EXHIBIT 3.16
OPERATING AGREEMENT
OF
GENERAL CABLE MANAGEMENT LLC
A DELAWARE LIMITED LIABILITY COMPANY
This OPERATING AGREEMENT ("Agreement") of GENERAL CABLE MANAGEMENT LLC
(the "Company"), is entered into as of December 1, 2001, by and among the
Company and General Cable Industries, Inc., a Delaware corporation (individually
a "Member" and collectively with all members that join in and agree to be bound
hereby after the date first written above, the "Members").
In consideration of the mutual covenants herein contained, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
FORMATION OF LIMITED LIABILITY COMPANY
The Certificate of Formation for the Company has been filed and the
Company has been formed pursuant to the Delaware Limited Liability Company Act
(the "Act"). The Company shall be operated in accordance with the terms and
conditions of this Agreement. The Member intends that the Company be subject to
federal and state income taxation as a division of the Member. In the event
additional Members join in, the Members expressly do not intend hereby to form a
partnership (including, without limitation, a limited partnership) or joint
venture. However, the Members intend that the Company be subject to federal and
state taxation as a partnership. This Agreement shall not be construed to
suggest otherwise.
ARTICLE II
NAME
The business of the Company shall be conducted under the name GENERAL
CABLE MANAGEMENT LLC, or such other name as the Members may hereafter designate.
ARTICLE III
PURPOSE
The purpose of the Company is to engage in any business or activity
that now or hereafter is not prohibited by the law of the jurisdiction in which
the Company engages in that business.
ARTICLE IV
TERM
The term of the Company shall commence on the date of filing of the
Certificate of Formation and shall be perpetual, unless earlier terminated as
provided in Article XVI of this Agreement.
ARTICLE V
REGISTERED OFFICE; REGISTERED AGENT; PRINCIPAL PLACE OF BUSINESS
The registered agent of the Company in the State of Delaware shall be
as designated on the Certificate of Formation, or such other person as the
Members may hereafter designate in the manner provided by law. The initial
registered agent, as listed on the Certificate of Formation, is The Corporation
Trust Company. The registered office of the Company required by the Act to be
maintained in the State of Delaware shall be as designated on the Certificate of
Formation, or such other place in Delaware as the Members may hereafter
designate in the manner provided bylaw. The initial registered office of the
Company, as listed on the Certificate of Formation, is The Corporation Trust
Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇. The principal place of business of the Company shall be located at such
address as may be designated by the Members.
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ARTICLE VI
CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS
(A) CAPITAL CONTRIBUTIONS. The Capital Contributions of a Member
shall be the amount of cash and the fair market value of any property (net of
any liability to which such property is subject) contributed by the Member to
the Company. Each Member shall contribute to the Company as such Member's
initial Capital Contribution the amount of cash and/or the property set forth
next to such Member's name on Exhibit A attached hereto. No Member shall be
obligated to make an additional Capital Contribution or a loan to the Company
except as expressly provided herein. If additional finds are advanced to the
Company by the Members, such funds shall be additional Capital Contributions to
the extent such funds are advanced pro rata by the Members in accordance with
their Membership Interests in the Company. Any funds advanced in excess of a
Members pro rata share shall be a loan from such Member, the terms of which
shall be established at the time of such advance.
(B) CAPITAL ACCOUNTS, An individual Capital Account shall be
maintained for each Member. The Capital Account of each Member shall consist of
such Member's initial Capital Contribution, increased by (1) any additional
Capital Contributions made by such Member and (2) such Member's share of Profits
and items of income and gain specially allocated pursuant to Article XVIII(C),
and decreased by (3) distributions to such Member, and (4) such Member's share
of Losses and items of loss and deduction specially allocated pursuant to
Article XVIII(C). The Capital Account of each Member shall be further adjusted
as provided in Article XVIII(A). No Member shall be liable to the Company or any
other Member or any creditor of the Company solely because of the existence of a
negative balance in such Member's Capital Account.
ARTICLE VII
DISTRIBUTIONS OF CASH AND ALLOCATIONS OF PROFIT AND LOSS
(A) MEMBERSHIP INTEREST. "MEMBERSHIP Interest" means the
percentage ownership interest of a Member in the Company at any particular time,
including the right of such Member to any and all benefits to which such Member
may be entitled as provided in this Agreement and in the Act together with the
obligations of such Member to comply with all of the provisions of this
Agreement and of the Act. Each Member's Membership Interest shall be as set
forth on Exhibit `A" opposite such Member's name.
