Lender or an Affiliate of a Lender (as such terms are defined in the
Credit Agreement; and (ii) Party A further represents that it has accepted
the executed and delivered the Continuing Unconditional Guaranty, dated
February 2, 2006.
PART 6: ADDITIONAL TERMS FOR FOREIGN EXCHANGE AND FOREIGN EXCHANGE OPTION
TRANSACTIONS
(a) INCORPORATION OF DEFINITIONS. The 1998 FX and Currency Option Definitions
(the "Definitions"), published by the International Swaps and Derivatives
Association, Inc., the Emerging Markets Traders Association and the
Foreign Exchange Committee, are hereby incorporated by reference with
respect to FX Transactions (as defined in the Definitions) and Currency
Option Transactions (as defined in the Definitions). Terms defined in the
Definitions shall have the same meanings in this Part 6.
(b) SCOPE. Unless otherwise agreed in writing by the parties, each FX
Transaction and Currency Option Transaction entered into between the
parties before, on or after the date of this Agreement shall be a
Transaction under this Agreement and shall be part of, subject to and
governed by this Agreement. FX Transactions and Currency Option
Transactions shall be part of, subject to and governed by this Agreement
even if the Confirmation in respect thereof does not state that such FX
Transaction or Currency Option Transaction is subject to or governed by
this Agreement or does not otherwise reference this Agreement.
(c) PREMIUM NETTING. If, on any date, and unless otherwise mutually agreed by
the parties, Premiums would otherwise be payable hereunder in the same
Currency between the same respective offices of the parties, then, on such
date, each party's obligation to make payment of such Premiums will be
automatically satisfied and discharged and, if the aggregate Premiums that
would otherwise have been payable by such office of one party exceeds the
aggregate Premiums that would otherwise have been payable by such office
of the other party, replaced by an obligation upon the party by whom the
larger aggregate Premiums would have been payable to pay the other party
the excess of the larger aggregate Premiums over the smaller aggregate
Premiums, and if the aggregate Premiums are equal, no payment shall be
made.
(d) PAYMENT NETTING OF FX TRANSACTIONS AND CURRENCY OPTION TRANSACTIONS. The
provisions of Section 2(c) of the Agreement shall not apply to FX
Transactions or Currency Option Transactions. Unless otherwise mutually
agreed by the parties, if on any date more than one delivery of a
particular Currency is to be made between a pair of offices with respect
to settlement of FX Transactions or Currency Option Transactions (but
excluding payments with respect to option premiums and cash settled
options), then each party shall aggregate the amounts of such Currency
deliverable by it and only the difference between these aggregate amounts
shall be delivered by the party owing the larger aggregate amount to the
other party, and, if the aggregate amounts are equal, no delivery of the
Currency shall be made.
ISDA (R) 1992
27
(e) PAYMENTS ON EARLY TERMINATION. Notwithstanding anything to the contrary in
the Agreement, for purposes of Section 6(d) and 6(e) of the Agreement,
Second Method and Loss shall apply to FX Transactions and Currency Option
Transactions.
ACCEPTED AND AGREED:
BANK OF AMERICA, N.A. GENERAL CABLE CORPORATION
_________________________ _________________________
Name: Timothy P. Munn Name:
Title: Vice President Title:
ISDA (R) 1992
28
(Bilateral Form) (ISDA Agreements Subject to New York Law Only)
ISDA (R)
International Swaps and Derivatives Association, Inc.
CREDIT SUPPORT ANNEX
TO THE SCHEDULE TO THE
Master Agreement
DATED AS OF OCTOBER 13, 2005
BETWEEN
BANK OF AMERICA, N.A. AND GENERAL CABLE CORPORATION
("PARTY A") ("PARTY B")
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.
ISDA (R) 1992
29
Paragraph 3. Credit Support Obligations
(a) Delivery Amount. SUBJECT TO PARAGRAPHS 4 AND 5, UPON A DEMAND MADE BY THE
SECURED PARTY ON OR PROMPTLY FOLLOWING A VALUATION DATE, IF THE DELIVERY AMOUNT
FOR THAT VALUATION DATE EQUALS OR EXCEEDS THE PLEDGOR'S MINIMUM TRANSFER AMOUNT,
THEN THE PLEDGOR WILL TRANSFER TO THE SECURED PARTY ELIGIBLE CREDIT SUPPORT
HAVING A VALUE AS OF THE DATE OF TRANSFER AT LEAST EQUAL TO THE APPLICABLE
DELIVERY AMOUNT (ROUNDED PURSUANT TO PARAGRAPH 13). UNLESS OTHERWISE SPECIFIED
IN PARAGRAPH 13, THE "Delivery Amount" APPLICABLE TO THE PLEDGOR FOR ANY
VALUATION DATE WILL EQUAL THE AMOUNT BY WHICH:
(i) THE CREDIT SUPPORT AMOUNT
EXCEEDS
(ii) THE VALUE AS OF THAT VALUATION DATE OF ALL POSTED CREDIT SUPPORT HELD
BY THE SECURED PARTY.
(b) Return Amount. SUBJECT TO PARAGRAPHS 4 AND 5, UPON A DEMAND MADE BY THE
PLEDGOR ON OR PROMPTLY FOLLOWING A VALUATION DATE, IF THE RETURN AMOUNT FOR THAT
VALUATION DATE EQUALS OR EXCEEDS THE SECURED PARTY'S MINIMUM TRANSFER AMOUNT,
THEN THE SECURED PARTY WILL TRANSFER TO THE PLEDGOR POSTED CREDIT SUPPORT
SPECIFIED BY THE PLEDGOR IN THAT DEMAND HAVING A VALUE AS OF THE DATE OF
TRANSFER AS CLOSE AS PRACTICABLE TO THE APPLICABLE RETURN AMOUNT (ROUNDED
PURSUANT TO PARAGRAPH 13). UNLESS OTHERWISE SPECIFIED IN PARAGRAPH 13, THE
"Return Amount" APPLICABLE TO THE SECURED PARTY FOR ANY VALUATION DATE WILL
EQUAL THE AMOUNT BY WHICH:
(i) THE VALUE AS OF THAT VALUATION DATE OF ALL POSTED CREDIT SUPPORT HELD
BY THE SECURED PARTY
EXCEEDS
(ii) THE CREDIT SUPPORT AMOUNT.
"Credit Support Amount" MEANS, UNLESS OTHERWISE SPECIFIED IN PARAGRAPH 13, 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) ALL INDEPENDENT AMOUNTS APPLICABLE TO THE SECURED PARTY, IF ANY,
MINUS (iv) THE PLEDGOR'S THRESHOLD; PROVIDED, HOWEVER, THAT THE CREDIT SUPPORT
AMOUNT WILL BE DEEMED TO BE ZERO WHENEVER THE CALCULATION OF CREDIT SUPPORT
AMOUNT YIELDS A NUMBER LESS THAN ZERO.
Paragraph 4. Conditions Precedent, Transfer Timing, Calculations and
Substitutions
(a) Conditions Precedent. EACH TRANSFER OBLIGATION OF THE PLEDGOR UNDER
PARAGRAPHS 3(a) AND 5 AND OF THE SECURED PARTY UNDER PARAGRAPHS 3(b), 4(d)(ii),
5 AND 6(d) IS SUBJECT TO THE CONDITIONS PRECEDENT THAT:
(i) NO EVENT OF DEFAULT, POTENTIAL EVENT OF DEFAULT OR SPECIFIED CONDITION
HAS OCCURRED AND IS CONTINUING WITH RESPECT TO THE OTHER PARTY; AND
(ii) NO EARLY TERMINATION DATE FOR WHICH ANY UNSATISFIED PAYMENT
OBLIGATIONS EXIST HAS OCCURRED OR BEEN DESIGNATED AS THE RESULT OF AN
EVENT OF DEFAULT OR SPECIFIED CONDITION WITH RESPECT TO THE OTHER PARTY.
