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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 FOR THE FISCAL YEAR ENDED DECEMBER 31, 1999.
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT
OF 1934.
COMMISSION FILE NO.: 1-15163
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AMERICAN NATIONAL CAN GROUP, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
DELAWARE 36-4287015
<S> <C>
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
8770 W. BRYN MAWR AVENUE, CHICAGO, ILLINOIS 60631
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(773) 399-3000
Securities registered pursuant to Section 12(b) of the Act:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
common stock, par value $0.01 per share New York Stock Exchange
Securities registered pursuant to Section 12(g) of the Act:
NONE
</TABLE>
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in the definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
The aggregate market value of the voting stock held by non-affiliates of
the registrant at February 29, 2000 was approximately $299,344,620, based on
29,934,462 shares of common stock held by non-affiliates and the closing sale
price on the New York Stock Exchange Composite Transactions Tape for the common
stock on February 29, 2000.
Indicate the number of shares outstanding of each of the registrant's
classes of common stock, as of the latest practicable date.
<TABLE>
<CAPTION>
CLASS OUTSTANDING AT FEBRUARY 29, 2000
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<S> <C>
Common stock, $0.01 par value 55,000,000
DOCUMENTS INCORPORATED BY REFERENCE:
DOCUMENT PART OF FORM 10-K INTO WHICH INCORPORATED
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Proxy Statement for Registrant's 2000 Part III
Annual Meeting of Stockholders
</TABLE>
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PART I
ITEM 1. BUSINESSES
American National Can Group, Inc. is a holding company which through its
subsidiaries manufactures metal beverage cans and beverage can ends serving the
soft drink and brewing industries. It was incorporated in Delaware on April 13,
1999 but has roots that date back over 100 years. Its principal executive
offices are located at 8770 Bryn Mawr Ave., Chicago, Illinois, 60631-3542 and
its telephone number is (773) 399-3000.
In the Americas, our activities are carried out principally through
American National Can Company in the United States and a wholly-owned subsidiary
in Brazil. We have also formed joint ventures with Coors Brewing Company in the
United States and with Mexico's largest glass container manufacturer. In Europe,
including Turkey, our activities are carried out through wholly-owned
subsidiaries. We also have a majority owned subsidiary in China and equity
participations in Japan and South Korea.
RECENT DEVELOPMENTS
Reorganization
From 1988 to mid-1999, we operated as part of the U.S. packaging group of
Pechiney S.A., a global leader in the production of aluminum and industrial
aluminum products. The U.S. operating group also conducted other businesses,
principally plastic packaging operations. In a reorganization completed in July
1999, Pechiney transferred all of its beverage can operations to us in exchange
for 55,000,000 shares of our common stock. Also, in the reorganization, Pechiney
caused the plastic packaging operations of its U.S. packaging group to be
transferred to a newly created separate company called Pechiney Plastic
Packaging, Inc.
On August 2, 1999, Pechiney completed the sale of 30 million shares of our
common stock in a public offering. The common stock is listed and traded on the
New York Stock Exchange under the symbol CAN. As of December 31, 1999, Pechiney
owned 25 million shares of our common stock, representing approximately 45.45%
of our outstanding shares.
The terms "ANC" and the "Company" as used herein refer to American National
Can Group, Inc. and its subsidiary companies.
Plant Closing Announcement
In the fourth quarter of 1999, the Company announced that it would close
its Piscataway, New Jersey can-manufacturing plant in early 2000. This plant
closure will remove excess capacity from ANC's system and better align supply
with demand. Capacity rationalization has been one component of ANC's strategy
to remove waste from its operations and to improve production efficiencies. The
Company monitors its capacity situation on an on-going basis.
THE BUSINESS OF THE COMPANY
The Company's business is comprised of one segment: metal beverage cans and
ends.
ANC's sole business is the manufacture of aluminum and steel beverage cans
and beverage can ends. The cans and ends are sold to beverage producers or to
the companies that fill and distribute the cans for the beverage producers.
Markets
The following table sets forth selected data for our business, overall and
by geographic region, for 1997, 1998 and 1999. All net sales numbers in this
table exclude intercompany sales. Total cans shipped in the Americas include
cans shipped through Valley Metal Container Partnership, our joint venture with
Coors Brewing Company, and Vitro-American National Can, S.A. de C.V., our joint
venture with Vitro S.A. de C.V. in Mexico. Joint venture shipments are accounted
for under the equity method and as such are not included in net sales.
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<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
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1997 1998 1999
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<S> <C> <C> <C>
TOTAL:
Net sales ($ in millions)................................... $2,465 $2,459 $2,328
Total cans shipped (billions of cans)....................... 39.1 38.7 38.1
THE AMERICAS:
Net sales ($ in millions)................................... $1,554 $1,558 $1,453
Total cans shipped (billions of cans)....................... 28.8 28.0 27.0
EUROPE AND ASIA:
Net sales ($ in millions)................................... $ 911 $ 901 $ 875
Total cans shipped (billions of cans)....................... 10.3 10.7 11.1
</TABLE>
International Operations
The Company derived approximately 41% of its sales in 1999 from sales in
countries outside the United States. International operations are generally
subject to various risks that are not present in domestic operations. Various
foreign jurisdictions have laws limiting the right and ability of foreign
subsidiaries to pay dividends and remit earnings to affiliated companies unless
specified conditions precedent are met. In addition, sales in foreign
jurisdictions are typically made in local currencies and transactions with
foreign affiliates are customarily accounted for in foreign currencies. To the
extent the Company does not take steps to mitigate the effect of changes in the
relative value of the U.S. dollar and these foreign currencies, the Company's
results of operations and financial condition (which are reported in U.S.
dollars) could be adversely affected by negative changes in these relative
values.
The Americas Market
ANC sold 27 billion cans in the Americas in 1999, representing a strong
position in the U.S. and a growing presence in Latin America. ANC believes that
it is the second largest supplier of metal beverage cans in the U.S., with
approximately 24% of the beverage can market. In 1999, the Company supplied its
beverage can customers through 18 can plants and four end plants in the U.S.,
one can plant in Brazil, and one can plant in Mexico. The Company believes that
its three largest competitors in the U.S. metal beverage can market account for
substantially all of the remaining market. For further information on ANC's
competitors, see section entitled "Competition" below.
The Europe / Asia Market
ANC believes that it is the largest supplier of metal beverage cans to the
European market. The Company sold approximately 11 billion cans in Europe and
Asia in 1999. Can bodies sold in Europe are made of either aluminum or steel,
with aluminum ends. The southern European markets have greater growth potential
than the more mature northern European markets.
ANC sold cans in Europe in 1999 through 10 can plants (including Turkey)
and three end plants. In Asia, ANC sold cans through affiliated operations in
China, Japan, and South Korea. The Company and its three major competitors
account for the majority of the market for metal beverage cans in Europe. For
further information on ANC's competitors, see section entitled "Competition"
below.
Major Customers
Our facilities are generally located in proximity to our major customers,
and we ship cans directly to beverage fillers and producers under a variety of
multi-year supply contracts. We believe our technical support provided within
our customers' plants has aided us in building solid customer relationships. We
are also highly responsive to our customers' quality, innovation and promotional
needs, which helps to make us a preferred supplier. We believe these strengths
have been validated by our long-term contracts with major customers. We maintain
constant contact with all of our major customers with a view to further
developing our business and extending the terms of our existing contracts.
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The worldwide beverage market is comprised of a relatively small number of
major companies. ANC's major customers include many of the world's largest
carbonated soft drink and beer-producing companies. The top ten global customers
of ANC represent approximately 67% of ANC's 1999 net sales. Among those
customers are six Coca-Cola affiliated bottlers, which accounted for 50% of our
1999 net sales, with Coca-Cola Enterprises Inc., alone, representing 33%. No
other single customer, including its affiliated companies or licensees,
accounted for more than 10% of our 1999 net sales.
Capital Intensive
The beverage can manufacturing business is capital intensive, requiring
significant investment in tools and machinery. Profitability depends principally
upon efficient use of installed capital equipment, labor costs, raw material
costs (especially aluminum and steel), and utilities costs.
Raw Materials
Raw materials used in the production of beverage cans and ends principally
include aluminum, steel, compounds, inks and varnishes. Metal costs dominate raw
material costs and, in 1999, metal accounted for over 60% of our manufacturing
costs (inclusive of material, labor, depreciation and energy). The Company
obtains its aluminum requirements from the world's major aluminum producers, and
availability has been satisfactory.
Unless otherwise fixed by contract, aluminum can sheet prices will vary in
relation to the London Metal Exchange prices for primary aluminum. Steel can
sheet costs have historically been more stable and are not subject to the same
volatility as aluminum. If the cost of can sheet rises, it will cause our
operating expenses to increase. If we cannot increase the selling price of
beverage cans to offset the increased expenses, our profits will decline.
Research and Development
Research and development activities in beverage can manufacturing have
focused primarily on reducing the gauge of the metal used in the can bodies, and
on reducing the diameter of the can ends. Both efforts serve to reduce raw
material costs of the cans and ends, thereby improving profitability. Other R&D
work has focused on a variety of process improvements, such as improving can
decorating processes, and product differentiation efforts, such as shaping or
embossing of cans. The Company continues as a leader in supplying colored ends
and special tabs used in consumer contests and promotions.
Our research and development expenditures amounted to $14 million in 1999,
compared with $15 million in 1998 and $20 million in 1997.
Competition
The market for beverage cans is highly competitive. Competition is based
principally on price, product quality and service. The beverage can also
competes with bottles made from glass and plastic.
The production of beverage cans in the United States and Europe is highly
concentrated, with six leading producers of beverage cans, including ANC,
comprising virtually the entire market.
Our principal U.S. competitors are:
. Ball Corporation
. Crown Cork and Seal Company, Inc.
. Metal Container Corporation, a subsidiary of Anheuser-Busch Companies,
Inc.
In Europe, our principal competitors are:
. Carnaud Metalbox, which is owned by Crown Cork and Seal
. Schmalbach-Lubeca Continental Can Europe (VIAG AG)
. PLM AB
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Intellectual Property
Our intellectual property, including patents, designs, know-how and
trademarks, are important to our business. We have implemented vigorous policies
to protect our patent rights and intellectual property. We have a worldwide
patent committee to coordinate intellectual property through our management,
research and development, sales and marketing and legal functions. The principal
purpose of this committee is to protect and capitalize on our intellectual
property.
As of December 31, 1999, we had a portfolio of approximately 250 patents
and 100 pending patent applications. The patent coverage on our most important
technologies will not expire within the next 10 years.
We are currently a party to a patent infringement action brought against us
by Viskase Corporation. See Item 3, "Legal Proceedings" herein.
Seasonality of the Business
The metal beverage can market is seasonal to the extent that beverage
consumption is generally greater during the warmer seasons of the year. Sales
are also highly correlated to sales by brewers and soft drink fillers.
Employees
The Company employed approximately 4,570 persons at December 31, 1999. Our
labor relations environment has been stable and we believe relations with our
employees are generally good.
Environmental
Our operations are subject to numerous federal, state, local and foreign
environmental health and safety laws and regulations, including those pertaining
to the handling and disposal of hazardous and toxic materials, practices and
procedures applicable to the construction and operation of our facilities and
standards relating to the discharge of pollutants to the air, soil and water. In
addition, our operations are subject to environmental remediation laws such as
the federal Comprehensive Environmental Response, Compensation and Liability Act
of 1980 (known as "CERCLA"), and similar state laws that can impose liability
upon statutorily defined categories of parties for the entire cost of the
cleanup of a contaminated site without regard to fault or the lawfulness of the
original activity resulting in contamination. Pursuant to CERCLA and similar
state laws, we are currently undertaking or participating in remediation of
contamination at a number of our present and former operations and at several
third party waste disposal sites. We are also subject to liability for
environmental obligations in connection with previously divested businesses.
The Company will incur capital expenditures in connection with matters
relating to environmental control and will also be required to spend additional
amounts in connection with ongoing compliance with current and future laws and
regulations. Although capital expenditures for environmental control equipment
and compliance costs in future years will depend on legislative, regulatory and
technological developments that cannot accurately be predicted at this time, the
Company anticipates that these costs will continue to be significant. The
Company made capital expenditures applicable to environmental matters
aggregating $9 million in 1999, and such expenditures are not expected to
increase significantly in 2000. There can be no assurance, however, that
environmental costs will not exceed estimated expenditures.
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Based on information currently available regarding third party disposal
sites at which we are subject to potential or known remediation liability, we do
not expect that this liability will materially damage our business, financial
condition or results of operations. In addition, under generally accepted
accounting principles in the U.S., we have established reserves for known
environmental remediation liabilities that are probable and reasonably capable
of estimation. Nonetheless, any future development in existing facts, events,
circumstances or conditions, or any new facts, events, circumstances or
conditions, may result in a significant increase in liability that would
materially harm our business, financial condition or results of operations.
As for environmental, health and safety laws and regulations applicable to
our ongoing operations and construction activities, while we believe that our
operations are in substantial compliance with these laws and regulations as
currently in effect, we are currently faced with instances of noncompliance at
our U.S. and non-U.S. facilities for which expenditures will be required, and
further violations of these laws or regulations may occur in the future.
Violations of environmental, health and safety laws can lead to substantial
fines or penalties. Other developments, such as the promulgation of more
stringent requirements of environmental, health and safety laws and regulations
and increasingly strict enforcement by government authorities, could
substantially impact our operations.
Current or forthcoming U.S. regulations also may require action to address
air emissions of ethylene glycol monobutyl ether (known as "EGBE") and
formaldehyde from our facilities that manufacture can bodies. Under its current
draft schedule, in November 2001, the U.S. Environmental Protection Agency
("EPA") will adopt new standards under the Federal Clean Air Act to require
2-piece can makers to implement maximum achievable control technology (known as
"MACT") for designated hazardous air pollutants, particularly EGBE and
formaldehyde. Under EPA's current draft schedule, we would have to comply with
these standards by November, 2004. If these regulations are promulgated, we may
have to spend up to an estimated $70 million to purchase and install control
equipment (thermal oxidizers) between November, 2001 and November, 2004 to
implement MACT to control both EGBE and formaldehyde emissions at our facilities
that manufacture can bodies. We carried out testing and determined that
formaldehyde was being formed during the process of curing the coatings and inks
during can manufacture. As a result of these findings and regardless of the
adoption of the MACT standards, under current state laws establishing
formaldehyde emission limits, we may be subject to fines, penalties or other
actions requiring emission reductions. Pursuant to these laws, and assuming we
have not spent any of the $70 million mentioned above to control both EGBE and
formaldehyde, we may have to spend up to $40 million to control only
formaldehyde emissions if, as more fully described below, we are unable to
change the formulation of coatings and inks to reduce the emissions below state
exposure limits, or if the state exposure limits are not adjusted in response to
new scientific data. As of March 1, 2000, no violation notices from governmental
authorities concerning EGBE or formaldehyde emissions have been received by the
Company.
We and others in the industry are engaged in actions seeking to mitigate
these costs and liabilities. On November 12, 1996, a petition was filed with the
EPA requesting that the 2-piece can coating subcategory, or its EGBE emissions,
be removed from the list of regulated pollutants on the basis that, as used in
this process, it is non-hazardous. On April 21, 1999, the EPA began formal
evaluation of the petition. It is required to issue its decision by April 21,
2000. Regarding formaldehyde, a 45% emissions reduction has already been
achieved by modifying the inside spray material, and work is underway to reduce
emissions from the use of varnish and ink. Further, EPA currently is reviewing
new scientific data showing formaldehyde to be significantly less hazardous than
had been predicted based on earlier data and is expected to announce a decision
in the near future as to whether to accept this data and change the Federal
formaldehyde standard. If EPA accepts this new data and changes the standard,
and the states follow suit and adjust their regulations, we do not expect to
incur significant additional costs to reduce formaldehyde emissions. However,
there can be no assurance that the regulatory relief being sought will be
granted, and it is possible that the costs and liabilities associated with EGBE
and formaldehyde emissions will be higher than the current estimates.
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New ambient air quality standards for particulate and ground level ozone
were adopted in 1997. In May 1999, a Federal Appeals Court in Washington, D.C.
set aside these standards. These new standards, if they survive the court
challenge, could require our U.S. facilities to install additional pollution
control equipment. Important aspects of the standards, including the deadlines
to conform, have not yet been stated. At this stage, the eventual financial
implications for us cannot be estimated.
Legislation which would prohibit, tax or restrict the sale or use of
certain types of containers or which would require diversion of solid wastes
such as packaging materials from disposal in landfills, has been or may be
introduced in various legislative bodies. While container legislation has been
adopted in a few jurisdictions, similar legislation has been defeated in public
referenda in several other states, in local elections and in many state and
local legislative sessions. The Company anticipates that continuing efforts will
be made to consider and adopt such legislation in some jurisdictions in the
future.
While these matters and other developments, such as claims for damages to
property or injury to persons resulting from the environmental, health or safety
impacts of our operations or past contamination, could materially harm our
business, financial condition or results of operations, based on information
presently available, management does not anticipate any material harm.
ITEM 2. PROPERTIES
We have 22 facilities in the United States, and 13 in Europe. The
facilities, along with the product that these facilities produce, are set forth
below:
UNITED STATES
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LOCATION TYPE OF PLANT
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Birmingham, Alabama End
Bishopville, South Carolina Can
Chatsworth, California Can
Chicago, Illinois Can
Fairfield, California Can
Forest Park, Georgia Can
Fremont, Ohio Can
Golden, Colorado (2 plants) Can & End**
Houston, Texas Can
Kent, Washington Can
Longview, Texas Can
Monmouth Junction, New Jersey Can
Oklahoma City, Oklahoma Can
Olive Branch, Mississippi Can
Phoenix, Arizona Can
Piscataway, New Jersey* Can
San Leandro, California End
St. Paul, Minnesota Can
Valparaiso, Indiana End
Whitehouse, Ohio Can
Winston-Salem, North Carolina Can
*In the fourth quarter of 1999, the Company announced its intention to close
this plant in early 2000.
**Through our joint venture with Coors Brewing Company.
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EUROPE
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LOCATION TYPE OF PLANT
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Dunkirk, France Can
Mont, France End
Gelsenkirchen, Germany Can
Waterford, Ireland End
Nogara, Italy Can
Pianella, Italy End
San Martino, Italy Can
La Selva, Spain Can
Valdemorillo, Spain Can
Manisa, Turkey Can
Milton Keynes, United Kingdom Can
Runcorn, United Kingdom Can
Wakefield, United Kingdom Can
We have three additional facilities in which we own a significant share. In
Queretaro, Mexico, we have a joint venture can plant owned on a 50/50 basis by
ourselves and Vitro, S.A. de C.V. In Brazil, we have a wholly-owned can plant in
Extrema, Minas Gerais, 60 miles northeast of Sao Paulo. In China, we have a
60%-owned venture in a can plant with the Blue Ribbon Group in the city of
Zhaoqing.
As part of our quality management system and efforts to continuously
improve products and processes, we have sought quality certification from the
Geneva-based International Organization for Standardization. Currently, 20 of
our facilities have obtained ISO 9002 certification, 13 in Europe and 7 in the
U.S., confirming that our quality controls and manufacturing processes meet
recognized international standards.
We own all of our manufacturing facilities and generally own the land on
which those facilities are located, except for three facilities in the United
States that we operate under lease. We also lease our corporate headquarters in
Chicago, Illinois. We believe our properties and facilities are in good
condition and have sufficient productive capacity to serve our current needs and
expected near-term growth.
Our ongoing productivity improvement and cost reduction efforts in recent
years have focused on improving raw material cost management, upgrading and
modernizing our facilities to improve costs, efficiency and productivity, and
phasing out non-competitive facilities. As part of Project Challenge and in
light of excess supply in the North American market, we reduced our annual
beverage can production capacity by approximately 3 billion cans in 1996 and
1997 by closing our Jacksonville, Florida and San Juan, Puerto Rico can
manufacturing facilities and by permanently curtailing production on several
lines at selected plant sites. We will further reduce our production capacity by
1 billion cans in 2000 through the closure of our Piscataway, New Jersey plant.
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ITEM 3. LEGAL PROCEEDINGS
Viskase. In December 1993, Viskase Corporation, a subsidiary of Envirodyne
Industries, Inc., brought a patent infringement action against American National
Can Company in the U.S. District Court for the Northern District of Illinois.
Viskase alleged that we infringed its patents relating to the manufacture of
heat shrinkable bags for meat and poultry.
In November 1996, following a trial, the jury awarded Viskase $102 million
in damages and found willful infringement on our part. At December 31, 1996, we
recorded a provision in the amount of the jury's award plus estimated costs, in
addition to a $3 million reserve previously recorded. Under applicable law, the
jury's damage award was subject to being reduced if the court found the amount
excessive, or being increased by up to a multiple of three, depending on the
court's assessment of the willful nature of the infringement. The parties filed
various post-trial motions and, among them, Viskase filed motions seeking
prejudgment interest and attorney's fees.
On September 29, 1997, the judge ordered a new trial as to the alleged
infringement by our Affinity(TM)-containing products and on the amount of
damages. Viskase then filed a motion for summary judgment concerning the
Affinity(TM)-containing products. In August 1998, the court granted summary
judgment to Viskase on the Affinity(TM)-containing products. Viskase then filed
a motion for reinstatement of the $102 million damage award. On May 10, 1999,
the court granted reinstatement of the jury's damage award. On July 1, 1999, the
court entered a judgment in favor of Viskase in the amount of $164.9 million,
which includes the $102 million damages award, $37 million of prejudgment
interest and $20 million of enhanced damages. We have appealed this judgement to
the Federal Circuit Court of Appeals. We continue to believe our existing
reserve relating to these proceedings is adequate.
In addition, we have requested the U.S. Patent and Trademark Office (known
as the "PTO") to re-examine the claims of two of the patents that Viskase
alleged ANC infringed. In November 1999, the PTO issued a Final Office Action in
the reexamination relating to Viskase U.S. Patent 4,863,769 (one of the patents
in the suit) declaring the patent to be invalid in its entirety. Viskase has
indicated that it will file a response to the Final Office Action and may
appeal. The second PTO reexamination is pending, but no Final Office Action has
been issued in that proceeding.
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Because these legal proceedings relate to plastic packaging operations that
have been transferred to Pechiney Plastic Packaging, Inc. as part of the
reorganization, Pechiney Plastic Packaging, Inc. agreed to reimburse us on
an after-tax basis, subject to adjustments, for any payments we may make with
respect to this litigation. Pechiney also agreed to guarantee this obligation of
Pechiney Plastic Packaging, Inc..
European Commission investigation. In July 1999, staff of the Competition
Directorate of the European Commission conducted interviews with marketing and
sales staff and inspected documents, in each case on a voluntary basis, at our
European headquarters in the United Kingdom, in connection with an investigation
of the European beverage can market. The European Commission had previously
conducted similar visits with other European beverage can manufacturers. The
purpose of this investigation is to establish whether European beverage can
manufacturers had made agreements to share markets, to fix prices or other
trading conditions, to limit or control production or investment, or to subject
contracts to supplementary obligations, contrary to Article 81 of the Treaty of
Rome.
It is not possible to predict the outcome of the European Commission's
investigation at this stage. No specific accusations have been made against our
European subsidiaries. If the European Commission pursues proceedings against
the beverage can manufacturers, we intend to vigorously defend the Company.
Investigations and proceedings under Article 81 may remain open for a number of
years. If proceedings are pursued, and their outcome is unfavorable to us, we
may be subject to monetary sanctions imposed by the European Commission and
other awards. Pechiney has agreed to reimburse us on an after-tax basis, subject
to adjustments, for any monetary sanctions that the European Commission may
impose on us as a result of this investigation. In light of these circumstances,
we do not believe this investigation is likely to result in material harm to our
Company.
Other. We are involved on a regular basis in various claims and lawsuits
incidental to the ordinary course of our business. Except for the matters
referred to above, we are not involved in any legal or arbitration proceedings,
including environmental proceedings, which we expect could materially harm our
business, financial condition or results of operations, either individually or
in the aggregate.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
No matters were submitted to a vote of security holders in the fourth
quarter of 1999.
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PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
Since July 28, 1999, the common stock of the Company has been listed and
traded on the New York Stock Exchange. Prior to that date, the common stock was
not listed or traded on any exchange and there was no established public trading
market for the stock. The high and low sale prices for the common stock, as
reported on the NYSE Composite Transactions Tape for each quarter, or part
thereof, from July 28, 1999 through December 31, 1999 are as follows:
1999 Quarter Ending High Low
------------------- ---- ---
September 30 (since 7/28/99) $17 1/4 $14
December 31 $15 11/16 $11 3/8
As of February 29, 2000, there were 21 record holders of the common stock.
The closing price for the common stock on February 29, 2000 on the NYSE
Composite Transactions Tape was $10.00.
The Company paid a quarterly cash dividend of $0.14 per share with respect
to the third quarter of 1999 and with respect to the fourth quarter of 1999. It
declared a special dividend of $0.14 per share with respect to the second
quarter of 1999 for stockholders of record at October 29, 1999.
The declaration and payment of dividends to holders of capital stock of the
Company will be at the discretion of the board of directors of the Company and
will depend upon many factors, including the Company's competitive position,
financial condition, earnings, capital requirements and restrictions under the
Company's debt instruments. The Company's bank credit agreements prohibit the
payment of cash dividends if there is a default or an event, which with the
lapse of time or the giving of notice, would mature into a default under the
bank credit agreements. Accordingly, there is no requirement or assurance that
dividends will be declared or paid.
Recent Sales of Unregistered Securities
In connection with the formation of the Company and the reorganization of
Pechiney's packaging operations, the Company on April 20, 1999 and July 28, 1999
issued an aggregate of 55,000,000 shares of common stock to Pechiney. The
consideration for the issuance of these shares was the transfer to the Company
by Pechiney of all its beverage can operations. These shares were offered and
sold pursuant to Section 4(2) of the Securities Act, as amended. No underwriting
documents or commissions were paid in connection with such issuance.
In 1999, the Company granted options or rights to receive shares of its
common stock under the plans discussed below. No underwriting discounts or
commissions were paid in connection with the issuance of the options or rights.
On July 28, 1999, the Company granted, under the Company's Founder's Equity
Plan, to all employees an option to purchase 100 shares of common stock at an
exercise price of $17.00 per share or a stock appreciation right, which provided
the opportunity to receive cash awards equal to the appreciation in the
Company's common stock above $17.00. An aggregate of 437,700 options or stock
appreciation rights were granted. These options and rights vest 30% after 2
years, 30% after three years and 40% after 4 years from the date of grant. The
options and rights were issued for no consideration and were deemed by the
Company not to constitute a "sale" requiring registration under the Securities
Act of 1933.
At various dates in 1999, options were granted by the Company under the
Company's Long-Term Stock Incentive Plan to key management employees at exercise
prices equal to at least the market price at the date of grant. Options to
acquire an aggregate of 2,984,500 shares of common stock were issued to key
management employees at a weighted average exercise price of $16.93. Options
generally become exercisable over a five-year period from the date of grant and
expire ten years after the date of grant. The options were granted in non-public
offerings pursuant to transactions exempt under Section 4(2) of the Securities
Act.
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<PAGE> 12
On July 28, 1999, options were granted under the Company's Directors Stock
Plan for an aggregate of 47,616 common shares at exercise prices equal to the
market price at the date of grant. These options became exercisable when granted
and have an exercise price of $17.00 per share. As part of their compensation
prior to the initial public offering, non-employee directors earned a retirement
benefit, which was converted to 42,021 deferred stock units on July 28, 1999.
Following the initial public offering, the non-employee directors also received
7,944 deferred stock units as compensation for their 1999 board meeting
participation. These deferred stock units, aggregating rights to 49,965 shares
of common stock, will be issued upon retirement from the Company's Board of
Directors. These options and deferred stock units were issued in non-public
offerings pursuant to transactions exempt under Section 4(2) of the Securities
Act.
On July 28, 1999, the Company, under its Stock Compensation Conversion
Plan, converted the outstanding options and stock appreciation rights, which had
previously been issued under a long-term incentive plan which provided the
opportunity to purchase Pechiney stock or receive cash awards measured by the
appreciation in Pechiney American Depositary Shares, to the right to receive
common shares of the Company in the future. The vesting date of these rights for
Company common stock, aggregating 396,456 shares, range from July 2000 to July
2003, which approximates the vesting schedule under the options and rights
converted. These rights were issued in non-public offerings pursuant to a
transaction exempt under Section 4(2) of the Securities Act.
ITEM 6. SELECTED FINANCIAL DATA
The following selected historical financial data has been derived from the
combined accounts of the entities transferred by Pechiney to American National
Can Group, Inc. for the periods presented up to July 28, 1999 and the
consolidated accounts of the Company as of and for the five months ended
December 31, 1999. The former plastics operations of American National Can
Company have been presented as discontinued operations. The information should
be read in conjunction with Item 7, "Management's Discussion and Analysis of
Financial Condition and Results of Operations," and the Consolidated Financial
Statements and the notes thereto included under Item 8 herein.
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<PAGE> 13
AMERICAN NATIONAL CAN GROUP, INC.
SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
YEAR ENDED AND AS OF DECEMBER 31,
-----------------------------------------------
1995 1996 1997 1998 1999
---- ---- ---- ---- ----
($ in millions, except per share amounts)
<S> <C> <C> <C> <C> <C>
CONSOLIDATED STATEMENT OF INCOME DATA:
Net sales $ 2,677 $ 2,520 $ 2,465 $ 2,459 $ 2,328
Cost of goods sold (excluding depreciation) 2,281 2,190 2,069 1,985 1,847
Selling, general and administrative expense 123 136 134 138 119
Research and development expense 24 21 20 15 14
Depreciation and amortization 73 74 78 82 80
Goodwill amortization (1) 41 41 41 40 41
Restructuring charge (credit) and
writedown of property and equipment (2) 11 159 11 (2) 6
Operating income (loss) from continuing operations 124 (101) 112 201 221
Interest expense 54 95 90 69 71
Interest income and other
financial income (expense), net 13 4 27 11 14
Income tax expense (benefit) 51 (35) 30 26 70
Equity in net earnings (loss) of affiliates 5 1 (4) 4 5
Minority interest 8 7 5 5 1
Income (loss) from continuing operations
before extraordinary charge and
cumulative effect of accounting change 29 (163) 10 116 98
Basic and fully diluted earnings (loss)
per share from continuing operations
before extraordinary charge and
cumulative effect of accounting change $ 0.53 $ (2.97) $ 0.18 $ 2.10 $ 1.77
CONSOLIDATED STATEMENT OF CASH FLOW DATA:
Net cash provided by (used in) operating
activities of continuing operations (12) 4 65 161 148
Net cash provided by (used in) investing
activities of continuing operations 910 (119) (57) (58) (118)
Net cash provided by (used in) financing
activities of continuing operations (869) 99 (3) 26 (90)
Additions to property, plant and equipment 100 142 72 65 78
Depreciation and amortization 114 115 119 122 121
EBITDA (3) 238 14 231 323 342
EBITDA excluding restructuring and writedowns (3) 249 173 242 321 347
CONSOLIDATED BALANCE SHEET DATA:
Cash and cash equivalents 49 66 106 171 53
Property, plant and equipment, net 934 909 846 836 790
Total assets 4,121 3,901 3,891 3,927 3,227
Short-term financing and current
portion of long-term debt 759 744 770 687 65
Long-term debt (less current portion) 1,006 1,073 890 551 973
Total debt 1,765 1,817 1,660 1,238 1,038
Total equity 932 816 948 1,538 1,061
</TABLE>
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<PAGE> 14
AMERICAN NATIONAL CAN GROUP, INC.
SELECTED FINANCIAL DATA
(1) Substantially all of the goodwill reflected on our consolidated balance
sheet arose from the revaluation of our tangible assets acquired and
liabilities assumed as of the date of our acquisition by Pechiney in 1988.
The initial amount, which totaled approximately $1.6 billion, is being
amortized over a 40-year period in an amount of approximately $40 million
per year. In 1998, goodwill was reduced by $35.6 million as a result of
the resolution of tax contingencies originating from our acquisition by
Pechiney. In 1999, goodwill of $38.6 million was recorded for the
acquisition of the 35% minority interest in our subsidiary in Turkey. At
December 31, 1999, $1,222 million of goodwill was recorded as an asset on
our balance sheet.
(2) The $159 million restructuring charge in 1996 was established to cover the
cost of plant closures, employee termination costs and other costs
associated with our restructuring plans. See Note 18 to our consolidated
financial statements for a more complete description of this charge.
(3) EBITDA is a non-GAAP measurement that we define as operating income (loss)
from continuing operations, excluding depreciation and amortization and
goodwill amortization. EBITDA excluding restructuring and write-downs is a
non-GAAP measurement that we define as EBITDA excluding restructuring
charge (credit) and writedown of property and equipment. These measures do
not represent cash flow for the periods presented and should not be
considered as alternatives to net income (loss), as indicators of our
operating performance or as alternatives to cash flows as a source of
liquidity. Our EBITDA may not be comparable with EBITDA as defined by
other companies. We believe EBITDA is commonly used by financial analysts
and others in the packaging industry.
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<PAGE> 15
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
FORWARD-LOOKING STATEMENTS
This discussion and the information contained in the notes to the
consolidated financial statements include forward-looking statements based on
current expectations about future events. Actual results could differ materially
from those anticipated in the forward-looking statements. The forward-looking
statements are affected by risks, uncertainties and assumptions about ANC's
business, including, among other things:
- our customers' financial condition
- the number of cans we will supply and the locations of our customers
- our ability to control costs
- the terms upon which we will acquire aluminum and our ability to reflect
those terms in can sales
- our reliance on third-party vendors for various services
- our debt levels and our ability to obtain and retain financing and
service debt
- competitive pressures in the beverage can business
- the successful implementation of our strategy to create shareholder value
through superior profitability and cash generation
- prevailing interest rates and currency exchange rates
- payment of dividends
- stock repurchases
- the effect of any acquisitions, investments and divestitures on our
results of operations and financial condition
- legal proceedings and regulatory matters
- general economic conditions, particularly the strength of the economies
in which we have operations.
We undertake no obligation to update publicly or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
In light of these risks, uncertainties and assumptions, the forward-looking
events discussed herein might not occur.
GENERAL
We manufacture beverage cans and beverage can ends and have an extensive
presence in the worldwide beverage can markets. Our activities are conducted in
several geographic areas, principally North America, South America, Europe and
the Far East. In 1999, our businesses in the United States and Brazil accounted
for 62% of our net sales, while Europe and Asia accounted for 38%. In the Far
East, we have a manufacturing subsidiary in China and equity positions in Japan
and South Korea.
Net Sales. Our net sales figures reflect the volume of cans and can ends
that we sell. In certain cases, we sell can ends separately. Net sales also
reflect the relative mix of different can prices. A higher proportion of larger
size cans or cans with special features can lead to higher net sales figures
even if overall volumes remain stable.
Sales of beverage cans are highest during the summer months. Therefore, our
sales for the second and third quarters of the year, which include the warmer
months in North America and Europe, are higher than in the first and fourth
quarters. In the past, significant changes in summer weather conditions have
caused variations in demand for beverage cans and therefore in our net sales.
Some of our long-term sales contracts with customers contain formulas that
link the can price to our raw material cost, generally on the basis of
prevailing aluminum prices several months prior to the sale. These formulas can
lead to variations in net sales levels which, because they are generally offset
by corresponding variations in the cost of goods sold, do not necessarily affect
our operating income levels.
Significant portions of our sales are in European currencies, especially
currencies that now comprise the euro, as well as the British pound. Revenues
denominated in foreign currencies are translated into U.S. dollars in preparing
our financial statements. Therefore, when these currencies fluctuate in value
relative to the U.S. dollar, our net sales figures may fluctuate accordingly.
15
<PAGE> 16
Cost of Goods Sold (Excluding Depreciation). Our cost of goods sold consists of
raw materials costs, as well as other operating expenses and freight charges. It
does not include depreciation and amortization charges.
- The principal raw material used in manufacturing beverage cans is
aluminum can sheet for aluminum cans and ends, and steel can
sheet for steel cans. Metal generally represents between 60% and
70% of the manufacturing cost of the beverage can, depending on
the can size and the type of metal used. We purchase most of our
aluminum can stock requirements from major aluminum can sheet
producers in North America and Europe and we purchase steel from
major European producers. In particular, we have long-term
aluminum purchase contracts spanning three to five years with the
following companies:
- Alcan Rolled Products Company, which supplied approximately 46%
of our worldwide aluminum tonnage in 1999
- Aluminum Company of America (known as "Alcoa"), which supplied
approximately 24% of our worldwide aluminum tonnage in 1999
- Pechiney, which supplied approximately 15% of our worldwide
aluminum tonnage in 1999.
All of our purchase contracts are entered into on an arms'-length
basis on prevailing market terms. Unless otherwise fixed by contract,
can and end sheet prices vary in relation to the market prices for
aluminum and steel. Aluminum prices have historically fluctuated while
steel prices have been stable.
In addition to metals, we use other raw materials, principally
compounds, inks, varnishes and coating materials.
- Other operating expenses include all other fixed and variable
expenses required to run our can and end plants, principally
labor costs, utilities and repair materials.
- Freight charges represent the cost of transporting cans from our
facilities to our customers' facilities, as well as warehouse
rental, storage and handling charges.
Selling, General and Administrative Expense ("SG&A"). This item consists of
selling and administration compensation costs, together with all other
administration costs such as our headquarters costs, management information
systems and consulting fees. It does not include depreciation and amortization
charges.
Research and Development Expense. This item includes our product
engineering costs in the United States, including our Beverage Technical Center
located near Chicago, as well as the cost of research services which we
previously purchased from Pechiney's facility in Voreppe, France.
Depreciation and Amortization. This item consists of depreciation of our
productive and administrative capital assets, and amortization of purchased
software and other intangibles. It does not include goodwill amortization.
Goodwill Amortization. This item relates principally to the revaluation of
our tangible assets and liabilities as of the date of our acquisition by
Pechiney in 1988. The initial amount, which totaled approximately $1.6 billion,
is being amortized over a 40-year period, which results in an annual charge of
approximately $40 million. In 1999, goodwill of $39 million was recorded for the
acquisition of the 35% minority interest in our subsidiary in Turkey, which
resulted in an annual charge of approximately $1 million on a full year basis.
At December 31, 1999, our balance sheet reflected approximately $1.2 billion of
goodwill remaining to be amortized.
This goodwill amortization causes our effective tax rate to differ from the
statutory rate because our goodwill amortization, which is a relatively stable
amount in each period, is not deductible for tax purposes. This results in a
higher effective tax rate, particularly in periods where profits are lower. The
rate also fluctuates as a function of varying profit levels in foreign
countries, where the tax rates differ.
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<PAGE> 17
In the past we have reviewed the value of our goodwill and other long-lived
assets on an annual basis. As a publicly traded company, we review these assets
on a quarterly basis. As part of these reviews, we assess whether changes have
occurred that permanently impair the value of these assets and, accordingly,
require a writedown in their value. With respect to goodwill, this assessment
consists of comparing the value of the related assets to a model which consists
principally of comparing the carrying value of goodwill to a group of comparable
entities based on financial multiples derived from investment bankers, financial
analysts, and other independent sources which management believes are reliable.
These reviews of the carrying value of our goodwill also include an analysis of
our share price performance compared to book value. The market price of our
shares was below the book value of our shares as of December 31, 1999. If our
shares trade at a significant discount to book value over an extended period of
time of one year or longer, and other factors indicate an impairment, this could
indicate a need to write down the value of our goodwill in accordance with
Accounting Principles Board Opinion No. 17, "Intangible Assets," and Statement
of Financial Accounting Standard No. 121, "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to be Disposed of." At year-end, we
undertook an assessment of our goodwill and other long-lived assets and
determined that no writedown was required, and we do not currently believe that
a writedown is required.
Restructuring Charge (Credit) and Writedown of Property and Equipment. This
item consists principally of restructuring charges related to plant closures and
other rationalization programs such as the elimination of executive and
administrative functions at headquarters and plant level through outsourcing and
headcount reductions, as well as net losses on fixed asset sales and asset
impairment charges.
Accounting Change. Effective January 1, 1998, we adopted AICPA Statement of
Position 98-5, "Reporting of the Costs of Start-Up Activities," and wrote off
previously capitalized start-up expenses of $3 million, net of taxes of $1
million.
Extraordinary Charge. In July 1999, we recorded an extraordinary charge of
$2 million, net of taxes of $1 million for the early extinguishment of debt in
conjunction with our Initial Public Offering ("IPO") refinancing.
Acquisitions and New Operations. On July 27, 1999, we acquired the
remaining 35% minority interest in our Turkish subsidiary Nacanco Paketleme
Sanayi ve Ticaret A. S. for $53 million in cash consideration.
Cost Reduction Programs. In response to slowing growth rates, overcapacity
and price competition in our major markets, we have devoted substantial
attention to ongoing productivity improvement and cost reduction efforts across
our global network of facilities. In 1996 we introduced Project Challenge whose
objective was to reduce the 1995 cost base, excluding metal costs, by 20%, or
$140 million, before the end of 1999. The results of Project Challenge have been
good. By the end of 1998, we had met and exceeded all of our Project Challenge
objectives, with savings of $170 million per year.
In 1998, we introduced our Next Level and Lean Manufacturing program, a
continuous improvement process through which we seek to increase productivity
and reduce costs while limiting additional capital expenditures. This ongoing
program has already produced concrete results in the United States, including a
4.1% improvement in cans per man hour in 1999 over 1998 and a 3.9% improvement
in cans per man hour in 1998 over 1997. We expect this program to result in
continued productivity improvements and cost reductions.
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<PAGE> 18
RESULTS OF OPERATIONS
The following table shows our operating income from continuing operations
and various expense items as a percentage of our net sales for the periods
indicated.
YEAR ENDED DECEMBER 31,
-----------------------
1997 1998 1999
---- ---- ----
(PERCENTAGES OF NET SALES)
Net sales 100.0% 100.0% 100.0%
Cost of goods sold (excluding depreciation) 83.9 80.7 79.4
Selling, general and administrative expense 5.4 5.6 5.1
Research and development expense 0.8 0.6 0.6
Depreciation and amortization 3.2 3.3 3.4
Goodwill amortization 1.7 1.6 1.8
Restructuring charge (credit) and writedown
of property and equipment 0.4 (0.1) 0.3
----- ----- -----
Operating income from continuing operations 4.5% 8.2% 9.5%
===== ===== =====
EBITDA 9.4% 13.1% 14.7%
EBITDA excluding restructuring and writedowns 9.8% 13.1% 14.9%
RESULTS OF OPERATIONS IN 1997, 1998 AND 1999
Net Sales
Our net sales totaled $2,328 million in 1999, compared with $2,459 million
in 1998 and $2,465 million in 1997.