(B) ALLOCATIONS OF COMPANY PROFITS ANTI COMPANY LOSSES.
(I) The terms "Profits" and "Losses" shall mean the net
income and net losses, respectively, of the Company as determined for Federal
income tax purposes in accordance with the accounting method followed by the
Company for such purposes. Company Profits and Losses shall be adjusted as
provided in Article XVIII(B).
(2) Company Profits or Losses and items of income, gain,
loss or deduction shall be allocated to the Members in accordance with their
Membership Interests, except as provided in Article XVIII(C).
(C) DISTRIBUTION OF CASH.
(1) Net Cash Receipts of the Company shall be distributed
to the Members in accordance with their respective Membership Interests at such
times and in such amounts as shall be determined by the Members.
(2) Net Cash Receipts shall be the sum of the amounts
listed in paragraphs (a) through (d) below, minus any amounts determined by the
Members to be held as reasonable reserves for the operation of the Company, for
additional investment by the Company, and for the payment, when due, of the
obligations of the Company.
(a) All cash receipts derived from operations of
the Company after provision for or payment of all liabilities and expenditures
of the Company then due;
(b) Net cash proceeds derived from the sale of
any assets, real or personal, of the Company after payment of all liabilities
then due and expenses of sale, including, without limitation, brokerage
commissions, legal fees and applicable transfer taxes;
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(c) Net proceeds of awards in condemnation, or
payments or settlements in lieu thereof received by the Company, after payment
of all liabilities then due and expenses relating thereto; provided, however,
that no such net proceeds shall be included herein to the extent that such
proceeds are applied to the replacement of any property which has been so taken
by any public authority; and
(d) Any cash derived from any source not
included within the foregoing subsections, other than cash derived from Capital
Contributions to the Company, or cash derived from Company borrowing.
ARTICLE VIII
COMPENSATION OF MEMBERS
Reasonable compensation may be paid to any of the Members for services
rendered by any of them to the Company.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Company shall end on the 31st day of December of
each year.
ARTICLE X
COMPANY FUNDS AND ASSETS
The funds of the Company shall be deposited in such bank account or
accounts, and invested in such interest-bearing or non-interest bearing
investments, as shall he designated by the Members. Withdrawals from any such
accounts may be made by such person or persons designated from time to time by
the Members. Company finds and assets shall not be commingled with those of any
other person.
ARTICLE XI
LIMITED LIABILITY OF MEMBERS
No Member, employee or agent of the Company shall have any personal
liability whatever, whether to the Company, to any of the Members or to the
creditors of the Company, for the debts, obligations or liabilities of the
Company or any losses beyond the amount committed by the Members to the capital
of the Company.
ARTICLE XII
MANAGEMENT OF THE COMPANY
(A) MEETINGS AND VOTING OF MEMBERS. All decisions concerning the
management or control of Company business shall be made by the vote of a
majority of Membership Interests. No annual meetings of the Members shall be
held. Special meetings of the Members for any proper purpose or purposes may be
called at any time by any Member. Only business within the purpose or purposes
described in the notice (or waiver thereof may be conducted at a special meeting
of the Members. Any action to be taken at any meeting of Members may be taken
without a meeting, without prior notice, and without a vote, if a consent or
consents in writing, setting forth the action so taken, shall be signed by the
holder or holders of the requisite percentage of the Membership Interests
necessary to approve such action. Every written consent shall bear the date of
signature of each Member who signs the consent.
(B) UNCERTIFICATED INTERESTS. The Membership Interests of the
Company shall be Uncertificated and shall be in accordance with the Membership
Interests listed on Exhibit A hereto, as such exhibit may be amended from time
to time.
(C) COMPANY EXPENSES. All of the Company's expenses shall be
billed directly to and be paid by the Company. Subject to the approval of all of
the Members, (a) all reasonable expenses incurred by any Member,
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employee or agent in connection with the administration and operation of the
Company shall be charged to the Company, and (b) to the extent any Member
advances funds on behalf of the Company, all such advances shall be reimbursed
by the Company.