(b) Transfer Timing. SUBJECT TO PARAGRAPHS 4(a) AND 5 AND UNLESS OTHERWISE
SPECIFIED, IF A DEMAND FOR THE TRANSFER OF ELIGIBLE CREDIT SUPPORT OR POSTED
CREDIT SUPPORT IS MADE BY THE NOTIFICATION TIME, THEN THE RELEVANT TRANSFER WILL
BE MADE NOT LATER THAN THE CLOSE OF BUSINESS ON THE NEXT LOCAL BUSINESS DAY; IF
A DEMAND IS MADE AFTER THE NOTIFICATION TIME, THEN THE RELEVANT TRANSFER WILL BE
MADE NOT LATER THAN THE CLOSE OF BUSINESS ON THE SECOND LOCAL BUSINESS DAY
THEREAFTER.
(c) Calculations. ALL CALCULATIONS OF VALUE AND EXPOSURE FOR PURPOSES OF
PARAGRAPHS 3 AND 6(d) WILL BE MADE BY THE VALUATION AGENT AS OF THE VALUATION
TIME. THE VALUATION AGENT WILL NOTIFY EACH PARTY (OR THE OTHER PARTY, IF THE
VALUATION AGENT IS A PARTY) OF ITS CALCULATIONS NOT LATER THAN THE NOTIFICATION
TIME ON THE LOCAL BUSINESS DAY FOLLOWING THE APPLICABLE VALUATION DATE (OR IN
THE CASE OF PARAGRAPH 6(d), FOLLOWING THE DATE OF CALCULATION).
ISDA (R) 1992
30
(d) Substitutions.
(i) UNLESS OTHERWISE SPECIFIED IN PARAGRAPH 13, UPON NOTICE TO THE SECURED
PARTY SPECIFYING THE ITEMS OF POSTED CREDIT SUPPORT TO BE EXCHANGED, THE
PLEDGOR MAY, ON ANY LOCAL BUSINESS DAY, TRANSFER TO THE SECURED PARTY
SUBSTITUTE ELIGIBLE CREDIT SUPPORT (THE "SUBSTITUTE CREDIT SUPPORT"); AND
(ii) SUBJECT TO PARAGRAPH 4(a), THE SECURED PARTY WILL TRANSFER TO THE
PLEDGOR THE ITEMS OF POSTED CREDIT SUPPORT SPECIFIED BY THE PLEDGOR IN ITS
NOTICE NOT LATER THAN THE LOCAL BUSINESS DAY FOLLOWING THE DATE ON WHICH
THE SECURED PARTY RECEIVES THE SUBSTITUTE CREDIT SUPPORT, UNLESS OTHERWISE
SPECIFIED IN PARAGRAPH 13 (THE "SUBSTITUTION DATE"); PROVIDED THAT THE
SECURED PARTY ONLY WILL BE OBLIGATED TO TRANSFER POSTED CREDIT SUPPORT
WITH A VALUE AS OF THE DATE OF TRANSFER OF THAT POSTED CREDIT SUPPORT
EQUAL TO THE VALUE AS OF THAT DATE OF THE SUBSTITUTE CREDIT SUPPORT.
Paragraph 5. Dispute Resolution
IF A PARTY (A "DISPUTING PARTY") DISPUTES (I) THE VALUATION AGENT'S CALCULATION
OF A DELIVERY AMOUNT OR A RETURN AMOUNT OR (II) THE VALUE OF ANY TRANSFER OF
ELIGIBLE CREDIT SUPPORT OR POSTED CREDIT SUPPORT, THEN (1) THE DISPUTING PARTY
WILL NOTIFY THE VALUATION AGENT (IF THE VALUATION AGENT IS NOT THE DISPUTING
PARTY) AND THE OTHER PARTY (IF THE VALUATION AGENT IS NOT THAT OTHER PARTY) NOT
LATER THAN THE CLOSE OF BUSINESS ON THE LOCAL BUSINESS DAY FOLLOWING (X) THE
DATE THAT THE DEMAND IS MADE UNDER PARAGRAPH 3 IN THE CASE OF (I) ABOVE OR (Y)
THE DATE OF TRANSFER IN THE CASE OF (II) ABOVE, (2) SUBJECT TO PARAGRAPH 4(a),
THE APPROPRIATE PARTY WILL TRANSFER THE UNDISPUTED AMOUNT TO THE OTHER PARTY NOT
LATER THAN THE CLOSE OF BUSINESS ON THE LOCAL BUSINESS DAY FOLLOWING (X) THE
DATE THAT THE DEMAND IS MADE UNDER PARAGRAPH 3 IN THE CASE OF (I) ABOVE OR (Y)
THE DATE OF TRANSFER IN THE CASE OF (II) ABOVE, (3) THE PARTIES WILL CONSULT
WITH EACH OTHER IN AN ATTEMPT TO RESOLVE THE DISPUTE AND (4) IF THEY FAIL TO
RESOLVE THE DISPUTE BY THE RESOLUTION TIME, THEN:
(i) IN THE CASE OF A DISPUTE INVOLVING A DELIVERY AMOUNT OR RETURN AMOUNT,
UNLESS OTHERWISE SPECIFIED IN PARAGRAPH 13, THE VALUATION AGENT WILL
RECALCULATE THE EXPOSURE AND THE VALUE AS OF THE RECALCULATION DATE BY:
(A) UTILIZING ANY CALCULATIONS OF EXPOSURE FOR THE TRANSACTIONS (OR
SWAP TRANSACTIONS) THAT THE PARTIES HAVE AGREED ARE NOT IN DISPUTE;
(B) CALCULATING THE EXPOSURE FOR THE TRANSACTIONS (OR SWAP
TRANSACTIONS) IN DISPUTE BY SEEKING FOUR ACTUAL QUOTATIONS AT
MID-MARKET FROM REFERENCE MARKET-MAKERS FOR PURPOSES OF CALCULATING
MARKET QUOTATION, AND TAKING THE ARITHMETIC AVERAGE OF THOSE
OBTAINED; PROVIDED THAT IF FOUR QUOTATIONS ARE NOT AVAILABLE FOR A
PARTICULAR TRANSACTION (OR SWAP TRANSACTION), THEN FEWER THAN FOUR
QUOTATIONS MAY BE USED FOR THAT TRANSACTION (OR SWAP TRANSACTION);
AND IF NO QUOTATIONS ARE AVAILABLE FOR A PARTICULAR TRANSACTION (OR
SWAP TRANSACTION), THEN THE VALUATION AGENT'S ORIGINAL CALCULATIONS
WILL BE USED FOR THAT TRANSACTION (OR SWAP TRANSACTION); AND
(C) UTILIZING THE PROCEDURES SPECIFIED IN PARAGRAPH 13 FOR
CALCULATING THE VALUE, IF DISPUTED, OF POSTED CREDIT SUPPORT.
(ii) IN THE CASE OF A DISPUTE INVOLVING THE VALUE OF ANY TRANSFER OF
ELIGIBLE CREDIT SUPPORT OR POSTED CREDIT SUPPORT, THE VALUATION AGENT WILL
RECALCULATE THE VALUE AS OF THE DATE OF TRANSFER PURSUANT TO PARAGRAPH 13.
FOLLOWING A RECALCULATION PURSUANT TO THIS PARAGRAPH, THE VALUATION AGENT WILL
NOTIFY EACH PARTY (OR THE OTHER PARTY, IF THE VALUATION AGENT IS A PARTY) NOT
LATER THAN THE NOTIFICATION TIME ON THE LOCAL BUSINESS DAY FOLLOWING THE
RESOLUTION TIME. THE APPROPRIATE PARTY WILL, UPON DEMAND FOLLOWING THAT NOTICE
BY THE VALUATION AGENT OR A RESOLUTION PURSUANT TO (3) ABOVE AND SUBJECT TO
PARAGRAPHS 4(a) AND 4(b), MAKE THE APPROPRIATE TRANSFER.