The 5.3% decline in 1999 reflected lower sales in the Americas and Europe
and Asia. Net sales in the Americas declined 6.9% to $1,453 million of which
3.2% was the result of lower selling prices in the United States due to the low
market price of aluminum which was passed on to customers through contract
pricing formulas. Contributing to the decline were lower beer volumes in the
United States and price declines, primarily in Brazil, offset partially by
higher United States soft drink volumes. Net sales in Europe and Asia declined
2.9% to $875 million. The impact of translating European currencies into the
stronger United States dollar resulted in a decline of 3.2%. Increased volumes,
primarily in Spain and Northern Europe more than offset price declines,
primarily in Turkey where prices were reduced to be more comparable to other
European countries.
The 0.2% decline in 1998 reflected mixed results in key market areas. Net
sales in the Americas in 1998 were stable at $1,558 million, compared with
$1,554 million in 1997. In the United States, although our product mix improved,
this was offset by lower volumes in both soft drink cans and beer cans. The
lower volumes in soft drink cans resulted from a loss of market share, while the
decrease in beer can volume was due to an overall decline in the market. Our
loss of market share for soft drink cans resulted from a 2.0 billion can volume
loss with a specific customer due to unfavorable terms in the proposed contract.
Brazil reported good gains due to increased market demand and the plant being
on-line for the full year. Net sales in Europe and Asia declined slightly by
1.1%, to $901 million in 1998. Strong market growth in Southern Europe partially
offset the negative impact of a less favorable product mix and poor weather
conditions in Northern Europe.
Operating Expenses
- Cost of goods sold amounted to $1,847 million in 1999, compared with
$1,985 million in 1998 and $2,069 million in 1997. These figures represent
consistent reductions in cost of goods sold as a percentage of net sales,
which equaled 79.4% in 1999, 80.7% in 1998 and 83.9% in 1997.
The $138 million decrease in 1999 from 1998 included a 9% reduction in
total metal costs, an 8% reduction in material costs and an 8% reduction in
other operating expenses, primarily improved efficiencies in repairs and
maintenance activities. Offsetting these gains, pension income decreased by
$7 million.
The $85 million decrease in 1998 from 1997 included a 3% reduction in total
metal costs, a 10% reduction
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<PAGE> 19
in labor and benefits expenses and an 11% reduction in distribution costs.
In addition, pension income increased by $19 million.
The reductions in labor and benefits expenses and distribution costs are
the result of our ongoing cost reduction programs.
- Selling, general and administrative expenses amounted to $119
million in 1999, compared with $138 million in 1998 and $134 million in
1997.
The $19 million decrease in 1999 reflects reduced labor and benefits
expenses due to our ongoing cost reduction efforts and a $10 million
reduction in bad debt expense. Excluding the reduction in bad debt expense,
SG&A expenses decreased by 7.0% in 1999.
The 3.0% increase in 1998 primarily reflected an increase in bad debt
expense of $7 million, together with increased consulting expenses relating
to Project Challenge. Excluding these factors, SG&A expenses decreased by
4.5% in 1998, reflecting reduced labor and benefits expenses due to our
ongoing cost reduction efforts.
- Research and development expense amounted to $14 million in 1999,
compared with $15 million in 1998 and $20 million in 1997.
In 1998, we used fewer services from Pechiney's research center and were
allocated a lower portion of costs relating to this center. The lower
charges in 1999 and 1998 also reflected our ongoing effort to share a
larger portion of development expenses with customers and suppliers.
Operating Income (Loss) from Continuing Operations
Our operating income from continuing operations totaled $221 million in
1999, compared with $201 million in 1998 and $112 million in 1997.
- Depreciation and amortization amounted to $80 million in 1999,
compared with $82 million in 1998 and $78 million in 1997.
The $2 million decrease in 1999 resulted from lower depreciation on certain
plant and equipment written down in connection with restructuring charges.
The $4 million increase in 1998 compared to 1997 reflected capital
expenditure levels.
- Restructuring and writedown of property and equipment amounted to a
charge of $6 million in 1999, compared with a credit of $2 million in 1998
and a charge of $11 million in 1997.
In the fourth quarter of 1996, we recorded a charge of $159 million for
restructuring and impairment of property and equipment related to actions
taken under Project Challenge. After years of strong growth, the beverage
can market in the United States and Canada had reached maturity. In 1996,
the market had increased only slightly over the prior year resulting in an
industry supply/demand imbalance, which led to our decision to reduce
annual capacity by in excess of three billion cans.
The restructuring charge related primarily to the planned shutdown of five
can manufacturing facilities to eliminate production overcapacity. The
facility at Jacksonville, Florida was shut down in December 1996. The
remaining reduction of capacity was planned to be accomplished by the
shutdown of three plants in 1997 and one in 1998. In addition to the cost
of the five plant shutdowns, the restructuring charge covered the
reorganization of operations at plants which would continue operations, and
the elimination of executive and administrative functions at our
headquarters and other plants.
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<PAGE> 20
In May 1997, the San Juan, Puerto Rico facility was shut down. In the
fourth quarter of 1997, we decided to defer to 2000 the shutdown of the
remaining two plants originally scheduled for shutdown in 1997. These two
plants primarily produce special-sized cans under contracts that are
scheduled to expire in 2000. Our shutdown plan for one of the two plants
originally contemplated capital investments to expand another plant to
allow for the transfer of production of the special-sized cans. A decision
was made in 1997 not to make the necessary additional capital investment
and to continue to operate the plant. Our plan for the second plant was to
negotiate an early termination of the contract or to make alternative
supply arrangements. In 1997, we made a decision to continue to operate
each of the plants at approximately 50% of capacity through completion of
the contractual commitments, incurring cash losses, which are being
recorded as incurred.
The 1997 charge also includes a $10 million impairment writedown for our
investment in China in light of economic conditions there.
In 1998, we did the following:
- we recorded restructuring charges of $14 million for severance
costs associated with the Next Level and Lean Manufacturing program
and an impairment charge of $4 million for lease termination costs
and equipment writeoffs
- we wrote back $17 million and $20 million in restructuring charges
previously taken for Project Challenge and $9 million previously
taken for pre-1998 program plant closings
- we recorded a new charge of $25 million to cover the costs of a new
plant closure related to Project Challenge.
The $2 million restructuring credit posted in 1998 represented the overall
effect of these items.
In 1998, based on a large customer's decision to reduce its purchases from
us in various geographic markets and on studies by outside consultants of
market demographics, our management decided not to close a plant provided
for in 1996 which at that time was expected to be closed in 1998, but
rather to temporarily curtail production at several lines in our
facilities. As a result, the reserve of $17 million previously established
for employee termination and severance programs, lease termination costs,
facility costs and other exit costs related to this plant was restored to
income. A further restoration of $29 million related to adjustments to the
Project Challenge and pre-1996 restructuring reserves for changes in
estimates of the number of employees to be terminated as a result of
natural attrition at plants shut down or to be shut down, and
higher-than-expected proceeds on the sale of several plant sites.
In connection with the 1998 decision not to close the previously identified
plant and in response to the continuing oversupply of can production
capacity, in 1998 our management decided to close a different plant in late
1999. Accordingly, a charge of $25 million was recorded in 1998 to cover
the costs of the new plant closure.
In the fourth quarter of 1999, as a result of a reduction in system
overcapacity resulting from new business, management decided that it would
not close the plant that was reserved for in 1998 and recorded a credit to
income of $16 million. The impairment write down of property and equipment
for this plant was maintained since the reduced carrying amount of the
property and equipment has been accounted for as its new cost basis.
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<PAGE> 21
In December, 1999 the Company announced that it would close its Piscataway,
NJ facility in the first quarter of 2000 instead of a facility that was
included in the original 1996 restructuring plan. As a result: 1) a
restructuring credit to income of $10 million was recorded in 1999 to take
back the original charge for this plant. The write down of property plant
and equipment for this plant was maintained since the reduced carrying
amount of the property plant and equipment has been accounted for as its
new cost basis; 2) a charge to income of $12 million was recorded to
provide for the cost of the Piscataway closure. The charge included
estimated employee termination and severance costs of $1 million, lease
termination costs of $2 million, facility costs of $0.4 million and a
writedown of plant and equipment to fair value of $8 million; 3) an
additional credit to income in 1999 of $5 million related to adjustments to
the restructuring reserve for changes in estimates of employee severance
costs as a result of natural attrition, lease termination costs and
facility costs at plants shut down or to be shut down; and 4) an additional
charge to income of $2 million related to adjustments in estimates of
employee severance costs and facility costs primarily related to revised
estimates of sublease rental income at the corporate headquarters.
As part of the Next Level and Lean Manufacturing program, ANC instituted a
program beginning in the U.S. in 1998 called "top grading" which is
designed to strengthen our management through new leadership and
performance management. The program calls for placing the best human
resources available into numerous middle and high level management
positions throughout the Company. Top grading will give the Company a much
broader, talented and diverse management pool to lead the Company into the
future. This initiative was expanded into our European operations in 1999.
As a result, the Company pays termination and severance benefits to those
employees that have left or will be leaving the Company under the top
grading program over the next several years.
The 1998 charge of $14 million was provided for severance costs for
approximately 140 plant, sales and administrative employees in the U.S who
will be replaced in the Company's top grading program.
In 1999, the European operations commenced the Next Level program, which is
designed to eliminate redundant administrative and plant positions. The
charge to income included $8 million for severance costs for approximately
158 employees whose positions are being eliminated under the Next Level
program.
The 1999 charge to income also included $15 million for severance and other
employee related costs to provide for the reduction of an additional 103
employees in the Company's U.S. and European top grading program.
Please refer to note 18 of our consolidated financial statements for a
description of our cash payments for restructuring costs in 1997, 1998 and
1999. Our expected cash payments for restructuring costs in future periods,
excluding pension liabilities, are as follows:
($ IN THOUSANDS)
2000 $24,834
2001 12,244
2002 1,046
2003 239
2004 806
2005 and beyond 5,082
The results of our completed restructuring activities have been good.
Shutdown costs for both Jacksonville, Florida and San Juan, Puerto Rico
were less than anticipated, for two principal reasons. First, we were able
to sell the San Juan, Puerto Rico plant and equipment at a higher than
expected price and we increased the estimated proceeds on the anticipated
sale of our leasehold interest in the Jacksonville, Florida plant. Second,
the rate of voluntary employee attrition was higher than expected, leading
to lower severance costs. As a result of these factors, we were able to
reverse restructuring provisions of $3 million for Jacksonville and $6
million for San Juan. These amounts were included in the $29 million of
provisions written back in 1998.
For further discussion of these items, please refer to note 18 to our
consolidated financial statements.
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<PAGE> 22
Income (Loss) from Continuing Operations before Extraordinary Charge and
Cumulative Effect of Accounting Change
- Interest expense totaled $71 million in 1999, compared with $69
million in 1998 and $90 million in 1997.
The $2 million increase in 1999 reflects a $6 million increase due to
borrowing rates and amortization of deferred financing fees offset by a $4
million reduction due to lower borrowing levels.
The $21 million decline in 1998 reflects the repayment of $473 million of
intra-group debt as part of a capital reorganization. You should refer to
note 1 to our consolidated financial statements for a discussion of this
capital reorganization.
- Interest income and other financial income (expense), net, amounted
to $14 million in 1999, compared with $11 million in 1998 and $27 million
in 1997. Within this item, interest income totaled $15 million in 1999,
compared with $14 million in 1998 and $8 million in 1997. Interest income
in each year was partly offset by expenses related to the sale of accounts
receivable under our receivables sales agreement. The 1997 income amount
also included a $21 million nonrecurring gain relating to foreign currency
forward contracts. This non-recurring gain relates to a series of
unauthorized foreign currency transactions entered into by an employee at
intervals during the second half of 1995, and again between September 1996
and March 1997. The employee diverted these funds to his personal bank
account. After detection of the unauthorized transactions in April 1997,
the employee was immediately terminated and the cash proceeds related to
the unauthorized transactions were fully recovered later in 1997. We
conducted an internal investigation that determined all amounts related to
the unauthorized transactions were recovered and no other irregular
transactions had occurred. We have reviewed thoroughly our existing
procedures and implemented new procedures with additional authorization and
reporting requirements.
For most of 1999, we continued to cover our foreign exchange exposures
through contracts with Pechiney. Under a transition agreement, Pechiney
continued to provide this service following the IPO, while we were in the
process of establishing foreign exchange trading lines with appropriate
trading authorizations. These are now in place and overseen by our risk
management department.
- Income tax expense amounted to $70 million in 1999, compared with
$26 million in 1998 and $30 million in 1997. In 1998, we received a
favorable tax settlement from the Internal Revenue Service pertaining to
federal income tax returns for the years 1985 through 1995. This settlement
enabled us to write back $32 million of our reserves for income taxes,
which was offset against our income tax expenses in 1998. Excluding this
effect, our 1998 income tax expense would have been $59 million.
Our effective tax rate was 42.7% in 1999, compared with 18.6% in 1998 and
61.4% in 1997. In 1999, excluding the goodwill amortization effect, the
rate would have been 33.9%. In 1998, excluding the favorable tax settlement
and the goodwill amortization effect, our effective tax rate would have
been 31.3%. In 1997, excluding the goodwill amortization effect, the rate
would have been 32.1%.
- Equity in net earnings (loss) of affiliates totaled $5 million in
1999, compared with $4 million in 1998 and a loss of $4 million in 1997.
This item relates to our activities in Korea, Mexico and Japan. In 1999,
improved operations in Mexico were offset by declines in Japan and Korea
where earnings were negatively impacted by provisions for bad debts. In
1998, operations improved in Mexico and Korea, compared with weak
performance in 1997 which related particularly to the devaluation of the
Korean won at the end of 1997.
- Minority interest amounted to $1 million in 1999, compared with $5
million in 1998 and 1997. The reduction in this item is the result of our
acquisition in July, 1999 of the remaining 35% minority interest in Turkey.
The minority interest also includes our activities in China.
Income from continuing operations before extraordinary charge and cumulative
effect of the accounting change totaled $98 million in 1999, compared with $116
million in 1998 and $10 million in 1997. In 1999, an extraordinary charge of $2
million, net of tax of $1 million resulted from the early extinguishment of debt
in conjunction with the IPO refinancing. In 1998, the cumulative effect of an
accounting change resulted in a $3 million charge, net of tax of $1 million.
22
<PAGE> 23
EBITDA-RELATED ITEMS
Although EBITDA is a non-GAAP measurement, we believe it is an appropriate
financial measure of our operating performance, given our significant non-cash
depreciation and amortization charges and our significant goodwill amortization
charges. We define "EBITDA" as operating income (loss) from continuing
operations, excluding depreciation and amortization and goodwill amortization.
We define "EBITDA excluding restructuring and write-downs" as EBITDA excluding
restructuring charge (credit) and writedown of property and equipment. Our
discretionary use of funds depicted by EBITDA may be limited by working capital,
debt service, tax payment and capital expenditure requirements, and by
restrictions related to legal requirements, commitments and uncertainties. You
should refer to the section entitled "Selected Financial Data" for a further
discussion of these EBITDA-related items.
For the full year 1999, our EBITDA totaled $342 million, compared with $323
million in 1998 and $231 million in 1997. These figures reflect increases of
5.9% in 1999 and 39.8% in 1998.
For the full year 1999, our EBITDA excluding restructuring and writedowns
totaled $347 million, compared with $321 million in 1998 and $242 million in
1997. These figures reflect increases of 8.1% in 1999 and 32.6% in 1998.
LIQUIDITY AND CAPITAL RESOURCES
The Company's primary source of debt financing is $1,300 million in
aggregate commitments under bank credit facilities entered into on July 22,
1999. The credit facilities consist of a $650 million five-year credit facility
and a $650 million 364-day credit facility.
The five-year facility consists of a $600 million revolving credit facility
and a $50 million corporate loan option facility. Up to $100 million is
available for the issuance of standby letters of credit. Up to $300 million is
available in euros and up to $100 million in British pounds, or euro if the
United Kingdom adopts the euro.
The 364-day facility consists of a $600 million revolving credit facility
and a $50 million corporate loan option facility. Up to $25 million is available
as swing line loans. The facility is extendable for an additional 364 days at
the discretion of each lender, and is convertible at the Company's option into a
term loan with a maximum maturity of 364 days from conversion.
The debt under the 364-day facility is classified as long-term on the
consolidated balance sheet because it is management's intention and the Company
has the ability to extend these borrowings beyond one year.
Interest rates for U.S. dollar borrowings are equal to the LIBOR rate,
adjusted for reserves, plus a margin that varies from 0.80% to 1.20% for the
five-year revolving credit facility, and from 0.85% to 1.25% for the 364-day
revolving credit facility, or the corporate base rate published by Banc One from
time to time plus a margin that varies from 0.0% to 0.25%, according to a
pricing grid based on the ratio of the Company's average total net debt to
capital.
Euro borrowing rates are based on the Euribor rate, adjusted for reserves,
plus a margin. British pound borrowing rates are based on the LIBOR rate
adjusted for reserves, plus a margin. In each case, the margin varies from 0.80%
to 1.20% according to a pricing grid based on the ratio of the Company's average
total net debt to capital.
The Company pays a facility fee on each lender's commitment, irrespective
of usage. The facility fee varies from 0.20% to 0.30% for the five year
revolving credit facility and from 0.15% to 0.25% for the 364-day revolving
credit facility, according to a pricing grid based on the ratio of the Company's
average total net debt to capital.
The Company also maintains short-term lines of credit in the United States
and in a number of foreign countries. Foreign borrowings are generally overdraft
facilities at rates competitive in the countries in which we operate. Generally,
each foreign line is available only for borrowings related to operations of a
specific country. United States lines are overnight facilities at market rates.
The weighted average interest rate on short-term borrowings outstanding as
of December 31, 1998 and 1999 was approximately 5.6% and 6.2%, respectively. The
weighted average interest rate on long-term borrowings outstanding as of
December 31, 1998 and 1999 was approximately 5.7% and 7.1%, respectively. The
majority of our debt is floating rate debt; therefore, changes in interest rates
will have an impact on future interest costs.
23
<PAGE> 24
The credit facilities require us to make customary representations and
warranties and to satisfy certain customary covenants. In addition, the credit
facilities include the following financial covenants:
- The Company's ratio of EBITDA to interest expense must not be less
than 3.5 to 1.0 for the three, six and nine month periods ending
September 30, 1999, December 31, 1999 and March 31, 2000,
respectively, and not less than 4.0 to 1.0 for the twelve month
periods ending on each quarter end thereafter, beginning on June 30,
2000. For this purpose, EBITDA is defined as follows: net income, plus
interest expense, tax charges, depreciation expense, amortization
expense, other non-cash charges, and nonrecurring after-tax losses
deducted in computing net income, minus other extraordinary non-cash
credits and nonrecurring after-tax gains added in computing net
income.
- The Company's consolidated net worth must not be less than $950
million plus 50% of positive net income earned after June 30, 1999.
For this purpose, consolidated net worth is defined as shareholder's
equity on our consolidated balance sheet, excluding the receivable
from Pechiney Plastic Packaging, Inc., foreign currency translation
adjustments and adjustments for additional minimum pension liability
accounts.
- The Company's ratio of total net debt to capital must not be more than
0.55 to 1.0. For this purpose, total net debt is defined as funded
indebtedness plus guarantees, less cash and cash equivalents. Capital
is defined as total net debt plus consolidated net worth, as defined
above, plus minority interests.
These financial covenant ratios are generally calculated without giving
effect to the financial statement impact of any obligations indemnified by
Pechiney Plastic Packaging, Inc. or guaranteed by Pechiney.
We estimate that we could currently incur $168 million of additional debt
and still comply with these financial covenant ratios.
Events of default under the credit facility will include cross-acceleration
with our other debt greater than $15 million, cross-default with our other debt
greater than $40 million, unfunded pension liabilities in excess of $300
million, the acquisition of beneficial ownership of 30% or more of our voting
stock by any person other than Pechiney, and current board members or board
members elected with the approval of a majority of the current board no longer
constituting the majority of the board, as well as other customary events of
default.
CAPITAL EXPENDITURES
Our business requires ongoing capital investments to maintain our existing
level of operations and implement productivity improvements.
These investments totaled $78 million in 1999, $65 million in 1998 and $72
million in 1997. Our low levels of capital spending over the three-year period
reflects our drive for further efficiency and productivity through lean
manufacturing rather than high levels of capital spending. Capital expenditures
are focused on achieving manufacturing improvements by installing equipment to
improve quality and reduce labor cost.
CASH FLOWS
The following table presents selected cash flow data for our continuing
operations in the periods indicated.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1997 1998 1999
---- ---- ----
($ IN MILLIONS)
<S> <C> <C> <C>
Net cash provided by operating activities of continuing operations ......... $ 65 $ 161 $ 148
Net cash used in investing activities of continuing operations ............. (57) (58) (118)
Net cash provided by (used in) financing activities of continuing operations (3) 26 (90)
</TABLE>
24
<PAGE> 25
In 1999, net cash provided by operating activities of continuing operations
totaled $148 million, driven by $98 million of income from continuing operations
and depreciation and amortization of $121 million, together with a $22 million
provision for deferred income taxes. In 1999, we increased our net trade working
capital by an aggregate of $10 million compared with 1998 primarily as a result
of increased trade receivables. Other operating cash flows resulted from
restructuring expenditures of $18 million, pension funding of $8 million and $34
million of noncash pension income, which was recorded as income but did not
generate a cash benefit.
In 1998, net cash provided by operating activities of continuing operations
totaled $161 million, driven by $116 million of income from continuing
operations and depreciation and amortization of $123 million, together with a
$31 million provision for deferred income taxes. In 1998, we reduced our net
trade working capital by an aggregate of $9 million compared with 1997. This was
achieved principally through a decrease in inventory balances in the United
States as a result of the Project Challenge cost reduction program. Offsetting
these cash flows were $41 million of noncash pension income and $32 million
related to our favorable tax settlement from the Internal Revenue Service, which
was recorded as income but did not generate a cash benefit.
In 1997, net cash provided by operating activities of continuing operations
totaled $65 million, driven by income from continuing operations of $10 million
and depreciation and amortization of $119 million. Pension plan contributions of
$55 million reduced the cash provided by operating activities. Although our
trade working capital remained relatively stable on a net basis, both
receivables and payables increased during the year as a result of the start-up
in Brazil. Increased inventories in Brazil were more than offset by inventory
reductions achieved in the United States, which accounted for our overall $6
million reduction in inventories during the year.
Net cash used in investing activities of continuing operations was $118
million in 1999 and remained relatively stable at $58 million in 1998 and $57
million in 1997. The increase in 1999 related to the acquisition of the 35%
minority interest of our Turkey operation for $53 million.
In 1999, net cash used in financing activities of continuing operations
totaled $90 million. This amount includes $122 million of dividends paid to
Pechiney prior to and as part of the IPO and $15 million of dividends to
shareholders after the IPO. Prior to the IPO, we repaid insurance company notes
and borrowings from Pechiney and replaced them with borrowings under our new
credit facility. Net cash provided by financing activities of continuing
operations in 1998 totaled $26 million, reflecting the reorganization of our
capital structure in Europe. In 1997, net cash used in financing activities of
continuing operations totaled $3 million. This amount included $28 million in
payments on long-term debt and $8 million in dividends paid.
As at December 31, 1999, we had a total of $343 million of net operating
losses recorded on our balance sheet as a $120 million deferred income tax
asset. U.S. tax rules impose an annual limit on the amount of net operating loss
and tax credit carryforwards that may be used by a company following a change in
its ownership of more than 50%. The annual limitation on tax benefits from these
carryforwards is $46 million. We do not expect this limitation to have a
material impact on our ability to utilize our net operating losses and tax
credit carryforwards.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
We are exposed to various market risks, including fluctuations in metals
prices, foreign exchange rates and interest rates on our debt. Prior to the IPO,
these risks were managed principally through Pechiney's risk management system.
We are currently implementing a worldwide ANC risk management program to assess
our exposure to market risk and implement protection policies.
METALS PRICES
The principal raw materials used in manufacturing beverage cans are
aluminum can sheet and steel can sheet. Unless otherwise fixed by contract, can
sheet prices vary in relation to the market prices for aluminum and steel. The
market price of aluminum has historically been volatile, while the market price
of steel has been more stable.
25
<PAGE> 26
We generally do not use commodity derivative instruments. We generally limit our
exposure to aluminum price fluctuations by matching the terms of our aluminum
purchase contracts with the terms of our customer sales contracts. In the United
States, several major suppliers of aluminum can stock offer pricing systems
which provide a "band" pricing formula. Under these contracts, the price of
aluminum can stock varies with aluminum quotations, but only within a band
(i.e., an upper limit and lower limit) for a period of up to five years. In the
United States, we have entered into long-term sales contracts with many of our
customers, in which the selling price for beverage cans is based on similar
pricing formulas. These sales contracts cover over 90% of our net sales in North
America.
In Europe, approximately 67% of our net sales are made under long-term
contracts of varying lengths. Pricing on most of these contracts is determined
on an annual basis. We manage our exposure to aluminum price volatility in
Europe by matching aluminum purchases to sales agreements for similar periods.
Steel prices have historically been stable and we expect our existing long-term
contracts to give us continued price stability for steel.
FOREIGN EXCHANGE RATES
We are exposed to two types of risks related to currency exchange rates:
transaction risk and translation risk.
Transaction Risk. Transaction risk occurs when one of our operating units
enters into a foreign currency denominated transaction, with the result that its
expenses are denominated in a different currency from its revenues. This risk is
not significant in our United States operations since we both purchase raw
materials and sell cans in transactions denominated in U.S. dollars. The
introduction of the euro on January 1, 1999 eliminated transaction risk between
the 11 European countries participating in the European Monetary Union (known as
the "euro zone"). Therefore, in our business, this risk arises principally in
the United Kingdom.
Within the United Kingdom, where our functional currency is the British
pound, we purchase can sheet in euros from suppliers in euro zone countries. If
the euro exchange rate rises against the British pound, the relative cost in
British pounds of the can sheet rises. To protect against this risk, we entered
into a long-term agreement to purchase can sheet. We hedge the risk by entering
into a forward purchase of euros. This effectively fixes the rate at which we
will be able to obtain the euros we will require to make payments under the
contract, thereby eliminating the transaction risk.
Similarly, we sell a portion of our U.K. can production to customers in
euro zone countries. These sales are denominated in euros. If the euro declines
in value against the British pound, the amount of revenues in British pounds
declines. When we enter into a long-term sales agreement, we hedge this risk
through a forward sale of euros. This effectively fixes the rate at which we
will be able to sell the euros we expect to receive in the future.
Our policy is to use currency exchange instruments only to hedge against
firm commitments under foreign currency denominated contracts to purchase raw
materials or sell beverage cans. Our policy is not to engage in speculative
foreign exchange transactions.
Translation Risk. Translation risk occurs when the functional currency of a
foreign business' financial statements is converted into our reporting currency,
the U.S. dollar. For example, the assets, liabilities, revenues and expenses of
our European operations must be translated into U.S. dollars for inclusion in
our financial statements. To the extent that the exchange rates of the British
pound and euro relative to the U.S. dollar vary, the reported values of European
assets and liabilities and the amount of their recorded earnings will change. We
do not hedge against this translation risk.
In Brazil and Turkey, which experience significant currency volatility, and
where our functional currency is the U.S. dollar, we attempt to balance local
currency denominated monetary assets and liabilities to manage translation risk.
When this is not possible, we hedge translation risks that could have a negative
impact on the cash flows of the business. For example, in Brazil, can sales and
metal prices are U.S. dollar indexed, but invoiced in Brazilian reis. We enter
into forward sales of Brazilian reis to hedge net cash flows.
26
<PAGE> 27
Currency Instruments. Approximately 57% of our currency hedging instruments by
nominal value have Pechiney as the counterparty. Our forward purchase contracts
and forward sale contracts with Pechiney will remain in place until they mature.
At December 31, 1999, we held forward contracts to purchase $353 million of
foreign currency and to sell $136 million of foreign currency. These commitments
extend through July 2003. The nominal and fair value of these instruments are
illustrated by the tables below.
<TABLE>
<CAPTION>
AS OF DECEMBER 31, 1999
-----------------------
MATURING MATURING
WITHIN BETWEEN
TOTAL 1 YEAR 1-5 YEARS
----- -------- ---------
($ IN MILLIONS)
<S> <C> <C> <C>
NOMINAL VALUE:
Forward purchases
Euros(1) $ 352 $ 298 $ 54
Other 1 1 0
----- ----- -----
Total $ 353 $ 299 $ 54
===== ===== =====
Forward sales
Euros(1) $ 126 $ 126 $ 0
Brazilian reis 10 10 0
----- ----- -----
Total $ 136 $ 136 $ 0
===== ===== =====
FAIR VALUE(2):
Forward purchases of Euros(1) $ (39) $ (26) $ (13)
Forward sales of Euros(1) $ 2 $ 2 $ 0
</TABLE>
(1) This item includes contracts originally denominated in French francs,
German marks, and Belgian francs, which are now denominations of the euro.
(2) Fair value amounts represent the sum that we would receive (or pay) if the
instrument were to be unwound as at December 31, 1999. Since these
instruments relate to firm commitments, any gain or loss arising from the
mark-to-market would be offset by a gain or loss on the foreign currency
exposures they hedge.
INTEREST RATE RISKS
Currently, virtually all of our debt is at variable interest rates, which
results in exposure to increases in interest rates. We hedge a small portion of
our current interest rate exposure using an interest rate cap instrument
denominated in French francs, as illustrated by the table below.
<TABLE>
<CAPTION>
AS OF DECEMBER 31, 1999
-----------------------
MATURING MATURING
WITHIN BETWEEN
TOTAL 1 YEAR 1-5 YEARS
----- -------- ---------
($ IN MILLIONS)
<S> <C> <C> <C>
NOMINAL VALUE:
Purchase of caps $8 $0 $8
FAIR VALUE:
Purchase of caps $0 $0 $0
</TABLE>
Since virtually all of our debt is at variable interest rates, the carrying
value of our $64 million of short-term financing and $973 million of long-term
debt at December 31, 1999 is approximately equal to its fair value. The weighted
average interest rates on our variable rate short-term financing and long-term
debt are 6.2% and 7.1%, respectively at December 31, 1999.
27
<PAGE> 28
YEAR 2000
Prior to December, 1999, American National Can addressed the potential
failure of computerized systems and microprocessors due to the changeover from
1999 to the year 2000. We identified those systems with potential negative
impact and carried out appropriate action to eliminate potential disruptions.
Risk Analysis. Our process of identifying risks covered all of our
information processing and automated industrial control systems, computer-based
management systems, communications networks and security and access control
systems. In 1996, we initiated this analysis and corrective action planning.
Corrective Action. Our corrective action program covered internal systems,
installed electronic components and supplier compliance.
- We purchased new computer systems to replace our old mainframe
systems that were not compliant and which could not be upgraded
practicably. In 1998 and 1999, we purchased and installed SAP financial
software in the United States and in Europe, except for England and
Spain. England and Spain upgraded their Oracle System to a compliant
version. Finally, we installed Paradigm ERP software to replace our
production, customer services, distribution and sales invoicing systems
worldwide.
- After identifying potential problems in equipment with electronic
components using embedded date codes, we contacted the manufacturers for
written assurances of compliance. We underwent testing of all major
components and corrected any potential negative impacts. Non-compliant
items represented less than 10% of all inventoried components.
- We continued surveying major suppliers including utilities up until
the end of 1999. All responses were classified, analyzed, and documented.
Contingency Plans. Plans were drawn up specifying backup procedures in the
event of internal or external Year 2000 failure. A Year 2000 task force was
assembled for the purpose of monitoring and facilitating the date changeover.
This group communicated effectively in monitoring our operations over the turn
of the year.
Expenditures. Approximately $3 million was spent in the compliance effort.
This total includes only external costs directly related to Year 2000 compliance
issues, and does not include approximately $9 million of costs for upgrading or
replacing software and equipment, such as SAP and Paradigm, which were
commissioned independently.
Effect on Our Business. Our efforts in this area resulted in normal
continuation of our operations and systems, without any disruptions.
INTRODUCTION OF THE EURO
On January 1, 1999, 11 member states of the European Union adopted a common
currency known as the euro. Their previous national currencies became
denominations of the euro for a transitional period expected to end on January
1, 2002, and the exchange rates between these currencies and the euro were
fixed.
We conduct business in the majority of the countries concerned. We believe
that the introduction of the euro will simplify the management of cash flows
among the ANC entities operating in the euro zone. The euro has become the prime
currency for metal purchasing in the euro zone, and we have adopted it as the
currency for all our intra-group billing in the euro zone. The absence of
exchange rate fluctuations between these currencies has eliminated the need for
a large amount of currency hedging in our European operations. However, the
United Kingdom is not a part of the euro zone and currency fluctuation risk
between the British pound and the euro remains.
The introduction of the euro is thought to have increased price
transparency between countries in the euro zone, particularly for consumer
goods. We do not believe this will have a significant negative impact on our
results, since we sell beverage cans to large international buyers in a market
that is relatively insensitive to this increased price transparency.
28
<PAGE> 29
SIGNIFICANT RECENTLY-ISSUED ACCOUNTING PRONOUNCEMENTS
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities." This statement requires that all
derivatives be recognized as assets and liabilities and measured at fair value.
Changes in the fair value of derivatives not qualifying as hedges are required
to be reported in earnings. We will be required to adopt this standard in our
financial statements for the year ending December 31, 2001. Our management is in
the process of evaluating the standard and has not yet determined the future
impact on our financial statements.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS:
<TABLE>
<CAPTION>
PAGE
<S> <C>
Report of Independent Accountants F-1
Consolidated Statements of Income for the years ended December 31, 1997, 1998 and 1999 F-2
Consolidated Balance Sheets at December 31, 1998 and 1999 F-3
Consolidated Statements of Cash Flows for the years ended December 31, 1997, 1998 and 1999 F-4
Consolidated Statements of Changes in Equity for the years ended December 31, 1997, 1998 and 1999 F-6
Notes to Consolidated Financial Statements F-7
</TABLE>
FINANCIAL STATEMENT SCHEDULES:
All schedules are omitted because they are not applicable or the required
information is shown in the financial statements or notes thereto.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
There has been no change in accountants during 1998 or 1999, nor has there been
any disagreement on any matter of accounting principles or practices or
financial disclosure which in either case is required to be reported pursuant to
this Item 9.
29
<PAGE> 30
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY.
The information under the captions "Election of Directors," "Executive
Officers" (except for information under the "Compensation Committee Report on
Executive Compensation" and the "Historical Performance") and "Other
Information-Section 16(a) Beneficial Ownership Reporting Compliance" to be set
forth in the Company's definitive Proxy Statement for the Annual Meeting of
Stockholders of the Company to be held on May 22, 2000 (the "2000 Annual Meeting
Proxy Statement") is incorporated herein by this reference.
ITEM 11. EXECUTIVE COMPENSATION.
The information under the captions "Executive Officers -- Executive
Compensation" to be set forth in the 2000 Annual Meeting Proxy Statement is
incorporated herein by this reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
The information under the captions "Stock Ownership - Ownership of Common
Stock by the Principal Stockholders and Management" to be set forth in the 2000
Annual Meeting Proxy Statement is incorporated herein by this reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The information under the captions "Stock Ownership - Transactions and
Agreements with Pechiney" to be set forth in the 2000 Annual Meeting Proxy
Statement is incorporated herein by this reference.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.
(a) (1) Financial Statements:
See "Index to Consolidated Financial Statements" set forth in Item 8,
"Financial Statements and Supplementary Data."
(2) Financial Statement Schedules:
All schedules are omitted because they are not applicable or the required
information is shown in the financial statements or notes thereto.
(3) Exhibits:
See the Index to Exhibits which appears at the end of this document and
which is incorporated by reference herein.
(b) Reports on Form 8-K:
The Company did not file any Current Reports on Form 8-K during the fourth
quarter of the fiscal year ended December 31, 1999.
30
<PAGE> 31
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
AMERICAN NATIONAL CAN GROUP, INC.
By: /s/ Edward A. Lapekas
---------------------------------
Edward A. Lapekas
Chairman and Chief Executive Officer
Date: March 6, 2000
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Edward A. Lapekas Chairman and Chief Executive Officer March 6, 2000
- ----------------------------- and Director
Edward A. Lapekas
/s/ Alan H. Schumacher Executive Vice President and March 6, 2000
- ------------------------------ Chief Financial Officer
Alan H. Schumacher
/s/ John G. LaBahn Vice President, Controller and March 6, 2000
- ------------------------------ Chief Accounting Officer
John G. LaBahn
</TABLE>
Frank W. Considine, Ronald J. Gidwitz,
George D. Kennedy, Homer J. Livingston, Jr.,
Roland H. Meyer, Jr., James J. O'Connor,
Alain Pasquier, Jean-Pierre Rodier,
Jean-Dominique Senard,
and James R. Thompson Directors
<TABLE>
<CAPTION>
<S> <C>
By: /s/ Edward A. Lapekas March 6, 2000
---------------------------
Edward A. Lapekas
Attorney-in-fact
</TABLE>
31
<PAGE> 32
REPORT OF INDEPENDENT ACCOUNTANTS
- ---------------------------------
To the Board of Directors and Shareholders
of American National Can Group, Inc.:
In our opinion, the consolidated financial statements listed in the
accompanying index present fairly, in all material respects, the financial
position of American National Can Group, Inc. and its subsidiaries at December
31, 1998 and 1999, and the results of their operations and their cash flows for
each of the three years in the period ended December 31, 1999, in conformity
with accounting principles generally accepted in the United States. These
financial statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audits. We conducted our audits of these statements in accordance with
auditing standards generally accepted in the United States, which require that
we plan and perform the audits to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements, assessing the accounting principles used and
significant estimates made by management, and evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for the opinion expressed above.
As discussed in Note 1, effective January 1, 1998, the Company adopted AICPA
Statement of Position 98-5, "Reporting on the Costs of Start-up Activities."
/s/ PricewaterhouseCoopers LLP
Chicago, Illinois
February 10, 2000
F-1
<PAGE> 33
AMERICAN NATIONAL CAN GROUP, INC.
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
NOTES 1997 1998 1999
----- ---- ---- ----
(IN THOUSANDS OF U.S. DOLLARS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C>
Net sales ............................................... $ 2,465,018 $ 2,458,849 $ 2,328,074
Cost of goods sold (excluding depreciation).............. 2,069,206 1,984,369 1,848,407
Selling, general and administrative expense.............. 134,221 138,257 118,571
Research and development expense......................... 19,514 15,224 13,746
Depreciation and amortization ........................... 77,656 82,057 79,601
Goodwill amortization ................................... 41,035 40,474 41,202
Restructuring charge (credit) and writedown of
property and equipment ............................... 7,18 10,924 (2,437) 5,786
------------ ----------- ------------
OPERATING INCOME FROM CONTINUING OPERATIONS ............. 112,462 200,905 220,761
Interest expense ........................................ 12 90,433 68,773 70,761
Interest income and other financial income
(expense), net ....................................... 13 26,880 10,634 13,466
------------ ----------- ------------
INCOME FROM CONTINUING OPERATIONS BEFORE
INCOME TAXES, EQUITY EARNINGS, MINORITY INTEREST,
EXTRAORDINARY CHARGE AND CUMULATIVE EFFECT OF
ACCOUNTING CHANGE ................................... 48,909 142,766 163,466
Income tax expense ...................................... 11 30,027 26,546 69,734
------------ ----------- ------------
INCOME FROM CONTINUING OPERATIONS BEFORE EQUITY
EARNINGS, MINORITY INTEREST, EXTRAORDINARY CHARGE
AND CUMULATIVE EFFECT OF ACCOUNTING CHANGE ........... 18,882 116,220 93,732
Equity in net earnings (loss) of affiliates ............. 8 (3,475) 4,465 5,166
Minority interest ....................................... (5,352) (4,997) (1,279)
------------ ----------- ------------
INCOME FROM CONTINUING OPERATIONS BEFORE
EXTRAORDINARY CHARGE AND CUMULATIVE EFFECT
OF ACCOUNTING CHANGE ................................. 10,055 115,688 97,619
Income from discontinued operations, net of
tax expense of $8,715, $13,599 and $7,122 .......... 2 2,392 527 4,557
Extraordinary charge, net of tax benefit of $1,195 ...... 9 -- -- (1,823)
Cumulative effect of accounting change, net of tax
benefit of $1,381..................................... 1 -- (2,566) --
------------ ----------- ------------
NET INCOME .............................................. $ 12,447 $ 113,649 $ 100,353
============ =========== ============
EARNINGS PER SHARE - BASIC AND ASSUMING DILUTION 4
Income from continuing operations before extraordinary
charge and cumulative effect of accounting change .... $ 0.18 $ 2.10 $ 1.77
Income from discontinued operations ..................... 0.05 0.01 0.08
Extraordinary charge .................................... -- -- (0.03)
Cumulative effect of accounting change .................. -- (0.04) --
------------ ----------- ------------
NET INCOME .............................................. $ 0.23 $ 2.07 $ 1.82
============ =========== ============
Weighted average shares outstanding -
basic (in thousands) ................................. 55,000 55,000 55,000
============ =========== ============
Weighted average shares outstanding -
assuming dilution (in thousands) ..................... 55,000 55,000 55,094
============ =========== ============
Dividends declared per share ............................ $ -- $ -- $ 0.42
============ =========== ============
</TABLE>
See notes to Consolidated Financial Statements.
F-2
<PAGE> 34
AMERICAN NATIONAL CAN GROUP, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31,
-----------
NOTES 1998 1999
----- ---- ----
(in thousands of U.S. dollars)
<S> <C> <C> <C>
ASSETS:
CURRENT ASSETS
Cash and cash equivalents............................. $ 170,549 $ 53,155
Accounts receivable................................... 5 138,312 143,486
Other receivables and prepaid expenses................ 42,232 71,409
Inventories........................................... 6 236,340 222,707
Net current assets of discontinued operations......... 2 46,454 --
Deferred income taxes................................. 11 109,713 86,339
------------ ------------
TOTAL CURRENT ASSETS.................................. 743,600 577,096
Property and equipment, net........................... 7,18 836,064 790,199
Goodwill, net......................................... 1 1,224,348 1,221,565
Investments in equity affiliates...................... 8 112,541 102,410
Pension asset......................................... 15 212,531 277,450
Net noncurrent assets of discontinued operations...... 2 536,397 --
Deferred income taxes................................. 11 193,168 156,883
Other long-term assets................................ 68,568 101,215
------------ ------------
TOTAL ASSETS.......................................... $ 3,927,217 $ 3,226,818
============ ============
LIABILITIES AND EQUITY:
CURRENT LIABILITIES
Accounts payable-- trade.............................. $ 241,215 $ 247,020
Other payables and accrued liabilities................ 16 342,509 372,119
Current portion of long-term debt..................... 9,10 6,704 245
Short-term financing:................................. 9
External........................................... 20,258 64,350
Related party...................................... 659,783 --
------------ ------------
TOTAL CURRENT LIABILITIES............................. 1,270,469 683,734
Deferred income taxes................................. 11 59,900 53,826
Postretirement benefit obligations.................... 15 309,004 302,860
Other long-term liabilities........................... 17 169,828 145,973
Long-term debt:....................................... 9,10
External........................................... 259,921 972,732
Related party...................................... 291,277 --
------------ ------------
TOTAL LIABILITIES..................................... 2,360,399 2,159,125
------------ ------------
Commitments and contingencies......................... 21 -- --
Minority interests.................................... 28,530 7,002
EQUITY
Preferred stock (25,000,000 shares authorized,
none issued and outstanding)...................... -- --
Common stock ($0.01 par value, 1,000,000,000 shares
authorized, 55,000,000 issued and outstanding).... -- 550
Additional paid in capital ........................... -- 1,198,205
Receivable from Pechiney Plastic Packaging, Inc. ..... 21 -- (61,825)
Retained earnings .................................... -- 8,611
Owner's equity ....................................... 1,603,367 --
Accumulated other comprehensive loss ................. (65,079) (84,850)
------------ ------------
TOTAL EQUITY.......................................... 1,538,288 1,060,691
------------ ------------
TOTAL LIABILITIES AND EQUITY.......................... $ 3,927,217 $ 3,226,818
============ ============
</TABLE>
See notes to Consolidated Financial Statements.