(D) OFFICERS.
(1) GENERALLY. The officers of the Company shall consist
of a President, a Secretary, a Treasurer and such other officers, including, for
example, Vice Presidents, Assistant Treasurers and Assistant Secretaries, as may
from time to time be appointed by the Members. Officers shall be elected by the
Members. Each officer shall hold office until such officer's successor is
elected and qualified or until such officer's earlier resignation or removal.
One person may hold more than one of the offices specified in this section and
may have such other titles as the Members may determine.
(2) PRESIDENT. The President shall be the chief executive
officer of the Company. Subject to the provisions of these bylaws and to the
direction of the Members, the President shall have the responsibility for the
general management and control of the business and affairs of the Company and
shall perform all duties and have all powers which are commonly incident to the
office of chief executive or which are delegated to the President by the
Members. The President shall have power to sign all contracts and other
instruments of the Company which are authorized and shall have general
supervision and direction of all of the other officers, employees and agents of
the Company.
(3) VICE PRESIDENT. There may be such number of Vice
Presidents as the Members shall appoint. Any such Vice President shall have such
powers and duties as may be delegated to the Vice President by the Members. A
Vice President may be designated by the Members to perform the duties and
exercise the powers of the President in the event of the President's absence or
disability.
(4) TREASURER/ASSISTANT TREASURER. The Treasurer shall
have the responsibility for maintaining the financial records of the Company and
shall have custody of all monies and securities of the Company. The Treasurer
shall make such disbursements of the funds of the Company as are authorized and
shall render from time to time an account of all such transactions and of the
financial condition of the Company. The Treasurer shall also perform such other
duties as the Members may from time to time prescribe. The Members may also
elect an Assistant Treasurer, if deemed necessary or appropriate, who shall have
such powers and duties of the Treasurer, as determined by the Members.
(5) SECRETARY/ASSISTANT SECRETARY. The Secretary shall
keep minutes of all meetings of the Members The Secretary shall have charge of
the corporate books and shall perform such other duties as the Members may from
time to time prescribe. The Members may also elect an Assistant Secretary, if
deemed necessary or appropriate, who shall have such powers and duties of the
Secretary, as determined by the Members.
(6) DELEGATION OF AUTHORITY. The Members may from time to
time delegate the powers or duties of any officer to any other officers or
agents, notwithstanding any provision hereof.
(7) REMOVAL. Any officer of the Company may be removed at
any time, with or without cause, by the Members.
ARTICLE XIII
BOOKS OF ACCOUNT AND RECORDS
Proper and complete records and books of account shall be kept by the
Company in which shall be entered fully and accurately all transactions and
other matters relative to the Company's business as are usually entered into
records and books of account maintained by persons engaged in a business of a
like character. The Company's books and records shall be maintained in
accordance with GA.AP using the calendar year as its fiscal year. Financial
statements shall be prepared not less than annually, and copies of the
statements shall be available to each Member. The books and records shall at all
times be open to reasonable inspection and examination by the Members or their
duly authorized representatives during reasonable business hours. As soon as is
reasonably practicable following the end of each
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fiscal year of the Company, each Member shall be furnished with a statement
showing the Profits, Losses, and distributions allocated to such Member.
ARTICLE XIV
TRANSFERABILITY OF INTERESTS
A transferee may be admitted as a Member of the Company with all of the
rights of a Member attributable to the transferred Membership Interest subject
to the following conditions:
(1) The transfer of the Membership Interest is
accomplished by an instrument in writing which shall set forth the intentions of
the transferee to acquire the Membership Interest;
(2) A counterpart of the instrument of transfer, executed
and acknowledged by the transferor is delivered to the Company;
(3) The transfer is in compliance with applicable federal
and state securities laws;
(4) The transferor agrees to pay all reasonable legal
fees and filing costs incurred by the Company in connection with the
transaction;
(5) The transferee agrees to be legally bound by this
Agreement by executing and delivering to the Company any documents and
instruments necessary in connection with the transferee becoming a Member; and
(6) No other or later transfer of the transferred
Membership Interest shall be made unless the procedures set forth herein are
once again followed.