Paragraph 6. Holding and Using Posted Collateral
ISDA (R) 1992
31
(a) Care of Posted Collateral. WITHOUT LIMITING THE SECURED PARTY'S RIGHTS UNDER
PARAGRAPH 6(c), THE SECURED PARTY WILL EXERCISE REASONABLE CARE TO ASSURE THE
SAFE CUSTODY OF ALL POSTED COLLATERAL TO THE EXTENT REQUIRED BY APPLICABLE LAW,
AND IN ANY EVENT THE SECURED PARTY WILL BE DEEMED TO HAVE EXERCISED REASONABLE
CARE IF IT EXERCISES AT LEAST THE SAME DEGREE OF CARE AS IT WOULD EXERCISE WITH
RESPECT TO ITS OWN PROPERTY. EXCEPT AS SPECIFIED IN THE PRECEDING SENTENCE, THE
SECURED PARTY WILL HAVE NO DUTY WITH RESPECT TO POSTED COLLATERAL, INCLUDING,
WITHOUT LIMITATION, ANY DUTY TO COLLECT ANY DISTRIBUTIONS, OR ENFORCE OR
PRESERVE ANY RIGHTS PERTAINING THERETO.
(b) Eligibility to Hold Posted Collateral; Custodians.
(i) General. SUBJECT TO THE SATISFACTION OF ANY CONDITIONS SPECIFIED IN
PARAGRAPH 13 FOR HOLDING POSTED COLLATERAL, THE SECURED PARTY WILL BE
ENTITLED TO HOLD POSTED COLLATERAL OR TO APPOINT AN AGENT (A "CUSTODIAN")
TO HOLD POSTED COLLATERAL FOR THE SECURED PARTY. UPON NOTICE BY THE
SECURED PARTY TO THE PLEDGOR OF THE APPOINTMENT OF A CUSTODIAN, THE
PLEDGOR'S OBLIGATIONS TO MAKE ANY TRANSFER WILL BE DISCHARGED BY MAKING
THE TRANSFER TO THAT CUSTODIAN. THE HOLDING OF POSTED COLLATERAL BY A
CUSTODIAN WILL BE DEEMED TO BE THE HOLDING OF THAT POSTED COLLATERAL BY
THE SECURED PARTY FOR WHICH THE CUSTODIAN IS ACTING.
(ii) Failure to Satisfy Conditions. IF THE SECURED PARTY OR ITS CUSTODIAN
FAILS TO SATISFY ANY CONDITIONS FOR HOLDING POSTED COLLATERAL, THEN UPON A
DEMAND MADE BY THE PLEDGOR, THE SECURED PARTY WILL, NOT LATER THAN FIVE
LOCAL BUSINESS DAYS AFTER THE DEMAND, TRANSFER OR CAUSE ITS CUSTODIAN TO
TRANSFER ALL POSTED COLLATERAL HELD BY IT TO A CUSTODIAN THAT SATISFIES
THOSE CONDITIONS OR TO THE SECURED PARTY IF IT SATISFIES THOSE CONDITIONS.
(iii) Liability. THE SECURED PARTY WILL BE LIABLE FOR THE ACTS OR
OMISSIONS OF ITS CUSTODIAN TO THE SAME EXTENT THAT THE SECURED PARTY WOULD
BE LIABLE HEREUNDER FOR ITS OWN ACTS OR OMISSIONS.
(c) Use of Posted Collateral. UNLESS OTHERWISE SPECIFIED IN PARAGRAPH 13 AND
WITHOUT LIMITING THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER PARAGRAPHS 3,
4(d)(ii), 5, 6(d) AND 8, IF THE SECURED PARTY IS NOT A DEFAULTING PARTY OR AN
AFFECTED PARTY WITH RESPECT TO A SPECIFIED CONDITION AND NO EARLY TERMINATION
DATE HAS OCCURRED OR BEEN DESIGNATED AS THE RESULT OF AN EVENT OF DEFAULT OR
SPECIFIED CONDITION WITH RESPECT TO THE SECURED PARTY, THEN THE SECURED PARTY
WILL, NOTWITHSTANDING SECTION 9-207 OF THE NEW YORK UNIFORM COMMERCIAL CODE,
HAVE THE RIGHT TO:
(i) SELL, PLEDGE, REHYPOTHECATE, ASSIGN, INVEST, USE, COMMINGLE OR
OTHERWISE DISPOSE OF, OR OTHERWISE USE IN ITS BUSINESS ANY POSTED
COLLATERAL IT HOLDS, FREE FROM ANY CLAIM OR RIGHT OF ANY NATURE WHATSOEVER
OF THE PLEDGOR, INCLUDING ANY EQUITY OR RIGHT OF REDEMPTION BY THE
PLEDGOR; AND
(ii) REGISTER ANY POSTED COLLATERAL IN THE NAME OF THE SECURED PARTY, ITS
CUSTODIAN OR A NOMINEE FOR EITHER.
FOR PURPOSES OF THE OBLIGATION TO TRANSFER ELIGIBLE CREDIT SUPPORT OR POSTED
CREDIT SUPPORT PURSUANT TO PARAGRAPHS 3 AND 5 AND ANY RIGHTS OR REMEDIES
AUTHORIZED UNDER THIS AGREEMENT, THE SECURED PARTY WILL BE DEEMED TO CONTINUE TO
HOLD ALL POSTED COLLATERAL AND TO RECEIVE DISTRIBUTIONS MADE THEREON, REGARDLESS
OF WHETHER THE SECURED PARTY HAS EXERCISED ANY RIGHTS WITH RESPECT TO ANY POSTED
COLLATERAL PURSUANT TO (i) OR (ii) ABOVE.
(d) Distributions and Interest Amount.
(i) Distributions. SUBJECT TO PARAGRAPH 4(a), IF THE SECURED PARTY
RECEIVES OR IS DEEMED TO RECEIVE DISTRIBUTIONS ON A LOCAL BUSINESS DAY, IT
WILL TRANSFER TO THE PLEDGOR NOT LATER THAN THE FOLLOWING LOCAL BUSINESS
DAY ANY DISTRIBUTIONS IT RECEIVES OR IS DEEMED TO RECEIVE TO THE EXTENT
THAT A DELIVERY AMOUNT WOULD NOT BE CREATED OR INCREASED BY THAT TRANSFER,
AS CALCULATED BY THE VALUATION AGENT (AND THE DATE OF CALCULATION WILL BE
DEEMED TO BE A VALUATION DATE FOR THIS PURPOSE).
(ii) Interest Amount. UNLESS OTHERWISE SPECIFIED IN PARAGRAPH 13 AND
SUBJECT TO PARAGRAPH 4(a), IN LIEU OF ANY INTEREST, DIVIDENDS OR OTHER
AMOUNTS PAID OR DEEMED TO HAVE BEEN PAID WITH RESPECT TO POSTED COLLATERAL
IN THE FORM OF CASH (ALL OF WHICH MAY BE RETAINED BY THE SECURED PARTY),
THE SECURED
ISDA (R) 1992
32
PARTY WILL TRANSFER TO THE PLEDGOR AT THE TIMES SPECIFIED IN PARAGRAPH 13
THE INTEREST AMOUNT TO THE EXTENT THAT A DELIVERY AMOUNT WOULD NOT BE
CREATED OR INCREASED BY THAT TRANSFER, AS CALCULATED BY THE VALUATION
AGENT (AND THE DATE OF CALCULATION WILL BE DEEMED TO BE A VALUATION DATE
FOR THIS PURPOSE). THE INTEREST AMOUNT OR PORTION THEREOF NOT TRANSFERRED
PURSUANT TO THIS PARAGRAPH WILL CONSTITUTE POSTED COLLATERAL IN THE FORM
OF CASH AND WILL BE SUBJECT TO THE SECURITY INTEREST GRANTED UNDER
PARAGRAPH 2.