F-3
<PAGE> 35
AMERICAN NATIONAL CAN GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------
1997 1998 1999
---- ---- ----
(IN THOUSANDS OF U.S. DOLLARS)
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Income from continuing operations before extraordinary
charge and cumulative effect of accounting change............. $ 10,055 $ 115,688 $ 97,619
Minority interests.............................................. 5,352 4,997 1,279
Equity in net (earnings) loss of affiliates..................... 3,475 (4,465) (5,166)
Depreciation and amortization................................... 118,691 122,531 120,803
Restructuring charge (credit) and writedown of
property and equipment....................................... 10,924 (2,437) 5,786
Pension income.................................................. (21,768) (40,847) (33,933)
Provision (benefit) for deferred income taxes................... (7,310) 30,691 21,734
Reduction in income tax reserve................................. -- (32,206) --
Other non-cash (income) expense, net............................ 13,060 17,824 (9,722)
Changes in assets and liabilities exclusive of effects from
acquisitions, divestitures and translation adjustments:
Decrease in inventories................................... 6,434 23,243 568
Increase in accounts receivable........................... (45,696) (3,140) (31,558)
(Decrease) increase in accounts payable................... 39,386 (10,958) 20,656
Other changes in assets and liabilities................... (3,446) (41,741) (19,708)
Restructuring expenditures...................................... (22,553) (12,059) (17,620)
Prepayment penalty on early retirements of long-term debt....... -- -- (3,018)
Pension funding................................................. (54,865) (14,610) (8,449)
Dividends received from unconsolidated affiliates............... 13,493 8,243 8,313
---------- ---------- ----------
Net cash provided by operating activities of continuing operations. 65,232 160,754 147,584
Net cash provided by (used in) operating activities
of discontinued operations...................................... 96,704 24,725 (13,669)
---------- ---------- -----------
NET CASH PROVIDED BY OPERATING ACTIVITIES.......................... 161,936 185,479 133,915
CASH FLOWS FROM INVESTING ACTIVITIES:
Additions to property, plant and equipment...................... (71,861) (65,196) (78,393)
Acquisition of minority interest in Turkey...................... -- -- (53,000)
Proceeds from sale of joint venture............................. -- -- 9,375
Proceeds from sales of property, plant and equipment............ 8,538 6,998 3,968
Other........................................................... 6,320 -- --
---------- ---------- ----------
Net cash used in investing activities of continuing operations..... (57,003) (58,198) (118,050)
Net cash used in investing activities of discontinued operations... (55,062) (84,758) (63,764)
---------- ---------- -----------
NET CASH USED IN INVESTING ACTIVITIES.............................. (112,065) (142,956) (181,814)
</TABLE>
See notes to Consolidated Financial Statements.
F-4
<PAGE> 36
AMERICAN NATIONAL CAN GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------
1997 1998 1999
---- ---- ----
(IN THOUSANDS OF U.S. DOLLARS)
<S> <C> <C> <C>
CASH FLOWS FROM FINANCING ACTIVITIES:
Additions to long-term debt.................................. 1,037 265,295 1,157,501
Payments on long-term debt................................... (27,732) (595,951) (721,738)
Debt issuance costs.......................................... -- -- (8,922)
Net increase (decrease) in short-term financing.............. 34,284 (95,644) (375,050)
Proceeds from issuance of common and preferred stock by
subsidiary companies to Pechiney.......................... -- 883,100 --
Capital contributions from Pechiney.......................... 602 -- --
Dividends paid:
To shareholders........................................... -- -- (15,400)
To Pechiney............................................... (7,658) (425,028) (121,522)
To minority interests in subsidiaries..................... (4,016) (5,503) (4,775)
--------- --------- ---------
Net cash provided by (used in) financing activities
of continuing operations................................... (3,483) 26,269 (89,906)
Net cash provided by (used in) financing activities of
discontinued operations..................................... (3,282) (5,079) 34,084
--------- --------- --------
NET CASH PROVIDED BY (USED IN) FINANCING ACTIVITIES............ (6,765) 21,190 (55,822)
NET EFFECT OF FOREIGN CURRENCY TRANSLATION ON CASH............. (4,133) 1,161 (15,182)
--------- --------- ---------
Net increase (decrease) in cash and cash equivalents........... 38,973 64,874 (118,903)
Net (increase) decrease in cash and cash equivalents of
discontinued operations..................................... 454 (160) 1,509
--------- --------- --------
Net increase (decrease) in cash and cash equivalents
of continuing operations..................................... 39,427 64,714 (117,394)
Cash and cash equivalents at beginning of year................. 66,408 105,835 170,549
--------- --------- --------
CASH AND CASH EQUIVALENTS AT END OF YEAR....................... $ 105,835 $ 170,549 $ 53,155
========= ========= ========
SUPPLEMENTAL DISCLOSURES
Cash payments during the year for:
Interest.................................................. $ 89,646 $ 67,545 $ 72,329
Income taxes.............................................. 22,502 41,141 44,854
Non-cash transactions:
Forgiveness of debt by Pechiney........................... 152,000 -- --
Contribution by Pechiney of its minority interest in
European subsidiaries................................. -- 883,100 --
Transfer debt to PPPI..................................... -- -- 260,000
Transfer plastic packaging operations to Pechiney......... -- -- 667,651
Receivable from PPPI for Viskase indemnification.......... -- -- 61,825
</TABLE>
See notes to Consolidated Financial Statements.
F-5
<PAGE> 37
AMERICAN NATIONAL CAN GROUP, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN EQUITY
(IN THOUSANDS OF U.S. DOLLARS)
<TABLE>
<CAPTION>
ACCUMULATED
ADDITIONAL RECEIVABLE OTHER
OWNER'S COMMON PAID IN FROM RETAINED COMPREHENSIVE
EQUITY STOCK CAPITAL PPPI EARNINGS INCOME (LOSS) TOTAL
----------- ------- --------- -------- ---------- ------------- ------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1996 $ 874,255 $ -- $ -- $ -- $ -- $(58,598) $ 815,657
Net income 12,447 12,447
Changes in accumulated other
comprehensive income:
Foreign currency translation adjustment,
net of tax benefit of $7,496 (56,353) (56,353)
Minimum pension liability adjustment,
net of tax expense of $18,690 29,552 29,552
Capital contribution from Pechiney
related to forgiveness of debt ($152,000)
and Brazilian subsidiary ($602) 152,602 152,602
Dividends paid to Pechiney (7,658) (7,658)
Impact of divestiture 1,421 1,421
---------- --------- ---------- --------- ------- -------- ----------
Balance at December 31, 1997 1,031,646 -- -- -- -- (83,978) 947,668
Net income 113,649 113,649
Changes in accumulated other
comprehensive income:
Foreign currency translation adjustment,
net of tax expense of $4,263 29,892 29,892
Minimum pension liability adjustment,
net of tax benefit of $7,207 (10,993) (10,993)
Contribution by Pechiney of minority
interest in European subsidiaries 883,100 883,100
Dividends paid to Pechiney (425,028) (425,028)
---------- --------- ---------- --------- ------- -------- ----------
Balance at December 31, 1998 1,603,367 -- -- -- -- (65,079) 1,538,288
Reorganization and transfer of discontinued
plastic packaging operations to Pechiney in
association with initial public offering:
Transfer debt to plastic packaging
operations 260,000 260,000
Transfer net assets of plastic packaging
operations to Pechiney (673,839) 6,188 (667,651)
Capital contribution from Pechiney 282 282
Dividends paid to Pechiney (121,522) (121,522)
Net income January 1 through July 28, 1999 68,642 68,642
Pechiney indemnification of
Viskase obligation 61,825 (61,825) --
Initial public offering (1,136,930) 550 1,136,380 --
Net income July 29 through December 31, 1999 31,711 31,711
Dividends declared to shareholders (23,100) (23,100)
Changes in accumulated other
comprehensive income:
Foreign currency translation adjustment,
net of tax benefit of $8,472 (39,630) (39,630)
Minimum pension liability adjustment,
net of tax expense of $8,956 13,671 13,671
---------- --------- ---------- --------- ------- -------- ----------
Balance at December 31, 1999 $ -- $ 550 $1,198,205 $ (61,825) $ 8,611 $(84,850) $1,060,691
========== ========= ========== ========= ======= ======== ==========
</TABLE>
Accumulated other comprehensive income items comprise cumulative translation
adjustments of $22,415, $77,347, $47,455 and $84,850 and minimum pension
liability adjustments of $36,183, $6,631, $17,624 and $0 at December 31, 1996,
1997, 1998 and 1999, respectively. Such amounts are net of tax aggregating
$32,637, $21,443, $24,387 and $21,305 at those dates, respectively. The net
amounts applicable to the discontinued plastics business at December 31, 1996,
1997 and 1998 include $8,714, $2,702 and $804, respectively for cumulative
translation adjustments and $2,673, $3,469 and $4,265, respectively for minimum
pension liability adjustments.
See notes to Consolidated Financial Statements.
F-6
<PAGE> 38
AMERICAN NATIONAL CAN GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(IN THOUSANDS OF U.S. DOLLARS)
NOTE 1 -- COMPANY FORMATION AND BASIS OF PRESENTATION
COMPANY FORMATION
American National Can Group, Inc. (the "Company" or "ANC"), a Delaware
company, consists of the former worldwide beverage can business of Pechiney, a
French company. The Company was incorporated with the issuance of 55,000,000
shares of ANC common stock and was formed through a series of transactions (the
"Reorganization") completed immediately prior to the initial public offering
(the "Offering" or the "IPO") by Pechiney of a 54.5% ownership interest in the
Company. Operations of the Company prior to the Reorganization were conducted by
(a) Pechiney North America, Inc. ("PNA") (a wholly owned subsidiary of
Pechiney), through its 90% owned subsidiary (Pechiney owned directly the
remaining 10%), American National Can Company ("ANCC"), and ANCC's various
European (in which Pechiney held a minority interest) and Asian subsidiaries,
and (b) Pechiney through its subsidiaries in Turkey (65% owned), France (100%
owned) and Brazil (100% owned) and joint ventures in Mexico and Korea. ANCC also
owned and operated a plastics packaging business.
The Reorganization consisted of:
The payment of dividends to Pechiney aggregating $100,242 by certain of
Pechiney's European beverage can subsidiaries prior to completion of
the Offering. Such dividends were in addition to $21,280 of dividends
paid to Pechiney prior to the Reorganization.
The transfer by Pechiney of (a) PNA, (b) its minority interests in the
ANCC European subsidiaries and (c) its subsidiaries in Turkey, France
and Brazil and investment in joint ventures to the Company.
The transfer by ANCC of its plastics packaging business along with
$260,000 of related party debt to Pechiney Plastic Packaging, Inc.
("PPPI") and transfer of the stock of PPPI to Pechiney in exchange for
Pechiney's 10% interest in ANCC.
On July 28, 1999, the Company acquired the remaining 35% minority interest
in its Turkish subsidiary for $53,000 in cash and is including 100% of the
Turkish subsidiary's operating results in the consolidated financial statements
thereafter.
On August 2, 1999, Pechiney completed the IPO by selling 30,000,000 shares
of ANC common stock for $17.00 per share less underwriting discounts and
commissions. ANC did not receive any proceeds from the IPO. Pechiney continues
to hold 25,000,000 shares of ANC common stock.
BASIS OF PRESENTATION
The accompanying financial statements include the combined accounts of PNA,
ANCC and the entities transferred by Pechiney to the Company for the periods
presented up to the IPO date and the consolidated accounts of the Company as of
and for the five months ended December 31, 1999. The former plastics operations
of ANCC have been presented as discontinued operations in the accompanying
financial statements. As a consequence, the amounts of the net current and net
non-current assets and liabilities of the plastics operations have been
aggregated and presented as single-line items in the consolidated balance sheet
at December 31, 1998. In the consolidated statements of income and of cash flows
for all periods presented, the operating results and cash flows of the plastics
business through July 28, 1999, the date of their transfer to Pechiney, have
been presented separately as single-line items.
F-7
<PAGE> 39
In February 1998, Pechiney reorganized the ownership of its beverage can
European subsidiaries. As a result of that reorganization, newly created foreign
subsidiaries of ANCC, which own all the stock of the European subsidiaries,
issued common and preferred stock to Pechiney for $883,100, representing a 44%
ownership interest in the subsidiaries. The proceeds were lent by ANCC to PNA.
PNA utilized the proceeds to repay debt owing to Pechiney ($473,100) and for
payment of a dividend to Pechiney ($410,000). In connection with the
Reorganization Pechiney transferred its minority interest in the European
subsidiaries to the Company and, accordingly, $883,100 was recorded in the
consolidated financial statements as a contribution to capital. The consolidated
financial statements reflect ANCC's 100% ownership of the European subsidiaries
after considering the contribution to capital.
ACCOUNTING PRINCIPLES
The consolidated financial statements of ANC are prepared in accordance with
accounting principles generally accepted in the United States of America ("U.S.
GAAP").
NEWLY ISSUED ACCOUNTING PRINCIPLES
- - In March 1998, the American Institute of Certified Public Accountants
("AICPA") issued its Statement of Position 98-1, "Accounting for the Costs
of Computer Software Developed or Obtained for Internal Use". The statement
requires capitalization of external direct costs of materials and services
consumed in the development or obtainment of internal use computer software,
payroll and payroll-related costs for employees who are directly associated
with and who devote time to the internal-use computer software project and
interest costs incurred during the development of the computer software for
internal use. ANC adopted this statement effective January 1, 1998 and
capitalized $8,741 and $5,690 of software costs in 1998 and 1999,
respectively, which will be amortized on a straight-line basis over a period
of 5 years.
- - In April 1998, the AICPA issued its Statement of Position 98-5, "Reporting
on the Costs of Start-up Activities". This statement requires the cost of
start-up activities and organization costs to be expensed as incurred. ANC
adopted this statement effective January 1, 1998 and unamortized costs that
were previously capitalized through that date were written off as a
cumulative effect of an accounting change. This resulted in a charge of
$2,566 (net of taxes of $1,381) to continuing operations and $1,481 (net of
taxes of $971) to discontinued operations in 1998.
- - In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 133, "Accounting for Derivative
Instruments and Hedging Activities". This statement requires that all
derivatives be recognized as assets and liabilities and measured at fair
value. Changes in the fair value of derivatives not qualifying as hedges are
required to be reported in earnings. Adoption of the standard will be
required in ANC's financial statements for the year ending December 31,
2001. Management is in the process of evaluating this standard and has not
yet determined the future impact on ANC's consolidated financial statements.
SIGNIFICANT ACCOUNTING POLICIES
PRINCIPLES OF COMBINATION
The consolidated financial statements include the accounts of the entities
referred to above under Company Formation and Basis of Presentation. The equity
method of accounting is used for unconsolidated companies in which ANC exercises
significant influence. All significant intercompany transactions and profits
have been eliminated.
REVENUE RECOGNITION
Revenues are recognized when goods are shipped.
TRANSLATION
Asset and liability accounts denominated in non-U.S. currencies are
translated into U.S. dollars at year-end exchange rates, while revenues and
costs are translated at average rates of exchange in effect during the period.
The net effect of translating non-U.S. currencies is recorded as a cumulative
adjustment within accumulated other comprehensive income, net of applicable
income taxes.
F-8
<PAGE> 40
PROPERTY AND EQUIPMENT
Property and equipment is stated at cost including interest incurred on
funds borrowed during the period that major items are constructed for their
intended use. Interest costs of $170 were capitalized in 1999. No interest costs
were capitalized during 1997 and 1998. Capitalized leases are stated at the
present value of future minimum lease payments. Depreciation and amortization
are computed using the straight-line method over the estimated useful lives of
the assets (buildings - 40 years and machinery and equipment - 4 to 25 years).
In accordance with SFAS No. 121, "Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to be Disposed of", whenever events
or changes in circumstances indicate that the carrying amount of long-lived
assets may not be recoverable, this carrying amount is compared with
management's best estimates of the future cash flows (undiscounted and without
interest charges) expected to result from the use of the assets and their
eventual disposition. If the sum of expected future cash flows is less than the
carrying amount of the assets, an impairment loss is recognized based on the
fair value of the assets; when a market value is not available, the fair value
is generally estimated as the present value of expected future cash flows.
INVENTORIES
Inventories are stated at the lower of cost or market. The cost of
substantially all U.S. inventories, other than spare parts, is determined by the
last-in, first-out (LIFO) method. The cost of substantially all other
inventories is determined by the first-in, first-out (FIFO) method. At December
31, 1998 and 1999, inventories stated at LIFO comprised approximately 36% and
33%, respectively, of consolidated inventories.
GOODWILL
The difference between the purchase price and the book value of net assets
acquired is allocated to tangible and intangible assets and to assumed
liabilities for which a fair value can be specifically determined. The excess of
the purchase price over the fair value of net assets acquired is allocated to
goodwill. Goodwill is amortized on a straight-line basis over a period not
exceeding 40 years.
Substantially all of the goodwill reflected on the consolidated balance
sheet arose from the revaluation of the tangible assets and assumed liabilities
of ANC as of the date of its acquisition by Pechiney in 1988. In 1999 ANC
recorded goodwill of $38,603 related to the acquisition of the remaining 35%
minority interest in its Turkish subsidiary.
Goodwill related to the acquisition by Pechiney was allocated to the
beverage can business and the plastics business based on their estimated fair
market values. At December 31, 1998 and 1999, accumulated amortization of
goodwill aggregated $470,764 and $511,966, respectively.
The carrying value of goodwill is reviewed regularly in accordance with
Accounting Principles Board Opinion No. 17, "Intangible Assets", ("APB 17") and
SFAS 121 to reflect changes which may have permanently impaired the
profitability and the value of the related assets:
-- For purposes of APB 17, the Company evaluates goodwill impairment on a
fair value basis. Under this method, the carrying value of goodwill of the
Company is compared with the fair value of the Company determined on the basis
of management's best estimates of the market value of these entities or
comparable entities using financial multiples derived from investment bankers,
financial analysts and other independent sources which management believes are
reliable.
-- For purposes of SFAS 121, goodwill associated with property, plant and
equipment is reviewed for impairment jointly with the property, plant and
equipment with which it is associated.
No writedowns were required in the periods presented as a result of the
evaluations performed under these two methodologies.
F-9
<PAGE> 41
The Company will continue to evaluate goodwill impairment under both APB 17
and FAS 121. Factors that will be considered in the evaluation process include:
-- The selling price of ANC common stock as compared to its net book value
over a period of one year or more.
-- Loss of a major customer contract.
-- Operating results or cash flows significantly different than the
long-range plan.
-- Significant adverse changes in ANC's business.
During 1998, certain income tax uncertainties related to the 1988
acquisition of ANC by Pechiney were resolved and the related liabilities
established at the acquisition date were reversed resulting in a net $46,122
reduction in goodwill, of which $35,649 was allocated to continuing operations
based on the relationship of goodwill for continuing operations to total
goodwill for continuing and discontinued operations (Note 11).
CAPITALIZED SOFTWARE
Capitalized software which is included in other long-term assets on the
consolidated balance sheet reflects costs for internally developed or purchased
software for projects that are capitalized and amortized on a straight-line
basis over periods not exceeding 5 years. At December 31, 1999, software costs
of $14,431 have been capitalized with amortization expense of $0 for 1997, $857
for 1998 and $2,171 for 1999.
RESEARCH AND DEVELOPMENT COSTS
Research and development costs are expensed as incurred.
DEFERRED INCOME TAXES
Deferred income taxes are accounted for using the liability method on
temporary differences between the financial statement and tax bases of assets
and liabilities. These deferred taxes are measured by applying currently enacted
tax laws. Valuation allowances are established on deferred tax assets when
management estimates that it is more likely than not that the related benefit
will not be realized.
FINANCIAL INSTRUMENTS
ANC's financial instruments include cash, current accounts and notes
receivable, noncurrent receivables, accounts payable, short-term and long-term
debt, and foreign currency exchange contracts. The market value of cash and
current receivables and payables are considered to be identical to the book
value due to the short-term nature of those instruments. The market value for
noncurrent receivables and short-term and long-term debt, based on current
interest rates available to ANC for similar instruments, approximated their
carrying value at December 31, 1999.
ANC enters into foreign currency exchange contracts as a hedge against firm
currency commitments which are primarily for the purchase of raw materials and
the sale of finished goods. ANC's foreign currency exchange contracts do not
subject ANC to significant risk due to exchange rate movements because gains and
losses on these contracts are deferred and offset against gains and losses on
the transactions being hedged. At December 31, 1999, ANC had forward exchange
contracts with maturity dates through July 2003 to purchase $353,000 and to sell
$136,000 of various foreign currencies. The fair value of these contracts, which
represents the sum that ANC would receive or (pay) if the instruments were
unwound, was approximately ($2,000) and ($37,000) at December 31, 1998 and 1999,
respectively. Prior to the IPO and for most of 1999, ANC continued to hedge its
foreign exchange exposures through Pechiney. Following the IPO, ANC established
foreign exchange trading lines with appropriate trading authorizations and these
are now in place and overseen by ANC's risk management department.
PREPAID CUSTOMER INCENTIVES
Included in prepaid expenses and other long-term assets are prepaid customer
incentives, representing payments to certain customers in exchange for entering
into long-term sales contracts requiring purchases of guaranteed minimum
quantities. These incentive payments are capitalized upon payment and generally
amortized over the length of the underlying contract on a straight-line basis.
F-10
<PAGE> 42
UNCERTAINTIES RESULTING FROM THE USE OF ESTIMATES
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from these estimates and
assumptions.
Estimates and assumptions are particularly significant with respect to
estimating liabilities such as provisions and accruals for litigation or
environmental reserves. They are also significant with respect to assessing the
recoverability of the carrying value of accounts and notes receivable, property,
plant and equipment, goodwill, other intangible assets and deferred tax assets,
which, to a large extent, is based on estimates of expected future net income or
cash flows. Actual future net income and cash flows could vary significantly
from the estimates.
CASH AND CASH EQUIVALENTS
For purposes of the statement of cash flows, cash and cash equivalents
include all financial instruments with an initial maturity of 90 days or less.
EARNINGS PER SHARE
Basic and diluted earnings per share for the periods prior to the IPO have
been calculated by dividing net income by the average shares outstanding after
the Offering of 55,000,000. Basic earnings per share since the IPO has been
calculated by dividing net income by average shares outstanding after the
Offering of 55,000,000. Diluted earnings per share since the IPO includes the
dilutive impact of the weighted average common share equivalents related to
employee stock and stock option plans. The Company uses the treasury stock
method to calculate the dilutive impact of outstanding employee stock-based
awards (Notes 4 and 14).
EMPLOYEE STOCK-BASED COMPENSATION
The Company has adopted the disclosures only provisions of SFAS No. 123,
"Accounting for Stock-Based Compensation," which requires disclosure of the fair
value and other characteristics of stock options (Note 14). The Company accounts
for employee stock-based compensation using the intrinsic-value method in
accordance with Accounting Principles Board Opinion No. 25, "Accounting for
Stock Issued to Employees." Under APB No. 25, no compensation expense is
recorded if the exercise price of stock options is equal to the underlying stock
on the date of grant.
RECLASSIFICATIONS
Certain reclassifications have been made in the 1998 and 1997 consolidated
financial statements to conform to the 1999 presentation.
F-11
<PAGE> 43
NOTE 2 -- DISCONTINUED OPERATIONS
The plastics packaging business of ANC was transferred to Pechiney effective
with the Reorganization and IPO (Note 1). These operations have been reflected
as discontinued operations for all periods presented in the consolidated
financial statements. The net assets of the discontinued business at December
31, 1998 comprise:
NET CURRENT ASSETS
Cash $ 1,509
Accounts receivable, net 12,623
Inventories:
Raw materials 38,054
Spare parts 7,326
Work-in-process 25,950
Finished goods 64,801
----------
Total inventories 136,131
Other receivables and prepaid expenses 20,261
Deferred income taxes 7,682
Accounts payable -- trade (48,692)
Postretirement benefit obligations (29,000)
Other payables and accrued liabilities (46,320)
Current portion of long-term debt (4,388)
Short-term financing -- External (3,352)
----------
Net current assets $ 46,454
==========
NET NONCURRENT ASSETS
Property, plant and equipment $ 449,264
Goodwill 327,060
Deferred income taxes 118,952
Pension asset 177
Other long-term assets 43,781
Postretirement benefit obligations (331,797)
Other long-term liabilities (7,565)
Long-term debt -- Related party (63,475)
----------
Net noncurrent assets $ 536,397
==========
In December 1995, ANC entered into an agreement with PMC Lease Co., a
related party, for the sale and leaseback of certain plastics business machinery
and equipment. Based on an independent valuation, the final selling price of
these assets was $79,260, which approximated their book value. PMC Lease Co.
paid ANC $14,631 in 1995 and issued a note receivable for the balance. The note
is repayable in annual installments over 10 years, with the final installment
due in December 2005, and bears interest at 6.1%. The lease has been recorded as
a capital lease. The recorded assets and liabilities related to this agreement
have been included in the net assets of discontinued operations in the
consolidated balance sheet at December 31, 1998.
In 1997, Pechiney completed the sale of ANC's 51% interest in an Italian
subsidiary engaged in the manufacture of food cans for proceeds of $3,239, net
of $13,000 of subsidiary cash.
In December 1996, the plastics business recorded a restructuring charge of
$32,412. The 1996 charge resulted from Project Challenge initiatives and
comprised the cost to close the Mt. Vernon, OH plant, sever an additional 89
employees primarily in plants other than Mt. Vernon, and to writedown equipment
in other plants to fair value. Costs to close the Mt. Vernon plant include fixed
asset impairments to reduce fixed assets to estimated fair values, severance
costs for 222 employees, and other plant closing costs such as asset dismantling
costs. The plant was closed during the fourth quarter of 1998. The number of
employees terminated under the 1996 program through July 31, 1999 was 288.
Remaining restructuring reserves included in the liabilities of the discontinued
business were $6,751 at December 31, 1998. The balance at July 28, 1999 of
$4,287 was transferred to Pechiney.
F-12
<PAGE> 44
The activity in the restructuring reserve for the plastics business was as
follows:
<TABLE>
<CAPTION>
EMPLOYEE EQUIPMENT
TERMINATION DISMANTLE
AND AND NON-CASH
SEVERANCE FACILITY DISPOSAL ASSET
PROGRAMS COSTS COSTS WRITEDOWNS TOTAL
-------- ----- ----- ---------- -----
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1996 $ 5,805 $ 2,143 $ 5,193 $ -- $ 13,141
Cash payments (244) (168) (425) -- (837)
Non-cash utilized (141) -- -- -- (141)
------- -------- ------- --------- ---------
Balance at December 31, 1997 5,420 1,975 4,768 -- 12,163
Credit to income (720) (1,765) 420 1,365 (700)
Cash payments (2,748) -- (599) -- (3,347)
Non-cash utilized -- -- -- (1,365) (1,365)
------- -------- ------- --------- ---------
Balance at December 31, 1998 1,952 210 4,589 -- 6,751
Cash payments (872) (88) (1,504) -- (2,464)
Transfer to Pechiney (1,080) (122) (3,085) -- (4,287)
------- -------- ------- --------- ---------
Balance at July 28, 1999 $ -- $ -- $ -- $ -- $ --
======= ======== ======= ========= =========
</TABLE>
In 1998, as a result of the closing of the Mount Vernon plant and the
reduction of targeted positions through natural attrition, the plastics business
finalized certain estimates and reduced the accruals for employee termination
and severance benefits by $720 and facility costs by $1,765. The estimate for
equipment dismantle and disposal costs was increased by $420 and obsolete
inventory of $1,365 was charged to income. The closing of the Mount Vernon
facility during 1998 resulted in the loss of business with certain customers. As
a result, the remaining inventory on hand at the closing date became
excess/obsolete because it was no longer saleable.
Income (loss) from discontinued operations as presented in the consolidated
statements of income comprises:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------
1997 1998 1999
----- ---- ----
<S> <C> <C> <C>
Income before income taxes $ 11,107 $ 16,578 $ 11,679
Income tax expense (8,715) (14,570) (4,989)
---------- -------- --------
Income before cumulative effect of accounting change 2,392 2,008 6,690
Cumulative effect of accounting change, net of tax
of $971 (Note 1) -- (1,481) --
Tax provision on sale of Canadian operations to Pechiney -- -- (2,133)
--------- -------- --------
Income from discontinued operations $ 2,392 $ 527 $ 4,557
========= ======== ========
</TABLE>
Net sales for the plastics business were $846,409 and $827,233 for the years
ended December 31, 1997 and 1998, respectively and $497,710 for the seven month
period ended July 31, 1999.
The plastics operations of ANC and the beverage can business of ANC have
historically been operated and managed on an independent basis. The assets and
liabilities directly related to the plastics operations are included in net
assets of the discontinued operations in the consolidated balance sheet.
Revenues and expenses directly related to the plastics operations have been
reflected in income (loss) from discontinued operations in the consolidated
income statement. No amounts have been allocated to the plastics operations
except for certain centralized data processing, human resources, payroll,
accounting and tax service functions. The direct cost of these services is
charged to the plastics operations using varying bases, primarily the number of
transactions processed. The costs for these services are negotiated and agreed
to by the business and the service provider. Selling, general and administrative
expenses included $9,683 in 1997, $9,698 in 1998 and $5,637 in the seven month
period in 1999 for these charges. No amounts have been allocated to the plastics
operations for general corporate overhead.
F-13
<PAGE> 45
NOTE 3 -- COMPREHENSIVE INCOME (LOSS)
Comprehensive income (loss) for the years ended December 31, 1997, 1998 and
1999 consisted of the following:
<TABLE>
<CAPTION>
1997 1998 1999
---- ---- ----
<S> <C> <C> <C>
Net income $ 12,447 $ 113,649 $ 100,353
Other comprehensive income (loss):
Foreign currency translation adjustment (63,849) 34,155 (48,102)
Foreign currency translation adjustment tax effect 7,496 (4,263) 8,472
---------- ----------- ---------
Foreign currency translation adjustment, net of tax (56,353) 29,892 (39,630)
---------- ---------- ---------
Minimum pension liability adjustment 48,242 (18,200) 22,627
Minimum pension liability adjustment tax effect (18,690) 7,207 (8,956)
----------- ---------- ---------
Minimum pension liability adjustment, net of tax 29,552 (10,993) 13,671
---------- ----------- ---------
Comprehensive income (loss) $ (14,354) $ 132,548 $ 74,394
========== ========== =========
</TABLE>
NOTE 4 -- EARNINGS PER SHARE
The following is a reconciliation of the numerators and denominators of the
basic and assuming dilution earnings per share from continuing operations
computations (in thousands, except per share amounts):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1997 1998 1999
---- ---- ----
<S> <C> <C> <C>
INCOME (NUMERATOR):
Income from continuing operations before extraordinary
charge and cumulative effect of accounting change $ 10,055 $115,688 $ 97,619
SHARES (DENOMINATOR):
Weighted average number of shares outstanding
during the period 55,000 55,000 55,000
Incremental common shares attributable to
dilutive stock awards - - 94
-------- -------- --------
Dilutive number of shares outstanding
during the period 55,000 55,000 55,094
========= ======== ========
Basic earnings per common share $ 0.18 $ 2.10 $ 1.77
Earnings per common share assuming dilution $ 0.18 $ 2.10 $ 1.77
</TABLE>
Prior to the IPO and as of December 31, 1999, no additional dilutive
securities were outstanding.
NOTE 5 -- ACCOUNTS RECEIVABLE
In 1997, ANC began selling all of its U.S. receivables to American National
Can Receivables Corporation ("ANCRC"), a wholly owned nonconsolidated subsidiary
of ANC. ANCRC entered into a Receivables Sale Agreement with a financial
institution under which it is able to sell through November 17, 2000, with
limited recourse, an undivided interest of up to $60,000 in the receivables that
it purchases from ANC. Prior to the IPO, ANCRC was able to sell up to $125,000
(including those related to its Plastics operations) of the receivables
purchased from ANC. At December 31, 1998 and 1999, ANCRC had sold to the
financial institution, undivided interests of $37,768 and $35,342, respectively,
in the receivables that it purchased from ANC. At December 31, 1998 and 1999,
accounts receivable as shown in the consolidated balance sheet included $67,704
and $49,320, respectively, due from ANCRC. ANC has retained the collection
responsibility with respect to the receivables sold to ANCRC.
F-14
<PAGE> 46
An analysis of the allowances for doubtful current and noncurrent
receivables follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------
1997 1998 1999
---- ---- ----
<S> <C> <C> <C>
Balance at beginning of year $ 22,486 $ 24,840 $ 32,909
Provision charged to income 2,774 10,049 60
Writeoff of uncollectible receivables, net
of recoveries (249) (2,032) --
Other (171) 52 (219)
-------- -------- --------
Balance at end of year $ 24,840 $ 32,909 $ 32,750
======== ======== ========
</TABLE>
The allowance for doubtful receivables has been determined recognizing that
ANC has retained substantially the same risk of credit loss as if the U.S.
receivables had not been sold.
NOTE 6 -- INVENTORIES
Inventories consisted of the following:
DECEMBER 31,
------------
1998 1999
---- ----
Raw materials $ 51,763 $ 55,785
Spare parts 40,065 37,138
Work-in-process 1,974 807
Finished goods 142,538 128,977
--------- ---------
$ 236,340 $ 222,707
========= =========
The LIFO inventory carrying value exceeded its FIFO basis by approximately
$6,366 and $9,402 at December 31, 1998 and 1999, respectively.
NOTE 7 -- PROPERTY AND EQUIPMENT
Property and equipment consisted of the following:
DECEMBER 31,
------------
1998 1999
---- ----
Land $ 54,575 $ 54,500
Buildings 228,064 219,170
Machinery and equipment 1,072,225 1,066,309
Construction in progress 42,965 54,017
Less accumulated depreciation (568,258) (608,686)
---------- ----------
829,571 785,310
---------- ----------
Assets under capital leases 20,471 14,921
Less accumulated amortization (13,978) (10,032)
---------- ----------
6,493 4,889
---------- ----------
$ 836,064 $ 790,199
========== ==========
Assets under capital leases primarily represent buildings, machinery and
equipment.
F-15
<PAGE> 47
NOTE 8 -- INVESTMENTS IN EQUITY AFFILIATES
Investments in equity affiliates and ANC's percentage of ownership were as
follows:
DECEMBER 31,
------------
% OWNED 1998 1999
------- ---- ----
Hanil Can Company, Ltd. (Korea) 40.0 $ 33,712 $ 38,788
Valley Metal Container Partnership (Coors) 50.0 24,867 23,325
Nippon National Seikan Co., Ltd. (Japan) 24.5 26,957 29,722
ANC Receivables Corporation (Note 5) 100.0 14,289 379
Vitro-American National Can (Mexico) 50.0 8,394 10,196
Container Recycling Alliance L.P. 50.0 4,322 -
--------- ---------
$ 112,541 $ 102,410
========= =========
As a result of applying the purchase method of accounting, the carrying
value of these investments exceeded ANC's proportionate share of underlying
equity at December 31, 1999 by an aggregate of $17,593, which is being amortized
over a forty-year period.
Equity in net earnings of affiliates included in the consolidated statement
of income aggregated $9,569, $10,950 and $11,124 in the years ended December 31,
1997, 1998 and 1999, respectively. These amounts included earnings from
partnerships which produce and sell packaging products of $13,044, $6,485 and
$5,958 in the years ended December 31, 1997, 1998 and 1999, respectively, which
were recorded as a reduction of cost of goods sold.
Dividends received from equity affiliates aggregated $13,493, $8,243 and
$8,313 for the years ended December 31, 1997, 1998 and 1999, respectively.
Effective March 31, 1999, ANC sold its 50% interest in the Container
Recycling Alliance partnership at a gain of approximately $4,709. The selling
price was $9,375 in cash, plus a future payment to ANC based on the
partnership's operating results for the year ended December 31, 2000. The
agreement specifies that such future payment will not be less than $375 in the
aggregate.
The following table includes financial information relating to ANC's
unconsolidated equity affiliates as of December 31, 1998 and 1999 and for each
of the three years in the period ended December 31, 1999:
DECEMBER 31,
------------
1997 1998 1999
---- ---- ----
Balance Sheet:
Current assets $303,294 $ 254,979
Noncurrent assets 264,958 292,525
Current liabilities 259,419 211,013
Noncurrent liabilities 80,309 103,676
Statement of Income:
Net revenues $ 674,090 $602,708 $ 549,658
Net income 23,915 34,313 25,123
F-16
<PAGE> 48
NOTE 9 -- LONG-TERM DEBT
A summary of long-term debt outstanding was as follows:
<TABLE>
<CAPTION>
DECEMBER 31,
------------
1998 1999
---- ----
<S> <C> <C>
EXTERNAL:
Revolving bank borrowings, bearing interest based on spreads
over LIBOR, under a credit agreement expiring in July 2000 $ - $ 333,000
Revolving bank borrowings, bearing interest based on spreads
over LIBOR, under a credit agreement expiring in July 2004 - 628,084
Revolving bank borrowings, bearing interest based on spreads
over LIBOR, under a credit agreement expiring in June 2003 20,000 -
Note Purchase Agreements with various insurance companies:
5.69% Senior Notes due December 2000 38,000 -
6.33% Senior Notes due December 2003 110,200 -
6.46% Senior Notes due December 2005 41,800 -
6.64% Senior Notes due December 2008 38,000 -
Bank borrowings of Brazilian subsidiary due January 2001
at 0.75% over LIBOR 9,996 9,996
Capital leases 2,294 1,654
Other 1,752 243
--------- ----------
262,042 972,977
Less: amounts due within one year (2,121) (245)
--------- ----------
$ 259,921 $ 972,732
========= ==========
RELATED PARTY:
Revolving borrowings from Pechiney, bearing interest based on
.125 over LIBOR under a credit agreement expiring January 2001 $ 200,000 $ -
Subordinated notes with Pechiney, bearing interest based on
.625 over LIBOR, due in annual payments through October 2002 46,079 -
Other borrowings from Pechiney, bearing interest at a rate
of 10.5% expiring December 2004 20,000 -
Deutschmark denominated note with Pechiney bearing interest
based on FIBOR plus 0.3%, expiring February 2003 23,911 -
Other 5,870 -
--------- ----------
295,860 -
Less: amounts due within one year (4,583) -
--------- ----------
$ 291,277 $ -
========= ==========
</TABLE>
At December 31, 1999 the maturities of long-term debt during the next five
years, excluding obligations under capital leases, were as follows:
2000 150
2001 343,089
2002 0
2003 0
2004 628,084
In July 1999, ANC prepaid $228,000 of privately placed notes which required
payment of a make-whole premium amounting to $3,018. This prepayment was
recorded as an extraordinary charge, net of taxes of $1,195, in the consolidated
statement of income.
F-17
<PAGE> 49
External lines of credit available to ANC under borrowing arrangements and
the usage thereof at December 31, 1999 were as follows:
TOTAL
AVAILABLE USED UNUSED
---------- ---- ------
U.S.-- long-term $1,300,000 $961,084 $ 338,916
U.S.-- short-term 135,000 55,300 79,700
International-- short-term 97,289 9,050 88,239
The Company's primary source of debt financing is $1,300,000 in aggregate
commitments under bank credit facilities entered into on July 22, 1999. The
credit facilities consist of a $650,000 five-year credit facility and a $650,000
364-day credit facility.
The five-year facility consists of a $600,000 revolving credit facility and
a $50,000 corporate loan option facility. Up to $100,000 is available for the
issuance of standby letters of credit. Up to $300,000 is available in euros and
up to $100,000 in British pounds, or euro if the United Kingdom adopts the
euro.
The 364-day facility consists of a $600,000 revolving credit facility and a
$50,000 corporate loan option facility. Up to $25,000 is available as swing line
loans. The facility is extendable for an additional 364 days at the discretion
of each lender, and is convertible at the Company's option into a term loan with
a maximum maturity of 364 days from conversion.
The debt under the 364-day facility is classified as long-term in the
consolidated balance sheet because it is management's intention and the Company
has the ability to extend these borrowings beyond one year.
Interest rates for U.S. dollar borrowings are equal to the LIBOR rate,
adjusted for reserves, plus a margin that varies from 0.80% to 1.20% for the
five-year revolving credit facility, and from 0.85% to 1.25% for the 364-day
revolving credit facility, or the corporate base rate published by Banc One from
time to time plus a margin that varies from 0.0% to 0.25%, according to a
pricing grid based on the ratio of the Company's average total net debt to
capital.
Euro borrowing rates are based on the Euribor rate, adjusted for reserves,
plus a margin. British pound borrowing rates are based on the LIBOR rate
adjusted for reserves, plus a margin. In each case, the margin varies from 0.80%
to 1.20% according to a pricing grid based on the ratio of the Company's average
total net debt to capital.
The Company pays a facility fee on each lender's commitment, irrespective of
usage. The facility fee varies from 0.20% to 0.30% for the five-year revolving
credit facility and from 0.15% to 0.25% for the 364-day revolving credit
facility, according to a pricing grid based on the ratio of the Company's
average total net debt to capital.
The credit facilities include the following financial covenants:
- The Company's ratio of EBITDA to interest expense must not be less
than 3.5 to 1.0 for the three, six and nine month periods ending
September 30, 1999, December 31, 1999 and March 31, 2000,
respectively, and not less than 4.0 to 1.0 for the twelve month
periods ending on each quarter end thereafter, beginning on June 30,
2000. For this purpose, EBITDA is defined as follows: net income,
plus interest expense, tax charges, depreciation expense,
amortization expense, other non-cash charges, and nonrecurring
after-tax losses deducted in computing net income, minus other
extraordinary non-cash credits and nonrecurring after-tax gains
added in computing net income.