ARTICLE XV
DEATH, DISSOLUTION OR BANKRUPTCY OF A MEMBER; NO WITHDRAWAL
In the event of the death, dissolution or bankruptcy of any Member, the
Company shall terminate and shall be dissolved and liquidated as provided herein
and as provided by law unless within ninety (90) days of the date of such event,
the holders of a majority of the Membership Interests of all of the other
Members, if any, agree to continue the Company. No Member shall be entitled to
retire, resign, or otherwise voluntarily withdraw from the Company prior to the
dissolution and winding up of the Company.
ARTICLE XVI
DISSOLUTION AND TERMINATION OF THE COMPANY; LIQUIDATION
(A) EVENTS CAUSING DISSOLUTION. The happening of any one of the
following events or any events as provided in the Act, shall result in an
immediate dissolution of the Company:
(1) The expiration of the term set forth in Article IV;
(2) The termination of the Company pursuant to Article
XV; or
(3) The election of the holders of a majority of
Membership Interests to dissolve the Company.
(B) LIQUIDATION. Upon the dissolution of the Company, the Members
shall, as soon as practicable, cause to be prepared a final statement setting
forth the assets and liabilities of the Company. A copy of the statement shall
be furnished to each Member within ninety (90) days after such dissolution. The
Members shall commence to wind up the affairs of the Company and such assets of
the Company as the Members or liquidator shall determine shall be liquidated as
promptly as practicable, but in an orderly and businesslike manner so as not to
involve undue
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sacrifice. Until final distribution, the Members shall continue to operate the
Company. All Company Profits and Losses shall be allocated to the Members in
accordance with Article VII, and the proceeds shall be applied or distributed in
cash or in kind in the following order of priority:
(1) To the payment of creditors of the Company (other
than Members) in the order of priority provided bylaw, and to the payment of the
expenses of liquidation;
(2) To the setting up of such reserves as the Members may
deem reasonably necessary for any contingent or unforeseen liabilities or
obligations of the Company;
(3) To each Member in repayment of the principal and
accrued interest on any loans made by such Member to the Company;
(4) To the Members in proportion to their positive
Capital Account balances.
ARTICLE XVII
EXCULPATION AND INDEMNIFICATION
(A) EXCULPATION. No Member shall be liable to the Company or to
any Member for any loss suffered by the Company unless such loss is caused by
the Member's gross negligence or willful misconduct. No Member shall be liable
for errors in judgment or for any acts or omissions that do not constitute gross
negligence or willful misconduct.
(B) RIGHT TO INDEMNIFICATION. Subject to the limitations and
conditions as provided in this Article, each person who was or is made a party
or is threatened to be made a party to or is involved in any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative, arbitrative (hereinafter a "Proceeding"), or any appeal in such
a Proceeding or any inquiry or investigation that could lead to such a
Proceeding, by reason of the fact that such person is or was a Member of the
Company, or such person is or was the legal representative, director, officer,
partner, trustee, employee, agent, or similar functionary of a Member of the
Company ("Indemnified Person"), shall be indemnified by the Company to the
fullest extent permitted by the Act, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Company to provide broader indemnification rights than
said law permitted the Company to provide prior to such amendment) against
judgments, penalties (including punitive damages), fines, settlements and
reasonable expenses (including, without limitation, attorneys' fees) actually
incurred by such Indemnified Person in connection with such Proceeding, provided
it is not determined in such Proceeding that the liability of such Indemnified
Person is due to gross negligence or willful misconduct, and indemnification
under this Article shall continue as to an Indemnified Person who has ceased to
serve in the capacity which initially entitled such Indemnified Perso9 to
indemnity hereunder. The rights granted pursuant to this Article shall be deemed
contract rights, and no amendment, modification or repeal of this Article shall
have the effect of limiting or denying any such rights with respect to actions
taken or Proceedings arising prior to any amendment, modification or repeal. It
is expressly acknowledged that the indemnification provided in this Article
could involve indemnification for negligence or under theories of strict
liability.