Paragraph 7. Events of Default
FOR PURPOSES OF SECTION 5(a)(iii)(1) OF THIS AGREEMENT, AN EVENT OF DEFAULT WILL
EXIST WITH RESPECT TO A PARTY IF:
(i) THAT PARTY FAILS (OR FAILS TO CAUSE ITS CUSTODIAN) TO MAKE, WHEN DUE,
ANY TRANSFER OF ELIGIBLE COLLATERAL, POSTED COLLATERAL OR THE INTEREST
AMOUNT, AS APPLICABLE, REQUIRED TO BE MADE BY IT AND THAT FAILURE
CONTINUES FOR TWO LOCAL BUSINESS DAYS AFTER NOTICE OF THAT FAILURE IS
GIVEN TO THAT PARTY;
(ii) THAT PARTY FAILS TO COMPLY WITH ANY RESTRICTION OR PROHIBITION
SPECIFIED IN THIS ANNEX WITH RESPECT TO ANY OF THE RIGHTS SPECIFIED IN
PARAGRAPH 6(c) AND THAT FAILURE CONTINUES FOR FIVE LOCAL BUSINESS DAYS
AFTER NOTICE OF THAT FAILURE IS GIVEN TO THAT PARTY; OR
(iii) THAT PARTY FAILS TO COMPLY WITH OR PERFORM ANY AGREEMENT OR
OBLIGATION OTHER THAN THOSE SPECIFIED IN PARAGRAPHS 7(i) AND 7(ii) AND
THAT FAILURE CONTINUES FOR 30 DAYS AFTER NOTICE OF THAT FAILURE IS GIVEN
TO THAT PARTY.
Paragraph 8. Certain Rights and Remedies
(a) Secured Party's Rights and Remedies. IF AT ANY TIME (1) AN EVENT OF DEFAULT
OR SPECIFIED CONDITION WITH RESPECT TO THE PLEDGOR HAS OCCURRED AND IS
CONTINUING OR (2) AN EARLY TERMINATION DATE HAS OCCURRED OR BEEN DESIGNATED AS
THE RESULT OF AN EVENT OF DEFAULT OR SPECIFIED CONDITION WITH RESPECT TO THE
PLEDGOR, THEN, UNLESS THE PLEDGOR HAS PAID IN FULL ALL OF ITS OBLIGATIONS THAT
ARE THEN DUE, THE SECURED PARTY MAY EXERCISE ONE OR MORE OF THE FOLLOWING RIGHTS
AND REMEDIES:
(i) ALL RIGHTS AND REMEDIES AVAILABLE TO A SECURED PARTY UNDER APPLICABLE
LAW WITH RESPECT TO POSTED COLLATERAL HELD BY THE SECURED PARTY;
(ii) ANY OTHER RIGHTS AND REMEDIES AVAILABLE TO THE SECURED PARTY UNDER
THE TERMS OF OTHER POSTED SUPPORT, IF ANY;
(iii) THE RIGHT TO SET-OFF ANY AMOUNTS PAYABLE BY THE PLEDGOR WITH RESPECT
TO ANY OBLIGATIONS AGAINST ANY POSTED COLLATERAL OR THE CASH EQUIVALENT OF
ANY POSTED COLLATERAL HELD BY THE SECURED PARTY (OR ANY OBLIGATION OF THE
SECURED PARTY TO TRANSFER THAT POSTED COLLATERAL); AND
(iv) THE RIGHT TO LIQUIDATE ANY POSTED COLLATERAL HELD BY THE SECURED
PARTY THROUGH ONE OR MORE PUBLIC OR PRIVATE SALES OR OTHER DISPOSITIONS
WITH SUCH NOTICE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, FREE FROM
ANY CLAIM OR RIGHT OF ANY NATURE WHATSOEVER OF THE PLEDGOR, INCLUDING ANY
EQUITY OR RIGHT OF REDEMPTION BY THE PLEDGOR (WITH THE SECURED PARTY
HAVING THE RIGHT TO PURCHASE ANY OR ALL OF THE POSTED COLLATERAL TO BE
SOLD) AND TO APPLY THE PROCEEDS (OR THE CASH EQUIVALENT THEREOF) FROM THE
LIQUIDATION OF THE POSTED COLLATERAL TO ANY AMOUNTS PAYABLE BY THE PLEDGOR
WITH RESPECT TO ANY OBLIGATIONS IN THAT ORDER AS THE SECURED PARTY MAY
ELECT.
EACH PARTY ACKNOWLEDGES AND AGREES THAT POSTED COLLATERAL IN THE FORM OF
SECURITIES MAY DECLINE SPEEDILY IN VALUE AND IS OF A TYPE CUSTOMARILY SOLD ON A
RECOGNIZED MARKET, AND, ACCORDINGLY, THE PLEDGOR IS NOT ENTITLED TO PRIOR NOTICE
OF ANY SALE OF THAT POSTED COLLATERAL BY THE SECURED PARTY, EXCEPT ANY NOTICE
THAT IS REQUIRED BY LAW AND CANNOT BE WAIVED.
(b) Pledgor's Rights and Remedies. IF AT ANY TIME AN EARLY TERMINATION DATE HAS
OCCURRED OR BEEN DESIGNATED AS THE RESULT OF AN EVENT OF DEFAULT OR SPECIFIED
CONDITION WITH RESPECT TO THE SECURED PARTY, THEN (EXCEPT IN THE CASE OF AN
EARLY TERMINATION DATE RELATING TO LESS THAN ALL TRANSACTIONS (OR SWAP
TRANSACTIONS) WHERE THE SECURED PARTY HAS PAID IN FULL ALL OF ITS OBLIGATIONS
THAT ARE THEN DUE UNDER SECTION 6(e) OF THIS AGREEMENT):
ISDA (R) 1992
33
(i) THE PLEDGOR MAY EXERCISE ALL RIGHTS AND REMEDIES AVAILABLE TO A
PLEDGOR UNDER APPLICABLE LAW WITH RESPECT TO POSTED COLLATERAL HELD BY THE
SECURED PARTY;
(ii) THE PLEDGOR MAY EXERCISE ANY OTHER RIGHTS AND REMEDIES AVAILABLE TO
THE PLEDGOR UNDER THE TERMS OF OTHER POSTED SUPPORT, IF ANY;
(iii) THE SECURED PARTY WILL BE OBLIGATED IMMEDIATELY TO TRANSFER ALL
POSTED COLLATERAL AND THE INTEREST AMOUNT TO THE PLEDGOR; AND
(iv) TO THE EXTENT THAT POSTED COLLATERAL OR THE INTEREST AMOUNT IS NOT SO
TRANSFERRED PURSUANT TO (III) ABOVE, THE PLEDGOR MAY:
(A) SET-OFF ANY AMOUNTS PAYABLE BY THE PLEDGOR WITH RESPECT TO ANY
OBLIGATIONS AGAINST ANY POSTED COLLATERAL OR THE CASH EQUIVALENT OF
ANY POSTED COLLATERAL HELD BY THE SECURED PARTY (OR ANY OBLIGATION
OF THE SECURED PARTY TO TRANSFER THAT POSTED COLLATERAL); AND
(B) TO THE EXTENT THAT THE PLEDGOR DOES NOT SET-OFF UNDER (IV)(A)
ABOVE, WITHHOLD PAYMENT OF ANY REMAINING AMOUNTS PAYABLE BY THE
PLEDGOR WITH RESPECT TO ANY OBLIGATIONS, UP TO THE VALUE OF ANY
REMAINING POSTED COLLATERAL HELD BY THE SECURED PARTY, UNTIL THAT
POSTED COLLATERAL IS TRANSFERRED TO THE PLEDGOR.