- The Company's consolidated net worth must not be less than $950
million plus 50% of positive net income earned after June 30, 1999.
For this purpose, consolidated net worth is defined as shareholder's
equity on the consolidated balance sheet, excluding the receivable
from Pechiney Plastic Packaging, Inc., foreign currency translation
adjustments and adjustments for additional minimum pension liability
accounts.
F-18
<PAGE> 50
- The Company's ratio of total net debt to capital must not be more
than 0.55 to 1.0. For this purpose, total net debt is defined as
funded indebtedness plus guarantees, less cash and cash equivalents.
Capital is defined as total net debt plus consolidated net worth, as
defined above, plus minority interests.
These financial covenant ratios are generally calculated without giving
effect to the financial statement impact of any obligations indemnified by
Pechiney Plastic Packaging or guaranteed by Pechiney.
ANC maintains short-term lines of credit in the United States and in a
number of foreign countries. Foreign borrowings are generally overdraft
facilities at rates competitive in the countries in which ANC operates.
Generally, each foreign line is available only for borrowings related to
operations of a specific country. U.S. lines are overnight facilities at market
rates.
The weighted average interest rate on short-term borrowings outstanding as
of December 31, 1998 and 1999 was approximately 5.6% and 6.2%, respectively. The
weighted average interest rate on long-term borrowings outstanding as of
December 31, 1998 and 1999 was approximately 5.7% and 7.1%, respectively.
NOTE 10 -- LEASES
ANC leases manufacturing, warehouse and office facilities, and equipment.
Future minimum lease payments required under capital leases and operating leases
having initial or remaining noncancelable lease terms in excess of one year are
set forth below. Such future minimum lease payments have not been reduced by
sublease rentals to be received subsequent to December 31, 1999 of $23,821 for
operating leases.
<TABLE>
<CAPTION>
CAPITAL OPERATING
LEASES LEASES
------ ------
<S> <C> <C>
2000 $ 247 $ 34,257
2001 243 31,527
2002 242 30,595
2003 208 24,673
2004 171 23,919
2005 and beyond 3,051 86,138
-------- ---------
Total minimum rentals 4,162 $ 231,109
=========
Less: amount representing interest (2,508)
---------
Present value of future minimum payments (Note 9) 1,654
Less: current portion (95)
--------
Long-term obligations under capital leases $ 1,559
========
</TABLE>
Rental expense under operating leases was as follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
<S> <C> <C> <C>
1997 1998 1999
---- ---- ----
Gross rental expense $ 40,240 $ 34,676 $ 30,658
Less: sublease rental income (3,138) (3,443) (4,882)
-------- -------- ---------
$ 37,102 $ 31,233 $ 25,776
======== ======== ========
</TABLE>
Rental expense under operating leases included in the results of
discontinued operations was $6,899 and $7,363 for the years ended December 31,
1997 and 1998, respectively and $5,145 for the seven months ended July 31, 1999.
F-19
<PAGE> 51
NOTE 11 -- INCOME TAXES
The provision (benefit) for taxes on income from continuing operations
before equity earnings, minority interests, extraordinary charge and cumulative
effect of accounting change was as follows:
YEAR ENDED DECEMBER 31,
-----------------------
1997 1998 1999
---- ---- ----
Current income taxes:
United States:
Federal $ 2,674 $(40,650) $ 1,883
State 358 (144) 1,982
Other 34,305 36,649 44,135
-------- -------- --------
37,337 (4,145) 48,000
-------- -------- --------
Deferred income taxes:
United States (11,027) 23,401 22,121
Other 3,717 7,290 (387)
-------- -------- --------
(7,310) 30,691 21,734
-------- -------- --------
$ 30,027 $ 26,546 $ 69,734
======== ======== ========
The provision (benefit) for taxes on income from continuing operations
before equity earnings, minority interests, extraordinary charge and cumulative
effect of accounting change differs from the U.S. statutory rate for the
following reasons:
YEAR ENDED DECEMBER 31,
-----------------------
1997 1998 1999
---- ---- ----
Statutory tax rate 35.0% 35.0% 35.0%
State taxes, net of federal tax effect 6.0 1.8 3.2
Goodwill amortization 29.3 9.9 8.8
Foreign tax rate differential (15.4) (4.2) (1.0)
Reversal of valuation allowances -- -- (6.9)
Incremental taxes on unremitted earnings -- -- 5.1
Adjustment of prior year taxes -- (22.6) --
Other 6.5 (1.3) (1.5)
---- ---- ----
Effective tax rate 61.4% 18.6% 42.7%
==== ==== ====
As a result of the Reorganization, the Company revised its assumption
regarding the remittance of earnings of certain foreign subsidiaries and
provided additional unremitted earnings taxes for the year ended December 31,
1999. U.S. federal income taxes which may be incurred upon remittance of
approximately $118,426 of accumulated earnings of other ANC foreign subsidiaries
have not been provided at December 31, 1999 because such earnings are considered
to be permanently invested.
F-20
<PAGE> 52
Deferred tax assets (liabilities) consisted of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
------------
1998 1999
---- ----
<S> <C> <C>
DEFERRED TAX ASSETS
Deductible temporary differences:
Employee benefits $ 149,503 $ 156,715
Restructuring reserves 29,383 21,167
Other 134,657 107,688
Tax loss and credit carryforwards:
U.S. federal net operating losses 148,227 120,169
U.S. federal alternative minimum tax credits 7,587 8,938
U.S. federal general business credits 5,738 558
U.S. state net operating losses 7,901 6,568
Valuation allowances (18,455) (1,979)
--------- ---------
Total 464,541 419,824
--------- ---------
DEFERRED TAX LIABILITIES
Taxable temporary differences:
Fixed assets (100,674) (84,938)
Inventories (14,065) (14,710)
Employee benefits (76,682) (94,860)
Other (30,139) (35,920)
--------- ---------
Total (221,560) (230,428)
--------- ---------
Net deferred tax asset $ 242,981 $ 189,396
========= =========
</TABLE>
The U.S. federal net operating loss carryforwards expire as follows:
2000 $ 15,634
2001 12,511
2007 31,942
2010 202,169
2011 and beyond 81,084
The U. S. federal alternative minimum tax credit carryforwards of $8,938
have an unlimited carryover period.
The general business credits of $558 at December 31, 1999 expire 2000
through 2005. General business credits of $5,180 expired during 1999 and were
written off against the related valuation allowance.
As a result of the Reorganization and transfer of the plastics business to
Pechiney, net operating loss carryforwards of $25,542 were utilized on the
taxable gain resulting from the sale of plastics technology with a value of
$64,500 to PPPI.
As a result of the Offering, U.S. tax regulations will limit the amount of
net operating loss and tax credit carryforwards available to ANC going forward
on an annual basis.
At December 31, 1999, valuation allowances against $10,105 of federal net
operating loss carryforwards and $1,191 of state net operating loss
carryforwards were reversed against the tax provision as the Company determined
that these tax benefits would more likely than not be realized.
As a result of the receipt in August 1998 of Joint Committee approval for
the settlement of various issues pertaining to federal income tax returns for
the years 1985 through 1995, income tax liabilities were reduced by $78,328. Of
this amount, $46,122 pertained to issues for which tax reserves had been
established in the purchase accounting for the acquisition of ANC by Pechiney in
1988, which was recorded as a reduction of goodwill during 1998 ($35,649
pertained to continuing operations -- Note 1). The $32,206 remainder of the tax
reserve reduction pertained to expense provisions recorded in prior years and
was recorded as a reduction of the provision for income taxes in the
consolidated statement of income for the year ended December 31, 1998.
F-21
<PAGE> 53
Included in income (loss) from continuing operations before income taxes,
equity earnings, minority interest and cumulative effect of accounting change in
1997, 1998 and 1999, was $75,572, $119,497 and $129,562, respectively, of income
from foreign sources, none of which was remitted to ANC.
NOTE 12 -- INTEREST EXPENSE
Interest expense consisted of the following:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1997 1998 1999
---- ---- ----
<S> <C> <C> <C>
Interest cost incurred:
External $ 23,011 $ 19,710 $ 46,963
Related party 67,053 48,720 21,951
Interest imputed on obligations under capital leases 268 241 138
Deferred financing cost amortization 101 102 1,879
Capitalized interest -- -- (170)
-------- -------- --------
Total interest expense $ 90,433 $ 68,773 $ 70,761
======== ======== ========
</TABLE>
Discontinued operations include interest expense of $25,219 and $18,930 for
the years ended December 31, 1997 and 1998, respectively and $12,748 for the
seven months ended July 31, 1999. Such amounts give recognition to the debt of
the plastics operations, as well as an allocation of consolidated entity
interest based primarily on the net assets of the component entities.
NOTE 13 -- INTEREST INCOME AND OTHER FINANCIAL INCOME (EXPENSE), NET
Interest income and other financial income (expense), net, consisted of the
following:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1997 1998 1999
---- ---- ----
<S> <C> <C> <C>
Interest income:
External $ 6,555 $ 8,641 $ 13,567
Related party 1,515 5,056 1,728
Expense related to the sale of accounts receivable (3,038) (2,513) (2,093)
Foreign currency exchange gains (losses) 21,332 (515) (6,460)
Gain on sale of joint venture -- -- 4,709
Other 516 (35) 2,015
-------- -------- --------
$ 26,880 $ 10,634 $ 13,466
======== ======== ========
</TABLE>
Foreign currency exchange gains (losses) for the year ended December 31,
1997 includes a $21,020 non-recurring gain relating to foreign currency forward
contracts. This non-recurring gain relates to a series of unauthorized foreign
currency transactions entered into by an employee at intervals during the second
half of 1995, and again between September 1996 and March 1997. After detection
of the unauthorized transactions in April 1997, the employee was immediately
terminated and the cash proceeds related to the unauthorized transactions were
fully recovered later in 1997. ANC conducted an internal investigation that
determined all amounts related to the unauthorized transactions were recovered
and no other irregular transactions occurred. ANC has reviewed thoroughly its
existing procedures and implemented new procedures with additional authorization
and reporting requirements.
The foreign currency exchange losses in 1999 primarily represent losses in
Brazil and Turkey due to very high inflation. The functional currency in Brazil
and Turkey is the U.S. dollar.
Prior to the Offering, ANC covered its foreign exchange exposures through
Pechiney. Following the Offering, ANC opened foreign exchange lines and engaged
in foreign exchange trading to cover firm purchase and sales commitments. ANC
has established trading authorizations and limits on the basis of its specific
requirements. ANC's foreign exchange activities are overseen by its risk
management department. ANC is monitoring compliance strictly.
F-22
<PAGE> 54
NOTE 14 -- EMPLOYEE STOCK-BASED COMPENSATION
STOCK COMPENSATION CONVERSION PLAN
Prior to the Offering, executives of the Company participated in a
long-term incentive plan which granted them either options to purchase Pechiney
capital stock traded on the Paris Stock Exchange or stock appreciation rights
("SAR's") which provided the opportunity to receive cash awards equal to the
appreciation in Pechiney American Depositary Shares traded on the New York Stock
Exchange, or both. After the Offering, the Company converted outstanding
Pechiney options and SAR's to the right to receive shares of the Company's
common stock in the future. The number of shares was determined by dividing the
intrinsic value of the outstanding Pechiney options and SAR's as of the
conversion dates. The vesting dates of these rights which range from July, 2000
to July, 2003 approximate those of the original Pechiney grants. The Company is
accruing the expense related to these rights over the vesting period. A total of
396,456 rights with a weighted average grant date fair value of $16.46 per share
were outstanding at December 31, 1999. A liability of $3,572 was included in
other payables and accrued liabilities on the consolidated balance sheet at
December 31, 1999 for these stock rights.
Non-employee directors who served on the board of directors of ANCC earned
a retirement benefit as part of their compensation. For those same directors now
serving on the Company's board, the present value of the accrued retirement
benefit of $714 was converted to 42,021 deferred stock units at the time of the
Offering. The non-employee directors also received 7,944 deferred stock units as
compensation for their 1999 board meeting participation. A total of 49,965
deferred stock units with a grant date fair value of $17.00 per share were
outstanding as of December 31, 1999. These rights have been earned and will be
issued upon retirement from the ANC board. A liability of $849 was included on
the consolidated balance sheet at December 31, 1999 for these deferred stock
units.
FOUNDERS EQUITY PLAN
The Company granted to every full-time employee a one-time option to
purchase 100 shares of common stock. These options have an exercise price equal
to the Offering price of $17.00 per share and will vest 30% after two years, 30%
after three years and 40% after four years of the date of grant. A total of
437,700 options were awarded on July 28, 1999, the IPO date and date of grant.
The options are exercisable until July 28, 2009. None of the Founders equity
plan options were exercisable at December 31, 1999.
NEW STOCK-BASED COMPENSATION PLANS
The board of directors approved a long-term incentive plan, effective with
the IPO, whereby the Company may grant stock options and other stock-based
compensation awards under various plans to key management employees and
directors at exercise prices equal to at least the market price at the date of
grant. Options granted to employees generally become exercisable over a five
year period from the date of grant and expire ten years after the date of grant.
Options granted to ANC directors generally become exercisable when granted and
expire ten years after the date of grant.
During 1999, the Company granted 2,933,500 stock options at an exercise
price of $17.00 per share and 51,000 options at an exercise price of $12.69 per
share to key management employees. The weighted average exercise price for these
options was $16.93 per share. None of the options granted to key management
employees are exercisable at December 31, 1999. The Company also granted 47,616
stock options to directors at an exercise price of $17.00 per share. All of the
options granted to the directors become exercisable when granted and are
therefore exercisable at December 31, 1999.
None of the stock rights, deferred stock units or options granted under any
of the above plans since the IPO have been exercised, expired or forfeited as of
December 31, 1999.
A total of 8,450,000 unissued shares, plus an additional 7,400,000 shares
if acquired in the open market or in a private transaction, have been authorized
for current and future stock-based awards under all plans.
The Company uses the intrinsic-value method of accounting for stock-based
compensation awards granted to employees in accordance with APB No. 25.
Accordingly, no compensation expense has been recorded in the consolidated
statements of income for the Founders equity plan options or stock options
granted under the new stock-based long-term incentive plan.
F-23
<PAGE> 55
The following table reflects the pro forma net income and earnings per
share for 1999 had the Company elected to adopt the fair value approach of SFAS
No. 123:
1999
----
Net income:
As reported $100,353
Pro forma 99,425
Earnings per share assuming dilution:
As reported $ 1.82
Pro forma 1.80
The weighted average fair value of options at their grant date during 1999,
including the Founders equity plan options, was $4.64 per share. The estimated
fair-value of stock-based options awarded to employees is calculated using the
Black-Scholes option-pricing model with the following weighted average
assumptions:
1999
----
Risk free interest rate 5.96%
Expected years until exercise 6.0
Expected stock volatility 33.28%
Dividend yield 4.30%
NOTE 15 -- PENSION PLANS AND OTHER POSTRETIREMENT BENEFITS
ANC has defined benefit and defined contribution retirement plans covering
substantially all current and retired U.S. employees and certain U.S. employees
of businesses that have been sold. The plans provide benefits that are based on
the employee's years of service and compensation during employment with ANC. ANC
makes contributions to the defined benefit plans at least equal to the minimum
funding requirements under the Employee Retirement Income Security Act of 1974.
Costs for government-sponsored pension plans of ANC's international operations
are expensed on a current basis.
ANC's plastics business sponsors defined benefit retirement plans covering
certain hourly employees of that business. The remaining hourly employees of
that business are included in ANC-sponsored defined benefit plans or
multi-employer union plans. The salaried employees of the plastics business are
included in defined benefit and defined contribution plans which cover
substantially all of the salaried employees of ANC. Obligations of the plans
sponsored by the plastics business, as well as obligations under multi-employer
plans, remained with that business and were included in the operations
transferred to Pechiney (Note 1). These liabilities aggregated $4,154 at
December 31, 1998 and were included in the net assets of discontinued operations
in the consolidated balance sheet at that date. Benefits of plastics business
participants included in the ANC-sponsored plans were frozen as of the PPPI
transfer with respect to service accrued at that date (subject to certain
adjustments for future service and pay) and new mirror offset plans have been
created by PPPI for the plastics business employees.
ANC provides certain healthcare and life insurance benefits for
substantially all retired U.S. employees and their dependents, including those
of the plastics business up to the transfer date, under various postretirement
benefit plans based on age and length of service. Certain of the plans require
retiree contributions. Benefits for employees in non-U.S. countries are
generally limited due to coverage which is already provided by national health
programs. The liability for benefits for active and retired employees of the
plastics business, aggregating $83,561 at December 31, 1998 was included in the
liabilities transferred to PPPI. The liability for benefits for certain
additional retired employees relating primarily to closed plants aggregating
$277,236 at December 31, 1998 was also transferred to and assumed by PPPI. These
liabilities, aggregating $360,797, have been included in the net assets of the
discontinued operations at December 31, 1998 (Note 2). Pechiney has guaranteed
this obligation of PPPI and the liabilities were included in the operations
transferred to Pechiney (Note 1).
F-24
<PAGE> 56
Net pension expense (income) for benefit pension plans and net postretirement
benefit expense for the years ended December 31, 1997, 1998 and 1999 consisted
of the following:
<TABLE>
<CAPTION>
PENSION BENEFITS OTHER BENEFITS
---------------- --------------
1997 1998 1999 1997 1998 1999
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Service cost $ 19,475 $ 18,130 $ 16,636 $ 2,759 $ 2,549 $ 2,764
Interest cost 133,154 132,523 128,121 24,146 21,364 21,318
Expected return on plan assets (180,474) (193,680) (186,230) -- -- --
Amortization of:
Unrecognized transition obligation (867) (819) (821) -- -- --
Unrecognized prior service cost (benefit) 1,574 2,449 2,990 -- (936) (853)
Unrecognized net loss 5,946 (226) 2,164 (199) -- --
--------- --------- --------- --------- --------- ---------
Net periodic benefit (income) expense (21,192) (41,623) (37,140) $ 26,706 $ 22,977 $ 23,229
========= ========= =========
Net curtailment gain (3,934) (1,837) --
--------- --------- ---------
(25,126) (43,460) (37,140)
Defined contribution and multi-employer
plans 3,358 2,613 3,207
--------- --------- ---------
Total benefit expense (income) $ (21,768) $ (40,847) $ (33,933)
========= ========= =========
</TABLE>
The assumed expected return on plan assets was 10.0% during 1997 and 1998
and 9.5% in 1999. The assumed discount rate used to determine interest cost was
7.5%, 7.0% and 6.5% in 1997, 1998 and 1999, respectively.
Total benefit expense (income) above excludes amounts attributed to
discontinued operations comprising pension expense of the plastics business
sponsored plans and multi-employer union plans and plastics business employees
who are active participants in the ANC sponsored plans. Other benefits expense
attributed to discontinued operations comprises the expense related to active
and retired employees of the plastics business as well as for the additional
retired employees of closed plants referred to above.
F-25
<PAGE> 57
The following table sets forth the funded status of ANC's defined benefit
pension plans and postretirement benefit obligation and the amounts recognized
in the consolidated balance sheet at December 31, 1998 and 1999.
<TABLE>
<CAPTION>
PENSION BENEFITS OTHER BENEFITS
---------------- --------------
1998 1999 1998 1999
---- ---- ---- ----
<S> <C> <C> <C> <C>
CHANGE IN BENEFIT OBLIGATION
Benefit obligation at January 1, $ 1,970,724 $ 2,096,231 $ 352,735 $ 332,910
Service cost-- continuing operations 18,130 16,636 2,549 2,764
Service cost-- discontinued operations 5,204 3,690 -- --
Interest cost 132,522 128,121 21,364 21,318
Plan participants' contributions -- -- 1,568 1,641
Plan amendments 7,506 2,195 (7,263) --
Actuarial (gain) loss 114,663 (201,598) (13,655) (26,840)
Benefits paid (152,518) (153,493) (24,388) (27,749)
----------- ----------- ----------- -----------
Benefit obligation at December 31, 2,096,231 1,891,782 332,910 304,044
----------- ----------- ----------- -----------
CHANGE IN PLAN ASSETS
Fair value of plan assets at January 1, 2,045,173 2,087,974 -- --
Actual return on plan assets 180,709 265,865 -- --
Employer contribution 14,610 11,157 22,820 26,108
Plan participants' contributions -- -- 1,568 1,641
Benefits paid (152,518) (153,493) (24,388) (27,749)
----------- ----------- ----------- -----------
Fair value of plan assets at December 31, 2,087,974 2,211,503 -- --
----------- ----------- ----------- -----------
Funded status (8,257) 319,721 (332,910) (304,044)
Unrecognized actuarial (gain) loss 202,431 (81,567) 5,178 (18,926)
Unrecognized prior service cost (benefit) 13,669 12,444 (8,472) (7,090)
Unrecognized transition asset (12,772) (11,173) -- --
----------- ----------- ----------- -----------
Net asset (liability) recognized $ 195,071 $ 239,425 $ (336,204) $ (330,060)
=========== =========== =========== ===========
Amounts recognized in the statement of
financial position consist of:
Prepaid benefit cost $ 212,531 $ 277,450 $ -- $ --
Accrued benefit liability (43,710) (40,048) (336,204) (330,060)
Intangible asset 4,133 2,023 -- --
Accumulated other comprehensive income 22,117 -- -- --
----------- ----------- ----------- -----------
Net amount recognized $ 195,071 $ 239,425 $ (336,204) $ (330,060)
=========== =========== =========== ===========
Weighted-average assumptions as of December 31:
Discount rate 6.5% 7.5% 6.5% 7.5%
Expected increase in future salaries 5.0% 5.0%
</TABLE>
The projected benefit obligation, accumulated benefit obligation, and fair
value of plan assets for the pension plans with accumulated benefit obligations
in excess of plan assets were $79,068, $69,682 and $34,705 respectively, as of
December 31, 1998 and $39,257, $33,950 and $3,156, respectively, as of December
31, 1999.
The following table shows the other major assumptions used to develop the
accumulated postretirement benefit obligation and the net postretirement benefit
expense in 1999 and 1998.
MANAGED
UNDER CARE UNDER OVER
AGE 65 AGE 65 AGE 65
------ ------ ------
Current year health care trend rate-- 1998 7.71% 6.86% 6.29%
Current year health care trend rate-- 1999 7.14% 6.57% 5.86%
Ultimate trend rate 6.00% 6.00% 5.00%
Year ultimate trend rate is achieved 2001 2001 2001
F-26
<PAGE> 58
Assumed health care trend rates have a significant effect on the amounts
reported for the health care plan. A one-percentage-point change in assumed
health care cost trend rate would have the following effects:
<TABLE>
<CAPTION>
1-PERCENTAGE- 1-PERCENTAGE-
POINT INCREASE POINT DECREASE
-------------- --------------
<S> <C> <C>
Effect on total of service and interest cost components $ 2,434 $ (2,240)
Effect on postretirement benefit obligation 26,354 (24,252)
</TABLE>
NOTE 16 -- OTHER PAYABLES AND ACCRUED LIABILITIES
Other payables and accrued liabilities consisted of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
------------
1998 1999
---- ----
<S> <C> <C>
Accrued payroll and employee benefits (Note 14) $ 57,640 $ 48,716
Postretirement benefit obligation (Note 15) 27,200 27,200
Pension liabilities (Note 15) 6,555 10,172
Restructuring reserves (Note 18) 28,913 26,617
Litigation reserves (Note 21) 102,013 102,385
Income taxes 27,742 23,568
Accrued rent 14,254 16,281
Accrued taxes other than income (Note 22) 10,430 41,777
Other 67,762 75,403
-------- ---------
$342,509 $ 372,119
======== =========
</TABLE>
NOTE 17 -- OTHER LONG-TERM LIABILITIES
Other long-term liabilities consisted of the following:
DECEMBER 31,
------------
1998 1999
---- ----
Restructuring reserves (Note 18) $ 45,286 $ 20,595
Environmental reserves 50,057 50,083
Pension liabilities (Note 15) 37,155 29,876
Other long-term employee costs 13,598 13,761
Other 23,732 31,658
--------- --------
$ 169,828 $145,973
========= ========
Laws and regulations expose ANC to the risk of substantial environmental
costs and liabilities, including liabilities associated with past activities.
ANC is involved in judicial and administrative proceedings concerning
environmental compliance and the remediation of contamination at ANC properties
and other sites. The related charges are reserved when known to the extent they
can be reasonably estimated. The types of costs accrued are expenditures for
clean up of environmental contamination and other remediation activities. The
estimated reserves are based on current environmental laws and regulatory
requirements and currently available technology. The accrued costs do not
include potential recoveries from insurers and have not been discounted to their
present values. Judicial and administrative proceedings in environmental matters
usually extend over many years, therefore, payments for environmental
liabilities may extend over a long time frame.
The precision and reliability of the loss estimates varies from site to
site, depending on such factors as the quantity of data concerning contamination
at the site, the extent to which remedial requirements have been identified or
agreed upon with regulatory authorities and the availability and likelihood of
contribution from other responsible parties. ANC believes, however, that the
amount it has reserved will enable it to satisfy its known and anticipated
environmental liabilities to the extent they can be estimated. Because
environmental matters cannot be predicted with certainty, there can be no
assurance that these amounts will be adequate for all purposes. In addition, the
discovery of new sites or future developments at known sites, such as changes in
law or environmental conditions, could result in increased environmental costs
and liabilities in excess of accrued environmental reserves that could have a
material effect on ANC's results of operations in any given year or its
consolidated financial position, although the amount of such increases cannot be
estimated.
F-27
<PAGE> 59
NOTE 18 -- RESTRUCTURING CHARGE (CREDIT) AND WRITEDOWN OF
PROPERTY AND EQUIPMENT
The restructuring charge (credit) and writedown of property and equipment
for continuing operations for the years ended December 31, 1997, 1998 and 1999
was as follows:
<TABLE>
<CAPTION>
1997 1998 1999
---- ---- ----
<S> <C> <C> <C>
Restructuring charge (credit) and asset impairment $10,000 $ (2,705) $ 4,726
Loss on the sale of property and equipment 924 268 1,060
------- ---------- --------
Restructuring charge (credit) and writedown of
property and equipment $10,924 $ (2,437) $ 5,786
======= ========== ========
</TABLE>
The activity in the restructuring reserve for continuing operations for the
years ended December 31, 1997, 1998 and 1999 was as follows:
<TABLE>
<CAPTION>
EMPLOYEE EQUIPMENT
TERMINATION DISMANTLE
AND LEASE ENVIRONMENTAL AND NON-CASH
SEVERANCE TERMINATION TESTING AND FACILITY DISPOSAL ASSET WRITE-
PROGRAMS COST REMEDIATION COSTS COSTS DOWNS TOTAL
----------- ----------- -------------- --------- ---------- ----------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1996 $65,047 $15,325 $ 5,000 $ 24,029 $ 9,025 $ -- $118,426
Charge to income -- -- -- -- -- 10,000 10,000
Cash payments (15,616) -- -- (5,704) (1,233) -- (22,553)
Non-cash utilized or reclassified (3,942) -- -- -- -- (10,000) (13,942)
------- ------- -------- -------- --------- -------- --------
Balance at December 31, 1997 45,489 15,325 5,000 18,325 7,792 -- 91,931
Charge to income 22,610 5,606 200 3,184 965 10,781 43,346
Credit to income (18,496) (7,293) -- (2,852) (4,987) (12,423) (46,051)
------- ------- -------- -------- --------- -------- --------
Net charge (credit) 4,114 (1,687) 200 332 (4,022) (1,642) (2,705)
------- ------- -------- -------- --------- -------- --------
Cash payments (9,556) (289) -- (1,793) (421) -- (12,059)
Non-cash utilized or reclassified (4,610) -- -- -- -- 1,642 (2,968)
------- ------- -------- -------- --------- -------- --------
Balance at December 31, 1998 35,437 13,349 5,200 16,864 3,349 -- 74,199
Charge to income 24,598 2,309 -- 1,562 379 8,374 37,222
Credit to income (11,900) (7,635) (950) (8,748) (2,848) (415) (32,496)
------- ------- -------- -------- --------- -------- --------
Net charge (credit) 12,698 (5,326) (950) (7,186) (2,469) 7,959 4,726
------- ------- -------- -------- --------- -------- --------
Cash payments (15,763) -- -- (1,856) (1) -- (17,620)
Non-cash utilized or reclassified (509) -- (4,250) (1,375) -- (7,959) (14,093)
------- ------- -------- -------- --------- -------- --------
Balance at December 31, 1999 $31,863 $ 8,023 $ -- $ 6,447 $ 879 $ -- $ 47,212
======= ======- ======== ======== ========= ======== ========
</TABLE>
The non-cash activity in environmental testing and remediation during 1999
reflects the balance sheet reclassification between this restructuring reserve
and the Company's environmental reserve included in other long-term liabilities.
ANC has segregated the restructuring activities into three separate
programs; (1) pre-1996 program, (2) Challenge program and (3) Next Level and
Lean Manufacturing program.
F-28
<PAGE> 60
A summary of the activity in the reserve relating to the pre-1996 program is as
follows:
<TABLE>
<CAPTION>
EMPLOYEE EQUIPMENT
TERMINATION DISMANTLE NON-CASH
AND LEASE ENVIRONMENTAL AND ASSET
SEVERANCE TERMINATION TESTING AND FACILITY DISPOSAL WRITE
PROGRAMS COST REMEDIATION COSTS COSTS DOWNS TOTAL
-------- ----------- ------------ -------- ------ ----- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1996 $ 7,712 $ 762 $2,000 $ 5,826 $3,296 $ -- $ 19,596
Cash payments (4,726) -- -- (2,406) (214) -- (7,346)
-------- ----- ------ -------- ------ ------- --------
Balance at December 31, 1997 2,986 762 2,000 3,420 3,082 -- 12,250
Credit to income (2,644) (762) -- (1,000) (1,497) (3,506) (9,409)
Cash payments (239) -- -- (441) (202) -- (882)
Non-cash utilized or reclassified (50) -- -- -- -- 3,506 3,456
-------- ----- ------ -------- ------ ------- --------
Balance at December 31, 1998 53 -- 2,000 1,979 1,383 -- 5,415
Charge to income -- -- -- 346 -- 6 352
Credit to income (56) -- -- (495) (1,383) (415) (2,349)
-------- ----- ------ --------- ------- -------- ---------
Net charge (credit) (56) -- -- (149) (1,383) (409) (1,997)
-------- ----- ------ --------- ------- -------- ---------
Cash payments -- -- (455) -- -- (455)
Non-cash utilized or reclassified 3 -- (2,000) (1,375) -- 409 (2,963)
-------- ----- ------ -------- ------ ------- --------
Balance at December 31, 1999 $ -- $ -- $ -- $ -- $ -- $ -- $ --
======== ===== ====== ======== ====== ======= ========
</TABLE>
In 1994 and 1995, ANC incurred restructuring charges related to the
estimated costs to close plants in Danbury, CT, Gateway, MO and St. Louis, MO
and to pay employee termination benefits related to the reduction of
approximately 410 employees at the plants and ANC's administrative offices. The
Danbury, Gateway and St. Louis plants were closed in the first quarter of 1994,
third quarter of 1995 and second quarter of 1996, respectively. The sale of a
former plant site typically takes several years to complete as it is normally
necessary to perform environmental cleanup of the site before it can be sold.
Employee benefit costs include supplemental unemployment benefits which are paid
for over a period of approximately two years after plant shutdown.
Plant restructuring activity including payments for employee termination
and severance costs related to the closed plants and site cleanup and sale of
the St. Louis plant were completed during 1998. Considering this 1998 activity
and management's review of its overall restructuring program, ANC recorded a
credit to income of $9,409 for changes in estimates due to lower than originally
expected employee termination and severance costs, facility costs, and equipment
dismantle and disposal costs and higher than expected proceeds on the completed
sale of the St. Louis plant.
The charge for facility costs in 1999 of $346 represents the costs to
maintain facilities at two previously closed locations. The credit to income of
$2,349 in 1999 includes $415 of proceeds on the sale of the Zanesville, OH
facility and a $1,934 reduction in expected costs at five other locations
previously closed.
Cash payments for the three years ended December 31, 1999 totaling $8,683
represent continuing payments related to previously closed plants and
administrative offices.
The non-cash utilization of facility costs in 1999 represents the
reclassification of a reserve for lease costs at the Greenwich, CT office to
discontinued operations. The original charge related to this facility had been
recorded as income (loss) from discontinued operations in the consolidated
income statement in a prior year.
The total number of employees terminated under the pre-1996 program was
371.
F-29
<PAGE> 61
A summary of the activity in the reserve relating to the Challenge program
is as follows:
<TABLE>
<CAPTION>
EMPLOYEE EQUIPMENT
TERMINATION DISMANTLE NON-CASH
AND LEASE ENVIRONMENTAL AND ASSET
SEVERANCE TERMINATION TESTING AND FACILITY DISPOSAL WRITE
PROGRAMS COST REMEDIATION COSTS COSTS DOWNS TOTAL
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1996 $ 57,335 $ 14,563 $ 3,000 $ 18,203 $ 5,729 $ -- $ 98,830
Charge to income -- -- -- -- -- 10,000 10,000
Cash payments (10,889) -- -- (3,298) (1,019) -- (15,206)
Non-cash utilized or reclassified (3,942) -- -- -- -- (10,000) (13,942)
-------- -------- -------- -------- -------- -------- --------
Balance at December 31, 1997 42,504 14,563 3,000 14,905 4,710 -- 79,682
Charge to income 8,510 2,706 200 3,184 965 9,281 24,846
Credit to income (15,852) (6,531) -- (1,852) (3,490) (8,918) (36,643)
-------- -------- -------- -------- -------- -------- --------
Net charge (credit) (7,342) (3,825) 200 1,332 (2,525) 363 (11,797)
-------- -------- -------- -------- -------- -------- --------
Cash payments (8,513) (289) -- (1,352) (219) -- (10,373)
Non-cash utilized or reclassified (4,560) -- -- -- -- (363) (4,923)
-------- -------- -------- -------- -------- -------- --------
Balance at December 31, 1998 22,089 10,449 3,200 14,885 1,966 -- 52,589
Charge to income 2,061 2,309 -- 1,216 379 8,088 14,053
Credit to income (11,844) (7,635) (950) (8,253) (1,465) -- (30,147)
-------- -------- -------- -------- -------- -------- --------
Net charge (credit) (9,783) (5,326) (950) (7,037) (1,086) 8,088 (16,094)
-------- -------- -------- -------- -------- -------- --------
Cash payments (3,819) -- -- (1,402) (1) -- (5,222)
Non-cash utilized or reclassified 4 -- (2,250) -- -- (8,088) (10,334)
-------- -------- -------- -------- -------- -------- --------
Balance at December 31, 1999 $ 8,491 $ 5,123 $ -- $ 6,446 $ 879 $ -- $ 20,939
======== ======== ======== ======== ======== ======== ========
</TABLE>
In 1996, ANC recorded a charge for restructuring and impairment of property
and equipment related to actions taken under Pechiney's Challenge program which
was designed to eliminate production overcapacity, reduce costs and improve
productivity and utilization of assets. Other costs of the restructuring plan,
which include relocation of personnel and equipment, training, process
reengineering, consulting costs, and capital expenditures are being recognized
as incurred. The Challenge program restructuring charge included costs totaling
$158,706 related to the planned shutdown of five can manufacturing facilities
between 1996 and 1998 to eliminate production overcapacity, as well as the
reorganization of operations at certain other existing plants which would
continue operations and the elimination of certain executive and administrative
functions at ANC's headquarters and other plants as a result of cost reduction
initiatives. The Jacksonville, FL and San Juan, Puerto Rico facilities were shut
down in December 1996 and May 1997, respectively.
The severance and other employee-related costs (primarily enhanced pension
and postretirement benefits) provided for a reduction of 540 employees at the
five plants, 120 people at plants that will remain open and 130 employees at
ANC's administrative offices. The charge for employee termination and severance
programs was based on the number of employees expected to be terminated as of
the shutdown date of each plant and the severance payments and enhanced pension
benefits required under the terms of existing collective bargaining agreements
for union personnel, or the ANC severance plan for non-union personnel.
Lease termination costs include lease cancellation penalties related to
certain equipment that would no longer be used after the five plants were
closed. The amount of the lease cancellation penalty fee was determined based on
the terms of the leases.
The original charge for environmental testing and remediation was based on
the estimated costs to test and remediate environmental contamination at the
five plants to be shut down. The non-cash activity in environmental testing and
remediation during 1999 reflects the balance sheet reclassification between this
restructuring reserve and the Company's environmental reserve included in other
long-term liabilities.
Facility costs include the lease costs of certain floors in the corporate
headquarters building that after December 31, 1996 would no longer be used by
ANC, partially offset by estimated sublease income. Estimated sublease income
was based on the rental market as of December 31, 1996 for space comparable to
ANC's corporate headquarters building. Facility costs also include the costs to
maintain plants from the date of closing to the date of disposition such as
building security and utility costs.
F-30
<PAGE> 62
The equipment dismantle and disposition costs are based on management's estimate
of the cost to remove equipment and clean-up the facilities in preparation for
sale.
The impairment charge for property and equipment represents the writedown to
fair value of property and equipment to be disposed of or scrapped and the
recognition of impairment losses for assets to be used up to the plant closing
date for plants to be closed. The property, plant and equipment related to the
Jacksonville, FL and San Juan, Puerto Rico plants were written down to estimated
fair value less cost to sell. For certain plants that were to be operated for a
period of time, ANC determined that the sum of the expected future cash flows
(undiscounted and without interest charges) was less than the carrying amount of
the property, plant and equipment related to these plants. Accordingly, an
impairment loss was recorded to writedown the property, plant and equipment of
these plants to their estimated fair values. The fair value of such depreciable
assets that remain in use are depreciated over the asset's remaining useful
life. Fair values for land and buildings were determined based on consultations
with local real estate agents. Fair values for equipment were determined based
on management's best estimates considering the used equipment market.
In the fourth quarter of 1997, ANC made a decision to defer to 2000 the
shutdown of two plants originally scheduled for shutdown in 1997. These two
plants primarily produce special-sized cans under contracts that are scheduled
to expire in 2000. ANC's shutdown plan for one of the two plants originally
contemplated certain capital investments to be made to expand another plant to
allow for the transfer of production of the special-sized cans. A decision was
made in 1997 not to make the necessary additional capital investment and to
continue to operate the plant. ANC's plan for the second plant was to negotiate
an early termination of the contract or to make alternative supply arrangements.
In 1997, ANC made a decision to continue to operate each of the plants at
approximately 50% of capacity through the completion of the contractual
commitments incurring cash losses which are being recorded as incurred. The
deferral of the shutdown of these two plants did not result in any adjustment of
the restructuring reserve.
The charge in 1997 of $10,000 for restructuring and writedown of property
and equipment represents an impairment loss related to ANC's operations in
China.
Cash payments for 1997 relate to the shutdown of the San Juan, Puerto Rico
plant effective May, 1997 and continuing payments related to previously closed
plants. The non-cash utilizations related primarily to (a) the transfer of
enhanced pension benefit amounts based upon final actuarial determinations to
the separately classified pension liability account and (b) the writedown of
plant and equipment to fair value.
In 1998, management, based on a large customer's decision to reduce its
purchases from ANC in various geographic markets and on studies by outside
consultants of market demographics, decided not to close a plant provided for in
1996 which at that time was expected to be closed in 1998, but rather to
temporarily curtail production at several lines in our facilities. As a result,
the reserve of $17,118 previously established for employee termination and
severance programs, lease termination costs, facility costs and other exit costs
related to this plant was restored to income. The writedown of property and
equipment for this plant was maintained since the reduced carrying amount of
the property and equipment has been accounted for as its new cost basis. A
further restoration of $19,525 was based on adjustments to the restructuring
reserve for changes in estimates of the number of employees to be terminated as
a result of natural attrition at plants shut down or to be shut down, and
higher-than-expected proceeds on the completed sale during 1998 of the Puerto
Rico plant site and the anticipated sale of the Jacksonville, FL plant site was
recorded.
The components of the $19,525 reversal for prior restructurings consisted of
the following:
Employee termination and severance programs $ (9,066)
Lease termination costs (1,591)
Environmental testing and remediation 750
Facility costs 1,790
Equipment dismantle and disposal costs (2,490)
Non-cash asset writedowns (8,918)
---------
$ (19,525)
=========
F-31
<PAGE> 63
The original charge for employee termination and severance costs was based on
the number of employees expected to be terminated as of the shutdown date of
each plant to be closed. Supplemental unemployment and severance benefits were
calculated based on the terms of existing collective bargaining agreements for
union personnel, or the ANC severance plan for non-union personnel. The reversal
of employee termination and severance costs included $4,957 related to the
closing of the two plants deferred until 2000. Manning levels at these two
plants were reduced as a result of a management decision taken in 1998 to reduce
employee levels at each plant from two crews to one crew. The reversal of
employee termination and severance costs also included $3,088 related primarily
to amounts that had previously been provided for severance of sales and
administrative personnel in the U.S. beverage can business. The reversal of
employee termination and severance costs also included $1,021 related to the
completion of the Puerto Rico plant severance program.
The original charge assumed lease termination costs associated with certain
equipment leases at the Jacksonville, FL, and the two plants to be closed in
2000. In 1998, it was determined that leased equipment previously used at the
Jacksonville, FL plant could be used at other ANC plants. Accordingly, the
related lease termination reserve of $1,197 was reversed.
The original charge related to non-cash asset writedowns was based on the
estimated fair value of the related assets. The reversal of non-cash asset
writedowns relates primarily to the completion of the sale at higher than
expected selling prices of plant and equipment related to closed plants,
including the San Juan, Puerto Rico plant.
In connection with the 1998 decision to not close the previously identified
plant and in response to the continuing oversupply of can production capacity,
in 1998 management decided to close a different plant in late 1999. Accordingly,
a charge of $24,846 was recorded in 1998 to cover the costs of the new plant
closure, including $9,281 to writedown the value of the plant and equipment to
fair value. The plant closure costs cover severance and other employee related
costs to provide for the reduction of 115 employees and to write down property
and equipment to fair value.
In the fourth quarter of 1999, as a result of a reduction in system
overcapacity resulting from new business, management decided that it would not
close the plant that was reserved for in 1998 and recorded a credit to income of
$15,565. The impairment writedown of property and equipment for this plant was
maintained since the reduced carrying amount of the property and equipment has
been accounted for as its new cost basis.