(C) ADVANCE PAYMENT. The right to indemnification conferred in
this Article shall include the right to be paid or reimbursed by the Company the
reasonable expenses incurred by an Indemnified Person who was, is or is
threatened to be made a named defendant or respondent in a Proceeding in advance
of the final disposition of the Proceeding and without any determination as to
the Indemnified Person's ultimate entitlement to indemnification; provided,
however, that the payment of such expenses incurred by any such Indemnified
Person in advance of the final disposition of a Proceeding, shall be made only
upon delivery to the Company of a written affirmation by such Indemnified Person
of such Indemnified Person's good faith belief that such Indemnified Person has
met the standard of conduct necessary for indemnification under this Article and
a written undertaking, by or on behalf of such Indemnified Person, to repay all
amounts so advanced if it shall ultimately be determined that such Indemnified
Person is not entitled to be indemnified under this Article or otherwise.
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(D) NONEXCLUSIVITY OF RIGHTS. The right to indemnification and the
advancement and payment of expenses conferred in this Article shall not be
exclusive of any other right which an Indemnified Person may have or hereafter
acquire under any law (common or statutory) or this Agreement.
(E) INSURANCE. The Company may purchase and maintain insurance, at
its expense, to protect itself and any person who is or was an Indemnified
Person against any amounts entitled to be indemnified under this Article.
(F) SAVINGS CLAUSE. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Company shall nevertheless indemnify and hold harmless each Indemnified Person
to the full extent permitted by any applicable portion of this Article that
shall not have been invalidated and to the fullest extent permitted by
applicable law.
ARTICLE XVIII
TAX MATTERS
(A) MAINTENANCE OF CAPITAL ACCOUNTS.
(1) Capital Accounts shall be maintained in accordance
with the provisions of Section 704(b) of the Internal Revenue Code of 1986, as
amended (the "Code") and the corresponding provisions of any future internal
revenue law and Treasury Regulations promulgated thereunder, as amended from
time to time, in order that allocations to Members of all items of income, gain,
loss and deduction have "substantial economic effect" to the extent possible
under such provisions and regulations. Accordingly, appropriate adjustments may
be made to Capital Accounts in addition to those set forth in Article VI(B) of
this Agreement, such adjustments to be made in accordance with Treasury
Regulation Section 1.704-1(b)(2)(iv).
(2) If a Member contributes to the Company property to
which Section 704(c) of the Code applies, or if a revaluation of Company
property occurs under the circumstances described in (3) below, the Capital
Accounts of the Members shall be adjusted as provided under Section
I.704-1(b)(2)(iv)(g) of the Treasury Regulations.
(3) Upon the occurrence of one of the events described in
Treasury Regulation section 1.704-l(b)(2)(iv)(f)(5), Capital Accounts shall be
adjusted to reflect a revaluation of Company property.
(B) ADLUSTMENTS TO PROFITS AND LOSSES. Profits and Losses, as
determined for Federal Income tax purposes in accordance with the accounting
method followed by the Company for such purposes, shall be adjusted as follows:
(1) Any income that is exempt from Federal income tax
shall be added to such taxable income or loss.
(2) Any expenditures of the Company described in Section
705(a)(2)(B) of the Code (relating to expenditures that are not deductible for
federal income tax purposes), or treated as Code Section 705(a)(2)(B)
expenditures pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(b), shall
be subtracted from such taxable income or loss.
(3) If property is reflected on the books of the Company
at a book value that differs from the adjusted tax basis of such property,
depreciation, income, gain, loss, and deductions with respect to such property
shall be determined by reference to such book value in accordance with Treasury
Regulation Section 1.704-1(b)(iv)(g).
(4) Items that are specially allocated pursuant to
Article XVIII(C) shall be excluded from Profits and Losses.
(C) ADJUSTMENTS TO ALLOCATIONS OF PROFITS AND LOSSES. The
allocations of Profits and Losses and items of income, gain, loss or deduction
shall be subject to the following restrictions and adjustments:
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(1) Except foc allocations of Partnership Nonrecourse
Deductions and Partner Nonrecourse Deductions in accordance with subsections (2)
and (3) below, no Losses or deductions may be allocated to any Member to the
extent such allocation would result in a Capital Account deficit balance for
such Member that exceeds the amount such Member is obligated to restore to the
Company or treated as obligated to restore to the Company within the meaning of
Treasury Regulation section l.704-1(b)(2)(ii)(c).