(c) Deficiencies and Excess Proceeds. THE SECURED PARTY WILL TRANSFER TO THE
PLEDGOR ANY PROCEEDS AND POSTED CREDIT SUPPORT REMAINING AFTER LIQUIDATION,
SET-OFF AND/OR APPLICATION UNDER PARAGRAPHS 8(a) AND 8(b) AFTER SATISFACTION IN
FULL OF ALL AMOUNTS PAYABLE BY THE PLEDGOR WITH RESPECT TO ANY OBLIGATIONS; THE
PLEDGOR IN ALL EVENTS WILL REMAIN LIABLE FOR ANY AMOUNTS REMAINING UNPAID AFTER
ANY LIQUIDATION, SET-OFF AND/OR APPLICATION UNDER PARAGRAPHS 8(a) AND 8(b).
(d) Final Returns. WHEN NO AMOUNTS ARE OR THEREAFTER MAY BECOME PAYABLE BY THE
PLEDGOR WITH RESPECT TO ANY OBLIGATIONS (EXCEPT FOR ANY POTENTIAL LIABILITY
UNDER SECTION 2(d) OF THIS AGREEMENT), THE SECURED PARTY WILL TRANSFER TO THE
PLEDGOR ALL POSTED CREDIT SUPPORT AND THE INTEREST AMOUNT, IF ANY.
Paragraph 9. Representations
EACH PARTY REPRESENTS TO THE OTHER PARTY (WHICH REPRESENTATIONS WILL BE DEEMED
TO BE REPEATED AS OF EACH DATE ON WHICH IT, AS THE PLEDGOR, TRANSFERS ELIGIBLE
COLLATERAL) THAT:
(i) IT HAS THE POWER TO GRANT A SECURITY INTEREST IN AND LIEN ON ANY
ELIGIBLE COLLATERAL IT TRANSFERS AS THE PLEDGOR AND HAS TAKEN ALL
NECESSARY ACTIONS TO AUTHORIZE THE GRANTING OF THAT SECURITY INTEREST AND
LIEN;
(ii) IT IS THE SOLE OWNER OF OR OTHERWISE HAS THE RIGHT TO TRANSFER ALL
ELIGIBLE COLLATERAL TRANSFERRED TO THE SECURED PARTY HEREUNDER, FREE AND
CLEAR OF ANY SECURITY INTEREST, LIEN, ENCUMBRANCE OR OTHER RESTRICTIONS
OTHER THAN THE SECURITY INTEREST AND LIEN GRANTED UNDER PARAGRAPH 2;
(iii) UPON THE TRANSFER OF ANY ELIGIBLE COLLATERAL TO THE SECURED PARTY
UNDER THE TERMS OF THIS ANNEX, THE SECURED PARTY WILL HAVE A VALID AND
PERFECTED FIRST PRIORITY SECURITY INTEREST THEREIN (ASSUMING THAT ANY
CENTRAL CLEARING CORPORATION OR ANY THIRD-PARTY FINANCIAL INTERMEDIARY OR
OTHER ENTITY NOT WITHIN THE CONTROL OF THE PLEDGOR INVOLVED IN THE
TRANSFER OF THAT ELIGIBLE COLLATERAL GIVES THE NOTICES AND TAKES THE
ACTION REQUIRED OF IT UNDER RELEVANT LAW FOR PERFECTION OF THAT INTEREST);
AND
(iv) THE PERFORMANCE BY IT OF ITS OBLIGATIONS UNDER THIS ANNEX WILL NOT
RESULT IN THE CREATION OF ANY SECURITY INTEREST, LIEN OR OTHER ENCUMBRANCE
ON ANY POSTED COLLATERAL OTHER THAN THE SECURITY INTEREST AND LIEN GRANTED
UNDER PARAGRAPH 2.
Paragraph 10. Expenses
ISDA (R) 1992
34
(a) General. EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPHS 10(b) AND 10(c), EACH
PARTY WILL PAY ITS OWN COSTS AND EXPENSES IN CONNECTION WITH PERFORMING ITS
OBLIGATIONS UNDER THIS ANNEX AND NEITHER PARTY WILL BE LIABLE FOR ANY COSTS AND
EXPENSES INCURRED BY THE OTHER PARTY IN CONNECTION HEREWITH.
(b) Posted Credit Support. THE PLEDGOR WILL PROMPTLY PAY WHEN DUE ALL TAXES,
ASSESSMENTS OR CHARGES OF ANY NATURE THAT ARE IMPOSED WITH RESPECT TO POSTED
CREDIT SUPPORT HELD BY THE SECURED PARTY UPON BECOMING AWARE OF THE SAME,
REGARDLESS OF WHETHER ANY PORTION OF THAT POSTED CREDIT SUPPORT IS SUBSEQUENTLY
DISPOSED OF UNDER PARAGRAPH 6(c), EXCEPT FOR THOSE TAXES, ASSESSMENTS AND
CHARGES THAT RESULT FROM THE EXERCISE OF THE SECURED PARTY'S RIGHTS UNDER
PARAGRAPH 6(c).
(c) Liquidation/Application of Posted Credit Support. ALL REASONABLE COSTS AND
EXPENSES INCURRED BY OR ON BEHALF OF THE SECURED PARTY OR THE PLEDGOR IN
CONNECTION WITH THE LIQUIDATION AND/OR APPLICATION OF ANY POSTED CREDIT SUPPORT
UNDER PARAGRAPH 8 WILL BE PAYABLE, ON DEMAND AND PURSUANT TO THE EXPENSES
SECTION OF THIS AGREEMENT, BY THE DEFAULTING PARTY OR, IF THERE IS NO DEFAULTING
PARTY, EQUALLY BY THE PARTIES.
Paragraph 11. Miscellaneous
(a) Default Interest. A SECURED PARTY THAT FAILS TO MAKE, WHEN DUE, ANY TRANSFER
OF POSTED COLLATERAL OR THE INTEREST AMOUNT WILL BE OBLIGATED TO PAY THE PLEDGOR
(TO THE EXTENT PERMITTED UNDER APPLICABLE LAW) AN AMOUNT EQUAL TO INTEREST AT
THE DEFAULT RATE MULTIPLIED BY THE VALUE OF THE ITEMS OF PROPERTY THAT WERE
REQUIRED TO BE TRANSFERRED, FROM (AND INCLUDING) THE DATE THAT POSTED COLLATERAL
OR INTEREST AMOUNT WAS REQUIRED TO BE TRANSFERRED TO (BUT EXCLUDING) THE DATE OF
TRANSFER OF THAT POSTED COLLATERAL OR INTEREST AMOUNT. THIS INTEREST WILL BE
CALCULATED ON THE BASIS OF DAILY COMPOUNDING AND THE ACTUAL NUMBER OF DAYS
ELAPSED.
(b) Further Assurances. PROMPTLY FOLLOWING A DEMAND MADE BY A PARTY, THE OTHER
PARTY WILL EXECUTE, DELIVER, FILE AND RECORD ANY FINANCING STATEMENT, SPECIFIC
ASSIGNMENT OR OTHER DOCUMENT AND TAKE ANY OTHER ACTION THAT MAY BE NECESSARY OR
DESIRABLE AND REASONABLY REQUESTED BY THAT PARTY TO CREATE, PRESERVE, PERFECT OR
VALIDATE ANY SECURITY INTEREST OR LIEN GRANTED UNDER PARAGRAPH 2, TO ENABLE THAT
PARTY TO EXERCISE OR ENFORCE ITS RIGHTS UNDER THIS ANNEX WITH RESPECT TO POSTED
CREDIT SUPPORT OR AN INTEREST AMOUNT OR TO EFFECT OR DOCUMENT A RELEASE OF A
SECURITY INTEREST ON POSTED COLLATERAL OR AN INTEREST AMOUNT.
(c) Further Protection. THE PLEDGOR PROMPTLY WILL GIVE NOTICE TO THE SECURED
PARTY OF, AND DEFEND AGAINST, ANY SUIT, ACTION, PROCEEDING OR LIEN THAT INVOLVES
POSTED CREDIT SUPPORT TRANSFERRED BY THE PLEDGOR OR THAT COULD ADVERSELY AFFECT
THE SECURITY INTEREST AND LIEN GRANTED BY IT UNDER PARAGRAPH 2, UNLESS THAT
SUIT, ACTION, PROCEEDING OR LIEN RESULTS FROM THE EXERCISE OF THE SECURED
PARTY'S RIGHTS UNDER PARAGRAPH 6(c).