In December, 1999 the Company announced that it would close its Piscataway,
NJ facility in the first quarter of 2000 instead of a facility that was included
in the original 1996 restructuring plan. As a result, a restructuring credit to
income of $9,792 was recorded in 1999 to take back the original charge for this
plant. The writedown of property and equipment for this plant was maintained as
the reduced carrying amount of the property and equipment has been accounted
for at its new cost basis. An additional credit to income in 1999 of $4,790
related to adjustments to the restructuring reserve for changes in estimates of
employee severance costs, lease termination costs and facility costs at plants
shut down or to be shut down. A charge to income of $11,787 including estimated
employee termination and severance costs of $1,011, lease termination costs of
$2,309, facility costs of $379 and a writedown of plant and equipment to fair
value of $8,088 was recorded to close the Piscataway, NJ plant. An additional
charge to income of $2,266 was recorded for changes in estimates of employee
severance costs and for facility costs related primarily to a revised estimate
of future sublease income on space at the corporate headquarters building that
is not being used by ANC. The change was calculated by comparing the estimated
future rental costs related to the space not occupied by ANC as of the IPO date
with estimated sublease rental income.
The number of employees terminated under the Challenge restructuring
programs through December 31, 1999 was 380.
The Company has notified its sole customer that the remaining plant will be
closed in 2000 when the supply contract expires.
F-32
<PAGE> 64
Expected future cash payments related to the Challenge restructuring program,
excluding $2,961 of pension liability transfers, are $7,856 in 2000, $2,949 in
2001, $1,046 in 2002, $239 in 2003, $806 in 2004 and $5,082 thereafter. Lease
termination payments related to Jacksonville will be made in 2000 at the
earliest termination date. Lease termination payments for the remaining plant to
be closed in 2000 will be made in 2000 and 2001. Facility costs related to the
administrative offices in Chicago will be made through the end of the lease
period in 2008. Equipment dismantling and disposal costs will be paid during
2000 and 2001 after the close of the remaining facility. Severance costs related
to the Piscataway, NJ plant are expected to be paid during 2000 in accordance
with union agreements. The lease termination payments will be made at the
earliest termination date in 2000 and 2001. The equipment disposal and
dismantling costs are expected to be incurred in 2000.
A summary of the activity in the reserve relating to the Next Level and Lean
Manufacturing program is as follows:
<TABLE>
<CAPTION>
EMPLOYEE
TERMINATION
AND LEASE NON-CASH
SEVERANCE TERMINATION ASSET
PROGRAMS COST WRITEDOWNS TOTAL
-------- ---- ---------- -----
<S> <C> <C> <C> <C>
Balance at December 31, 1997 $ -- $ -- $ -- $ --
Charge to income 14,100 2,900 1,500 18,500
Cash payments (804) -- -- (804)
Non-cash utilized or reclassified -- -- (1,500) (1,500)
------- ------- --------- ---------
Balance at December 31, 1998 13,296 2,900 -- 16,196
Charge to income 22,537 -- 280 22,817
Cash payments (11,944) -- -- (11,944)
Non-cash utilized or reclassified (516) -- (280) (796)
-------- ------- ---------- ---------
Balance at December 31, 1999 $23,373 $ 2,900 $ -- $ 26,273
======= ======= ========= =========
</TABLE>
ANC instituted a program beginning in the U.S. in 1998 called "top grading"
which is designed to strengthen management through new leadership and
performance management. The program calls for placing the best human resources
available into numerous middle and high level management positions throughout
the Company. Top grading will give the Company a much broader, talented and
diverse management pool to lead the Company into the future. This initiative was
expanded into ANC's European operations in 1999. As a result, the Company pays
termination and severance benefits to those employees that have left or will be
leaving the Company under the top grading program.
The 1998 charge of $14,100 was provided for severance costs for
approximately 140 plant, sales and administrative employees in the U.S. who
have been replaced in the Company's top grading program. An impairment charge
of $4,400 was also recorded relating to lease termination costs and equipment
write-offs for permanently idled equipment.
In 1999, the European operations commenced the Next Level program, which is
designed to eliminate redundant administrative and plant positions. The charge
to income included $7,818 for severance costs for approximately 158 employees
whose positions are being eliminated under the Next Level and Lean Manufacturing
program. The 1999 charge to income also included $14,719 for severance and other
employee related costs to provide for the reduction of an additional 103
employees in the Company's U.S. and European top grading program.
Cash payments in 1999 are for severance costs for approximately 165
employees that have been terminated in the Next Level and Lean Manufacturing
programs.
The number of employees terminated through December 31, 1999 and scheduled
to be terminated primarily in 2000 relating to the Next Level and Lean
Manufacturing programs are 203 and 198, respectively.
Expected cash payments for restructuring costs in future periods for the
Next Level and Lean Manufacturing program are $16,978 in 2000 and $9,295 in
2001. The lease termination payments will be made in 2001 as required by the
agreement. Severance costs related to the Next Level and Lean Manufacturing
program are expected to be paid during 2000 and 2001.
F-33
<PAGE> 65
NOTE 19 -- SEGMENT AND RELATED INFORMATION
ANC's continuing operations, consisting of its worldwide beverage can
business, comprise one reportable segment.
Following are net sales and long-lived asset information by geographic area.
YEAR ENDED DECEMBER 31,
----------------------
1997 1998 1999
---- ---- ----
Net sales
United States $ 1,504,427 $ 1,453,992 $1,371,627
United Kingdom 374,654 369,316 363,913
Others 585,937 635,541 592,534
----------- ----------- ----------
$ 2,465,018 $ 2,458,849 $2,328,074
=========== =========== ==========
Long-lived assets
Continuing operations
United States $ 1,054,393 $ 999,151 $ 962,344
United Kingdom 387,053 366,569 352,576
Others 704,874 694,692 696,844
Discontinued operations 758,023 776,324 --
----------- ----------- ----------
$ 2,904,343 $ 2,836,736 $2,011,764
=========== =========== ==========
Net sales are based on the country in which the legal subsidiary is
domiciled.
NOTE 20 -- CONCENTRATIONS OF RISK
One of the principal raw materials used in ANC's production process is
aluminum. ANC generally limits its exposure to the fluctuations in the market
price of aluminum by matching contracts to supply cans to customers with
aluminum forward purchase supply contracts with similar terms.
The Company sells its products to a relatively small number of customers.
ANC had sales in excess of 10% of net sales from continuing operations to one
customer amounting to approximately $1,048,200, $1,253,200 and $1,203,600 for
the years ended December 31, 1997, 1998 and 1999, respectively.
NOTE 21 -- COMMITMENTS AND CONTINGENCIES
In 1993, Viskase Corporation ("Viskase") brought a patent infringement
lawsuit against ANCC alleging infringements related to patents held by Viskase,
a unit of Envirodyne Industries, Inc., for heat shrinkable meat bags utilized in
the Plastics business. In November 1996, a federal court jury in Chicago,
Illinois awarded Viskase $102,385 in damages and found willful infringement.
Based on the facts and circumstances, ANCC recorded a charge to expense of
$103,768 in 1996 which represented the amount of the damages awarded as well as
certain out-of-pocket costs. This was recorded in discontinued operations in the
consolidated statement of income and in other payables and accrued liabilities
of the continuing business in the consolidated balance sheet.
In September 1997, the court granted ANCC's motion for a new trial on
liability as to part of the case and ordered a new trial on damages. In August
1998, the trial judge granted Viskase's motion for summary judgment on the
doctrine of equivalents. Viskase has moved for the damage award to be
reinstated, and ANCC has opposed that motion. No ruling has been made. In
addition, ANCC has requested the U.S. Patent and Trademark Office (known as the
"PTO") to re-examine the claims of two of the patents that Viskase alleged ANCC
infringed. In March 1999, a PTO Examiner issued an Office Action that
re-examined and rejected claims of one of the two patents, but the Office Action
is not final. Concerning the second patent, the PTO has also issued an Office
Action rejecting the Viskase claims, but the PTO recently granted Viskase's
petition to change the inventorship of the patent. Additional proceedings are
ongoing.
F-34
<PAGE> 66
On May 10, 1999, the court granted reinstatement of the jury damage award in the
Viskase litigation. On July 1, 1999, the court entered a judgment in favor of
Viskase in the amount of $164.9 million, which includes the $102 million damages
award, $37 million of prejudgment interest and $20 million of enhanced damages.
The Company has filed a notice of appeal, and believes it has strong arguments
on appeal. The Company continues to believe its pre-existing reserve relating to
these proceedings is adequate. PPPI has agreed to indemnify the Company on an
after-tax basis for any payments the Company may be required to make with
respect to the proceedings. Pechiney has guaranteed this obligation of PPPI. At
December 31, 1999, ANC has reflected this indemnification within equity as a
capital contribution and a receivable from PPPI totaling $61,825.
Future adjustments, if any, of the Viskase litigation reserve will be
recorded as income (loss) from discontinued operations in the Company's
consolidated financial statements. Future indemnification payments, if any, from
PPPI related to the Viskase litigation will be recorded as a capital
contribution in the Company's consolidated financial statements.
In addition to the above matter, the Company and its subsidiaries are
involved in various other legal and administrative proceedings which have arisen
in the ordinary course of business. While any litigation contains an element of
uncertainty, ANC believes that the outcome of such proceedings will not have a
material adverse effect on ANC's consolidated financial position or cash flows.
The Viskase proceeding, if resolved in a manner different from the estimate,
could have a material adverse effect on the operating results of discontinued
operations in a future reporting period.
ANC has two agreements to purchase certain information technology services
through September 2002. Total commitments under the agreements approximated
$22,900 as of December 31, 1999.
ANC is contingently liable with respect to guarantees of indebtedness of
other companies in the amount of $18,443 at December 31, 1999. ANC has
outstanding letters of credit totaling $36,136 at December 31, 1999.
NOTE 22 -- RELATED PARTY TRANSACTIONS
The beverage can business has historically operated independently of
Pechiney and its affiliates. ANC purchases a portion of its aluminum
requirements in Europe from Pechiney Rhenalu on an arms-length basis and under
market terms and conditions. In connection with the IPO, Pechiney and ANC
entered into several agreements, including certain indemnifications provided by
Pechiney and a shared services agreement whereby certain corporate services are
provided to the Company by Pechiney. In 1997 and 1998, Pechiney charged ANC on
an arms-length basis for information technology costs incurred at a group level.
The reorganization included the payment of dividends to Pechiney aggregating
$100,242 by certain of the Company's European beverage can subsidiaries prior to
the completion of the Offering. The Company has included in other payables and
accrued liabilities a tax liability of $32,228 to be paid to the French
government in May, 2000. Pechiney has agreed to reimburse the Company for this
payment and $32,228 is included in other receivables.
F-35
<PAGE> 67
Significant transactions and balances with Pechiney and its affiliates, other
than those presented on the face of the consolidated balance sheets or described
elsewhere in the notes to the consolidated financial statements, included the
following:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1997 1998 1999
---- ---- ----
<S> <C> <C> <C>
Sales $ 804 $ 5,474 $ 5,811
Purchases 151,420 165,794 179,057
Selling, general and administrative expenses 2,128 577 4,579
Charges from Pechiney for research and
development expenses 5,283 4,039 1,169
</TABLE>
DECEMBER 31,
------------
1998 1999
---- ----
Receivables $ 7,447 $ 1,677
Noncurrent assets 187 -
Accounts payable 18,985 18,645
Other payables and accrued expenses 7,535 484
NOTE 23-- QUARTERLY FINANCIAL SUMMARY (unaudited)
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
------- ------- ------- -------
<S> <C> <C> <C> <C>
1999:
Net sales $530,642 $657,124 $613,427 $526,881
Cost of goods sold (excluding depreciation) 432,268 515,272 470,176 430,691
EBITDA excluding restructuring(1) 63,604 108,131 113,741 61,874
Operating income 32,417 79,549 82,710 26,085
Income from continuing operations before
extraordinary charge and cumulative
effect of accounting change 15,987 37,958 40,028 3,646
Net income 17,085 39,695 37,987 5,586
Earnings per share $ 0.31 $ 0.72 $ 0.69 $ 0.10
1998:
Net sales $542,558 $712,171 $672,823 $531,297
Cost of goods sold (excluding depreciation) 447,459 566,476 530,548 439,886
EBITDA excluding restructuring (1) 59,867 100,710 108,123 52,301
Operating income 29,128 76,082 75,994 19,702
Income from continuing operations before
extraordinary charge and cumulative
effect of accounting change 4,965 35,887 68,548 6,288
Net income 1,498 36,664 69,101 6,386
Earnings per share $ 0.03 $ 0.67 $ 1.26 $ 0.12
</TABLE>
Operating income for the second quarter 1999 compared to 1998 increased due
to the bad debt provision recorded in 1998. Net income for the third quarter
1999 compared to 1998 decreased due to the tax benefit of $32,206 recorded in
1998 resulting from a favorable tax settlement from the Internal Revenue Service
pertaining to the federal income tax returns for the years 1988 through 1995.
Operating income for the fourth quarter 1999 compared to 1998 increased due to
ongoing cost reduction programs and the 1998 writedown of a long-term contract
arrangement with a customer, substantially offset by lower 1999 earnings in
Brazil and Turkey.
(1) EBITDA excluding restructuring is a non-GAAP measurement that is defined as
operating income from continuing operations, excluding depreciation and
amortization, goodwill amortization and restructuring charge (credit) and
writedown of property and equipment.
F-36
<PAGE> 68
INDEX TO EXHIBITS
The following exhibits are filed with the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1999, or incorporated therein by
reference. Exhibits marked with an asterisk were filed as exhibits to the
Company's Registration Statement on Form S-1, No. 333-76699 and are incorporated
herein; Exhibit 10.3 was filed as Exhibit 10.1 to the Company's Form 10-Q for
the quarterly period ended September 30, 1999 and is incorporated herein; all
other exhibits are filed with this report. References in the list of the
exhibits to the "Company" refer to American National Can Group, Inc.
*3.1 Certificate of Incorporation of the Registrant.
3.1.1 Certificate of Correction of the Certificate of Amendment to the
Certificate of Incorporation, dated July 29, 1999, and
Certificate of Amendment of Certificate of Incorporation, dated
July 28, 1999
*3.2 By-laws of the Registrant.
*4.1 Form of Registration Rights Agreement.
4.2 Specimen of stock certificates for the common stock of the
Company.
*10.1 Aluminum Purchase/Sales Supply Agreement between the Company and
Alcan Rolled Products Company (Confidential treatment of certain
portions granted. Confidential material was separately filed
with the Securities and Exchange Commission under an application
for confidential treatment).
*10.2 Aluminum Purchase Agreement between the Company and Aluminum
Company of America (Confidential treatment of certain portions
granted. Confidential material was separately filed with the
Securities and Exchange Commission under an application for
confidential treatment).
10.3 Can Supply Agreement between the Company and Coca-Cola
Enterprises Inc. (Confidential treatment of certain portions
granted. Confidential material was separately filed with the
Securities and Exchange Commission under an application for
confidential treatment).
*10.4 Form of Shared Services Agreement with Pechiney Plastic
Packaging, Inc.
*10.5 Form of Reciprocal Corporate Services Agreement with Pechiney
Plastic Packaging, Inc.
*10.6 Form of Master Netting and Amendment Agreement.
*10.7 Form of Contribution, Assignment and Assumption Agreement.
*10.8 Form of Beer Bottle Technology Agreement.
*10.9 Form of ANC Technology Option Agreement.
*10.10 Form of Director Nomination Agreement.
*10.11 Form of Stock Purchase Agreement.
*10.12 Form of Pechiney Guarantee.
*10.13 Form of FEEP Contribution Agreement.
<PAGE> 69
*10.14 Form of Foreign Subsidiary Stock Transfer Agreements.
*10.15 Form of Indemnification Agreement.
+*10.16 American National Can Group 1999 Long-Term Incentive Plan.
+*10.17 American National Can Group Annual Incentive Plan.
+*10.18 American National Can Group Directors Stock Plan.
+*10.19 American National Can Group Stock Compensation Conversion Plan.
+10.20 Amended and Restated Executive Employment Agreement dated May
28, 1999 between the Company, American National Can Company and
Curtis Clawson.
+*10.21 Employment Agreement dated May 28, 1999 between American
National Can Company and Edward A. Lapekas.
+*10.22 Employment Agreement dated May 28, 1999 between American
National Can Company and Michael D. Herdman.
+*10.23 Employment Agreement dated May 28, 1999 between American
National Can Company and Alan H. Schumacher.
+*10.24 Employment Agreement dated May 28, 1999 between American
National Can Company and Dennis R. Bankowski.
+10.25 Employment Agreement dated January 15, 1996 between American
National Can Company and Allan Bohner.
+10.26 Employment Agreement dated March 15, 1997 between American
National Can Company and Thomas Buckley.
*10.27 Translation of Pension Agreement.
*10.28 Limited License of Pechiney name.
*10.29 Netting Agreement.
*10.30 Sublease to Pechiney Plastic Packaging, Inc.
*10.31 Pension Benefits Agreement with Pechiney Plastic Packaging, Inc.
+10.32 Employment Agreement dated February 18, 2000 between American
National Can Company and William Francois.
10.33 5-Year Revolving Credit Agreement dated as of July 22, 1999
among the Company, certain of its subsidiaries, specified
institutional lenders, The First National Bank of Chicago, as
Administrative Agent, The Chase Manhattan Bank, as Syndication
Bank, ABN AMRO Bank N.V., as Co-Documentation Agent and
Arranger, Royal Bank of Canada as Co-Documentation Agent and
Arranger, Banque Nationale De Paris, as Arranger, Chase
Securities Inc., as Lead Arranger and Joint Book Manager, and
Bank One Capital Markets, Inc., as Lead Arranger and Joint Book
Manager.
<PAGE> 70
10.34 364-Day Credit Agreement dated as of July 22, 1999 by and among
the Company, certain of its subsidiaries, specified
institutional lenders and the other parties listed in Exhibit
10.32.
10.35 5-Year Finance Facility Agreement dated as of July 22, 1999
among ABN AMRO Bank N.V., as Agent and as a Lender, Windmill
Funding Corporation and the Company.
10.36 364-Day Finance Facility Agreement dated as of July 22, 1999
among ABN AMRO Bank N.V., as Agent and as a Lender, Windmill
Funding Corporation and the Company.
10.37 Subordination Agreement dated as of July 22, 1999 among the
Company, Pechiney North America, Inc. and American National Can
Company with respect to the 5-Year Credit Agreement and the
364-Day Credit Agreement.
10.38 Guaranty dated as of July 22, 1999 by Pechiney North America,
Inc. and American National Can Company.
10.39 Subordination Agreement dated as of July 22, 1999 among the
Company, Pechiney North America, Inc. and American National Can
Company with respect to the 5-Year Credit Facility Agreement and
the 364-Day Credit Facility Agreement.
10.40 Guaranty dated as of July 22, 1999 by Pechiney North America,
Inc. and American National Can Company with respect to the
5-Year Credit Facility Agreement and the 364-Day Credit Facility
Agreement.
21 Subsidiaries of the Registrants.
23 Consent of PricewaterhouseCoopers LLP.
24 Powers of Attorney for the following directors: Frank W.
Considine , Ronald J. Gidwitz, George D. Kennedy, Homer J.
Livingston, Jr., Roland H. Meyer, Jr., James J. O'Connor, Alain
Pasquier, Jean-Pierre Rodier, Jean-Dominique Senard and James R.
Thompson.
27 Financial Data Schedule.
+ Management contract or compensatory plan or arrangement.
<PAGE> 1
EXHIBIT 3.1.1 (1 of 2)
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AMERICAN NATIONAL CAN HOLDINGS, INC.
American National Can Holdings, Inc., a corporation duly
organized and existing under the General Corporation Law of the State of
Delaware (the "Corporation"), does hereby certify that:
1 . Article I of the Certificate of Incorporation of the
Corporation is hereby amended in its entirety to read as follows:
"ARTICLE I
Name
The name of the corporation is American National Can Group, Inc.
(the "Corporation")."
Article V of the Certificate of Incorporation of the Corporation
is hereby amended by inserting a new subparagraph 5 which shall read in its
entirety as follows:
"(5) In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the Board of Directors of the Corporation
is expressly authorized to make, alter and repeal the By-laws of the
Corporation, subject to the power of the stockholders of the Corporation to
alter or repeal any By-law whether adopted by them or otherwise."
3. The foregoing amendments were duly adopted in accordance with
the provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate
of Amendment to be executed by its authorized officer this 28th day of July,
1999.
By: /s/ William A. Francois
----------------------------------------------
Name: William A. Francois
Title: Senior Vice President, General Counsel
and Secretary
<PAGE> 2
EXHIBIT 3.1.1 (2 of 2)
CERTIFICATE OF CORRECTION OF THE
CERTIFICATE OF AMENDMENT TO THE CERTIFICATE
OF INCORPORATION OF
AMERICAN NATIONAL CAN GROUP, INC.
American National Can Group, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"), does hereby certify that:
1. A Certificate of Amendment of the Certificate of Incorporation
of the Corporation (the "Certificate of Amendment") was filed with the Secretary
of State of the State of Delaware on April 9, 1999. The Certificate of Amendment
was defectively adopted and executed and requires correction as permitted by
subsection (f) of Section 103 of the General Corporation Law of the State of
Delaware (the "General Corporation Law").
2. The defect in the Certificate of Amendment is that the
Certificate of Amendment was purportedly adopted by the written consent of the
stockholders of the Corporation pursuant to Section 228 of the General
Corporation Law notwithstanding the fact Article XI of the Certificate of
Incorporation of the Corporation prohibits stockholders actions by written
consent.
3. The Certificate of Amendment is therefore null and void and of
no effect.
4. Article I of the Certificate of Incorporation is hereby
corrected to read in its entirety as follows:
"ARTICLE I
Name
The name of the corporation is American National Can Holdings,
Inc. (the "Corporation")."
IN WITNESS WHEREOF, the Corporation has caused this Certificate
of Correction to be signed by its authorized officer this 28th day of July,
1999.
By: /s/ William A. Francois
-----------------------------------------------
Name: William A. Francois
Title: Senior Vice President, General Counsel
and Secretary
<PAGE> 1
EXHIBIT 4.2
COMMON STOCK COMMON STOCK
SHARES
INCORPORATED UNDER THE LAWS CUSIP 027714 10 4
OF THE STATE OF DELAWARE SEE REVERSE FOR CERTAIN DEFINITIONS
[COMMON STOCK LOGO]
AMERICAN NATIONAL CAN GROUP, INC.
THIS CERTIFIES THAT
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE COMMON STOCK OF THE PAR VALUE $0.01 EACH OF
American National Can Group, Inc. (hereinafter called the "Corporation")
transferable on the books of the Corporation in person or by duly authorized
attorney upon surrender of this Certificate properly endorsed. This Certificate
is not valid unless countersigned and registered by the Transfer Agent and
Registrar.
Witness the facsimile seal of the Corporation and the facsimile signatures
of its duly authorized officers.
Dated:
COUNTERSIGNED AND REGISTERED: /s/
EQUISERVE TRUST COMPANY, N.A. ---------------------------
CHAIRMAN AND CHIEF EXECUTIVE
OFFICER
/s/
---------------------------
Secretary
[AMERICAN NATIONAL CAN GROUP SEAL]
TRANSFER AGENT
AND REGISTRAR
AUTHORIZED SIGNATURE
<PAGE> 2
AMERICAN NATIONAL CAN GROUP, INC.
American National Can Group, Inc. will mail to the record holder of this
Certificate without charge, within five days after receipt of written request
thereof, a copy of the express terms of the stock represented by this
Certificate and of other class or classes and series of stock, if any, which
American National Can Group, Inc. is authorized to issue at the time of such
request.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations
<TABLE>
<CAPTION>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - .............Custodian............
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants ACT................................
in common UNIF TRF MIN ACT - ........Custodian (until age.......)
(Cust)
..............under Uniform Transfers
(Minor)
to Minors Act.......................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OR ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Common Shares
- -------------------------------------------------------------------
represented by the within Certificate, and do hereby irrevocably constitute and
appoint
Attorney
- ------------------------------------------------------------------------
to transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated
-----------------------------------
X
-----------------------------------------
X
-----------------------------------------
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S) AS WRITTEN
UPON THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed
By
--------------------------------------------------
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS
AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
<PAGE> 1
EXHIBIT 10.20
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT, dated as of May 28, 1999 ("Effective Date"), by and
between AMERICAN NATIONAL CAN COMPANY, a Delaware corporation, AMERICAN
NATIONAL CAN GROUP, INC., a Delaware corporation (collectively, subject
to Section 11 (a), the "Company"), and the individual named on the
signature page hereof (the "Executive").
WHEREAS, the Executive is employed by American National Can
Company ("ANCC"), and the Executive and ANCC desire to enter into this
Agreement, in connection with the anticipated reorganization of ANCC,
which will result in its operations being continued by American
National Can Group, Inc. ("ANCG"), pertaining to the terms of the
employment of the Executive by the Company; and
WHEREAS, the Executive and ANCC desire that this Agreement
shall constitute an Amendment and Restatement of the existing Agreement
between them with respect to Executive's employment with ANCC, and the
Executive and the Company desire that this Amendment and Restatement
shall remain effective irrespective of whether the aforementioned
reorganization occurs;
NOW, THEREFORE, in consideration of the covenants and
agreements herein contained, the parties hereto hereby agree as
follows:
1. Defined Terms. For purposes of this Agreement, the following
terms shall have the following meanings:
(a) "Affiliate" means, with respect to any person (including
without limitation the Company), any corporation or other
entity that, directly or indirectly, controls or is controlled
by such person, or that is under common control with such
person.
(b) "Board' means the Board of Directors of the Company.
(c) "Cause" means (A) serious misconduct or gross negligence in
the performance of the Executive's employment duties; (B)
willful disobedience by the Executive of lawful directions
received from or policies established by the Chairman and
Chief Executive Officer of the Company, any other executive or
executives to whom the Executive reports or the Board, which
continues for more than thirty (30) days after the Company
notifies the Executive of its intention to terminate his
employment on account of such disobedience; or (C) commission
by the Executive of a crime involving fraud or moral turpitude
that can reasonably be expected to have an adverse effect on
the business, reputation or financial situation of the
Company. The Executive shall be permitted to respond and
defend himself before the Executive Committee of the Board
within 15 days
<PAGE> 2
after written notification of any proposed termination for
Cause which shall specify in detail the reasons for such
termination.
(d) "Change of Control" means a change in control of ANCC or ANCG
a nature that would be required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A promulgated under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), whether or not it is then subject to such reporting
requirement; provided that, without limitation, a Change of
Control shall be deemed to have occurred if (A) any
individual, partnership, firm, corporation, association,
trust, unincorporated organization or other entity, or any
syndicate or group deemed to be a person under Section
14(d)(2) of the Exchange Act, is or becomes the "beneficial
owner" (as defined in Rule 13d-3 or the General Rules and
Regulations under the Exchange Act), directly or indirectly,
of securities of ANCC or ANCG representing 25 % or more of the
combined voting power of its then outstanding securities
entitled to vote in the election of directors; (B) the
stockholders of ANCC or ANCG approve a merger, consolidation
or other transaction involving ANCC or ANCG as a result of
which the stockholders of ANCC or ANCG immediately before the
transaction will not own at least 50% of the surviving or
resulting entity; or (c) during any period of two consecutive
years (not including any period prior to the execution of this
Agreement), individuals who at the beginning of such period
constituted the Board and any new directors, whose election by
the Board or nomination for election by the Company's
stockholders was approved by a vote of at least three quarters
(3/4) of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for
any reason to constitute at least two-thirds thereof.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Company Equity Plan" means any stock option, restricted
stock, stock appreciation right, phantom stock, equity
incentive or similar plan under which awards are denominated
in, or the value of which is determined by reference to,
equity securities of the Company.
(g) "Confidential Information" includes, without limitation, the
client lists of Pechiney and its Subsidiaries and Affiliates
(including the Company), their respective trade secrets, any
confidential information about (or provided by) any customer
or supplier, or prospective or former customer or supplier, of
Pechiney or any of its Subsidiaries or Affiliates (including
the Company), information concerning the business or financial
affairs of Pechiney or any of its Subsidiaries or Affiliates
(including the Company), including books and records,
commitments, procedures, plans and prospectuses, strategies,
or
-2-
<PAGE> 3
current or prospective transactions or businesses, and any
other "inside information": (i) which has not been disclosed
publicly by Pechiney or one of its Subsidiaries or Affiliates
(including the Company), or with its consent, (ii) which is
otherwise not a matter of public knowledge or (iii) which is a
matter of public knowledge and the Executive has reason to
know that such information became a matter of public knowledge
through an unauthorized disclosure.
(h) "Continuation Period" means the period beginning on the
Termination Date and ending on the second anniversary thereof.
(i) "Covenant Period" means the period beginning on the Effective
Date and ending on the second anniversary of the Termination
Date.
(j) "Good Reason" means (A) a material reduction in the
Executive's status, duties or responsibilities as in effect on
the date of this Agreement, or (B) a reduction in the
Executive's annual target compensation opportunity, defined as
the sum of (I) base salary; (II) targeted annual incentive
award; and (III) subject to the next sentence, the targeted
long-term incentive award under any Company Equity Plan,
payable by either the Company or a successor company for a
calendar year, or (C) the Executive is required to relocate
outside of a fifty mile radius of his current office without
his prior written consent following a Change of Control, or
(D) the Company fails to pay Executive any amount otherwise
vested and due under the Agreement, any prior agreement, or
any plan or policy of the Company, which such failure is not
cured within thirty (30) days following written notice of
failure given to the Company, or (E) the Company fails to
obtain an agreement to expressly assume the executive
employment Agreement from any successor company to the
Company, or (F) the Company is in material breach of the
Agreement, which breach is not cured within thirty (30) days
following written notice of breach given to the Company. For
purposes of clause (B): (i) the value of an option grant shall
be determined based on the methodology utilized by the
Company, from time to time, to determine the size of awards to
employees eligible for long-term incentive compensation; (ii)
if, at the time that a long-term incentive award is made, it
is designated by the Company as being made on account of more
than one calendar year, then it shall be prorated, for
purposes of determining the amount of the targeted long-term
incentive award for any such calendar year, over the years on
account of which it is being made; and (iii) the Executive's
targeted long-term incentive award will be considered to have
been materially reduced if his targeted award is reduced at a
rate greater than, or increased at a rate lesser than the rate
that the awards of the other senior executives of the Company
are reduced or increased, respectively.
-3-
<PAGE> 4
(k) "MIP" means the Company's Management Incentive Plan, as the
same may be amended from time to time, or any successor plan.
(l) "Pechiney Group" means Pechiney and its Subsidiaries and
Affiliates (including the Company).
(m) "Pension Plans" means, collectively, the Company's Pension
Plan for Salaried Employees and certain other non-qualified
pension plans or arrangements that the Company maintains for
its senior executives.
(n) "SUBSIDIARY" of a person (including without limitation the
Company) means a corporation with respect to which such
person, directly or indirectly, has the power, whether through
the ownership of voting securities, by contract or otherwise,
to elect at least a majority of the members of such
corporation's board of directors.
(o) "Termination Date" means the effective date of the Executive's
termination of employment with the Company.
2. GENERAL TERMS OF EMPLOYMENT.
(a) Nature and Term of this Agreement. The term of this Agreement
shall commence on the Effective Date. This Agreement does not
constitute a guarantee of continued employment but instead
provides for certain rights and benefits for the Executive
during his employment, and in the event his employment with
the Company terminates under the circumstances described
herein.
(b) Duties and Responsibilities. For so long as the Executive's
employment with the Company continues, the Executive will
devote his full business time, attention and best efforts to
the affairs of the Company, will faithfully serve the Company,
and in all respects conform to and comply with the lawful
directions and instructions consistent with his position as
Senior Vice President - Beverage Cans America of ANCC, and
Executive Vice President -- ANCG and President -- Beverage
Cans America of ANCG given to him by the Company's Chairman
and Chief Executive Officer, any other executive or executives
to whom he reports, or the Board.
(c) Authority. In performing his duties hereunder, the Executive
shall have the authority customarily held by others holding
similar senior executive level positions within the Company,
as defined in the authority guidelines established by the
Board of Directors or the Chairman and Chief Executive Officer
of the Company.
-4-
<PAGE> 5
(d) Outside Board Memberships. Executive may serve on the boards
of directors of up to two (2) for-profit business corporations
which do not compete with the business of the Company, such
memberships subject to prior approval by the Chairman and
Chief Executive Officer of the Company.
(e) Base Salary. The Executive shall receive a salary of
$27,083.33 per month, $325,000 on an annual basis. The
Executive's base salary shall be reviewed periodically by the
Company at the times and in a manner consistent with the
review of base salaries of the Company's other senior
executives, and, based on such review, the amount of the
Executive's base salary may be adjusted upwards but not
downwards, in the discretion of the Company, taking into
account the Executive's performance and any other factors the
Company deems relevant; provided that, while the Executive is
employed hereunder, his salary shall be increased for each
calendar year by a rate that equals or exceeds the average
rate of increase of the base salaries of employees of the
Company generally.
(f) Annual Incentive Plan. During the period of the Executive's
employment with the Company he will be eligible to participate
in the Company's annual incentive plan, the MIP, at a target
and maximum opportunity as established by the Compensation
Committee of the Board. The MIP may be adjusted or modified
from time to time by the Company in its discretion.
(g) Company Equity Plan. During the period of the Executive's
employment with the Company he will be eligible to participate
in the Company Equity Plan, at a target opportunity similar in
amount to other senior executives at his level. The Company
Equity Plan may be adjusted or modified from time to time by
the Company in its discretion.
(h) Company Car. The Executive will be eligible for a company car
in accordance with the provisions of the Company's Lease Car
Program.
(i) Employee Benefits. The Executive shall be eligible to
participate in employee benefit plans sponsored or maintained
by the Company, including, without limitation, life insurance,
medical insurance, hospitalization, dental insurance, short
and long term disability insurance, pension, retirement,
401(k) and deferred compensation plans, whether now existing
or established hereafter. Nothing in this Section 2(i) shall
limit the Company's right to amend or terminate any such plan
in accordance with the procedures set forth therein.
-5-
<PAGE> 6
(j) Age 60 Post-Termination Benefits.
(i) Subject to Section 3(h), if the Executive retires or
otherwise resigns from employment with the Company,
after the Executive attains age 60, and the Executive
does not have thirty (30) years of service credit
towards the total pension benefit calculation under
the Pension Plans, then the Company will pay to the
Executive pursuant to this Agreement a supplemental
monthly pension benefit equal to the excess, if any,
of "A" over "B", where:
"A" equals the aggregate monthly benefit the
Executive would have received under the
Pension Plans upon retirement assuming that
the Executive had thirty (30) years of
service credit towards the total pension
benefit calculation under the Pension Plans
based upon the highest consecutive sixty (60)
months of compensation (as defined for
purposes of the Pension Plans) the Executive
received from the Company during his
employment (including, for purposes of the
calculation, but subject to Section 3(a) and
(b)(i) if the Executive makes the lump sum
election described therein, any amount of
compensation continued during any
Continuation Period under Section 3); and
"B" equals the aggregate monthly amount
payable to the Executive under the Pension
Plans, such amount to be calculated in
accordance with the provisions of the Pension
Plans.
Amounts payable to a survivor of the Executive under
the Pension Plans shall be calculated similarly. The
Company shall determine in its discretion whether,
and to the extent that, any supplemental monthly
pension benefit required under this subsection shall
be paid through a Pension Plan that is intended to be
qualified under Section 401(a) of the Code, or any
successor provision thereto, or under a Pension Plan
or other arrangement that is not intended to be so
qualified. The amount, if any, payable under this
subsection will be determined based on the same form
of payment (e.g. single life annuity or joint and
survivor annuity) that the Executive elects under the
Pension Plans. Payment of such amount will begin at
the time the Executive (or such survivor) starts to
receive monthly benefits under the Pension Plans. If
supplemental pension payment begins before the
Executive's 62nd birthday, the benefit calculation
set forth in "A" above shall not be reduced for early
commencement, notwithstanding any reduction provided
under the Pension Plans.
(ii) Subject to Section 3(h), if the Executive retires or
otherwise resigns from employment with the Company,
after the Executive attains age 60, the Executive and
his family will remain eligible for retiree medical
and life insurance benefits under the applicable
plans of the Company, on the same terms and
conditions (including without limitation any
provisions
-6-
<PAGE> 7
concerning payment of premiums, deductibles and
co-payments) that apply to retirees of the Company on
the Effective Date; provided, however, that such
coverage shall be secondary to any benefits the
Executive or his family becomes eligible to receive
under a comparable program of a subsequent employer.
(iii) Nothing in this Agreement shall be construed to
reduce or impair in any way the Executive's rights
and benefits under any plans of the Company,
including any rights and benefits that he may accrue
under such plans after the date hereof and prior to
his termination of employment with the Company.
(k) Vacation and Perquisites.
(i) The Executive shall be entitled to a minimum of four
weeks paid vacation annually and shall also be
entitled to receive such perquisites as are generally
provided to other senior executives of the Company in
accordance with the then current policies and
practices of the Company.
(ii) The Company shall reimburse the Executive for all
business expenses incurred in the normal course of
business.
(iii) The Company shall reimburse the Executive for all
legal fees attendant to the review of this Agreement,
and shall advance and reimburse the Executive for all
legal fees attendant to the enforcement of his rights
hereunder; provided that, to the extent that the
Company is successful in its defense of a claim by
the Executive to enforce rights hereunder, the
Executive shall not be entitled to reimbursement and
shall repay any amount advanced to him, for the
Executive's legal fees attributable to the portion of
the claim with respect to which the Company is
successful.
(1) Individual Performance Award Plan. The Executive shall
participate in an individual Performance Award Plan during the
first six years of his employment with the Company. The plan
allows for grants of Company Shares, or their equivalent in
cash, to the Executive when business unit Return on Capital
Employed targets are achieved in accordance with the Plan. The
maximum number of Shares, or equivalence, that can be awarded
under this plan is 18,000. Provisions of the Performance Award
Plan are described in detail in a separate document.
-7-
<PAGE> 8
3. SEVERANCE BENEFITS UPON TERMINATION. If the Executive's
employment with the Company: (i) is terminated by the Company for any reason
other than for Cause; or (ii) is terminated by the Executive's resignation under
circumstances constituting Good Reason, then, during the Continuation Period
(except for the benefits described in subsection (c), which shall be provided as
described in such subsection), the Executive shall be eligible to receive the
severance benefits described in this Section 3.
(a) Base Salary Continuation. The Company will pay the Executive
his base salary equivalent, at the rate in effect immediately
prior to the Termination Date (or if the Executive has
resigned for Good Reason by virtue of the Company having
reduced his rate of base salary, at the rate of base salary in
effect prior to such reduction) consistent with normal payroll
practice The payments following the Termination Date shall be
in lieu of any and all severance pay to which the Executive
might otherwise be entitled under any plan or program of the
Company or any of its Subsidiaries or Affiliates. The
Executive may elect that, following a Change of Control, the
Executive shall receive such payments (or any remaining
payments) in a discounted lump sum (calculated using the
Federal short-term rate under Section 1274(d) of the Code
prevailing at the time that payment is to be made (as
described in the next sentence)). Such election may be made
within the first 30 days of this Agreement or within the last
30 days of any calendar year during the term of this Agreement
and any payment pursuant to such election shall be made on the
later of (i) the first day of the calendar year that is at
least twelve months after such election; (ii) the date that
the Executive becomes entitled to such payment; and (iii) the
date of the Change of Control. The Executive's election of a
lump sum hereunder shall not affect his rights to receive the
other amounts described in this Section 3 for the entire
Continuation Period. If the Executive receives such lump sum
payment, then for purposes of the pension calculations under
Section 2(j) and 3(h), and for purposes of all employee
benefits provided by the Company (hereunder or otherwise) that
are affected by the compensation or earnings of the Executive,
the payments shall nonetheless be deemed to have been received
at the time they otherwise would have been payable hereunder
if the Executive had not elected the lump sum.
(b) Incentive Compensation.
(i) The Executive will be eligible for an equivalent MIP
award reflecting business and personal performance at
target level; such award will be paid to the
Executive in accordance with the Company's normal
payment practices for the MIP at the time payments
under the MIP are made to other executives of the
Company. The Executive's equivalent MIP award for any
partial calendar year at the end of the Continuation
Period will be prorated based on a fraction, the
numerator of which is the number of
-8-
<PAGE> 9
days in such calendar year up to and including the
last day of the Continuation Period, and the
denominator of which is 365. If the Executive has
elected a discounted lump sum payment as described in
subsection (a), then the payments provided in this
subsection (b)(i) shall also be paid in a discounted
lump sum, which shall be calculated and paid as (and
have the impact on employee benefits) described in
subsection (a).
(ii) The Executive will be fully vested in any awards that
were made to him under any Company Equity Plan prior
to the Termination Date to the extent that the
vesting of such awards was conditioned upon continued
service; provided that, the term of such awards shall
be determined in accordance with the provisions of
the applicable Company Equity Plan.
Except for the payments and other benefits provided in this
subsection (b), the Executive shall have no right to any other
payment or benefit under the MIP, the Company Equity Plan or
any other annual or long-term incentive plan of the Company.
Without limiting the generality of the preceding sentence,
this Agreement shall not confer any right on the Executive
following the Termination Date to be granted any further
awards under any Company Equity Plan or any subsequent
long-term incentive plan.
(c) Health and Welfare Benefit. The Executive will be considered
to have attained the greater of his actual age or age 55 for
purposes of qualifying for retiree benefits provided by the
Company. In lieu of any benefit described under Section
2(j)(ii), until the later of the end of the Continuation
Period or the date the Executive attains age 55 (at which time
the Executive shall be eligible for retiree benefits), the
Executive and his family will remain eligible for medical,
life insurance and dental benefits under the applicable plans
of the Company, on the same terms and conditions (including
without limitation any provisions concerning payment of
premiums, deductibles and co-payments) that apply to employees
of the Company; provided, however, that such coverage shall be
secondary to any benefits the Executive or his family becomes
eligible to receive under a comparable program of a subsequent
employer. For the Continuation Period, the Executive shall be
eligible to participate (or continue to participate) in the
Company's other insurance and welfare programs which are
generally available to senior executives of the Company. If
any of the coverage described in this subsection (c) is
ordinarily provided on a self-insured basis but would be
taxable to the Executive on that basis, such coverage shall be
provided on an insured basis at the Company's expense.
(d) Company Car. Title to the automobile made available to the
Executive immediately prior to the Termination Date will be
transferred to him at no additional cost as of the Termination
Date; provided however, that the Executive
-9-
<PAGE> 10
will be responsible for all additional costs for the vehicle
over and above the Company's category cost for vehicles at his
executive level, and all income taxes, transfer taxes and
similar governmental charges regarding the transfer and new
registration of the vehicle
(e) OUTPLACEMENT SERVICES. The Executive will be eligible for
senior executive level Outplacement counseling with an
outplacement service selected and paid for by the Company
which outplacement service is reasonably acceptable to the
Executive.