(2) Partnership Nonrecourse Deductions as determined
under Treasury Regulation section 1.704-2(c) shall be allocated in accordance
with Membership Interests, and if there is a net decrease in Partnership Minimum
Gain as determined in accordance with Treasury Regulation section 1
..704-2(b)(2), then the Members shall be allocated the next available items of
income and gain in accordance with the "minimum gain chargeback" requirement of
Treasury Regulation Section 1.704-2(f).
(3) Partner Nonrecourse Deductions as determined under
Treasury Regulation Section 1.704-2(i)(2) shall be allocated to the Member who
bears the economic risk of loss in accordance with Treasury Regulation Section
l.704-2(i)(1), and if there is a net decrease in Partner Nonrecourse Debt
Minimum Gain as determined under Treasury Regulation section l.704-2(i)(3), the
Member shall be allocated items of income and gain in accordance with the
"chargeback" provisions of Treasury Regulation Section 1 .704-2(i)(4).
(4) Any Member who unexpectedly receives, with respect to
the Company, an adjustment, allocation, or distribution described in subsections
(4), (5), or (6) of Treasury Regulation section 1.704-1(b)(2)(ii)(d)(3) shall be
allocated items of income and gain in accordance with the "qualified income
offset" provisions of Treasury Regulation section 1.704-1 (b)(2)(ii)(d)(3).
(5) If any items are specially allocated to a Member
pursuant to this Subsection (C), such Member shall be allocated the next
available offsetting items to the extent of such prior special allocation,
provided such offsetting allocation is consistent with the restrictions and
adjustments set forth in this Subsection (C), so that, to the extent possible,
the net amount of Profits, Losses and items of income, gain, loss, and deduction
allocated to each Member over the term of the Company is the same as the net
amount that would have been allocated to such Member if there has been no
special allocations made in accordance with this Subsection (C).
(D) TAX ALLOCATIONS WHERE THERE IS A BOOK/TAX DISPARITY. In the
event Company property is carried on the books of the Company at a book value
that differs from its adjusted tax basis as a result of a contribution to the
Company of property to which Section 704(c) of the Code applies, or a
revaluation of Company property as described in Subsection (A)(3) of this
Article, allocations to the Members of items of income, gain, loss, and
deduction as computed for tax purposes with respect to such property shall be
made in a manner that takes into account the variation between the adjusted tax
basis of such property and its book value as determined under Section 1.704-3 of
the Treasury Regulations. Allocations pursuant to this subsection (0) are for
tax purposes only, and shall have no effect on Capital Accounts.
(E) TAX MATTERS PARTNER. General Cable Industries, Inc. is hereby
designated as the "tax matters partner" under Section 623 I(a)(7) of the Code to
manage tax proceedings conducted at the Company level by the Internal Revenue
Service with respect to Company matters. Expenses of such proceedings shall be
paid by the Company.
ARTICLE XIX
INVESTMENT PURPOSES
Each Member represents and warrants that it has acquired its Membership
Interest for its own account as part of a transaction exempt from registration
under the Securities Act of 1933, as amended, and applicable state law for
investment purposes and not with a view to the resale or distribution thereof,
and that it has had access to any and all information necessary to arrive at its
decision to acquire its Membership Interest. In addition to the restrictions on
transfer of Membership Interests otherwise set forth in this Agreement, no
Membership Interest may be sold, transferred, assigned or otherwise disposed of
by any Member in the absence of registration under the Securities Act of 1933,
as amended, and applicable state law, or an opinion of counsel experienced in
securities matters and satisfactory to the Company that such assignment or other
disposition will not be in violation of said Act
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or state laws. No Member shall have any right to require registration of its
Membership Interest under said Securities Act or applicable state law and, in
view of the nature of the Company and its business, such registration is neither
contemplated nor likely. Each Member further acknowledges that it understands
that the effect of the foregoing representation and warranty and restriction on
assignment or other disposition is generally to require that such Membership
Interest be held indefinitely unless it is registered or an exemption from
registration is available.
ARTICLE XX
MISCELLANEOUS PROVISIONS
(A) ENTIRE UNDERSTANDING. This Agreement constitutes the entire
understanding among the parties and supersedes any prior arrangements or
understandings among them, and may not be modified or amended in any manner
other than as set forth herein.
(B) GOVERNING LAW. This Agreement and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware, excluding any conflict-of-laws rule or principle that
might refer the governance or the construction of this Agreement to the law of
another jurisdiction.