(d) Good Faith and Commercially Reasonable Manner. PERFORMANCE OF ALL
OBLIGATIONS UNDER THIS ANNEX INCLUDING, BUT NOT LIMITED TO, ALL CALCULATIONS,
VALUATIONS AND DETERMINATIONS MADE BY EITHER PARTY, WILL BE MADE IN GOOD FAITH
AND IN A COMMERCIALLY REASONABLE MANNER.
(e) Demands and Notices. ALL DEMANDS AND NOTICES MADE BY A PARTY UNDER THIS
ANNEX WILL BE MADE AS SPECIFIED IN THE NOTICES SECTION OF THIS AGREEMENT, EXCEPT
AS OTHERWISE PROVIDED IN PARAGRAPH 13.
(f) Specifications of Certain Matters. ANYTHING REFERRED TO IN THIS ANNEX AS
BEING SPECIFIED IN PARAGRAPH 13 ALSO MAY BE SPECIFIED IN ONE OR MORE
CONFIRMATIONS OR OTHER DOCUMENTS AND THIS ANNEX WILL BE CONSTRUED ACCORDINGLY.
Paragraph 12. Definitions
AS USED IN THIS ANNEX:--
"Cash" MEANS THE LAWFUL CURRENCY OF THE UNITED STATES OF AMERICA.
"Credit Support Amount" HAS THE MEANING SPECIFIED IN PARAGRAPH 3.
"Custodian" HAS THE MEANING SPECIFIED IN PARAGRAPHS 6(b)(i) AND 13.
"Delivery Amount" HAS THE MEANING SPECIFIED IN PARAGRAPH 3(a).
ISDA (R) 1992
35
"Disputing Party" HAS THE MEANING SPECIFIED IN PARAGRAPH 5.
"Distributions" MEANS WITH RESPECT TO POSTED COLLATERAL OTHER THAN CASH, ALL
PRINCIPAL, INTEREST AND OTHER PAYMENTS AND DISTRIBUTIONS OF CASH OR OTHER
PROPERTY WITH RESPECT THERETO, REGARDLESS OF WHETHER THE SECURED PARTY HAS
DISPOSED OF THAT POSTED COLLATERAL UNDER PARAGRAPH 6(c). DISTRIBUTIONS WILL NOT
INCLUDE ANY ITEM OF PROPERTY ACQUIRED BY THE SECURED PARTY UPON ANY DISPOSITION
OR LIQUIDATION OF POSTED COLLATERAL OR, WITH RESPECT TO ANY POSTED COLLATERAL IN
THE FORM OF CASH, ANY DISTRIBUTIONS ON THAT COLLATERAL, UNLESS OTHERWISE
SPECIFIED HEREIN.
"Eligible Collateral" MEANS, WITH RESPECT TO A PARTY, THE ITEMS, IF ANY,
SPECIFIED AS SUCH FOR THAT PARTY IN PARAGRAPH 13.
"Eligible Credit Support" MEANS ELIGIBLE COLLATERAL AND OTHER ELIGIBLE SUPPORT.
"Exposure" MEANS FOR ANY VALUATION DATE OR OTHER DATE FOR WHICH EXPOSURE IS
CALCULATED AND SUBJECT TO PARAGRAPH 5 IN THE CASE OF A DISPUTE, THE AMOUNT, IF
ANY, THAT WOULD BE PAYABLE TO A PARTY THAT IS THE SECURED PARTY BY THE OTHER
PARTY (EXPRESSED AS A POSITIVE NUMBER) OR BY A PARTY THAT IS THE SECURED PARTY
TO THE OTHER PARTY (EXPRESSED AS A NEGATIVE NUMBER) PURSUANT TO SECTION
6(e)(ii)(2)(A) OF THIS AGREEMENT AS IF ALL TRANSACTIONS (OR SWAP TRANSACTIONS)
WERE BEING TERMINATED AS OF THE RELEVANT VALUATION TIME; PROVIDED THAT MARKET
QUOTATION WILL BE DETERMINED BY THE VALUATION AGENT USING ITS ESTIMATES AT
MID-MARKET OF THE AMOUNTS THAT WOULD BE PAID FOR REPLACEMENT TRANSACTIONS (AS
THAT TERM IS DEFINED IN THE DEFINITION OF "MARKET QUOTATION").
"Independent Amount" MEANS, WITH RESPECT TO A PARTY, THE AMOUNT SPECIFIED AS
SUCH FOR THAT PARTY IN PARAGRAPH 13; IF NO AMOUNT IS SPECIFIED, ZERO.
"Interest Amount" MEANS, WITH RESPECT TO AN INTEREST PERIOD, THE AGGREGATE SUM
OF THE AMOUNTS OF INTEREST CALCULATED FOR EACH DAY IN THAT INTEREST PERIOD ON
THE PRINCIPAL AMOUNT OF POSTED COLLATERAL IN THE FORM OF CASH HELD BY THE
SECURED PARTY ON THAT DAY, DETERMINED BY THE SECURED PARTY FOR EACH SUCH DAY AS
FOLLOWS:
(x) THE AMOUNT OF THAT CASH ON THAT DAY; MULTIPLIED BY
(y) THE INTEREST RATE IN EFFECT FOR THAT DAY; DIVIDED BY
(z) 360.
"Interest Period" MEANS THE PERIOD FROM (AND INCLUDING) THE LAST LOCAL BUSINESS
DAY ON WHICH AN INTEREST AMOUNT WAS TRANSFERRED (OR, IF NO INTEREST AMOUNT HAS
YET BEEN TRANSFERRED, THE LOCAL BUSINESS DAY ON WHICH POSTED COLLATERAL IN THE
FORM OF CASH WAS TRANSFERRED TO OR RECEIVED BY THE SECURED PARTY) TO (BUT
EXCLUDING) THE LOCAL BUSINESS DAY ON WHICH THE CURRENT INTEREST AMOUNT IS TO BE
TRANSFERRED.
"Interest Rate" MEANS THE RATE SPECIFIED IN PARAGRAPH 13.
"Local Business Day", UNLESS OTHERWISE SPECIFIED IN PARAGRAPH 13, HAS THE
MEANING SPECIFIED IN THE DEFINITIONS SECTION OF THIS AGREEMENT, EXCEPT THAT
REFERENCES TO A PAYMENT IN CLAUSE (b) THEREOF WILL BE DEEMED TO INCLUDE A
TRANSFER UNDER THIS ANNEX.
"Minimum Transfer Amount" MEANS, WITH RESPECT TO A PARTY, THE AMOUNT SPECIFIED
AS SUCH FOR THAT PARTY IN PARAGRAPH 13; IF NO AMOUNT IS SPECIFIED, ZERO.
"Notification Time" HAS THE MEANING SPECIFIED IN PARAGRAPH 13.
"Obligations" MEANS, WITH RESPECT TO A PARTY, ALL PRESENT AND FUTURE OBLIGATIONS
OF THAT PARTY UNDER THIS AGREEMENT AND ANY ADDITIONAL OBLIGATIONS SPECIFIED FOR
THAT PARTY IN PARAGRAPH 13.
"Other Eligible Support" MEANS, WITH RESPECT TO A PARTY, THE ITEMS, IF ANY,
SPECIFIED AS SUCH FOR THAT PARTY IN PARAGRAPH 13.
ISDA (R) 1992
36
"Other Posted Support" MEANS ALL OTHER ELIGIBLE SUPPORT TRANSFERRED TO THE
SECURED PARTY THAT REMAINS IN EFFECT FOR THE BENEFIT OF THAT SECURED PARTY.
"Pledgor" MEANS EITHER PARTY, WHEN THAT PARTY (i) RECEIVES A DEMAND FOR OR IS
REQUIRED TO TRANSFER ELIGIBLE CREDIT SUPPORT UNDER PARAGRAPH 3(a) OR (ii) HAS
TRANSFERRED ELIGIBLE CREDIT SUPPORT UNDER PARAGRAPH 3(a).