(f) CAPITAL ACCUMULATION PLAN MAKE-UP. Following the Termination
Date, the Executive will be ineligible to participate in the
Company's Capital Accumulation Plan (the "CAP"). The Company
will pay the Executive the amounts it would have contributed
on his behalf to the CAP as matching contributions and/or
discretionary Company profit-sharing contributions during the
Continuation Period, assuming the Executive had elected to
participate in the CAP at the maximum level permitted
thereunder. All such payments will be made on an after-tax
basis. Subject to the last sentence of Section 3(a), payment
of matching contribution equivalents will be paid at
approximately the same time as the base salary equivalent
payments. Discretionary profit-sharing contribution
equivalents will be made at approximately the same time as the
Company makes such contributions (if any) to the CAP.
(g) LIFE INSURANCE AND LONG-TERM DISABILITY. The Executive shall
continue to be eligible for life insurance and long-term
disability benefits equals to those applicable to him on the
Termination Date, subject to the same terms and conditions
(including without limitation any provisions concerning
payment of premiums) that generally apply to senior executives
of the Company.
(h) PENSION BENEFITS. In lieu of any benefit otherwise payable
under Section 2(j)(i), the Executive (and his survivor) shall
be entitled to a supplemental benefit with respect to his
benefit under the Pension Plans calculated and payable in the
same manner as the benefit provided under Section 2(j)(i)
hereof, based on the greater of thirty (30) years of service
credit towards the total pension payable under the Pension
Plans and the actual years of such service credit that the
Executive would have earned if he continued to earn such
service credit through the Continuation Period (and including
for purposes of either calculation, in the same manner as in
Section 2(j)(i), but subject to Section 3(a) and (b)(i) if the
Executive makes the lump sum election described therein, any
amount of compensation continued during the Continuation
Period under this Section), irrespective of his age at the
time of his termination of employment. If supplemental pension
payment begins before the Executive's 62nd birthday, the
benefit calculation set forth in paragraph "A" of Section
2(j)(i) will only be reduced for early commencement if payment
begins before the Executive's 60th
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<PAGE> 11
birthday and will utilize an early commencement reduction
factor of 3% per annum, rather than 6%, if such benefit
calculation is subject to such a reduction under the Pension
Plans.
(i) TAX GROSS-UP. If any payment or benefit to or for the benefit
of the Executive in connection with a Change of Control
(whether pursuant to the terms of this Agreement, or any other
plan or arrangement or agreement) is subject to the Excise Tax
(as hereinafter defined), the Company shall pay to the
Executive a full cash gross-up in an amount equal to (i) the
Excise Tax allocable to such payment or benefit; and (ii) any
Excise Tax and any state, federal or other income taxes on the
amounts described in clause (i) and this clause. For purposes
of this Section 3(i), the term "Excise Tax" shall mean the tax
imposed by Section 4999 of the Internal Revenue Code of 1986
(the "Code") and any similar tax that may hereafter be
imposed.
The amount of the gross-up payments to the Executive under
this Section 3(i) shall be estimated by a nationally
recognized firm of certified public accountants, which firm
shall not have provided services to the Company or any
Affiliate of the Company within the previous twelve months and
shall not provide services thereto in the following twelve
months, based upon the following assumptions:
(i) all payments and benefits to or for the benefit of
the Executive in connection with a Change of Control
or termination of the Executive's employment
following a Change of Control shall be deemed to be
"parachute payments" within the meaning of Section
280G(b)(2) of the Code, and all "excess parachute
payments" shall be deemed to be subject to the Excise
Tax except to the extent that, in the opinion of tax
counsel selected by the firm of certified public
accountants charged with estimating the gross-up
payments to the Executive under this Section 3(i),
such payments or benefits are not subject to the
Excise Tax; and
(ii) the Executive shall be deemed to pay federal, state
and other income taxes at the highest marginal rate
of taxation for the applicable calendar year.
The estimated amount of the gross-up payments due the
Executive pursuant to this Section 3(i) shall be paid to the
Executive in a lump sum not later than thirty (30) business
days following the effective date of the termination. In the
event that the amount of the estimated payment is less than
the amount actually due to the Executive under this Section
3(i), the amount of any such shortfall shall be paid to the
Executive within ten (10) days after the existence of the
shortfall is discovered.
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<PAGE> 12
(j) No Impairment of Existing Rights. Nothing in this Agreement
shall be construed to reduce or impair in any way the
Executive's rights and benefits under the Pension Plans,
including any rights and benefits that he may accrue under the
Pension Plans after the date hereof and prior to his
termination of employment with the Company.
4. DEATH AND DISABILITY. For the purposes of this Agreement the
Executive will be determined to be totally disabled if he is unable to perform
the major duties of his position with the Company, as a result of illness or
injury, for a period of time exceeding 26 consecutive weeks.
(a) Death or Disability During Employment. If the Executive dies
or becomes totally disabled during his employment with the
Company, the Executive or his estate, as the case may be, will
be entitled to receive benefits in accordance with the
policies of the Company. The individual Performance Award Plan
contains separate provisions in the event of the Executive's
death or disability.
(b) Death or Disability During Continuation Period. If the
Executive dies or becomes totally disabled during the
Continuation Period, the Executive or his estate, as the case
may be, will be entitled to the severance benefits provided
for in this Agreement (other than outplacement services), as
well as to the standard benefits and insurance payments under
the benefits plans of the Company then in effect (determined
as though his employment with the Company had terminated by
virtue of death or total disability).
5. CERTAIN COVENANTS.
(a) Covenant Not To Compete. The Executive agrees that during the
period of his employment with the Company and continuing
through the Covenant Period:
(i) he will not engage in any executive-level activities,
whether as employee, agent proprietor, owner,
partner, contractor, stockholder (other than the
holder of less than 5% of the stock of a corporation
the securities of which are traded on a national
securities exchange or in the over-the-counter
market), director or otherwise, in competition with
the businesses conducted by the Company and its
Subsidiaries on the date hereof or in which they are
substantially engaged at any time during the Covenant
Period; and
(ii) he will not solicit, in competition with the Company
or any of its Subsidiaries, any person who is a
customer of the businesses conducted by the Company
or any of its Subsidiaries at the date hereof or any
businesses in which the Company or any of its
Subsidiaries are substantially engaged at any time
during the Covenant Period.
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<PAGE> 13
(b) Territorial Reach. The covenants contained in clauses (i) and
(ii) of subsection (a) of this Section 5 shall apply within
the territories in which the Company or any of its
Subsidiaries are actively engaged in the conduct of the
businesses described in such covenants at the relevant time,
including, without limitation, the territory in which
customers are then solicited.
(c) Covenant Not To Induce Termination of Employment. The
Executive agrees that during the Covenant Period he will not,
without the prior written consent of the Company (which
consent may be withheld by the Company at its sole
discretion), induce or attempt to persuade any employee of the
Company or any of its Subsidiaries to terminate his or her
employment relationship in order to enter into any other
employment, whether or not such other employment is
competitive with the Company or any of its Subsidiaries.
(d) Covenant Not To Disclose Confidential Information. The
Executive agrees that he will not, at any time during the
Covenant Period or thereafter, make use, for his own benefit
or the benefit of any other person or entity, of Confidential
Information of any kind or character, nor divulge Confidential
Information except to the extent the Chairman and Chief
Executive Officer of the Company' or the Board may so
authorize in writing, and that within ten days of the
Termination Date the Executive will surrender to the Company
all records, in whatever form maintained (including without
limitation records maintained as computer files) and other
documents and materials obtained by the Executive or entrusted
to him during the course of his employment by the Company or
any of its Subsidiaries or Affiliates (together with all
copies thereof) which related to any such Confidential
Information. Nothing set forth in this subsection (d),
however, shall be interpreted to prohibit the Executive from
disclosing any such information as may be required by law,
including pursuant to any court or government decree or
subpoena, or from disclosing or using information generally
known by people of his expertise and position in the industry.
(e) Remedies. Without limiting the right of the Company to pursue
all other legal and equitable remedies available for violation
by the Executive of the covenants contained in this Section,
it is expressly agreed that if the Executive materially
breaches the covenants set forth in this Section and fails to
cure such breach to the reasonable satisfaction of the Company
within 30 days after written notice thereof, the Company will
have no further obligation to pay or provide any of the
severance benefits described in Section 3(a) or (b) above. In
addition, the Executive acknowledges that a breach of any of
the covenants set forth in this Section may result in material
irreparable injury to the Company for which there is no
adequate remedy at law, that it will not be possible to
measure
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<PAGE> 14
damages for such injuries precisely and that, in the event of
such a breach or threat thereof, the Company shall be
entitled, in addition to any other rights or remedies it may
have (including without limitation the remedy provided in the
preceding sentence), to obtain a temporary restraining order
and a preliminary or permanent injunction enjoining or
restraining the Executive from engaging in activities
prohibited by this Section or requiring his compliance with
the affirmative obligations provided for herein.
(f) Enforceability. It is the intent and understanding of each
party hereto that if in any action before any court or agency
legally empowered to enforce the covenants contained in this
Section any term, restriction, covenant or promise contained
herein is found to be unreasonable and accordingly
unenforceable, then such term, restriction, covenant or
promise shall be deemed modified to the extent necessary to
make it enforceable by such court or agency.
(g) Application to Pechiney. Notwithstanding any provision in this
Agreement to the contrary, the restrictions described in
subsections (a) - (c) of this Section shall only limit the
Executive's activities with respect to Pechiney and its
employees, if Pechiney announces, following appropriate action
of its Board of Directors, that it has abandoned plans to
dispose of the operations of the Company.
6. NO UNFAVORABLE COMMENTS. The Company agrees to refrain from
making now or any time in the future any comment reflecting unfavorably upon the
Executive to the press, any individual or entity with whom the Executive has a
business relationship or any individual or entity making an inquiry as to the
Executive's employment relationship with the Company, except to the extent that
any such comment may relate to circumstances underlying a termination of the
Executive's employment for Cause. The Executive agrees to refrain from making
now or at any time in the future any comment reflecting unfavorably upon any
member of the Pechiney Group (including the Company) or any current or former
directors, officers or employees of any member of the Pechiney Group to the
press, any employees of any member of the Pechiney Group or any individual or
entity with whom any member of the Pechiney Group has a business relationship,
except to the extent that any such comment may relate to circumstances
underlying a termination of the Executive's employment for Good Reason.
7. FULL SATISFACTION; RELEASE. The Executive agrees that the
payments and other benefits to be provided pursuant to this Agreement shall be
in full satisfaction of any and all claims for payment or any other benefits
that he may have against the Company or any of its Subsidiaries or Affiliates
arising out of (i) his employment with the Company or his status as an executive
of the Company or any of the Company's Subsidiaries, Affiliates or divisions, or
(ii) the termination of such employment and status; excluding (A) claims that
arise out of an asserted breach of this Agreement and (B) claims for
indemnification the Executive may now or in the future have under any bylaw,
agreement or otherwise. In addition, in consideration of
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<PAGE> 15
the agreements set forth herein, the Company, on the one hand, and the
Executive, on the other hand, release and waive all claims, causes of action or
the like arising on or before the date hereof, regardless of whether or not
known at present (including, without limitation, any claims arising under the
Age Discrimination in Employment Act of 1967, Title VII of the Civil Rights Act
of 1964 as amended by the Civil Rights Act of 1991, the Equal Pay Act of 1962,
the Americans with Disabilities Act of 1990, or any other federal, state or
local statute or ordinance; but excluding, in the case of both the Company and
the Executive, any claims that arise out of an asserted breach of the terms of
this Agreement), that either has or may have in the future against the other
and, in the case of the Company, their respective successors, shareholders,
directors, officers, agents and employees, regarding all matters relating to the
Executive's service as an employee of the Company or any of its Subsidiaries,
Affiliates or divisions, and to the termination of such relationships,
including, without limitation, all claims related to the payment of compensation
and benefits and all claims arising under any Federal or state statute or
regulation. The Executive and the Company shall execute as of the Termination
Date any further documents as may reasonably be requested by the other in order
to evidence and give effect to the provisions of this Section.
8. SOURCE OF PAYMENTS. All payments provided under this
Agreement, other than payments made pursuant to a benefit plan which may provide
otherwise, shall be paid in cash from the general funds of the Company, and no
special or separate fund shall be established, and no other segregation of
assets made, to assure payment. The Executive shall have no right, title or
interest whatever in or to any investments which the Company may make to aid the
Company in meeting its obligations hereunder. Nothing contained in this
Agreement, and no action taken pursuant to its provisions, shall create or be
construed to create, a trust of any kind, or a fiduciary relationship, between
the Company and the Executive or any other person. To the extent that any person
acquires a right to receive payments from the Company hereunder, such right
shall be no greater than the right of an unsecured creditor of the Company.
9. FUTURE COOPERATION. The Executive agrees that following
termination of his employment with the Company he will make himself available to
assist with or consult in transition matters or any then pending or future
governmental or regulatory investigation, civil or administrative proceeding or
arbitration related to the Executive's duties while employed by the Company,
subject to the Executive's other personal and business commitments. The Company
will promptly pay the Executive, at the rate of $1,500 for each day or portion
thereof for which the Executive so assists or consults, and reimburse the
Executive for all reasonable costs and expenses, including attorneys' fees,
incurred by the Executive in connection with any such activities, proceedings or
arbitration.
10. TAX WITHHOLDING. All amounts payable to the Executive pursuant
to this Agreement shall be subject to all legal requirements with respect to the
withholding of taxes including FICA.
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<PAGE> 16
11. MISCELLANEOUS
(a) Entire Agreement; Condition; Amendments. This Agreement sets
forth the entire understanding of the parties hereto with
respect to the subject matter hereof and cannot be amended or
modified except by a writing signed by all such parties. If
Pechiney announces, following appropriate action of its Board
of Directors, that it has abandoned plans to dispose of the
operations of the Company, this Agreement shall continue to be
in force and effect and shall govern the employment
relationship between the Executive and the Company. The waiver
by either party of compliance with any provision of this
Agreement by the other party shall not operate or be construed
as a waiver of any other provision of this Agreement or of any
subsequent breach by such party of a provision of this
Agreement.
(b) Assignment and Delegation. Neither this Agreement nor any
right, duty or obligation hereunder shall be assignable or
delegable by the Executive. This Agreement and all the
Company's rights, duties and obligations hereunder may be
assigned by the Company to any person or entity that succeeds
to the interest of the Company (regardless of whether such
succession does or does not occur by operation of law) by
reason of the sale of all or a portion of the Company's stock,
a merger, consolidation or reorganization involving the
Company, or, unless the Company otherwise elects in writing, a
sale of the assets of the business of the Company (or a
portion thereof) in which the Executive performs, or will
perform, a majority of his services. Upon any such
assignment, delegation or transfer, any such business entity
shall be deemed to be substituted for all purposes as the
Company hereunder, and the Company shall cause such successor
expressly to assume such obligations. Notwithstanding the
foregoing, (i) no assignment, delegation or transfer by the
Company shall relieve the Company of its obligations under
this Agreement; and (ii) nothing in this subsection shall
affect the definition of "Change of Control," or the rights
that the Executive accrues in connection with a Change of
Control, even if the Company assigns, transfers or delegates
(or may do so) its rights, duties or obligations in connection
therewith.
(c) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and
the same instrument.
(d) Headings. The headings of the Sections of this Agreement are
included solely for convenience of reference and shall not be
construed or interpreted in any way as affecting the meaning
of such Sections.
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<PAGE> 17
(e) Governing Law. This Agreement is governed by, and construed
and interpreted in accordance with, the internal laws of the
State of Illinois without giving effect to the choice of law
provisions thereof. Any dispute under this Agreement shall be
adjudicated by a court of competent jurisdiction in the State
of Illinois.
(f) Indemnification. The Company will indemnify the Executive to
the fullest extent permitted by the laws of the state of
incorporation in effect at that time, or certificate of
incorporation and bylaws of the Company whichever affords the
greater protection to the Executive. The foregoing
indemnification shall continue to apply following the
Termination Date for acts or omissions by the Executive while
an employee of the Company. To the extent that the Company
maintains insurance providing coverage to its officers or
former officers within the scope of the foregoing, such
insurance shall cover the Executive.
(g) Survivorship. The provisions of this Agreement necessary to
carry out the intention of the parties as expressed herein
shall survive the termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this 28th day of May, 1999.
AMERICAN NATIONAL CAN COMPANY
By: /s/ JEAN-PIERRE RODIER
--------------------------------
Jean-Pierre Rodier
Chairman of the Board
AMERICAN NATIONAL CAN GROUP, INC.
By: /s/ JEAN-PIERRE RODIER
--------------------------------
Jean-Pierre Rodier
Chairman of the Board
EXECUTIVE
/s/ CURTIS J. CLAWSON
------------------------------------
Curtis J. Clawson
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<PAGE> 1
EXHIBIT 10.25
AGREEMENT
AGREEMENT, dated as of January 15th, 1996, by and between
AMERICAN NATIONAL CAN COMPANY, a Delaware corporation (the "Company"), and the
individual named on the signature page hereof (the "Executive").
WHEREAS, the Executive currently serves as a senior executive
of the Company; and
WHEREAS, in order to preserve for the Company the benefit of
the Executive's experience and continued service during the ongoing
reorganization of the Company's activities, the Company and the Executive have
agreed to the terms set forth in this Agreement;
NOW, THEREFORE, in consideration of the covenants and
agreements herein contained, the parties hereto hereby agree as follows:
1. DEFINED TERMS. For purposes of this Agreement, the
following terms shall have the following meanings:
(a) "AFFILIATE" means, with respect to any person (including
without limitation the Company), any corporation or other entity that, directly
or indirectly, controls or is controlled by such person, or that is under common
control with such person.
(b) "BOARD" means the Board of Directors of the Company or,
if there is no such Board of Directors, such individual, committee or other
supervisory body designated by Pechiney to manage the business and affairs of
the Company.
(c) "CAUSE" means (A) serious misconduct or gross negligence
in the performance of the Executive's employment duties; (B) willful
disobedience by the Executive of directions received from or policies
established by the Chief Executive Officer, any other executive or executives to
whom the Executive reports or the Board; or (C) commission, by the Executive of
a crime involving fraud or moral turpitude that can reasonably be expected to
have a materially adverse effect on the business, reputation or financial
situation of the Company. The Executive shall be permitted to respond and defend
himself before the Board within 15 days after written notification of any
proposed termination for Cause which shall specify in detail the reasons for
such termination.
<PAGE> 2
2
(d) "CODE" means the Internal Revenue Code of 1986, as
amended.
(e) "CONFIDENTIAL INFORMATION" includes, without limitation,
the client lists of Pechiney and its Subsidiaries and Affiliates (including the
Company), their respective trade secrets, any confidential information about (or
provided by) any customer or supplier, or prospective or former customer or
supplier, of Pechiney or any of its Subsidiaries or Affiliates (including the
Company), information concerning the business or financial affairs of Pechiney
or any of its Subsidiaries or Affiliates (including the Company), including
books and records, commitments, procedures, plans and prospectus, strategies, or
current or prospective transactions or business, and any other "inside
information", (i) which has not been disclosed publicly by Pechiney or one of
its Subsidiaries or Affiliates (including the Company), or with its consent,
(ii) which is otherwise not a matter of public knowledge or (iii) which is a
matter of public knowledge and the Executive has reason to know that such
information became a matter of public knowledge through an unauthorized
disclosure.
(f) "CONTINUATION PERIOD" means the period beginning on the
Termination Date and ending on the earlier of (i) the second anniversary thereof
or (ii) the Executive's 60th birthday.
(g) "COVENANT PERIOD" means the period beginning on the date
of this Agreement and ending on the second anniversary of the Termination Date.
(h) "GOOD REASON" means (A) a material reduction in the
Executive's status, duties or responsibilities as in effect on the date of this
Agreement, (B) a reduction in the Executive's base salary or a material
reduction in his short-term incentive compensation opportunity, or termination
of the Executive's participation in any long-term incentive opportunity, or (C)
the Executive being required by the Company to relocate outside the continental
United States (it being understood that the Company's offer to the Executive of
a position outside the continental United States will not constitute Good Reason
if the Executive may decline such offer and remain at his then-current
position). No event or circumstance that would otherwise constitute Good Reason
shall constitute Good Reason unless the Executive specifies to the Company in
writing the nature of the event or circumstance within 30 days of first becoming
aware thereof, and the Company does not correct such act or omission within 60
days of its receipt of such written specification.
(i) "ILTIP" means the Company's Interim Long Term Incentive
Plan.
(j) "MIP" means the Company's Management Incentive Plan, as
the same may be amended from time to time, or any successor plan.
(k) "PECHINEY EQUITY PLAN" means any stock option, restricted
stock, stock appreciation right, phantom stock, equity incentive or similar plan
(other than the ILTIP) under
<PAGE> 3
3
which awards are denominated in, or the value of which is determined by
reference to, equity securities of Pechiney.
(l) "PECHINEY GROUP" means Pechiney and its Subsidiaries and
Affiliates (including the Company).
(m) "PENSION PLANS" means, collectively, the Company's
Pension Plan for Salaried Employees and certain other non-qualified pension
plans or arrangements that the Company maintains for its senior executives.
(n) "SUBSIDIARY" of a person (including without limitation
the Company) means a corporation with respect to which such person, directly or
indirectly, has the power, whether through the ownership of voting securities,
by contract or otherwise, to elect at least a majority of the members of such
corporation's board of directors.
(o) "TERMINATION DATE" means the effective date of the
Executive's termination of employment with the Company.
2. GENERAL TERMS OF EMPLOYMENT.
(a) NATURE AND TERM OF THIS AGREEMENT. This Agreement does
not constitute a guarantee of continued employment but instead provides for
certain rights and benefits for the Executive in the event his employment with
the Company terminates under the circumstances described herein.
(b) DUTIES AND RESPONSIBILITIES. For so long as the
Executive's employment with the Company continues, the Executive will devote his
full business time, attention and best efforts to the affairs of the Company,
will faithfully serve the Company and in all respects conform to and comply
with the lawful directions and instructions given to him by the Company's Chief
Executive Officer, any other executive or executives to whom he reports or the
Board.
(c) BASE SALARY. The Executive base salary shall be reviewed
periodically by the Company at the times and in a manner consistent with the
review of base salaries of the Company's other senior executives, and, based on
such review, the amount of the Executive's base salary may be adjusted upwards
but not downwards, in the discretion of the Company, taking into account the
Executive's performance and any other factors the Company deems relevant.
(d) PARTICIPATING IN BENEFIT PROGRAMS. During the period of
the Executive's employment with the Company he will be eligible to participate
in the Company's compensation (including short-term and long-term incentive
compensation) and benefit programs applicable generally to the Company's senior
executives. Such programs may be adjusted or modified from time to time by the
Company in its discretion.
<PAGE> 4
4
3. PENSION BENEFIT.
(a) TERMINATION OF EMPLOYMENT PRIOR TO AGE 55. If the
Executive's employment with the Company is terminated by the Company for any
reason other than for Cause, or if the Executive resigns from employment with
the Company under circumstances constituting Good Reason, in either case before
the Executive attains age 55, then the following shall apply:
(i) SUPPLEMENTAL PENSION BENEFIT. The Company will pay to the
Executive pursuant to this Agreement a supplemental monthly pension
benefit equal to the excess, if any, of "A" over "B", where:
"A" equals the aggregate monthly benefit the Executive would
have received under the Pension Plans upon retirement assuming that
the Executive had continued service with the Company until the later
of (A) the Executive's 55th birthday and (B) the end of the
Continuation Period, based on the years of service that the Executive
would have been credited with upon the later of such age, but
calculated on the basis of an early retirement reduction of 3% per
annum (rather than 6% per annum as currently provided under the
Pension Plans). Such benefit will be calculated based upon the highest
consecutive 60 months of compensation (as defined for the purposes of
the Pension Plans) the Executive received from the Company during his
employment; and
"B" equals the aggregate monthly amount payable to the
Executive under the Pension Plans, such amount to be calculated in
accordance with the provisions of the Pension Plans.
Payment of such amount will begin at the time the Executive starts to
receive monthly benefits under the Pension Plans but in no event
before the Executive's 55th birthday.
(ii) Qualification for Retirement Benefits. The Executive
will be considered to have attained age 55 for the purposes of
qualifying for retirement benefits. Benefits will be provided starting
at age 55 and, until age 55, the Executive and his family will remain
eligible for medical, life insurance and dental benefits under the
applicable plans of the Company, on the same terms and conditions
(including without limitation any provisions concerning payment of
premiums, deductibles and co-payments) that apply to employees of the
Company; provided, however, that such coverage shall be secondary to
any benefits the Executive or his family becomes eligible to receive
under a comparable program of a subsequent employer.
(iii) Severance Benefits. The Executive will be entitled to
the severance benefits described in Section 4 of this Agreement.
<PAGE> 5
5
(b) TERMINATION OF EMPLOYMENT AT OR AFTER AGE 55 BUT PRIOR TO
AGE 60. If the Executive's employment with the Company is terminated by the
Company for any reason other than for Cause, or if the Executive resigns from
employment with the Company under circumstances constituting Good Reason, in
either case upon the Executive's attaining, or after he has attained, age 55 but
before he attains age 60, then the following shall apply:
(i) Supplemental Pension Benefit. The Company will pay to the
Executive pursuant to this Agreement a supplemental monthly pension
benefit equal to the excess, if any, of "A" over "B", where:
"A" equals the aggregate monthly benefit the Executive would
have received under the Pension Plans upon retirement assuming that
the Executive had continued service with the Company until the end of
the Continuation Period, based on the years of service that the
Executive would have been credited with at such time under the
Pension Plans. Such benefit will be calculated based upon the highest
consecutive 60 months of compensation (as defined for the purposes of
the Pension Plans) the Executive received from the Company during his
employment; and
"B" equals the aggregate monthly amount payable to the
Executive under the Pension Plans, such amount to be calculated in
accordance with the provisions of the Pension Plans.
Payment of such supplemental monthly pension benefit will begin at the
time the Executive starts to receive monthly benefits under the
Pension Plans.
(ii) Qualification for Retirement Benefits. The Executive
will be qualified for retirement benefits on the same basis, and
subject to the same terms and conditions, as other employees who are
entitled to such benefits upon retirement after age 55.
(iii) Severance Benefits. The Executive will be entitled to
the severance benefits described in Section 4 of this Agreement.
(c) TERMINATION OF EMPLOYMENT AT OR AFTER AGE 60. If the
Executive retires or otherwise resigns from employment with the Company, or if
the Executives employment with the Company is terminated by the Company for any
reason other than for Cause, in any such case upon the Executive's attaining, or
after he has attained, age 60, then the following shall apply:
(i) Qualification for Retirement Benefits. The Executive will
be qualified for retirement benefits on the same basis, and subject to
the same terms and conditions, as other employees who are entitled to
such benefits upon retirement after age 55.
<PAGE> 6
6
(ii) No Severance Benefits. The Executive will not be
entitled to any severance benefits.
(d) CERTAIN TERMS APPLICABLE TO SUPPLEMENTAL MONTHLY PENSION
BENEFITS. The Company shall determine in its discretion whether, and to the
extent that, any supplemental monthly pension benefit required under Section 3
(a)(i) or 3 (b)(i) shall be paid through a Pension Plan that is intended to be
qualified under Section 401 (a) of the Code, or any successor provision thereto,
or under a Pension Plan or other arrangement that is not intended to be so
qualified. The amount, if any, payable under such Sections will be determined
based on the same form of payment (e.g. single life annuity or joint and
survivor annuity) that the Executive elects under the Pension Plans.
(e) NO ENHANCEMENT UPON RETIREMENT OR RESIGNATION BEFORE AGE
60. If the Executive retires or otherwise resigns his employment with the
Company under circumstances not constituting Good Reason before attaining age
60, he shall not be entitled to any of the pension enhancements described in the
foregoing subsections (a) and (b), nor to any of the severance benefits
described in Section 4, and his retirement and severance benefits shall instead
be determined under the Pension Plans and other benefit plans and arrangements
of the Company in which he participates at the time of such retirement or
resignation.
(f) NO IMPAIRMENT OF EXISTING RIGHTS. Nothing in this
Agreement shall be construed to reduce or impair in any way the Executive's
rights and benefits under the Pension Plans, including any rights and benefits
that he may accrue under the Pension Plans after the date hereof and prior to
his termination of employment with the Company.
4. SEVERANCE BENEFITS. If the Executive's employment with the
Company terminates under circumstances which are described in Section 3 as
conferring on the Executive the right to receive the severance benefits
described in this Section 4, then the Executive shall be entitled to the
following:
(a) Base Salary Continuation. Following the Termination Date
and continuing through the Continuation Period, the Company will continue to pay
the Executive his base salary equivalent, at the rate in effect immediately
prior to the Termination Date (or if the Executive has resigned for Good Reason
by virtue of the Company having reduced his rate of base salary, at the rate of
base salary in effect prior to such reduction) consistent with normal payroll
practice. The payments following the Termination Date shall be in lieu of any
and all severance pay to which the Executive might otherwise be entitled under
any plan or program of the Company or any of its Subsidiaries or Affiliates.
<PAGE> 7
7
(b) INCENTIVE COMPENSATION.
(i) During the Continuation Period the Executive will be
eligible for an equivalent MIP award reflecting business and personal
performance at target level; such award will be paid to the Executive
in accordance with the Company's normal payment practices for the MIP
at the time payments under the MIP are made to other executives of the
Company. Except for the payment provided in this subsection (i), the
Executive shall have no right to any payment under the MIP or any
other annual incentive compensation plan of the company. The
Executive's equivalent MIP award for any partial calendar year at the
end of the Continuation Period will be prorated based on a fraction,
the numerator of which is the number of days in such calendar year up
to and including the last day of the Continuation Period, and the
denominator of which is 365.
(ii) With respect to the ILTIP, the Executive will be
eligible for awards under the ILTIP based on Company performance
during this period under the rules of the ILTIP; such awards will be
paid to the Executive in accordance with the Company's normal payment
practices at the time payments under the ILTIP are made to other
executives of the Company. If the Executive participates in a
subsequent long-term incentive plan, he will be subject to the
applicable termination of employment provisions of that plan.
(iii) The Executive will be fully vested in any awards that
were made to him under any Pechiney Equity Plan prior to the
Termination Date to the extent that the vesting of such awards was
conditioned upon continued service, and the Executive shall be
entitled to exercise any such award during a period of at least two
years following the Termination Date (or until such earlier date as
would be the normal expiration date of such award in the absence of
termination of employment). To the extent that the vesting of any
awards made to the Executive under any Pechiney Equity Plan prior to
the Termination Date were based on factors other than continued
service, the vesting of such awards will be governed by the rules
applicable thereto under any such Pechiney Equity Plan.
Except for the payments and other benefits provided in this subsection (b), the
Executive shall have no right to any other payment or benefit under the MIP, the
ILTIP or any other annual or long-term incentive plan of the company or, except
as may otherwise be provided therein, under any Pechiney Equity Plan. Without
limiting the generality of the preceding sentence, this agreement shall not
confer any right on the Executive following the Termination Date to be granted
any further awards under any Pechiney Equity Plan or to receive any award under
any new cycle under the ILTIP or any subsequent long-term incentive plan.
(c) COMPANY CAR. Title to the automobile made available to
the Executive immediately prior to the Termination Date will be transferred to
him at no additional cost as of the Termination Date; provided, however, that
the Executive will be responsible for all income taxes,
<PAGE> 8
8
transfer taxes and similar governmental charges regarding the transfer and new
registration of the vehicle.
(d) OUTPLACEMENT SERVICES. The Executive will be eligible for
outplacement counseling with an outplacement service selected by the Company and
reasonably acceptable to the Executive.
(e) CAP MAKEUP. The Company will pay the Executive the
amounts it would have contributed on the Executive's behalf to the CAP as
matching contributions and/or discretionary profit-sharing contributions during
the Continuation Period, assuming the Executive had elected to participate in
the CAP at the maximum level permitted thereunder. All such payments will be
made on an after-tax basis. Payment of matching contribution equivalents will be
paid with the base salary continuation payments provided for in subsection (a)
above; payment of discretionary profit-sharing contribution equivalents will be
made at approximately the same time as the Company makes such contributions (if
any) to the CAP.
(f) LIFE INSURANCE AND LONG-TERM DISABILITY. During the
Continuation Period the Executive shall continue to be eligible for life
insurance and long-term disability benefits equal to those applicable to him on
the Termination Date, subject to the same terms and conditions (including
without limitation any provisions concerning payment of premiums) that apply to
employees of the Company.
(g) NO OTHER BENEFITS. Except as otherwise provided in this
Agreement, or as provided under the terms of any employee benefit plan or
program of the Company, after the Termination Date the Executive shall not be
eligible to participate in any employee benefit plan or program of the Company
(including without limitation any incentive, bonus or similar compensation plan
or arrangement).
5. DEATH AND DISABILITY
If the Executive dies or becomes totally disabled during the
Continuation Period, the Executive or his estate, as the case may be, will be
entitled to the severance benefits provided for in this agreement (other than
outplacement services) and pension benefits which will be determined taking into
account the enhancements provided for in this agreement, as well as to the
standard benefits and insurance payments under the benefits plans of the Company
then in effect, determined as though his employment with the Company had
terminated by virtue of death or total disability.
<PAGE> 9
9
6. CERTAIN COVENANTS.
(a) COVENANT NOT TO COMPETE OR DISCLOSE CONFIDENTIAL
INFORMATION. The Executive agrees that during the period of his employment with
the Company and continuing through the Covenant Period he will not, without the
prior written consent of the Company (which consent may be withheld by the
Company in its sole discretion):
(i) engage in any activities, whether as employee, employer,
agent, proprietor, owner, partner, contractor, stockholder (other than
the holder of less than 5% of the stock of a corporation the
securities of which are traded on a national securities exchange or in
the over-the-counter market), director or otherwise, in competition
with the businesses conducted by Pechiney and its Subsidiaries
(including without limitation the Company) on the date hereof or in
which they are substantially engaged at any time during the Covenant
Period;
(ii) solicit, in competition with Pechiney or any of its
Subsidiaries, any person who is a customer of the businesses conducted
by the Company or any of its Subsidiaries at the date hereof or any
businesses in which the Company or any of its Subsidiaries are
substantially engaged at any time during the Covenant Period; or
(iii) induce or attempt to persuade any employee of the
Company or any of its Subsidiaries to terminate his employment
relationship in order to enter into any other employment, whether or
not such other employment is competitive with the Company or any of
its Subsidiaries;
provided, however, that the Executive shall not be required to withdraw from any
business activity in which he engages after the Termination Date and which, as
of the date he commences such activity, is not in competition with any
businesses conducted by Pechiney and its Subsidiaries, solely by virtue of the
fact that Pechiney of any of its Subsidiaries subsequently engages in such
business.
The Executive further agrees that he will not, at any time during the Covenant
Period or thereafter, make use, for his own benefit or the benefit of any other
person or entity, of Confidential Information of any kind or character, nor
divulge Confidential Information except to the extent the Company's Chief
Executive Officer or the Board may so authorize in writing, and that within ten
days of the Termination Date the Executive will surrender to the Company all
records, in whatever form maintained (including without limitation records
maintained as computer files) and other documents and materials obtained by the
Executive or entrusted to him during the course of his employment by the Company
or any of its Subsidiaries or Affiliates (together with all copies thereof)
which related to any such Confidential Information. Nothing set forth in this
subsection (a), however, shall be interpreted to prohibit the Executive from
disclosing
<PAGE> 10
10
any such information as may be required by law, including pursuant to any court
or government decree or subpoena.
(b) TERRITORIAL REACH. The Executive acknowledges that
Pechiney and its Subsidiaries conduct their business on a global basis, and
expressly agrees that the covenants contained in subsection (a) of this Section
shall apply within all territories in which Pechiney or any of its Subsidiaries
are actively engaged in the conduct of the businesses described in such
covenants at the relevant time, including, without limitation, the territory in
which customers are then solicited.
(c) REMEDIES. Without limiting the right of the Company to
pursue all other legal and equitable remedies available for violation by the
Executive of the covenants contained in this Section, it is expressly agreed
that if the Executive materially breaches the covenants set forth in this
Section and fails to cure such breach to the reasonable satisfaction of the
Company within 30 days after written notice thereof, any further obligations of
the Company pursuant to this Agreement shall be canceled. Without limiting the
generality of the preceding sentence, the Executive acknowledges and agrees
that, in the event of such material breach and failure to cure, (i) any
obligation of the Company to provide any supplemental pension benefit, or any
other benefit, under Section 3 above will be cancelled (other than any
obligations under any Pension Plans that are intended to be qualified under
Section 401 (a) of the Code) and (ii) the Company will have no further
obligation to pay or provide any of the severance benefits described in Section
4 above. In addition, the Executive acknowledges that a breach of any of the
covenants set forth in this Section may result in material irreparable injury to
the Company for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of such a breach or threat thereof, the Company shall be entitled, in addition
to any other rights or remedies it may have (including without limitation the
remedy provided in the preceding sentence), to obtain a temporary restraining
order and a preliminary or permanent injunction enjoining or restraining the
Executive from engaging in activities prohibited by this Section or requiring
his compliance with the affirmative obligations provided for herein.
(d) ENFORCEABILITY. It is the intent and understanding of
each party hereto that if in any action before any court or agency legally
empowered to enforce the covenants contained in this Section any term,
restriction, covenant or promise contained herein is found to be unreasonable
and accordingly unenforceable, then such term, restriction, covenant or promise
shall be deemed modified to the extent necessary to make it enforceable by such
court or agency.
7. CONFIDENTIALITY OF THIS AGREEMENT. Except as required by
law, judicial order, or other lawful process, the parties hereto will keep
confidential and not disclose, directly or indirectly, to any person, firm,
corporation, association, or other entity, except family and professional
financial and legal advisors, the existence or terms of this Agreement.
<PAGE> 11
11
8. NO UNFAVORABLE COMMENTS. The Company agrees to refrain
from making now or any time in the future any comment reflecting unfavorably
upon the Executive to the press, any individual or entity with whom the
Executive has a business relationship or any individual or entity making an
inquiry as to the Executive's employment relationship with the Company, except
to the extent that any such comment may relate to circumstances underlying a
termination of the Executive's employment for Cause. The Executive agrees to
refrain from making now or at any time in the future any comment reflecting
unfavorably upon any member of the Pechiney Group (including the Company) or any
current or former directors, officers or employees of any member of the Pechiney
Group to the press, any employees of any member of the Pechiney Group or any
individual or entity with whom any member of the Pechiney Group has a business
relationship.
9. FULL SATISFACTION; RELEASE. The Executive agrees that the
payments and other benefits to be provided pursuant to this Agreement shall be
in full satisfaction of any and all claims for payment or any other benefits
that he may have against the Company or any of its Subsidiaries or Affiliates
arising out of (i) his employment with the Company or his status as an executive
of the Company or any of the Company's Subsidiaries, Affiliates or divisions, or
(ii) the termination of such employment and status; excluding (A) claims that
arise out of an asserted breach of this Agreement and (B) claims for
indemnification the Executive may now or in the future have under any bylaw,
agreement or otherwise. In addition, in consideration of the agreements set
forth herein, the Company, on the one hand, and the Executive, on the other
hand, release and waive all claims, causes of action or the like arising on or
before the date hereof, regardless of whether or not known at present
(including, without limitation, any claims arising under the Age Discrimination
in Employment Act of 1967, Title VII of the Civil Rights Act of 1964 as amended
by the Civil Rights Act of 1991, the Equal Pay Act of 1962, the Americans with
Disabilities Act of 1990, or any other federal, state or local statute or
ordinance; but excluding, in the case of both the Company and the Executive, any
claims that arise out of an asserted breach of the terms of this Agreement),
that either has or may have in the future against the other and, in the case of
the Company, their respective successors, shareholders, directors, officers,
agents and employees, regarding all matters relating to the Executive's service
as an employee of the Company or any of its Subsidiaries, Affiliates or
divisions, and to the termination of such relationships, including, without
limitation, all claims related to the payment of compensation and benefits and
all claims arising under any Federal or state statute or regulation. The
Executive and the Company shall execute as of the Termination Date any further
documents as may reasonably be requested by the other in order to evidence and
give effect to the provisions of this Section.
10. SOURCE OF PAYMENTS. All payments provided under this
Agreement, other than payments made pursuant to a benefit plan which may provide
otherwise, shall be paid in cash from the general funds of the Company, and no
special or separate fund shall be established, and no other segregation of
assets made, to assure payment. The Executive shall have no right, title or
interest whatever in or to any investments which the Company may make to aid the
Company in meeting its obligations hereunder. Nothing contained in this
Agreement, and no action taken
<PAGE> 12
12
pursuant to its provisions, shall create or be construed to create, a trust of
any kind, or a fiduciary relationship, between the Company and the Executive or
any other person. To the extent that any person acquires a right to receive
payments from the Company hereunder, such right shall be no greater than the
right of an unsecured creditor of the Company.
11. FUTURE COOPERATION. The Executive agrees that following
termination of his employment with the Company he will make himself available in
any then pending or future governmental or regulatory investigation, civil or
administrative proceeding or arbitration related to the Executive's duties while
employed by the Company, subject to the Executive's other personal and business
commitments. The Company will promptly reimburse the Executive for all
reasonable costs and expenses, including attorneys' fees, incurred by the
Executive in connection with any such proceedings or arbitration.
12. TAX WITHHOLDING. All amounts payable to the Executive
pursuant to this Agreement shall be subject to all legal requirements with
respect to the withholding of taxes including FICA.
13. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; AMENDMENTS. This Agreement sets forth
the entire understanding of the parties hereto with respect to the subject
matter hereof and cannot be amended or modified except by a writing signed by
all such parties. The waiver by either party of compliance with any provision of
this Agreement by the other party shall not operate or be construed as a waiver
of any other provision of this Agreement or of any subsequent breach by such
party of a provision of this Agreement.
(b) ASSIGNMENT AND DELEGATION. Neither this Agreement nor any
right, duty or obligation hereunder shall be assignable or delegable by the
Executive. This Agreement and all the Company's rights and obligations hereunder
may be assigned, delegated or transferred by it to any business entity which at
any time by merger, consolidation or other business combination acquires all or
substantially all of the assets of the Company or to which the Company transfers
all or substantially all of its assets. Upon any such assignment, delegation or
transfer, any such business entity SHALL BE DEEMED TO BE substituted for all
purposes as the Company hereunder, except that the Company shall not be released
from any of its obligations hereunder.
(c) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
<PAGE> 13
13
(d) HEADINGS. The headings of the Sections of this Agreement
are included solely for convenience of reference and shall not be construed or
interpreted in any way as affecting the meaning of such Sections.
(e) GOVERNING LAW. This Agreement is governed by, and
construed and interpreted in accordance with, the laws of the State of Illinois.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement this 15th day of January, 1996.
AMERICAN NATIONAL CAN COMPANY
By: /s/ Dennis R. Bankowski
---------------------------------
Name: Dennis R. Bankowski
Title: Senior Vice President H.R.
EXECUTIVE
/s/ Allan Bohner
------------------------------------
Allan Bohner
PECHINEY
(as to Section 4(b)(iii))
By: /s/ Gerard Hauser
---------------------------------
Name: Gerard Hauser
Title: Sr. Executive Vice President
and Chief Operating Officer
Beverage Sector
<PAGE> 14
LETTER TO CLARIFY THE INTENT OF AGREEMENT
The following items are intended to clarify the intent of the Agreement executed
between yourself (the "Executive") and the Company dated January 15, 1996.