(C) CONSTRUCTION. When from the context it appears appropriate,
each term stated either in the singular or the plural shall include the singular
and the plural and the pronouns stated in the masculine, the feminine or the
neuter shall include the masculine, feminine and the neuter.
(D) HEADINGS AND CAPTIONS. The headings and captions contained in
this Agreement are inserted only as a matter of convenience and in no way
define, limit or extend the scope or intent of this Agreement or any provisions
hereof.
(E) INVALIDITY. If any of the provisions of this Agreement or the
application of such provision to any person or circumstance shall be held
invalid, the remainder of this Agreement or the application of such provision to
persons or circumstances other than those to which it is held invalid shall not
be affected thereby.
(F) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument, and shall have the same force and effect
as though all the signatories had signed a single signature page.
(G) PARTIES BOUND. The provisions of this Agreement shall bind,
benefit, and be enforceable by or against, the heirs, administrators, personal
representatives and, as permitted herein, assigns of the parties hereto None of
the provisions of this Agreement shall be for the benefit of or enforceable by
any creditor of the Company or of any Member.
(H) NO WAIVER. No failure on the part of' any Member to exercise
and no delay in exercising any right, power or remedy shall be construed as a
waiver thereof; nor shall any single or partial exercise of any right, power or
remedy preclude any other or further exercise thereof or of any other right,
power or remedy.
(I) NOTICES AND REPORTS. All notices and reports to the Members
shall be addressed to the Member and sent to them at their addresses on file in
the principal place of business of the Company.
(J) PERSON. For purposes of this Agreement, the term "person"
includes without limitation any natural person, joint venture, corporation,
partnership, limited liability company, trust, estate, association, government,
or governmental agency, or any other entity.
(K) AMENDMENTS. This Agreement may be amended or modified from
time to time by the vote of a majority of the Membership Interests.
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IN WITNESS WHEREOF, the parties hereto have executed this Operating
Agreement, intending to be legally bound hereby, on the date first written
above.
COMPANY: MEMBER:
GENERAL CABLE MANAGEMENT LLC GENERAL CABLE INDUSTRIES, INC.
BY: GENERAL CABLE INDUSTRIES, INC.
BY: /s/▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ BY: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: CFO Title: Exec. Vice President
10
EXHIBIT A
GENERAL CABLE MANAGEMENT LLC
DATE: DECEMBER 1, 2001
Member: General Cable Industries, Inc.
Membership Interest: 100%
Nature of Capital Contribution: Certain fixed assets of the Marshall, Texas Tech
Center (see Schedule I attached).
Net Book Value of Contribution: $700,000
11
AMENDMENT NO. 1
TO THE
OPERATING AGREEMENT
OF
GENERAL CABLE MANAGEMENT LLC
A DELAWARE LIMITED LIABILITY COMPANY
This Amendment No. 1 to the OPERATING AGREEMENT ("Agreement") of
GENERAL CABLE MANAGEMENT LLC (the "Company") dated December 1, 2001, is entered
into as of January 2, 2002, by and among the Company and Genera! Cable
Industries, Inc., a Delaware corporation and sole member of the Company ("UCI").
1. The parties hereby supplement Exhibit A to the Agreement as follows, to
reflect additional capital contributions made by GCI to the Company as
of the date hereof:
Member: General Cable Industries, Inc.
Membership Interest: 100%
Nature of Capital Contribution: Certain machinery and equipment located at
General Cable Industries, Inc.'s Marshall, Texas manufacturing facility (see
schedule 1 attached)
Fair Market Value of Contribution: $12,000,000
2. References to "Net Book Value" in Exhibit A to the Agreement (dated
December 1, 2001) are hereby amended to "Fair Market Value".
3. GCI shall have the right to ▇▇▇▇▇ ▇▇▇▇▇ Manhattan Bank ("Chase") a
security interest in and lien on all of GCI's right, title and interest
in and to its membership interests in the Company in order to secure
the repayment of indebtedness to Chase incurred by various affiliates
of the Company pursuant to a Credit Agreement dated May 28, 1999.
4. Except as provided herein, the Agreement shall remain in full force and
effect.
GENERAL CABLE MANAGEMENT LLC
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
GENERAL CABLE INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President