"Posted Collateral" MEANS ALL ELIGIBLE COLLATERAL, OTHER PROPERTY,
DISTRIBUTIONS, AND ALL PROCEEDS THEREOF THAT HAVE BEEN TRANSFERRED TO OR
RECEIVED BY THE SECURED PARTY UNDER THIS ANNEX AND NOT TRANSFERRED TO THE
PLEDGOR PURSUANT TO PARAGRAPH 3(b), 4(d)(ii) OR 6(d)(i) OR RELEASED BY THE
SECURED PARTY UNDER PARAGRAPH 8. ANY INTEREST AMOUNT OR PORTION THEREOF NOT
TRANSFERRED PURSUANT TO PARAGRAPH 6(d)(ii) WILL CONSTITUTE POSTED COLLATERAL IN
THE FORM OF CASH.
"Posted Credit Support" MEANS POSTED COLLATERAL AND OTHER POSTED SUPPORT.
"Recalculation Date" MEANS THE VALUATION DATE THAT GIVES RISE TO THE DISPUTE
UNDER PARAGRAPH 5; PROVIDED, HOWEVER, THAT IF A SUBSEQUENT VALUATION DATE OCCURS
UNDER PARAGRAPH 3 PRIOR TO THE RESOLUTION OF THE DISPUTE, THEN THE
"RECALCULATION DATE" MEANS THE MOST RECENT VALUATION DATE UNDER PARAGRAPH 3.
"Resolution Time" HAS THE MEANING SPECIFIED IN PARAGRAPH 13.
"Return Amount" HAS THE MEANING SPECIFIED IN PARAGRAPH 3(b).
"Secured Party" MEANS EITHER PARTY, WHEN THAT PARTY (i) MAKES A DEMAND FOR OR IS
ENTITLED TO RECEIVE ELIGIBLE CREDIT SUPPORT UNDER PARAGRAPH 3(a) OR (ii) HOLDS
OR IS DEEMED TO HOLD POSTED CREDIT SUPPORT.
"Specified Condition" MEANS, WITH RESPECT TO A PARTY, ANY EVENT SPECIFIED AS
SUCH FOR THAT PARTY IN PARAGRAPH 13.
"Substitute Credit Support" HAS THE MEANING SPECIFIED IN PARAGRAPH 4(d)(i).
"Substitution Date" HAS THE MEANING SPECIFIED IN PARAGRAPH 4(d)(ii).
"Threshold" MEANS, WITH RESPECT TO A PARTY, THE AMOUNT SPECIFIED AS SUCH FOR
THAT PARTY IN PARAGRAPH 13; IF NO AMOUNT IS SPECIFIED, ZERO.
"Transfer" MEANS, WITH RESPECT TO ANY ELIGIBLE CREDIT SUPPORT, POSTED CREDIT
SUPPORT OR INTEREST AMOUNT, AND IN ACCORDANCE WITH THE INSTRUCTIONS OF THE
SECURED PARTY, PLEDGOR OR CUSTODIAN, AS APPLICABLE:
(i) IN THE CASE OF CASH, PAYMENT OR DELIVERY BY WIRE TRANSFER INTO ONE OR
MORE BANK ACCOUNTS SPECIFIED BY THE RECIPIENT;
(ii) IN THE CASE OF CERTIFICATED SECURITIES THAT CANNOT BE PAID OR
DELIVERED BY BOOK-ENTRY, PAYMENT OR DELIVERY IN APPROPRIATE PHYSICAL FORM
TO THE RECIPIENT OR ITS ACCOUNT ACCOMPANIED BY ANY DULY EXECUTED
INSTRUMENTS OF TRANSFER, ASSIGNMENTS IN BLANK, TRANSFER TAX STAMPS AND ANY
OTHER DOCUMENTS NECESSARY TO CONSTITUTE A LEGALLY VALID TRANSFER TO THE
RECIPIENT;
(iii) IN THE CASE OF SECURITIES THAT CAN BE PAID OR DELIVERED BY
BOOK-ENTRY, THE GIVING OF WRITTEN INSTRUCTIONS TO THE RELEVANT DEPOSITORY
INSTITUTION OR OTHER ENTITY SPECIFIED BY THE RECIPIENT, TOGETHER WITH A
WRITTEN COPY THEREOF TO THE RECIPIENT, SUFFICIENT IF COMPLIED WITH TO
RESULT IN A LEGALLY EFFECTIVE TRANSFER OF THE RELEVANT INTEREST TO THE
RECIPIENT; AND
(iv) IN THE CASE OF OTHER ELIGIBLE SUPPORT OR OTHER POSTED SUPPORT, AS
SPECIFIED IN PARAGRAPH 13.
"Valuation Agent" HAS THE MEANING SPECIFIED IN PARAGRAPH 13.
"Valuation Date" MEANS EACH DATE SPECIFIED IN OR OTHERWISE DETERMINED PURSUANT
TO PARAGRAPH 13.
ISDA (R) 1992
37
"Valuation Percentage" MEANS, FOR ANY ITEM OF ELIGIBLE COLLATERAL, THE
PERCENTAGE SPECIFIED IN PARAGRAPH 13.
"Valuation Time" HAS THE MEANING SPECIFIED IN PARAGRAPH 13.
"Value" MEANS FOR ANY VALUATION DATE OR OTHER DATE FOR WHICH VALUE IS CALCULATED
AND SUBJECT TO PARAGRAPH 5 IN THE CASE OF A DISPUTE, WITH RESPECT TO:
(i) ELIGIBLE COLLATERAL OR POSTED COLLATERAL THAT IS:
(A) CASH, THE AMOUNT THEREOF; AND
(B) A SECURITY, THE BID PRICE OBTAINED BY THE VALUATION AGENT
MULTIPLIED BY THE APPLICABLE VALUATION PERCENTAGE, IF ANY;
(ii) POSTED COLLATERAL THAT CONSISTS OF ITEMS THAT ARE NOT SPECIFIED AS
ELIGIBLE COLLATERAL, ZERO; AND
(iii) OTHER ELIGIBLE SUPPORT AND OTHER POSTED SUPPORT, AS SPECIFIED IN
PARAGRAPH 13.
ISDA (R) 1992
38
EXHIBIT "A"
CREDIT SUPPORT ANNEX
TO THE SCHEDULE TO THE
MASTER AGREEMENT
(DATED AS OF OCTOBER 13, 2005)
BETWEEN
BANK OF AMERICA, N.A. AND GENERAL CABLE CORPORATION,
("PARTY A") A DELAWARE CORPORATION
("PARTY B")
PARAGRAPH 13. ELECTIONS AND VARIABLES
Security Interest for "Obligations". THE TERM "Obligations" AS USED IN THIS
ANNEX DOES NOT INCLUDE ANY ADDITIONAL OBLIGATIONS WITH RESPECT TO PARTY A
AND PARTY B.
Credit Support Obligations.
Delivery Amount, Return Amount and Credit Support Amount.
"Delivery Amount" HAS THE MEANING SPECIFIED IN PARAGRAPH 3(a).
"Return Amount" HAS THE MEANING SPECIFIED IN PARAGRAPH 3(b).
"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.
ISDA (R) 1992
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"Eligible Collateral" THE FOLLOWING ITEMS WILL QUALIFY AS Eligible
Collateral FOR THE PARTY SPECIFIED:
VALUATION
PERCENTAGE
(A) Cash 100%
Other Eligible Support. THE FOLLOWING ITEMS WILL QUALIFY AS "OTHER
ELIGIBLE SUPPORT" FOR THE PARTY A AND PARTY B: NONE.
Thresholds.
"Independent Amount" MEANS WITH RESPECT TO PARTY A AND PARTY B: ZERO
DOLLARS (USD $0.00) UNLESS OTHERWISE SPECIFIED IN THE
CONFIRMATION.