- The Executive will continue to accrue service credit for purpose of the
pension benefit calculation during the Continuation Period.
- If death or permanent disability occurs prior to the Termination Date, all
benefits including severance, insurance and pension will be calculated and
paid as if the Executive had resigned for Good Reason, and the Continuation
Period will begin on the date the Executive's employment terminates due to
such death or permanent disability.
- In case of death or permanent disability, the severance benefit will be
paid to the beneficiary on record for the Company's life insurance program.
If there is no beneficiary on record, the benefit will be paid as
designated in the Executive's will or to the Executive's estate.
- The reference to the 3% early retirement reduction per annum in Section 3
will be calculated from age 62 in accordance with the current Pension
Plans.
- Regarding the Pechiney Equity Plan referenced in Section 4 b (iii); upon
Termination under circumstances described in Section 3, conferring the
right to receive severance benefits described in Section 4, it will be
recommended that upon Termination all existing grants under any Pechiney
Stock Option Plan ("Plan") vest immediately and become exercisable until
the end of the Continuation Period, but in no event later than last date
allowable under the applicable grant. To the extent that this cannot be
accomplished under the Plan the Company will compensate the Executive for
the value that would otherwise have been realized upon written notice of
exercise using the market closing price on the Paris Bourse converted to US
dollars as of the exercise date.
/s/ Allan Russ 10/4/96
- ----------------------------------- --------------------
Allan Russ Date
VP Compensation and Organization Development
/s/ Walter T. Stelzel 10/7/96
- ----------------------------------- --------------------
Walter T. Stelzel Date
Sr. Executive Vice President
Accepted and Acknowledged by:
/s/ Allan Bohner 2/17/97
- ----------------------------------- --------------------
Allan Bohner Date
<PAGE> 1
EXHIBIT 10.26
AGREEMENT
AGREEMENT, dated as of March 15, 1997, by and between AMERICAN
NATIONAL CAN COMPANY, a Delaware corporation (the "Company"), and the individual
named on the signature page hereof (the "Executive").
WHEREAS, the Executive currently serves as a senior executive of
the Company; and
WHEREAS, in order to preserve for the Company the benefit of the
Executive's experience and continued service during the ongoing reorganization
of the Company's activities, the Company and the Executive have agreed to the
terms set forth in this Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements
herein contained, the parties hereto hereby agree as follows:
1. DEFINED TERMS. For purposes of this Agreement, the following
terms shall have the following meanings:
(a) "AFFILIATE" means, with respect to any person (including
without limitation the Company), any corporation or other entity that, directly
or indirectly, controls or is controlled by such person, or that is under common
control with such person.
(b) "BOARD" means the Board of Directors of the Company or, if
there is no such Board of Directors, such individual, committee or other
supervisory body designated by Pechiney to manage the business and affairs of
the Company.
(c) "Cause" means (A) serious misconduct or gross negligence in
the performance of the Executive's employment duties; (B) willful disobedience
by the Executive of directions received from or policies established by the
Chief Executive Officer, any other executive or executives to whom the Executive
reports or the Board; or (C) commission by the Executive of a crime involving
fraud or moral turpitude that can reasonably be expected to have a materially
adverse effect on the business, reputation or financial situation of the
Company. The Executive shall be permitted to respond and defend himself before
the Board within 15 days after written notification of any proposed termination
for Cause which shall specify in detail the reasons for such termination.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
<PAGE> 2
2
(e) "CONFIDENTIAL INFORMATION" includes, without limitation, the
client lists of Pechiney and its Subsidiaries and Affiliates (including the
Company), their respective trade secrets, any confidential information about (or
provided by) any customer or supplier, or prospective or former customer or
supplier, of Pechiney or any of its Subsidiaries or Affiliates (including the
Company), information concerning the business or financial affairs of Pechiney
or any of its Subsidiaries or Affiliates (including the Company), including
books and records, commitments, procedures, plans and prospectus, strategies, or
current or prospective transactions or business, and any other "inside
information", (i) which has not been disclosed publicly by Pechiney or one of
its Subsidiaries or Affiliates (including the Company), or with its consent,
(ii) which is otherwise not a matter of public knowledge or (iii) which is a
matter of public knowledge and the Executive has reason to know that such
information became a matter of public knowledge through an unauthorized
disclosure.
(f) "CONTINUATION PERIOD" means either (i) if the Termination
Date occurs on or before June 30, 1999, the period beginning on the Termination
Date and ending at the end of the 30th month after the Termination Date or (ii)
with respect to a Termination Date that occurs after June 30, 1999, the period
beginning on the Termination Date and ending on the earlier of (x) the second
anniversary thereof or (y) the Executive's 62nd birthday.
(g) "COVENANT PERIOD" means the period beginning on the date of
this Agreement and ending on the second anniversary of the Termination Date.
(h) "LTIP" MEANS the Company's Long Term Incentive Plan.
(i) "MIP" means the Company's Management Incentive Plan, as the
same may be amended from time to time, or any successor plan.
(j) "PECHINEY EQUITY PLAN" means any stock option, restricted
stock, stock appreciation right, phantom stock, equity incentive or similar plan
(other than the LTIP) under which awards are denominated in, or the value of
which is determined by reference to, equity securities of Pechiney.
(k) "PECHINEY GROUP" means Pechiney and its Subsidiaries and
Affiliates (including the Company).
(1) "PENSION PLANS" means, collectively, the Company's Pension
Plan for Salaried Employees and certain other non-qualified pension plans or
arrangements that the Company maintains for its senior executives.
(m) "SERVICE ENHANCEMENT" means the excess, if any, of (i) the
number of
<PAGE> 3
3
years (including any partial year) of credited service with the Pechiney Group
that would be attributed to the Executive under the Pension Plans as of his 62nd
birthday as if the Pension Plans were applied with regard to service with the
Pechiney Group, assuming continuous employment with the Pechiney Group until his
62nd birthday, over (ii) the Executive's actual years of credited service with
Pechiney Group.
(n) "SUBSIDIARY" of a person (including without limitation the
Company) means a corporation with respect to which such person, directly or
indirectly, has the power, whether through the ownership of voting securities,
by contract or otherwise, to elect at least a majority of the members of such
corporation's board of directors.
(o) "TERMINATION DATE" means the effective date of the
Executive's termination of employment with the Company.
2. GENERAL TERMS OF EMPLOYMENT.
(a) NATURE AND TERM OF THIS AGREEMENT. This Agreement does not
constitute a guarantee of continued employment but instead provides for certain
rights and benefits for the Executive in the event his employment with the
Company terminates under the circumstances described herein.
(b) DUTIES AND RESPONSIBILITIES. For so long as the Executive's
employment with the Company continues, the Executive will devote his full
business time, attention and best efforts to the affairs of the Company, will
faithfully serve the Company and in all respects conform to and comply with the
lawful directions and instructions given to him by the Company's Chief Executive
Officer, any other executive or executives to whom he reports or the Board.
(c) BASE SALARY. The Executive base salary shall be reviewed
periodically by the Company at the times and in a manner consistent with the
review of base salaries of the Company's other senior executives, and, based on
such review, the amount of the Executive's base salary may be adjusted upwards
but not downwards, in the discretion of the Company, taking into account the
Executive's performance and any other factors the Company deems relevant.
(d) PARTICIPATING IN BENEFIT PROGRAMS. During the period of the
Executive's employment with the Company he will be eligible to participate in
the Company's compensation (including short-term and long-term incentive
compensation) and benefit programs applicable generally to the Company's senior
executives. Such programs may be adjusted or modified from time to time by the
Company in its discretion.
<PAGE> 4
4
3. PENSION BENEFIT.
(a) TERMINATION OF EMPLOYMENT PRIOR TO AGE 62. If the Executive's
employment with the Company is terminated by the Company for any reason other
than for Cause prior to his 62nd birthday, then the following shall apply:
provided, however, that in the event of the Executive's death prior to his
termination, he shall not be entitled to the Service Enhancement under Section
3(a)(i) below:
(i) SUPPLEMENTAL PENSION BENEFIT IN THE EVENT OF TERMINATION
PRIOR TO AGE 62. In the event that such termination occurs prior to the
Executive's 62nd birthday, the Company will pay to the Executive
pursuant to this Agreement a supplemental monthly pension benefit equal
to the excess, if any, of "A" over "B", where:
"A" equals the aggregate monthly benefit the Executive would have
received under the Pension Plans upon retirement assuming that the
Executive had continued service with the Company equal to the sum of
(I) the number of years of credited service the Executive has with the
Pechiney Group as of the Termination Date plus (II) the Service
Enhancement. Such benefit will be calculated based upon the highest
consecutive 60 months, or such fewer number of months equal to the
Executive's period of employment with the Company of compensation (as
defined for the purposes of the Pension Plans) the Executive received
from the Company during his employment; and
"B" equals the aggregate monthly amount payable to the Executive under
the Pension Plans, such amount to be calculated in accordance with the
provisions of the Pension Plans and the Howmet Combined Pension Plan.
(ii) PAYMENT OF SUPPLEMENTAL PENSION BENEFIT. The supplemental
monthly pension benefit referred to in Sections 3 (a)(i) above shall be
calculated as if the Executive retired on his 62nd birthday. Such
benefits will be available at age 62 and, if taken early in accordance
with the Pension Plan, will reflect normal discounts in accordance with
the provisions of the Pension Plans .
(iii) QUALIFICATION FOR RETIREMENT BENEFITS. The Executive will
be qualified for retirement benefits on the same basis, and subject to
the same terms and conditions, as other employees who are entitled to
such benefits upon retirement after age 55.
(iv) SEVERANCE BENEFITS. The Executive will be entitled to the
severance benefits described in Section 4 of this Agreement.
<PAGE> 5
5
(b) TERMINATION OF EMPLOYMENT AFTER AGE 62. If the Executive's
employment with the Company is terminated by the Company for any reason after
the Executive attains age 62, the Executive shall not be entitled to any of the
pension enhancements described in Sections 3(a)(i) above and his retirement and
other benefits shall instead be determined under the Pension Plans and other
benefit plans and arrangements of the Company in which he participates at the
time of such termination.
(c) CERTAIN TERMS APPLICABLE TO SUPPLEMENTAL MONTHLY PENSION
BENEFITS. The company shall determine in its discretion whether, and to the
extent that, any supplemental monthly pension benefit required under Section 3
(a)(i) shall be paid through a Pension Plan that is intended to be qualified
under Section 401 (a) of the Code, or any successor provision thereto, or under
a Pension Plan or other arrangement that is not intended to be so qualified. The
amount, if any, payable under such Section will be determined based on the same
form of payment (e.g. single life annuity or joint and survivor annuity) that
the Executive elects under the Pension Plans or, in the event the Executive's
period of employment with the Company is insufficient as of the Termination
Date, the same form of payment he could have elected under the Pension Plans if
his period of employment with the Company had been sufficient.
(d) NO ENHANCEMENT UPON RETIREMENT OR RESIGNATION. If the
Executive retires or otherwise resigns his employment with the Company he shall
not be entitled to the pension enhancement described in the foregoing subsection
(a), or any of the severance benefits described in Section 4. His retirement
shall instead be determined under the Pension Plans and other benefit plans and
arrangements of the Company in which he participates at the time of such
retirement or resignation.
(e) NO IMPAIRMENT OF EXISTING RIGHTS. Nothing in this Agreement
shall be construed to reduce or impair in any way the Executive's rights and
benefits under the Pension Plans, including any rights and benefits that he may
accrue under the Pension Plans after the date hereof and prior to his
termination of employment with the Company, and any other post-retirement
benefits otherwise provided as a consequence of the Executive's service with the
Pechiney Group.
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4. SEVERANCE BENEFITS. If the Executive's employment with the
Company terminates under circumstances which are described in Section 3 as
conferring on the Executive the right to receive the severance benefits
described in this Section 4, then the Executive shall be entitled to the
following severance benefits: provided however, that if the Executive, at his
election, receives any benefit under a Pension Plan at any time during the
Continuation Period, he will not be entitled to severance benefits after such
election.
(a) BASE SALARY CONTINUATION. Following the Termination Date and
continuing through the Continuation Period, the Company will continue to pay the
Executive his base salary equivalent, at the rate in effect immediately prior to
the Termination Date consistent with normal payroll practice. The payments
following the Termination Date shall be in lieu of any and all severance pay to
which the Executive might otherwise be entitled under any plan or program of the
Company or any of its Subsidiaries or Affiliates.
(b) INCENTIVE COMPENSATION.
(i) During the Continuation Period the Executive will receive an
equivalent MIP award reflecting business and personal performance at
target level; such award will be paid to the Executive in accordance
with the Company's normal payment practices for the MIP at the time
payments under the MIP are normally made to other executives of the
Company. Except for the payment provided in this subsection (i), the
Executive shall have no right to any payment under the MIP or any other
annual incentive compensation plan of the company. The Executive's
equivalent MIP award for any partial calendar year at the end of the
Continuation Period will be prorated based on a fraction, the numerator
of which is the number of days in such calendar year up to and
including the last day of the Continuation Period, and the denominator
of which is 365.
(ii) If the Executive participates in a long-term incentive plan,
he will be subject to the applicable termination of employment
provisions of that plan.
(iii) The Executive will be fully vested in any awards that were
made to him under any Pechiney Equity Plan prior to the Termination
Date if the vesting of such awards was conditioned upon continued
service, and the Executive shall be entitled to exercise any such award
during a period of at least two years following the Termination Date
(or until such earlier date as would be the normal expiration date of
such award in the absence of termination of employment). To the extent
that the vesting of any awards made to the Executive under any Pechiney
Equity Plan prior to the Termination Date were based on factors other
than continued service, the vesting of such awards will be governed by
the rules applicable thereto under any such Pechiney Equity Plan.
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Except for the payments and other benefits provided in this subsection (b), the
Executive shall have no right to any other payment or benefit under the MIP, the
LTIP or any other annual or long-term incentive plan of the Company or, except
as may otherwise be provided therein, under any Pechiney Equity Plan. Without
limiting the generality of the preceding sentence, this Agreement shall not
confer any right on the Executive following the Termination Date to be granted
any further awards under any Pechiney Equity Plan or to receive any award under
any new cycle under the LTIP or any subsequent long-term incentive plan.
(c) COMPANY CAR. Title to the automobile made available to the
Executive immediately prior to the Termination Date will be transferred to him
at no additional cost as of the Termination Date; provided, however, that the
Executive will be responsible for all income taxes, transfer taxes and similar
governmental charges regarding the transfer and new registration of the vehicle.
(d) OUTPLACEMENT SERVICES. The Executive will be eligible for
outplacement counseling with an outplacement service selected by the Company and
reasonably acceptable to the Executive.
(e) CAP MAKEUP. The Company will pay the Executive the amounts it
would have contributed on the Executive's behalf to the CAP (Capital
Accumulation Plan) as matching contributions and/or discretionary profit-sharing
contributions during the Continuation Period, assuming the Executive had elected
to participate in the CAP at the maximum level permitted thereunder. All such
payments will be made on an after-tax basis. Payment of matching contribution
equivalents will be paid with the base salary continuation payments provided for
in subsection (a) above; payment of discretionary profit-sharing contribution
equivalents will be made at approximately the same time as the Company makes
such contributions (if any) to the CAP.
(f) LIFE INSURANCE AND LONG-TERM DISABILITY. During the
Continuation Period the Executive shall continue to be eligible for life
insurance and long-term disability benefits equal to those applicable to him on
the Termination Date, subject to the same terms and conditions (including
without limitation any provisions concerning payment of premiums) that apply to
employees of the Company.
(g) NO OTHER BENEFITS. Except as otherwise provided in this
Agreement, or as provided under the terms of any employee benefit plan or
program of the Company, after the Termination Date the Executive shall not be
eligible to participate in any employee benefit plan or program of the Company
(including without limitation any incentive, bonus or similar compensation plan
or arrangement).
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5. DEATH AND DISABILITY
If the Executive dies or becomes totally disabled during the
Continuation Period, the Executive or his estate, as the case may be, will be
entitled to the severance benefits provided for in this Agreement (other than
outplacement services) and pension benefits which will be determined taking into
account the supplemental pension benefit provided for in Section 3(a)(i) of this
agreement, as well as to the standard benefits and insurance payments under the
benefits plans of the Company then in effect, determined as though his
employment with the Company had terminated by virtue of death or total
disability.
6. CERTAIN COVENANTS.
(a) COVENANT NOT TO INDUCE TERMINATION OF EMPLOYMENT. The
Executive agrees that during the period of his employment with the Company and
continuing through the Covenant Period he will not, without the prior written
consent of the Company (which consent may be withheld by the Company at its sole
discretion), induce or attempt to persuade any employee of the Company or any of
its Subsidiaries to terminate his employment relationship in order to enter into
any other employment, whether or not such other employment is competitive with
the Company or any of its Subsidiaries.
(b) COVENANT NOT TO DISCLOSE CONFIDENTIAL INFORMATION. The
Executive agrees that he will not, at any time during the Covenant Period or
thereafter, make use, for his own benefit or the benefit of any other person or
entity, of Confidential Information of any kind or character, nor divulge
Confidential Information except to the extent the Company's Chief Executive
Officer or the Board may so authorize in writing, and that within ten days of
the Termination Date the Executive will surrender to the Company all records, in
whatever form maintained (including without limitation records maintained as
computer files) and other documents and materials obtained by the Executive or
entrusted to him during the course of his employment by the Company or any of
its Subsidiaries or Affiliates (together with all copies thereof) which related
to any such Confidential Information. Nothing set forth in this subsection (a),
however, shall be interpreted to prohibit the Executive from disclosing any such
information as may be required by law, including pursuant to any court or
government decree or subpoena.
(c) REMEDIES. Without limiting the right of the Company to pursue
all other legal and equitable remedies available for violation by the Executive
of the covenants contained in this Section, it is expressly agreed that if the
Executive materially breaches the covenants set forth in this Section and fails
to cure such breach to the reasonable satisfaction of the Company within 30 days
after written notice thereof, any further obligations of the
<PAGE> 9
9
Company pursuant to this Agreement shall be canceled. Without limiting the
generality of the preceding sentence, the Executive acknowledges and agrees
that, in the event of such material breach and failure to cure, (i) any
obligation of the Company to provide any supplemental pension benefit, or any
other benefit, under Section 3 above will be canceled (other than any
obligations under any Pension Plans that are intended to be qualified under
Section 401(a) of the Code) and (ii) the Company will have no further obligation
to pay or provide any of the severance benefits described in Section 4 above. In
addition, the Executive acknowledges that a breach of any of the covenants set
forth in this Section may result in material irreparable injury to the Company
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of such a
breach 9 or threat thereof, the Company shall be entitled, in addition to any
other rights or remedies it may have (including without limitation the remedy
provided in the preceding sentence), to obtain a temporary restraining order and
a preliminary or permanent injunction enjoining or restraining the Executive
from engaging in activities prohibited by this Section or requiring his
compliance with the affirmative obligations provided for herein.
(d) ENFORCEABILITY. It is the intent and understanding of each
party hereto that if in any action before any court or agency legally empowered
to enforce the covenants contained in this Section any term, restriction,
covenant or promise contained herein is found to be unreasonable and accordingly
unenforceable, then such term, restriction, covenant or promise shall be deemed
modified to the extent necessary to make it enforceable by such court or agency.
7. CONFIDENTIALITY OF THIS AGREEMENT. Except as required by law,
judicial order, or other lawful process, the parties hereto will keep
confidential and not disclose, directly or indirectly, to any person, firm,
corporation, association, or other entity, except family and professional
financial and legal advisors, the existence or terms of this Agreement.
8. NO UNFAVORABLE COMMENTS. The Company agrees to refrain from
making now or any time in the future any comment reflecting unfavorably upon the
Executive to the press, any individual or entity with whom the Executive has a
business relationship or any individual or entity making an inquiry as to the
Executive's employment relationship with the Company, except to the extent that
any such comment may relate to circumstances underlying a termination of the
Executive's employment for Cause. The Executive agrees to refrain from making
now or at any time in the future any comment reflecting unfavorably upon any
member of the Pechiney Group (including the Company) or any current or former
directors, officers or employees of any member of the Pechiney Group to the
press, any employees of any member of the Pechiney Group or any individual or
entity with whom any member of the Pechiney Group has a business relationship.
<PAGE> 10
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9. FULL SATISFACTION; RELEASE. The Executive agrees that the
payments and other benefits to be provided pursuant to this Agreement shall be
in full satisfaction of any and all claims for payment or any other benefits
that he may have against the Company or any of its Subsidiaries or Affiliates
arising out of (i) his employment with the Company or his status as an executive
of the Company or any of the Company's Subsidiaries, Affiliates or divisions; or
(ii) the termination of such employment and status excluding (A) claims that
arise out of an asserted breach of this Agreement and (B) claims for
indemnification the Executive may now or in the future have under any bylaw,
agreement or otherwise. In addition, in consideration of the agreements set
forth herein, the Company, on the one hand, and the Executive, on the other
hand, release and waive all claims, causes of action or the like arising on or
before the date hereof, regardless of whether or not known at present
(including, without limitation, any claims arising under the Age Discrimination
in Employment Act of 1967, Title VII of the Civil Rights Act of 1964 as amended
by the Civil Rights Act of 1991, the Equal Pay Act of 1962, the Americans with
Disabilities Act of 1990, or any other federal, state or local statute or
ordinance; but excluding, in the case of both the Company and the Executive, an
claims that arise out of an asserted breach of the terms of this Agreement),
that either has or may have in the future against the other and, in the case of
the Company, its successors, shareholders, directors, officers, agents and
employees, regarding all matters relating to the Executive's service as an
employee of the Company or any of its Subsidiaries, Affiliates or divisions, and
to the termination of such relationships, including, without limitation, all
claims related to the payment of compensation and benefits and all claims
arising under any Federal or state statute or regulation. The Executive and the
Company shall execute as of the Termination Date any further documents as may
reasonably be requested by the other in order to evidence and give effect to the
provisions of this Section.
10. SOURCE OF PAYMENTS. All payments provided under this
Agreement, other than payments made pursuant to a benefit plan which may provide
otherwise, shall be paid in cash from the general funds of the Company, and no
special or separate fund shall be established, and no other segregation of
assets made, to assure payment. The Executive shall have no right, title or
interest whatever in or to any investments which the Company may make to aid the
Company in meeting its obligations hereunder. Nothing contained in this
Agreement, and no action taken pursuant to its provisions, shall create or be
construed to create, a trust of any kind, or a fiduciary relationship, between
the Company and the Executive or any other person. To the extent that any person
acquires a right to receive payments from the Company hereunder, such right
shall be no greater than the right of an unsecured creditor of the Company.
11. FUTURE COOPERATION. The Executive acknowledges that, due to
his position with the Company and his knowledge of Company matters, including
but not limited to, tax issues that have arisen during his employment with the
Company and the management and resolution of such issues, the Executive is the
person who is best qualified to adequately
<PAGE> 11
11
respond to and resolve questions regarding certain issues, and actions taken in
response thereto by the Company, that may arise after the Termination Date.
Therefore, the Executive hereby acknowledges and agrees that, following
termination of his employment with the Company, he shall use his best efforts to
make himself available in any then pending or future governmental or regulatory
investigation, civil or administrative proceeding or arbitration related to the
Executive's duties while employed by the Company. The Company will promptly
reimburse the Executive for all reasonable costs and expenses, including
attorney's fees, incurred by the Executive in connection with any such
proceedings or arbitration.
12. TAX WITHHOLDING. All amounts payable to the Executive
pursuant to this Agreement shall be subject to all legal requirements with
respect to the withholding of taxes including FICA.
13. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; AMENDMENTS. This Agreement sets forth the
entire understanding of the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements between the Executive and the Company
regarding severance benefits, except that the provisions of the letter agreement
signed by the Executive and Walter T. Stelzel dated July 7, 1995 regarding
repayment of the Special Relocation Bonus referred to therein and computation of
pension benefits shall remain in effect. This agreement cannot be amended or
modified except by a writing signed by all such parties. The waiver by either
party of compliance with any provision of this Agreement by the other party
shall not operate or be construed as a waiver of any other provision of this
Agreement or of any subsequent breach by such party of a provision of this
Agreement.
(b) ASSIGNMENT AND DELEGATION. Neither this Agreement nor any
right, duty or obligation hereunder shall be assignable or delegable by the
Executive. This Agreement and all the Company's rights and obligations hereunder
may be assigned, delegated or transferred by it to any business entity which at
any time by merger, consolidation or other business combination acquires all or
substantially all of the assets of the Company or to which the Company transfers
all or substantially all of its assets. Upon any such assignment, delegation or
transfer, any such business entity shall be deemed to be substituted for all
purposes as the Company hereunder, except that the Company shall not be released
from any of its obligations hereunder.
(c) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
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(d) HEADINGS. The headings of the Sections of this Agreement are
included solely for convenience of reference and shall not be construed or
interpreted in any way as affecting the meaning of such Sections.
(e) GOVERNING LAW. This Agreement is governed by, and construed
and interpreted in accordance with, the laws of the State of Illinois.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement this 15th day of March, 1997.
AMERICAN NATIONAL CAN COMPANY
By: /s/ Dennis R. Bankowski
------------------------
Name: Dennis R. Bankowski
Title: Sr. Vice President H.R.
EXECUTIVE
By: /s/ Tom Buckley
----------------
Tom Buckley
PECHINEY
(as to Section 4(b)(iii))
By: /s/ Jean-Dominique Senard
--------------------------
Name: Jean-Dominique Senard
Title: Chief Financial Officer and
Member of the Executive Committee
<PAGE> 1
EXHIBIT 10.32
AGREEMENT
AGREEMENT, dated as of February 18, 2000, by and between AMERICAN
NATIONAL CAN GROUP, INC., a Delaware corporation, AMERICAN NATIONAL CAN COMPANY,
a Delaware corporation (collectively, the "Company"), and the individual named
on the signature page hereof (the "Executive").
WHEREAS, the Executive and the Company desire to enter into this
Agreement pertaining to the terms of the employment of the Executive by the
Company in such capacities;
NOW, THEREFORE, in consideration of the covenants and agreements
herein contained, the parties hereto hereby agree as follows:
1. DEFINED TERMS. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) "AFFILIATE" means, with respect to any person (including without
limitation the Company), any corporation or other entity that, directly or
indirectly, controls or is controlled by such person, or that is under common
control with such person.
(b) "Board" means the Board of Directors of American National Can
Group, Inc.
(c) "CAUSE" means (A) serious misconduct or gross negligence in the
performance of the Executive's employment duties; (B) willful disobedience by
the Executive of lawful directions received from or policies established by the
Chief Executive Officer, any other executive to whom the Executive reports or
the Board; or (C) commission by the Executive of a crime involving fraud that
can reasonably be expected to have an adverse effect on the business, reputation
or financial situation of the Company. The Executive shall be permitted to
respond and defend himself before the Board within 15 days after written
notification of any proposed termination for Cause which shall specify in detail
the reasons for such termination.
(d) "CODE" means the Internal Revenue Code of 1986, as amended.
(e) "CONFIDENTIAL INFORMATION" includes, without limitation, the
client lists of the Company and its Subsidiaries and Affiliates, their
respective trade secrets, any confidential information about (or provided by)
any customer or supplier, or prospective or former customer or supplier, of the
Company or any of its Subsidiaries or Affiliates, information concerning the
business or financial affairs of the Company or any of its Subsidiaries or
Affiliates, including books and records, commitments, procedures, plans and
prospects, strategies, or current or
1
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prospective transactions or business, and any other "inside information", (i)
which has not been disclosed publicly by the Company or one of its Subsidiaries
or Affiliates, or with its consent, (ii) which is otherwise not a matter of
public knowledge or (iii) which is a matter of public knowledge and the
Executive has reason to know that such information became a matter of public
knowledge through an unauthorized disclosure.
(f) "CONTINUATION PERIOD" means the period beginning on the
Termination Date and ending on the second anniversary thereof.
(g) "COVENANT PERIOD" means the period beginning on the date of this
Agreement and ending on the second anniversary of the Termination Date.
(h) "EQUITY PLAN" means any stock option, restricted stock, stock
appreciation right, phantom stock, equity incentive or similar plan which awards
are denominated in, or the value of which is determined by reference to, equity
securities of the Company.
(i) "GOOD REASON" means (A) a material reduction in the Executive's
status, duties or responsibilities as in effect on the date of this Agreement,
or (B) a reduction in the Executive's annual target compensation opportunity,
defined as base salary plus annual targeted incentive award, by either the
Company or a successor company, or (C) Executive is required to relocate outside
of a fifty mile radius of his current office without his prior written consent,
or (D) Employer fails to pay Executive any amount otherwise vested and due under
the Agreement or under any plan or policy of the Employer, which such failure is
not cured within thirty (30) days following written notice of failure given to
the Employer, or (E) the Employer fails to obtain an agreement to expressly
assume this Agreement from any successor company to the Employer, or (F) the
Employer is in material breach of the Agreement, which breach is not cured
within thirty (30) days following written notice of breach given to the
Employer.
(j) "MIP" means the Company's Management Incentive Plan, as the same
may be amended from time to time, or any successor plan.
(k) "PENSION PLANS" means, collectively, the Company's Pension Plan
for Salaried Employees and certain other non-qualified pension plans or
arrangements that the Company maintains for its senior executives.
(L) "SUBSIDIARY" of a person (including without limitation the
Company) means a corporation with respect to which such person, directly or
indirectly, has the power, whether through the ownership of voting securities,
by contract or otherwise, to elect at least a majority of the members of such
corporation's board of directors.
(m) "TERMINATION DATE" means the effective date of the Executive's
termination of employment with the Company.
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2. GENERAL TERMS OF EMPLOYMENT.
(a) NATURE AND TERM OF THIS AGREEMENT. This Agreement does not
constitute a guarantee of continued employment but instead provides for certain
rights and benefits for the Executive during, and upon termination of, his
employment. The Company retains the right to terminate the Executive for Cause
at any time, and the Executive retains the right to resign for Good Reason at
any time.
(b) TITLE, DUTIES AND RESPONSIBILITIES. The Executive's title will be
Senior Vice President, General Counsel and Secretary. In this capacity the
Executive will report to the Executive Vice President Administration and Chief
Human Resource Officer. For so long as the Executive's employment with the
Company continues, the Executive will devote his full business time, attention
and best efforts to the affairs of the Company, will faithfully serve the
Company, and in all respects conform to and comply with the lawful directions
and instructions consistent with his position as Senior Vice President and
General Counsel given to him by the Company's Chief Executive Officer, the
executive to whom he reports, or the Board.
(c) BASE SALARY. The Executive's base salary shall be reviewed
periodically by the Company at the times and in a manner consistent with the
review of base salaries of the Company's other senior executives, and, based on
such review, the amount of the Executive's base salary may be adjusted upwards
but not downwards, in the discretion of the Company, taking into account the
Executive's performance and any other factors the Company deems relevant.
(d) PARTICIPATING IN BENEFIT PROGRAMS. During the period of the
Executive's employment with the Company he will be eligible to participate in
the Company's compensation (including short-term and long-term incentive
compensation) and benefit programs applicable generally to the Company's senior
executives. Such programs may be adjusted or modified from time to time by the
Company in its discretion.
3. SEVERANCE BENEFITS UPON TERMINATION. If the Executive's employment
with the Company is terminated by the Company for any reason other than for
Cause, or if the Executive resigns from employment with the Company, or a
successor company, under circumstances constituting Good Reason, then, during
the Continuation Period, the Executive shall be eligible to receive the
severance benefits described in this Section 3. In the event of a termination by
the Company for any reason other than for Cause, then the Company will provide
the Executive with a minimum of two months notice prior to the Termination Date,
but in no event shall such notice be given earlier than August 1, 2000.
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(a) BASE SALARY CONTINUATION. The Company will pay the Executive his
base salary equivalent, at the rate in effect immediately prior to the
Termination Date (or if the Executive has resigned for Good Reason by virtue of
the Company having reduced his rate of base salary, at the rate of base salary
in effect prior to such reduction) consistent with normal payroll practice. The
payments following the Termination Date shall be in lieu of any and all
severance pay to which the Executive might otherwise be entitled under any plan
or program of the Company or any of its Subsidiaries or Affiliates.
(b) INCENTIVE COMPENSATION.
(i) MIP. The Company will pay the Executive a pro-rata MIP award
reflecting a partial year participation in the year of termination,
based on a fraction, the numerator of which is the number of days in
such calendar year, up to and including the Termination Date, and the
denominator of which is 365. The award shall be calculated in
accordance with the MIP plan in effect at the time of termination,
provided, however, that the award shall be no less than the target
award for the applicable period of time prior to the Termination Date.
The target award assumes business and individual performance at the
100% level. This payment will be made in accordance with the Company's
normal payment practice for the MIP at the time payments under the MIP
are made to other executives of the Company.
(ii) Equity Plan. The Executive will retain any awards that were made
to him under any Equity Plan prior to the Termination Date, and the
Executive shall be entitled to exercise any such awards, in accordance
with the provisions of the grant or the plan, but in no event later
than the last date allowable under the applicable grant.
(iii) Restricted Stock. Any shares of restricted stock or any right to
receive shares of stock granted to the Executive will continue to vest
during the Continuation Period provided that vesting was dependent
upon continued service, and following the Continuation Period will
vest in accordance with the provisions of the plan for terminated or
retired employees. If the applicable plan or grant agreement
contemplates vesting terms using a termination date, the termination
date for the purposes of the grant shall be the last day of the
Continuation Period.
Except for the payments and other benefits provided in this subsection (b), the
Executive shall have no right to any other payment or benefit under the MIP, the
Equity Plan or any other annual, equity or long-term incentive plan of the
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Company. Without limiting the generality of the preceding sentence, this
Agreement shall not confer any right on the Executive following the Termination
Date to be granted any further awards under any Equity Plan, long-term incentive
plan or any subsequent equity or long-term incentive plans.
(c) HEALTH AND WELFARE BENEFIT. The Executive shall be eligible to
participate (or continue to participate) in the Company's medical, dental and
life insurance benefits of the Company, on the same terms and conditions
(including without limitation any provisions concerning payment of premiums,
deductibles and co-payments) that apply to active salaried employees of the
Company. Such coverage shall be secondary to any benefits the Executive or his
family becomes eligible to receive under a comparable program of a subsequent
employer.
(d) EXECUTIVE SPLIT-DOLLAR LIFE INSURANCE. Following the Termination
Date, the Company will make all premium payments due on the split-dollar life
insurance policies issued by Northwestern Mutual Life Insurance Company and
currently held in the Executive's name, including the economic benefit value
normally paid by the Executive following the seventh year of the policy (the
"Executive's Portion"), and the minimum required individual taxes resulting from
the payments. At the time of policy takeover the Executive will reimburse the
Company for all returnable escrow deposits paid by the Company in accordance
with the terms of the plan. The Executive shall not be required to reimburse the
Company for the Executive's Portion paid by the Company following the
Termination Date.
(e) COMPANY CAR. Title to the automobile made available to the
Executive immediately prior to the Termination Date will be transferred to him
at no additional cost as of the Termination Date; provided, however, that the
Executive will be responsible for all additional costs for the vehicle over and
above the Company's category cost for vehicles at his executive level, and all
income taxes, transfer taxes and similar governmental charges regarding the
transfer and new registration of the vehicle.
(f) OUTPLACEMENT SERVICES. The Executive will be eligible for
executive level Outplacement counseling with an outplacement service selected
and paid for by the Company which outplacement service is reasonably acceptable
to the Executive.
(g) CAPITAL ACCUMULATION PLAN ("CAP") MAKE-UP. Following the
Termination Date the Executive will be ineligible to participate in the
Company's CAP Plan. The Company will pay the Executive the amounts it would have
contributed on his behalf to the CAP as matching contributions and or
discretionary profit-sharing contributions during the Continuation Period,
assuming the Executive had elected to participate in the CAP at the maximum
level permitted thereunder. All such payments will be made on an after-tax
basis. Payment of the matching contribution equivalents will be made at the
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same time as the base salary equivalent payments. Discretionary profit-sharing
contribution equivalents will be paid at approximately the same time as the
Company makes such contributions (if any) to the CAP.
(h) PENSION BENEFIT. The Executive shall continue to earn service
credit towards the total pension benefit calculation until the end of the
Continuation Period and at such time shall be eligible for an unreduced pension
benefit under the Pension Plan for Salaried Employees based on minimum age 60
and minimum 30 years service. The Company shall determine in its discretion
whether, and to the extent that, any supplemental monthly pension benefit
required under this Section 3(h) shall be paid through a Pension Plan that is
intended to be qualified under Section 401(a) of the Code, or any successor
provision thereto, or under a Pension Plan or other arrangement that is not
intended to be so qualified.
(i) CONSULTING. If the services of the Executive are requested by the
Company or its Subsidiaries during, or following, the Continuation Period (as
defined in the Agreement) and the Executive agrees to provide such services,
compensation will be paid at the daily rate of $1,500.00 plus reimbursement of
any reasonable business related expenses, including travel, from the Executive's
place of residence.
(j) NO IMPAIRMENT OF EXISTING RIGHTS. Nothing in this Agreement shall
be construed to reduce or impair in any way the Executive's rights and benefits
under the Pension Plans, including any rights and benefits that he may accrue
under the Pension Plans after the date hereof and prior to his termination of
employment with the Company.
4. DEATH AND DISABILITY. If the Executive dies or becomes totally
disabled during the Continuation Period, the Executive or his estate, as the
case may be, will be entitled to the severance benefits provided for in this
agreement (other than outplacement services), as well as to the standard
benefits and insurance payments under the benefits plans of the Company then in
effect, determined as though his employment with the Company had terminated by
virtue of death or total disability.
6
<PAGE> 7
5. CERTAIN COVENANTS.
(a) COVENANT NOT TO COMPETE. The Executive agrees that during the
period of his employment with the Company and continuing through the Covenant
Period:
(i) he will not without the consent of the CEO of the Company,
reasonably exercised, engage in any activities, whether as employee, agent,
proprietor, owner, partner, contractor, stockholder (other than the holder
of less than 5% of the stock of a corporation the securities of which are
traded on a national securities exchange or in the over-the-counter
market), director or otherwise, in competition with the businesses
conducted by the Company and its Subsidiaries on the date hereof or in
which they are substantially engaged at any time during the Covenant
Period; and
(ii) he will not solicit, in competition with the Company or any of
its Subsidiaries, any person who is a customer of the businesses conducted
by the Company or any of its Subsidiaries at the date hereof or any
businesses in which the Company or any of its Subsidiaries are
substantially engaged at any time during the Covenant Period.
(b) TERRITORIAL REACH. The covenants contained in clauses (i) and (ii)
of subsection (a) of this Section 5 shall apply within the territories in which
the Company or any of its Subsidiaries are actively engaged in the conduct of
the businesses described in such covenants at the relevant time, including,
without limitation, the territory in which customers are then solicited.
(c) COVENANT NOT TO INDUCE TERMINATION OF EMPLOYMENT. The Executive
agrees that during the Covenant Period he will not, without the prior written
consent of the Company (which consent may be withheld by the Company at its sole
discretion), induce or attempt to persuade any employee of the Company or any of
its Subsidiaries to terminate his employment relationship in order to enter into
any other employment, whether or not such other employment is competitive with
the Company or any of its Subsidiaries.
(d) COVENANT NOT TO DISCLOSE CONFIDENTIAL INFORMATION. The Executive
agrees that he will not, at any time during the Covenant Period or thereafter,
make use, for his own benefit or the benefit of any other person or entity, of
Confidential Information of any kind or character, nor divulge Confidential
Information except to the extent the Company's Chief Executive Officer or the
Board may so authorize in writing, and that within ten days of the Termination
Date the Executive will surrender to the Company all records, in whatever form
maintained (including without limitation records maintained as computer files)
and other documents and materials obtained by the Executive or entrusted to him
during the course of his employment by the Company or any of
7
<PAGE> 8
its Subsidiaries or Affiliates (together with all copies thereof) which related
to any such Confidential Information. Nothing set forth in this subsection (d),
however, shall be interpreted to prohibit the Executive from disclosing any such
information as may be required by law, including pursuant to any court or
government decree or subpoena.
(e) REMEDIES. Without limiting the right of the Company to pursue all
other legal and equitable remedies available for violation by the Executive of
the covenants contained in this Section, it is expressly agreed that if the
Executive materially breaches the covenants set forth in this Section and fails
to cure such breach to the reasonable satisfaction of the Company within 30 days
after written notice thereof, any further obligations of the Company pursuant to
this Agreement shall be canceled. Without limiting the generality of the
preceding sentence, the Executive acknowledges and agrees that, in the event of
such material breach and failure to cure, the Company will have no further
obligation to pay or provide any of the severance benefits described in Section
3 above, excluding the pension benefits. In addition, the Executive acknowledges
that a breach of any of the covenants set forth in this Section may result in
material irreparable injury to the Company for which there is no adequate remedy
at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of such a breach or threat thereof, the Company
shall be entitled, in addition to any other rights or remedies it may have
(including without limitation the remedy provided in the preceding sentence), to
obtain a temporary restraining order and a preliminary or permanent injunction
enjoining or restraining the Executive from engaging in activities prohibited by
this Section or requiring his compliance with the affirmative obligations
provided for herein.
(f) ENFORCEABILITY. It is the intent and understanding of each party
hereto that if in any action before any court or agency legally empowered to
enforce the covenants contained in this Section any term, restriction, covenant
or promise contained herein is found to be unreasonable and accordingly
unenforceable, then such term, restriction, covenant or promise shall be deemed
modified to the extent necessary to make it enforceable by such court or agency.
6. CONFIDENTIALITY OF THIS AGREEMENT. Except as required by law,
judicial order, or other lawful process, the parties hereto will keep
confidential and not disclose, directly or indirectly, to any person, firm,
corporation, association, or other entity, except family and professional
financial and legal advisors, the existence or terms of this Agreement.
7. NO UNFAVORABLE COMMENTS. The Company agrees to refrain from making
now or any time in the future any comment reflecting unfavorably upon the
Executive to the press, any individual or entity with whom the Executive has a
business relationship or any individual or entity making an
8
<PAGE> 9
inquiry as to the Executive's employment relationship with the Company, except
to the extent that any such comment may relate to circumstances underlying a
termination of the Executive's employment for Cause. The Executive agrees to
refrain from making now or at any time in the future any comment reflecting
unfavorably upon the Company or any of its Subsidiaries and Affiliates or any
current or former directors, officers or employees of the Company to the press,
any employees of the Company or any individual or entity with whom any member of
the Company has a business relationship.