"Threshold" MEANS, WITH RESPECT TO PARTY B, INFINITY, PROVIDED THAT
IF AN EVENT OF DEFAULT OR SPECIFIED CONDITION HAS OCCURRED OR IS
CONTINUING WITH RESPECT PARTY B, THE THRESHOLD WITH RESPECT TO
PARTY B SHALL BE ZERO.
"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 IS ZERO.
Rounding. THE DELIVERY AMOUNT AND RETURN AMOUNT WILL BE ROUNDED UP
AND DOWN, RESPECTIVELY, TO THE NEAREST INTEGRAL MULTIPLE OF USD
10,000.
Valuation and Timing.
"Valuation Agent" MEANS PARTY A.
"Valuation Date" MEANS EACH LOCAL BUSINESS DAY.
"Valuation Time" MEANS THE CLOSE OF BUSINESS IN THE CITY OF THE
VALUATION AGENT ON THE LOCAL BUSINESS DAY BEFORE THE VALUATION
DATE OR DATE OF CALCULATION, AS APPLICABLE; PROVIDED THAT THE
CALCULATIONS OF VALUE AND EXPOSURE
ISDA (R) 1992
40
WILL BE MADE AS OF APPROXIMATELY THE SAME TIME ON THE SAME
DATE.
"Notification Time" MEANS NO LATER THAN 1:00 P.M., NEW YORK TIME, ON
A LOCAL BUSINESS DAY.
Conditions Precedent and Secured Party's Rights and Remedies. FOR THE PURPOSES
OF PARAGRAPH 8(a), EACH TERMINATION EVENT WILL CONSTITUTE A SPECIFIED
CONDITION WITH RESPECT TO THE 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 SHALL BE A "SPECIFIED CONDITION" FOR THAT PARTY:
Additional Termination Events (if any) (x)
Substitution.
"Substitution Date" HAS THE MEANING SPECIFIED IN PARAGRAPH 4(d)(ii).
Consent. THE PLEDGOR MAY NOT SUBSTITUTE ELIGIBLE CREDIT SUPPORT PURSUANT
TO PARAGRAPH 4(d) WITHOUT THE CONSENT OF THE SECURED PARTY.
Dispute Resolution.
"Resolution Time" MEANS 1:00 P.M., NEW YORK TIME, ON THE LOCAL BUSINESS
DAY FOLLOWING THE DATE ON WHICH THE NOTICE IS GIVEN THAT GIVES RISE
TO A DISPUTE UNDER PARAGRAPH 5.
"Value". FOR THE PURPOSE OF PARAGRAPH 5(i)(c) AND 5(ii), THE VALUE OF THE
POSTED CREDIT SUPPORT WILL BE CALCULATED AS FOLLOWS: (1) FOR CASH,
THE U.S. DOLLAR VALUE THEREOF; (2) ELIGIBLE COLLATERAL OTHER THAN
CASH: NOT APPLICABLE.
"Alternative". NOT APPLICABLE.
ISDA (R) 1992
41
Holding and Using Posted Collateral.
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).
PARTY A: (a) THE LONG-TERM, UNSECURED, UNSUBORDINATED DEBT RATINGS
OF BANK OF AMERICA, N.A. ARE AT LEAST BBB+ (IN THE CASE OF
S&P) AND BAA1 (IN THE CASE OF MOODY'S).
THE CUSTODIAN: THE CUSTODIAN IS EITHER: (a) A WHOLLY OWNED, DIRECT
OR INDIRECT, AFFILIATE OF BANK OF AMERICA, N.A. OR (b) A BANK
OR TRUST COMPANY LOCATED IN THE UNITED STATES HAVING TOTAL
ASSETS OF AT LEAST USD 10,000,000,000.
Initially, the Custodian for Party A is: Not Applicable .
Use of Posted Collateral. THE PROVISIONS OF PARAGRAPH 6(c) WILL APPLY.
Distributions and Interest Amount.
Interest Rate. THE "INTEREST RATE" WILL BE THE RATE PER ANNUM EQUAL TO THE
OVERNIGHT FEDERAL FUNDS RATE PUBLISHED IN N.Y. FEDERAL RESERVE
STATISTICAL RELEASE H.15(519) FOR EACH DAY CASH IS HELD BY SECURED
PARTY.
Transfer of Interest Amount. THE TRANSFER OF THE INTEREST AMOUNT WILL BE
MADE WITHIN 3 LOCAL BUSINESS DAYS AFTER 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).
Alternative to Interest Amount. NOT APPLICABLE.
Additional Representations. NOT APPLICABLE.
Other Eligible Support and Other Posted Support.
ISDA (R) 1992
42
"Value" WITH RESPECT TO OTHER ELIGIBLE SUPPORT AND OTHER POSTED SUPPORT
MEANS: NOT APPLICABLE.
"Transfer" WITH RESPECT TO OTHER ELIGIBLE SUPPORT AND OTHER POSTED SUPPORT
MEANS: NOT APPLICABLE.
Demands and Notices.
All demands, specifications and notices under this Annex will be made
pursuant to the Notices Section of this Agreement, unless otherwise
specified here:
With respect to Party A:
Bank of America, N.A.
Sears Tower
233 South Wacker Drive, Suite 2800
Chicago, Illinois 60606-6306
Tel: (312) 234-3030
Fax: (312) 234-2731
ISDA (R) 1992
43
With respect to Party B:
General Cable Industries, Inc.
4 Tesseneer Drive
Highland Heights, KY 41076
Attention: Chief Financial Officer
Tel: (859) 572-8000
Fax: (859) 572-8440
and
General Cable Corporation
4 Tesseneer Drive
Highland Heights, KY 41076
Attention: Chief Financial Officer
Tel: (859) 572-8000
Fax: (859) 572-8440
With a copy to:
Blank Rome LLP
One Logan Square
Philadelphia, PA 19103
Attention: Matthew Siembieda, Esquire
Harvey Forman, Esquire
Tel: (215) 569-5500
Fax: (215) 569-5555
Addresses for Transfers.
Cash/Interest Payments: (USD Only)
Bank of America, New York
ABA 026009593
Account #6550-619389
F/O Bank of America, Charlotte-Collateral
Other Provisions:
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
ISDA (R) 1992
44
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.
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.
Posted Collateral. THE DEFINITION OF POSTED COLLATERAL SHALL ALSO INCLUDE
ANY AND ALL ACCOUNTS IN WHICH CASH COLLATERAL IS HELD.
THIS CREDIT SUPPORT ANNEX IS A SECURITY AGREEMENT UNDER THE NEW YORK UCC.
PARAGRAPH 12 IS HEREBY AMENDED BY ADDING, IN ALPHABETICAL ORDER, THE
FOLLOWING:
"Moody's" means Moody's Investor Services, Inc., or any successor to
the rating business of such entity.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor to the rating
business of such entity.
ISDA (R) 1992
45
IN WITNESS WHEREOF the parties have executed this Annex as of the date specified
on the first page hereof.
BANK OF AMERICA, N.A. GENERAL CABLE CORPORATION (Party B)
(Party A)
By: ___________________________ By: ___________________________
Name: Name:
Title: Title:
Date: Date:
ISDA (R) 1992
46
CONTINUING UNCONDITIONAL GUARANTY
THIS CONTINUING UNCONDITIONAL GUARANTY (this "GUARANTY") is made as of
February 2, 2006 and is effective as of October 13, 2005 by GENERAL CABLE
INDUSTRIES, INC., a Delaware corporation ("GUARANTOR"), to and for the benefit
of BANK OF AMERICA, N.A. ("COUNTERPARTY").
WHEREAS, GENERAL CABLE CORPORATION, a Delaware 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 Credit Support Annex (hereinafter defined) 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 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,
47
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
48
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
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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;
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(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.
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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 2nd day of February, 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
[Signature Page to Guaranty Re October 2005 Foreign Currency Swap with
General Cable Corporation]
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