8. FULL SATISFACTION; RELEASE. This Agreement supercedes all previous
letters and agreements between the Executive and the Company or any predecessor
companies, including but not limited to, the Employee Agreement dated September
7, 1982, the Addendum to the Employee Agreement, and the Rider to the Addendum
to the Employee Agreement. The Executive agrees that the payments and other
benefits to be provided pursuant to this Agreement shall be in full satisfaction
of any and all claims for payment or any other benefits that he may have against
the Company or any of its Subsidiaries or Affiliates arising out of (i) his
employment with the Company or his status as an executive of the Company or any
of the Company's Subsidiaries, Affiliates or divisions, or (ii) the termination
of such employment and status; excluding (A) claims that arise out of an
asserted breach of this Agreement and (B) claims for indemnification the
Executive may now or in the future have under any bylaw, agreement or otherwise.
In addition, in consideration of the agreements set forth herein, the Company,
on the one hand, and the Executive, on the other hand, release and waive all
claims, causes of action or the like arising on or before the date hereof,
regardless of whether or not known at present (including, without limitation,
any claims arising under the Age Discrimination in Employment Act of 1967, Title
VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991,
the Equal Pay Act of 1962, the Americans with Disabilities Act of 1990, or any
other federal, state or local statute or ordinance; but excluding, in the case
of both the Company and the Executive, any claims that arise out of an asserted
breach of the terms of this Agreement), that either has or may have in the
future against the other and, in the case of the Company, their respective
successors, shareholders, directors, officers, agents and employees, regarding
all matters relating to the Executive's service as an employee of the Company or
any of its Subsidiaries, Affiliates or divisions, and to the termination of such
relationships, including, without limitation, all claims related to the payment
of compensation and benefits and all claims arising under any Federal or state
statute or regulation. The Executive and the Company shall execute as of the
second anniversary of the Termination Date any further documents as may
reasonably be requested by the other in order to evidence and give effect to the
provisions of this Section.
9. SOURCE OF PAYMENTS. All payments provided under this Agreement,
other than payments made pursuant to a benefit plan which may
9
<PAGE> 10
provide otherwise, shall be paid in cash from the general funds of the Company,
and no special or separate fund shall be established, and no other segregation
of assets made, to assure payment. The Executive shall have no right, title or
interest whatever in or to any investments which the Company may make to aid the
Company in meeting its obligations hereunder. Nothing contained in this
Agreement, and no action taken pursuant to its provisions, shall create or be
construed to create, a trust of any kind, or a fiduciary relationship, between
the Company and the Executive or any other person. To the extent that any person
acquires a right to receive payments from the Company hereunder, such right
shall be no greater than the right of an unsecured creditor of the Company.
10. FUTURE COOPERATION. The Executive agrees that following
termination of his employment with the Company he will make himself available in
any then pending or future governmental or regulatory investigation, civil or
administrative proceeding or arbitration related to the Executive's duties while
employed by the Company, subject to the Executive's other personal and business
commitments. The Company will promptly reimburse the Executive for all
reasonable costs and expenses, including attorneys' fees, incurred by the
Executive in connection with any such proceedings or arbitration.
11. TAX WITHHOLDING. All amounts payable to the Executive pursuant to
this Agreement shall be subject to all legal requirements with respect to the
withholding of taxes including FICA.
12. MISCELLANEOUS.
(a) ENTIRE AGREEMENT; CONDITIONS; AMENDMENTS. This Agreement sets
forth the entire understanding of the parties hereto with respect to the subject
matter hereof and cannot be amended or modified except by a writing signed by
all such parties. The waiver by either party of compliance with any provision of
this Agreement by the other party shall not operate or be construed as a waiver
of any other provision of this Agreement or of any subsequent breach by such
party of a provision of this Agreement.
(b) ASSIGNMENT AND DELEGATION. Neither this Agreement nor any right,
duty or obligation hereunder shall be assignable or delegable by the Executive.
This Agreement, and all rights, duties and obligations herein, may be assigned
by the Company to any person or entity that succeeds to the interest of the
Company (regardless of whether such succession does or does not occur by
operation of law) by reason of the sale of all or a portion of the Company's
stock, a merger, consolidation or reorganization involving the Company or,
unless the Company otherwise elects in writing, a sale of the assets of the
business of the Company (or portion thereof) in which Executive performs, or
will perform, a majority of his services. Upon any such assignment, delegation
or transfer, any such business entity shall be deemed to be substituted for all
purposes as the
10
<PAGE> 11
Company hereunder. The Company shall cause such successor expressly to assume
such obligations.
(c) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
(d) HEADINGS. The headings of the Sections of this Agreement are
included solely for convenience of reference and shall not be construed or
interpreted in any way as affecting the meaning of such Sections.
(e) GOVERNING LAW. This Agreement is governed by, and construed and
interpreted in accordance with, the laws of the State of Illinois. Any dispute
under this Agreement shall be adjudicated by a court of competent jurisdiction
in the State of Illinois.
(f) INDEMNIFICATION. The Company will indemnify the Executive to the
fullest extent permitted by the laws of the state of incorporation in effect at
that time, or certificate of incorporation and bylaws of the Company whichever
affords the greater protection to the Executive. The foregoing indemnification
shall continue to apply following the Termination Date for acts or omissions by
the Executive while an employee of the Company.
(g) SURVIVORSHIP. The provisions of this Agreement necessary to carry
out the intention of the parties as expressed herein shall survive the
termination or expiration of this Agreement. IN WITNESS WHEREOF, the parties
hereto have executed this Agreement this 18th day of February, 2000.
AMERICAN NATIONAL CAN GROUP, INC.
AMERICAN NATIONAL CAN COMPANY
By: /s/ DENNIS BANKOWSKI
Name: Dennis Bankowski
Title: Executive VP Administration and
Chief Human Resource Officer
EXECUTIVE
/s/ WILLIAM A. FRANCOIS
William A. Francois
11
<PAGE> 1
EXHIBIT 10.33
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
among
AMERICAN NATIONAL CAN GROUP, INC.,
as the Company,
the SUBSIDIARY BORROWERS,
THE INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO AS LENDERS,
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent,
THE CHASE MANHATTAN BANK,
as Syndication Agent,
ABN AMRO BANK N.V.,
as Co-Documentation Agent and Arranger,
ROYAL BANK OF CANADA,
as Co-Documentation Agent and Arranger,
BANQUE NATIONALE DE PARIS,
as Arranger,
and
CHASE SECURITIES INC., BANC ONE CAPITAL MARKETS, INC.,
as Lead Arranger and as Lead Arranger and
Joint Book Manager Joint Book Manager
<PAGE> 2
TABLE OF CONTENTS
SECTION PAGE
- ------- ----
ARTICLE I: DEFINITIONS.................................................... -1-
1.1 Certain Defined Terms........................................ -1-
1.2 References...................................................-30-
1.3 Supplemental Disclosure......................................-30-
1.4. Rounding and Other Consequential Changes.....................-31-
ARTICLE II: REVOLVING LOAN FACILITIES.....................................-31-
2.1. Competitive Bid Advances.....................................-31-
(A) Competitive Bid Option..............................-31-
(B) Competitive Bid Quote Request.......................-31-
(C) Invitation for Competitive Bid Quotes...............-32-
(D) Submission and Contents of Competitive Bid Quotes...-32-
(E) Notice to Company...................................-33-
(F) Acceptance and Notice by Company....................-33-
(G) Allocation by Administrative Agent..................-34-
(H) Administration Fee..................................-34-
2.2 Revolving Loans..............................................-34-
2.3. [Reserved]...................................................-36-
2.4 Rate Options for all Advances; Maximum Interest Periods......-36-
2.5 Optional Payments; Mandatory Prepayments.....................-36-
(A) Optional Payments...................................-36-
(B) Mandatory Prepayments of Revolving Loans............-36-
2.6 Changes in Commitments.......................................-37-
2.7 Method of Borrowing..........................................-40-
2.8 Method of Selecting Types and Interest Periods for Advances..-40-
2.9 Minimum Amount of Each Advance...............................-41-
2.10 Method of Selecting Types and Interest Periods for
Conversion and Continuation of Advances..................-42-
(A) Right to Convert....................................-42-
(B) Automatic Conversion and Continuation...............-42-
(C) No Conversion Post-Default or
Post-Unmatured Default............................-42-
(D) Borrowing/Conversion/Continuation Notice............-42-
2.11 Default Rate.................................................-43-
2.12 Method of Payment............................................-43-
2.13 Evidence of Debt.............................................-44-
2.14 Telephonic Notices...........................................-45-
2.15 Promise to Pay; Interest and Fees; Interest Payment Dates;
Interest and Fee Basis;
Taxes; Loan and Control Accounts.........................-45-
(A) Promise to Pay......................................-45-
(B) Interest Payment Dates..............................-46-
-ii-
<PAGE> 3
SECTION PAGE
- ------- ----
(C) Fees................................................-46-
(D) Interest and Fee Basis; Applicable Floating Rate
Margin, Applicable Eurocurrency Margin and
Applicable Facility Fee Percentage................-46-
(E) Taxes...............................................-49-
2.16 Notification of Advances, Interest Rates, Prepayments and
Aggregate Revolving Loan Commitment Reductions...........-52-
2.17 Lending Installations........................................-52-
2.18 Non-Receipt of Funds by the Administrative Agent.............-52-
2.19 Termination Date.............................................-53-
2.20 Replacement of Certain Lenders...............................-53-
2.21 Alternate Currency Loans.....................................-54-
2.22 Judgment Currency. ..........................................-56-
2.23 Market Disruption; Denomination of Amounts in Dollars;
Dollar Equivalent of Reimbursement Obligations...........-57-
2.24 Subsidiary Borrowers. ......................................-57-
ARTICLE III: THE LETTER OF CREDIT FACILITY.................................-58-
3.1 Obligation to Issue Letters of Credit........................-58-
3.2 Transitional Provision.......................................-58-
3.3 Types and Amounts............................................-58-
3.4 Conditions...................................................-59-
3.5 Procedure for Issuance of Letters of Credit..................-59-
3.6 Letter of Credit Participation...............................-59-
3.7 Reimbursement Obligation.....................................-60-
3.8 Letter of Credit Fees........................................-60-
3.9 Issuing Bank Reporting Requirements..........................-61-
3.10 Indemnification; Exoneration.................................-61-
3.11 Cash Collateral..............................................-62-
ARTICLE IV: CHANGE IN CIRCUMSTANCES.......................................-63-
4.1 Yield Protection.............................................-63-
4.2 Changes in Capital Adequacy Regulations......................-64-
4.3 Availability of Types of Advances............................-64-
4.4 Funding Indemnification......................................-64-
4.5 Lender Statements; Survival of Indemnity.....................-65-
ARTICLE V: CONDITIONS PRECEDENT...........................................-65-
5.1 Initial Advances and Letters of Credit.......................-65-
5.2 Initial Advance to Each New Subsidiary Borrower..............-67-
5.3 Each Advance, Each Conversion or Continuation of an
Advance, and Each Letter of Credit.......................-68-
-iii-
<PAGE> 4
SECTION PAGE
- ------- ----
ARTICLE VI: REPRESENTATIONS AND WARRANTIES................................-69-
6.1. Organization; Corporate Powers..............................-69-
6.2. Authorization and Validity..................................-69-
6.3. No Conflict; Government Consent.............................-69-
6.4. Financial Statements........................................-69-
6.5. Material Adverse Change.....................................-70-
6.6. Taxes.......................................................-70-
6.7. Litigation and Contingent Obligations.......................-70-
6.8. Subsidiaries................................................-71-
6.9. ERISA.......................................................-71-
6.10. Accuracy of Information.....................................-71-
6.11. Regulation U................................................-71-
6.12. Material Agreements.........................................-71-
6.13. Compliance With Laws........................................-71-
6.14. Ownership of Properties.....................................-72-
6.15 Statutory Indebtedness Restrictions.........................-72-
6.16. Environmental Matters.......................................-72-
6.17 Insurance...................................................-73-
6.18 Labor Matters...............................................-73-
6.19 Solvency....................................................-73-
6.20 Year 2000 Issues............................................-73-
6.21 Representations and Warranties of each Subsidiary Borrower..-73-
6.22 Indebtedness of the Company.................................-75-
6.23 Foreign Employee Benefit Matters............................-75-
ARTICLE VII: COVENANTS...................................................-75-
7.1 Reporting...................................................-75-
(A) Financial Reporting.................................-75-
(B) Notice of Default...................................-76-
(C) Lawsuits............................................-76-
(D) ERISA Notices.......................................-77-
(E) Labor Matters.......................................-79-
(F) Other Indebtedness..................................-79-
(G) Other Reports.......................................-79-
(H) Environmental Notices...............................-79-
(I) Other Information...................................-80-
7.2 Affirmative Covenants.......................................-80-
(A) Corporate Existence, Etc............................-80-
(B) Corporate Powers; Conduct of Business...............-80-
(C) Compliance with Laws, Etc...........................-80-
(D) Payment of Taxes and Claims; Tax Consolidation......-80-
-iv-
<PAGE> 5
SECTION PAGE
- ------- ----
(E) Insurance...........................................-81-
(F) Inspection of Property; Books and Records;
Discussions.......................................-81-
(G) ERISA Compliance....................................-81-
(H) Maintenance of Property.............................-81-
(I) Environmental Compliance............................-82-
(J) Use of Proceeds.....................................-82-
(K) Subsidiary Guarantees; Subsidiary Subordination
Agreement.........................................-82-
(L) Year 2000 Issues....................................-82-
(M) Foreign Employee Benefit Compliance.................-83-
(N) Reduction of Commitments............................-83-
7.3 Negative Covenants..........................................-83-
(A) Sale of Receivables.................................-83-
(B) Sales of Assets.....................................-83-
(C) Liens...............................................-84-
(D) Subsidiary Indebtedness.............................-85-
(E) Contingent Obligations..............................-85-
(F) Restricted Payments.................................-86-
(G) Conduct of Business; Subsidiaries; Acquisitions.....-86-
(H) Transactions with Shareholders and Affiliates.......-87-
(I) Restriction on Fundamental Changes..................-87-
(J) Sales and Leasebacks................................-88-
(K) Margin Regulations..................................-88-
(L) ERISA...............................................-88-
(M) Corporate Documents.................................-89-
(N) Fiscal Year.........................................-89-
(O) Subsidiary Covenants................................-89-
(P) Hedging Obligations.................................-89-
(Q) Maximum Net Rentals Obligations.....................-90-
7.4 Financial Covenants.........................................-90-
(A) Minimum Interest Coverage Ratio.....................-90-
(B) Maximum Total Net Indebtedness to Capital Ratio.....-91-
(C) Minimum Consolidated Net Worth......................-91-
ARTICLE VIII: DEFAULTS....................................................-91-
8.1 Defaults....................................................-91-
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS,
AMENDMENTS AND REMEDIES.....................................-94-
9.1 Termination of Revolving Loan Commitments; Acceleration.....-94-
9.2 Defaulting Lender...........................................-94-
9.3 Amendments..................................................-96-
9.4 Preservation of Rights......................................-97-
-v-
<PAGE> 6
SECTION PAGE
- ------- ----
ARTICLE X: GUARANTY.......................................................-97-
10.1. Guaranty....................................................-97-
10.2. Waivers; Subordination of Subrogation.......................-98-
10.3. Guaranty Absolute...........................................-98-
10.4. Acceleration................................................-99-
10.5. Marshaling; Reinstatement...................................-99-
10.6. Termination Date...........................................-100-
ARTICLE XI: GENERAL PROVISIONS...........................................-100-
11.1 Survival of Representations................................-100-
11.2 Governmental Regulation....................................-100-
11.3 Performance of Obligations.................................-100-
11.4 Headings...................................................-101-
11.5 Entire Agreement...........................................-101-
11.6 Several Obligations; Benefits of this Agreement............-101-
11.7 Expenses; Indemnification..................................-101-
(A) Expenses...........................................-101-
(B) Indemnity..........................................-102-
(C) Waiver of Certain Claims...........................-103-
(D) Survival of Agreements.............................-103-
11.8 Numbers of Documents.......................................-103-
11.9 Accounting.................................................-103-
11.10 Severability of Provisions.................................-103-
11.11 Nonliability of Lenders....................................-103-
11.12 GOVERNING LAW..............................................-103-
11.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL....-104-
(A) EXCLUSIVE JURISDICTION.............................-104-
(B) OTHER JURISDICTIONS................................-104-
(C) VENUE..............................................-104-
(D) WAIVER OF JURY TRIAL...............................-104-
11.14 Other Transactions.........................................-105-
ARTICLE XII: THE ADMINISTRATIVE AGENT....................................-105-
12.1 Appointment; Nature of Relationship........................-105-
12.2 Powers.....................................................-106-
12.3 General Immunity...........................................-106-
12.4 No Responsibility for Loans, Creditworthiness,
Recitals, Etc...........................................-106-
12.5 Action on Instructions of Lenders..........................-106-
12.6 Employment of Agents and Counsel...........................-107-
12.7 Reliance on Documents; Counsel.............................-107-
12.8 The Administrative Agent's and the Alternate Currency
Bank's Reimbursement and
-vi-
<PAGE> 7
SECTION PAGE
- ------- ----
Indemnification.........................................-107-
12.9 Rights as a Lender.........................................-107-
12.10 Lender Credit Decision.....................................-108-
12.11 Successor Administrative Agent.............................-108-
12.12 No Duties Imposed Upon Syndication Agent,
Co-Documentation Agents, Lead Arrangers or Arrangers....-108-
ARTICLE XIII: SETOFF; RATABLE PAYMENTS...................................-109-
13.1 Setoff.....................................................-109-
13.2 Ratable Payments...........................................-109-
13.3 Application of Payments....................................-109-
13.4 Relations Among Lenders....................................-110-
ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
................................................................-110-
14.1 Successors and Assigns.....................................-110-
14.2 Participations.............................................-111-
(A) Permitted Participants; Effect.....................-111-
(B) Voting Rights......................................-111-
14.3 Assignments................................................-111-
(A) Permitted Assignments..............................-111-
(B) Effect; Effective Date.............................-113-
(C) The Register.......................................-113-
14.4 Confidentiality............................................-114-
14.5 Dissemination of Information...............................-114-
ARTICLE XV: NOTICES......................................................-114-
15.1 Giving Notice..............................................-114-
15.2 Change of Address..........................................-114-
ARTICLE XVI: COUNTERPARTS................................................-115-
-vii-
<PAGE> 8
EXHIBITS AND SCHEDULES
EXHIBITS
--------
EXHIBIT A -- Revolving Loan Commitments
(Definitions)
EXHIBIT A-1 -- Eurocurrency Payment Offices
EXHIBIT B -- Form of Borrowing/Conversion/Continuation Notice
(Section 2.3 and Section 2.8 and Section 2.10)
EXHIBIT C -- Form of Request for Letter of Credit (Section 3.4)
EXHIBIT D -- Form of Assignment and Acceptance Agreement
(Sections 2.20 and 14.3)
EXHIBIT E -- Form of Company's US Counsel's Opinion and Form of
Company's Foreign Counsel's Opinion (Section 5.1)
EXHIBIT F -- List of Closing Documents
(Section 5.1)
EXHIBIT G -- Form of Officer's Certificate
(Sections 5.3 and 7.1(A)(iii))
EXHIBIT H -- Form of Compliance Certificate
(Sections 5.3 and 7.1(A)(iii)
EXHIBIT I-1 -- Form of Guaranty
(Definitions)
EXHIBIT I-2 -- Form of Subordination Agreement
(Definitions)
EXHIBIT J -- Form of Alternate Currency Addendum
(Definitions)
EXHIBIT K-1 -- Form of Revolving Loan Note (If Requested)
EXHIBIT K-2 -- Form of Competitive Bid Note (If Requested)
-viii-
<PAGE> 9
EXHIBIT L -- Form of Competitive Bid Quote Request
EXHIBIT M -- Form of Invitation for Competitive Bid Quotes
EXHIBIT N -- Form of Competitive Bid Quote
EXHIBIT O -- Form of Assumption Letter
EXHIBIT P -- Form of Commitment and Acceptance
-ix-
<PAGE> 10
SCHEDULES
---------
Schedule 1.1.1 -- Permitted Existing Contingent Obligations
(Definitions)
Schedule 1.1.2 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.3 -- Permitted Existing Liens (Definitions)
Schedule 1.1.4 -- Subsidiary Borrowers (Definitions)
Schedule 1.1.5 -- Supported Contingent Obligations (Definitions)
Schedule 3.2 -- Transitional Letters of Credit (Section 3.2)
Schedule 5.1 -- Terminated Indebtedness (Section 5.1)
Schedule 6.7 -- Litigation; Loss Contingencies (Section 6.7)
Schedule 6.8 -- Subsidiaries (Section 6.8)
Schedule 6.16 -- Environmental Notices (Section 6.16(c))
Schedule 6.17 -- Insurance (Sections 6.17 and 7.2(E))
Schedule 6.22 -- Existing Company Indebtedness
Schedule 7.3(B) -- Notes Receivables (Section 7.3(B)(iv))
Schedule 7.3(H) -- Transactions with Affiliates (Section 7.3(H))
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5-YEAR REVOLVING CREDIT AGREEMENT
This 5-YEAR REVOLVING CREDIT AGREEMENT dated as of July 22, 1999 is
entered into by and among AMERICAN NATIONAL CAN GROUP, INC., a Delaware
corporation (the "COMPANY"), one or more Subsidiaries of the Company (whether
now existing or hereafter formed, collectively referred to herein as the
"SUBSIDIARY BORROWERS"), the institutions from time to time parties hereto as
Lenders, whether by execution of this Agreement or an Assignment Agreement
pursuant to Section 14.3, and THE FIRST NATIONAL BANK OF CHICAGO, in its
capacity as contractual representative (the "ADMINISTRATIVE AGENT") for itself
and the other Lenders, THE CHASE MANHATTAN BANK, as Syndication Agent (the
"SYNDICATION AGENT"), and ABN AMRO BANK N.V., as Co-Documentation Agent (the
"CO-DOCUMENTATION AGENT") and Arranger (the "ARRANGER"), and ROYAL BANK OF
CANADA , as Co-Documentation Agent (the "CO-DOCUMENTATION AGENT") and Arranger
(the "ARRANGER"), BANQUE NATIONALE DE PARIS, as Arranger (the "ARRANGER"), CHASE
SECURITIES INC., as Lead Arranger (the "LEAD ARRANGER") and Joint Book Manager
(the "JOINT BOOK MANAGER"), and BANC ONE CAPITAL MARKETS, INC., as Lead Arranger
(the "LEAD ARRANGER") and Joint Book Manager (the "JOINT BOOK MANAGER"). The
parties hereto agree as follows:
ARTICLE I: DEFINITIONS
1.1 Certain Defined Terms. In addition to the terms defined above, the
following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined.
As used in this Agreement:
"ABSOLUTE RATE" means, with respect to an Absolute Rate Loan made by a
given Lender for the relevant Absolute Rate Interest Period, the rate of
interest per annum (rounded to the nearest 1/100 of 1%) offered by such Lender
and accepted by the Company.
"ABSOLUTE RATE ADVANCE" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of the
Lenders to the Company at the same time and for the same Interest Period.
"ABSOLUTE RATE AUCTION" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to Section 2.1.
"ABSOLUTE RATE INTEREST PERIOD" means, with respect to an Absolute Rate
Advance, a period of not fewer than seven (7) and not more than one hundred
eighty (180) days commencing on a Business Day selected by the Company pursuant
to this Agreement. If such Absolute Rate Interest Period would end on a day
which is not a Business Day, such Absolute Rate Interest
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Period shall end on the next succeeding Business Day.
"ABSOLUTE RATE LOAN" means a Loan which bears interest at the Absolute
Rate.
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage of voting power) of the
outstanding equity interests of another Person.
"ADMINISTRATIVE AGENT" means First Chicago in its capacity as
contractual representative for itself and the Lenders pursuant to Article XII
hereof and any successor Administrative Agent appointed pursuant to Article XII
hereof.
"ADMINISTRATIVE AGENT FEE LETTER" means that certain fee letter between
the Company and the Administrative Agent, dated as of June 7, 1999.
"ADVANCE" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by some or all of the Lenders to the applicable
Borrower of the same Type (or on the same interest basis in the case of
Competitive Bid Advances) and, in the case of Eurocurrency Rate Advances and
Alternate Currency Loans, in the same currency and for the same Interest Period
and includes a Competitive Bid Advance.
"AFFECTED LENDER" is defined in Section 2.20 hereof.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of greater than twenty percent (20%) or more of any class of voting
securities (or other voting interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
Capital Stock, by contract or otherwise.
"AGENTS" means each of the Administrative Agent, the Syndication Agent
and the Co- Documentation Agents.
"AGGREGATE COMMITMENT" means, as of any date of determination, the
Aggregate Revolving Loan Commitment as of such date plus an amount equal to the
"Maximum Matured Value" under (and as defined in) the 5-Year Finance Facility
Agreement as of such date (which
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Maximum Matured Value is equal to $50,000,000 as of the Closing Date).
"AGGREGATE PRO RATA SHARE" means, with respect to any Lender hereunder
or 5-Year CLO Lender, the percentage obtained by dividing (x) the sum of such
Person's (i) Revolving Loan Commitment at such time (as adjusted from time to
time in accordance with the provisions of this Agreement), if applicable, plus
(ii) aggregate commitment under the 5-Year Finance Facility Agreement measured
by reference to the "Maximum Matured Value" under (and as defined in) the 5-Year
Finance Facility Agreement, if applicable, by (y) the Aggregate Commitment (as
adjusted from time to time in accordance with the provisions of this Agreement)
at such time.
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as may be adjusted from time to
time pursuant to the terms hereof. The initial Aggregate Revolving Loan
Commitment is Six Hundred Million and 00/100 Dollars ($600,000,000.00).
"AGREED CURRENCIES" means (i) Dollars, (ii) so long as such currency
remains an Eligible Currency, Pounds Sterling and euro; and (iii) any other
Eligible Currency which the applicable Borrower requests the Administrative
Agent to include as an Agreed Currency hereunder and which is acceptable to
one-hundred percent (100%) of the Lenders with a Revolving Loan Commitment and
one-hundred percent (100%) of the 5-Year CLO Lenders with a commitment under the
5-Year Finance Facility Agreement; provided that the Administrative Agent shall
promptly notify each such Lender and the 5-Year CLO Lenders of each such request
and each such Lender and 5-Year CLO Lender shall be deemed not to have agreed to
each such request unless its written consent thereto has been received by the
Administrative Agent within five (5) Business Days from the date of such
notification by the Administrative Agent to such Lender or 5-Year CLO Lender.
"AGREEMENT" means this 5-Year Revolving Credit Agreement, as it may be
amended, restated or otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles as in effect in the United States as of the date of this Agreement,
applied in a manner consistent with that used in preparing the financial
statements of the Company referred to in Section 6.4 hereof.
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of
interest per annum equal to the higher of (i) the Corporate Base Rate for such
day and (ii) the sum of (a) the Federal Funds Effective Rate for such day and
(b) one-half of one percent (0.5%) per annum.
"ALTERNATE CURRENCY" shall mean (i) only so long as such currency
remains an Eligible Currency, euro; and (ii) any other Eligible Currency which
the applicable Borrower requests the applicable Alternate Currency Bank to
include as an Alternate Currency hereunder and which is acceptable to the
applicable Alternate Currency Bank and with respect to which an Alternate
Currency Addendum has been executed by a Subsidiary Borrower or the Company and
the
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applicable Alternate Currency Bank in connection therewith.
"ALTERNATE CURRENCY ADDENDUM" means an addendum substantially in the
form of Exhibit J with such modifications thereto as shall be approved by the
applicable Alternate Currency Bank.
"ALTERNATE CURRENCY BANK" means First Chicago and any other Lender (or
any Affiliate, branch or agency thereof) to the extent it is party to an
Alternate Currency Addendum as the "Alternate Currency Bank" thereunder. If any
agency, branch or Affiliate of such Lender shall be a party to an Alternate
Currency Addendum, such agency, branch or Affiliate shall, to the extent of any
commitment extended and any Loans made by it, have all the rights of such Lender
hereunder; provided, however, that such Lender shall to the exclusion of such
agency, branch or Affiliate, continue to have all the voting rights vested in it
by the terms hereof.
"ALTERNATE CURRENCY BORROWING" means any borrowing consisting of a Loan
made in an Alternate Currency.
"ALTERNATE CURRENCY COMMITMENT" means, for any Alternate Currency Bank
for each Alternate Currency, the obligation of such Alternate Currency Bank to
make Alternate Currency Loans not exceeding the Dollar Amount set forth in the
applicable Alternate Currency Addendum, as such amount may be modified from time
to time pursuant to the terms of this Agreement and the applicable Alternate
Currency Addendum.
"ALTERNATE CURRENCY INTEREST PERIOD" means, with respect to any
Alternate Currency Loan, the Interest Period as set forth on the applicable
Alternate Currency Addendum.
"ALTERNATE CURRENCY LOAN" means any Loan denominated in an Alternate
Currency made by the applicable Alternate Currency Bank to a Subsidiary Borrower
or the Company pursuant to Section 2.21 and an Alternate Currency Addendum.
"ALTERNATE CURRENCY RATE" means, for any day for any Alternate Currency
Loan, the per annum rate of interest selected by the applicable Borrower under
and as set forth in the applicable Alternate Currency Addendum.
"ANC" means American National Can Company, a Delaware corporation, and
its successors and assigns.
"APPLICABLE EUROCURRENCY MARGIN" means, as at any date of
determination, the rate per annum then applicable to Eurocurrency Rate Loans
determined in accordance with the provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE FACILITY FEE PERCENTAGE" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under Section 2.15(C)(i) hereof
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determined in accordance with the provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE FLOATING RATE MARGIN" means, as at any date of
determination, the rate per annum then applicable to Floating Rate Loans
determined in accordance with the provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE L/C FEE PERCENTAGE" means, as at any date of determination,
a rate per annum equal to the Applicable Eurocurrency Margin for Eurocurrency
Rate Loans in effect on such date.
"APPROVED FUND" means, with respect to any Lender that is a fund or
commingled investment vehicle that invests in commercial loans, any other fund
that invests in commercial loans and is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.
"APPROXIMATE EQUIVALENT AMOUNT" of any currency with respect to any
amount of Dollars shall mean the Equivalent Amount of such currency with respect
to such amount of Dollars at such date, rounded up to the nearest amount of such
currency as determined by the Administrative Agent from time to time.
"ARRANGERS" means each of ABN AMRO Bank N.V., Royal Bank of Canada and
Banque Nationale de Paris, in their respective capacities as arrangers for the
loan transaction evidenced by this Agreement.
"ASSIGNMENT AGREEMENT" means an assignment and acceptance agreement
entered into in connection with an assignment pursuant to Section 14.3 hereof in
substantially the form of Exhibit D.
"ASSET SALE" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction, and including the sale or
other transfer of any of the Equity Interests of any Subsidiary of such Person)
to any Person other than the Company or any of its wholly-owned Subsidiaries
other than (i) the sale of Inventory in the ordinary course of business, (ii)
the sale or other disposition of any obsolete, excess, damaged or worn-out
Equipment disposed of in the ordinary course of business, (iii) leases of
personal property (including leases or licenses of intellectual property), (iv)
sales of bottling or canning line equipment to customers in the ordinary course
of business consistent with past practice, and (v) sales or lease of excess,
obsolete or redundant land and buildings.
"ASSUMPTION LETTER" means a letter of a Subsidiary of the Company
addressed to the Lenders in substantially the form of Exhibit O hereto pursuant
to which such Subsidiary agrees to become a "SUBSIDIARY BORROWER" and agrees to
be bound by the terms and conditions hereof.
"AUTHORIZED OFFICER" means any of the Presidents, any Vice President
or Chief Financial
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<PAGE> 16
Officer of the Company, acting singly.
"AVERAGE TOTAL NET INDEBTEDNESS" shall mean, as of any date of
determination, (a) the sum of (i) the average of the aggregate indebtedness for
borrowed money, guarantees and letters of credit, without duplication (but
excluding the Supported Contingent Obligations) of the Company and its
Subsidiaries plus (ii) the average of the Capitalized Lease Obligations of the
Company and its Subsidiaries, minus (b) the average of the aggregate cash and
Cash Equivalents of the Company and its Subsidiaries, in each case as at the end
of each of the immediately preceding four fiscal quarters.
"AVERAGE TOTAL NET INDEBTEDNESS TO CAPITAL RATIO" means, as of any date
of determination, the ratio of (a) Average Total Net Indebtedness, to (b) the
sum of (i) the Average Total Net Indebtedness plus (ii) Consolidated Net Worth,
including minority interests, in each case as of such date of determination.
"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35)
of ERISA (other than a Multiemployer Plan or a Foreign Employee Benefit Plan) in
respect of which the Company or any other member of the Controlled Group is, or
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA.
"BORROWER" means, as applicable, any of the Company and the Subsidiary
Borrowers, together with their respective successors and assigns; and
"BORROWERS" shall mean, collectively, the Company and the Subsidiary Borrowers.
"BORROWING DATE" means a date on which an Advance is made hereunder.
"BORROWING/CONVERSION/CONTINUATION NOTICE" is defined in Section 2.8
hereof.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
selection of Loans bearing interest at the Eurocurrency Rate or Eurocurrency Bid
Rate Advances, a day (other than a Saturday or Sunday) on which banks are open
for business in Chicago, Illinois and New York, New York and (x) in addition,
for Loans denominated in Agreed Currencies (other than euro), on which dealings
in Dollars and the other Agreed Currencies are carried on in the London
interbank market and (y) in addition, for Loans denominated in euro, on which
dealings in euro are carried on in Brussels, Belgium interbank market, and (ii)
for all other purposes a day (other than a Saturday or Sunday) on which banks
are open for business in Chicago, Illinois and New York, New York.
"BUYING LENDER(S)" is defined in Section 2.6(b).
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
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interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person;
provided, however, that "Capital Stock" shall not include any debt securities
convertible into equity securities prior to such conversion.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the governments of the United States and backed by
the full faith and credit of the United States government; (ii) domestic and
Eurocurrency certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies, the long-term
indebtedness of which institution at the time of acquisition is rated A- (or
better) by Standard & Poor's Ratings Group or A3 (or better) by Moody's
Investors Services, Inc., and which certificates of deposit and time deposits
are fully protected against currency fluctuations for any such deposits with a
term of more than ninety (90) days; (iii) shares of money market, mutual or
similar funds having assets in excess of $100,000,000 and the investments of
which are limited to (x) investment grade securities (i.e., securities rated at
least Baa by Moody's Investors Service, Inc. or at least BBB by Standard &
Poor's Ratings Group) and (y) commercial paper of United States and foreign
banks and bank holding companies and their subsidiaries and United States and
foreign finance, commercial industrial or utility companies which, at the time
of acquisition, are rated A-1 (or better) by Standard & Poor's Ratings Group or
P-1 (or better) by Moody's Investors Services, Inc. (all such institutions
being, "QUALIFIED INSTITUTIONS"); and (iv) commercial paper of Qualified
Institutions; provided that the maturities of such Cash Equivalents shall not
exceed three hundred sixty-five (365) days from the date of acquisition thereof.
"CHANGE" is defined in Section 4.2 hereof.
"CHANGE OF CONTROL" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act of 1934), excluding Pechiney, becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act
of 1934, provided that a person shall be deemed to have "beneficial ownership"
of all securities that such person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time), directly or
indirectly, of thirty percent (30%) or more of the combined voting power of the
Company's outstanding Capital Stock
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ordinarily having the right to vote at an election of directors; or
(b) the majority of the board of directors of the Company fails to
consist of Continuing Directors; or
(c) the Company consolidates with or merges into another corporation or
conveys, transfers or leases all or substantially all of its property to any
Person, or any corporation consolidates with or merges into the Company, in
either event pursuant to a transaction in which the outstanding Capital Stock of
the Company is reclassified or changed into or exchanged for cash, securities or
other property; or
(d) except as otherwise permitted under the terms of this Agreement,
the Company shall cease to own and control all of the economic and voting rights
associated with all of the outstanding Capital Stock of its Subsidiaries.
"CLO ADMINISTRATIVE AGENT" means ABN AMRO Bank N.V., together with its
successors and assigns under the CLO Facilities.
"CLO FACILITIES" means, collectively, (i) the five (5) year corporate
loan option finance facilities in the original aggregate maximum matured
principal amount of $50,000,000 provided to the Company pursuant to the 5-Year
Finance Facility Agreement (the "5-YEAR FINANCE FACILITIES"), and (ii) the
364-day corporate loan option finance facilities in the original aggregate
maximum matured principal amount of $50,000,000 provided to the Company pursuant
to the 364- Day Finance Facility Agreement (the "364-DAY FINANCE FACILITIES").
"CLOSING DATE" means July 22, 1999.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"CO-DOCUMENTATION AGENT" means each of ABN AMRO Bank N.V. and Royal
Bank of Canada, in its respective capacity as co-documentation agent for the
loan transaction evidenced by this Agreement, together with its successors and
assigns.
"COMMISSION" means the Securities and Exchange Commission of the United
States of America and any Person succeeding to the functions thereof.
"COMMITMENT INCREASE DATE" is defined in Section 2.6(b).
"COMMITMENT INCREASE NOTICE" is defined in Section 2.6(b).
"COMPANY" means American National Can Group, Inc., a Delaware
corporation, together with its successors and assigns, including a
debtor-in-possession on behalf of the Company.
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"COMPETITIVE BID ADVANCE" means a borrowing hereunder consisting of the
aggregate amount of the several Competitive Bid Loans made by some or all of the
Lenders to the Company at the same time and for the same Interest Period.
"COMPETITIVE BID BORROWING NOTICE" is defined in Section 2.1(F).
"COMPETITIVE BID LOAN" means a Eurocurrency Bid Rate Loan or an
Absolute Rate Loan, or both, as the case may be and in either case in Dollars.
"COMPETITIVE BID MARGIN" means the margin above or below the applicable
Eurocurrency Base Rate offered for a Eurocurrency Bid Rate Loan, expressed as a
percentage (rounded to the nearest 1/100 of 1%) to be added or subtracted from
such Eurocurrency Base Rate.
"COMPETITIVE BID RATE" means, for any day for any Competitive Bid Loan
for the relevant Interest Period, the per annum rate of interest selected by the
Company in accordance with Section 2.1.
"COMPETITIVE BID QUOTE" means a Competitive Bid Quote substantially in
the form of Exhibit N hereto completed and delivered by a Lender to the
Administrative Agent in accordance with Section 2.1(D).
"COMPETITIVE BID QUOTE REQUEST" means a Competitive Bid Quote Request
substantially in the form of Exhibit L hereto completed and delivered by the
Company to the Administrative Agent in accordance with Section 2.1(B).
"CONSOLIDATED NET ASSETS" means the total assets of the Company and its
Subsidiaries on a consolidated basis (determined in accordance with Agreement
Accounting Principles), but excluding therefrom all goodwill under Agreement
Accounting Principles.
"CONSOLIDATED NET SALES" means all sales (net of returns and
allowances) shown on a consolidated income statement of the Company and its
Subsidiaries, prepared in accordance with Agreement Accounting Principles.
"CONSOLIDATED NET WORTH" means, at a particular date, all amounts which
would be included under shareholders' equity on the consolidated balance sheet
for the Company and its consolidated Subsidiaries, but excluding cumulative
foreign currency translation adjustments and adjustments for minimum pension
liability accounts, in each case as determined in accordance with Agreement
Accounting Principles.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBS"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety
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Requirements of Law.
"CONTINGENT OBLIGATION", as applied to any Person, means any
Contractual Obligation, contingent or otherwise, of that Person with respect to
any Indebtedness of another or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability of
another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including Contractual Obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make payment other than for value received. The amount of any
Contingent Obligation shall be equal to the present value of the portion of the
obligation so guaranteed or otherwise supported, in the case of known recurring
obligations, and the maximum reasonably anticipated liability in respect of the
portion of the obligation so guaranteed or otherwise supported assuming such
Person is required to perform thereunder, in all other cases.
"CONTINUING DIRECTOR" means, with respect to any Person as of any date
of determination, any member of the board of directors of such Person who (a)
was a member of such board of directors on the Closing Date, or (b) was
nominated for election or elected to such board of directors with the approval
of the Continuing Directors who were members of such board at the time of such
nomination or election.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision
of any equity or debt securities issued by that Person or any indenture,
mortgage, deed of trust, security agreement, pledge agreement, guaranty,
contract, undertaking, agreement or instrument, in any case in writing, to which
that Person is a party or by which it or any of its properties is bound, or to
which it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Company; (ii) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Code) with the Company; and
(iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Code) as the Company, any corporation described in clause
(i) above or any partnership or trade or business described in clause (ii)
above.
"CORPORATE BASE RATE" means the corporate base rate of interest
announced by First Chicago from time to time, changing when and as said
corporate base rate changes.
"CURE LOAN" is defined in Section 9.2(iii) hereof.
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"CUSTOMARY PERMITTED LIENS" means:
(i) Liens (other than Environmental Liens and Liens in
favor of the IRS or the PBGC) with respect to the payment of taxes,
assessments or governmental charges in all cases which are not yet due
or (if foreclosure, distraint, sale or other similar proceedings shall
not have been commenced or any such proceeding after being commenced is
stayed) which are being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and with
respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with Agreement Accounting Principles;
(ii) statutory Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen, service providers or
workmen and other similar Liens imposed by law created in the ordinary
course of business for amounts not more than sixty (60) days past due
or thereafter can be paid without penalty which are being contested in
good faith by appropriate proceedings properly instituted and
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
Agreement Accounting Principles;
(iii) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance or other types of social security benefits or to
secure the performance of bids, tenders, sales, contracts (other than
for the repayment of borrowed money), surety, appeal and performance
bonds; provided that (A) all such Liens do not in the aggregate
materially detract from the value of the Company's or its Subsidiary's
assets or property taken as a whole or materially impair the use
thereof in the operation of the businesses taken as a whole, and (B)
all Liens securing bonds to stay judgments or in connection with
appeals do not secure at any time an aggregate amount exceeding
$15,000,000;
(iv) Liens arising with respect to zoning restrictions,
easements, encroachments, licenses, reservations, covenants,
rights-of-way, utility easements, building restrictions and other
similar charges, restrictions or encumbrances on the use of real
property which do not in any case materially detract from the value of
the property subject thereto or materially interfere with the ordinary
use or occupancy of the real property or with the ordinary conduct of
the business of the Company or any of its Subsidiaries;
(v) Liens of attachment or judgment with respect to
judgments, writs or warrants of attachment, or similar process against
the Company or any of its Subsidiaries which do not constitute a
Default under Section 8.1(H) hereof; and
(vi) any interest or title of the lessor in the property
subject to any operating lease entered into by the Company or any of
its Subsidiaries in the ordinary course of business.
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"DEFAULT" means an event described in Article VIII hereof.
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is ninety-one (91) days after the Revolving Loan Termination Date.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United
States of America.
"DOLLAR AMOUNT" of any currency at any date shall mean (i) the amount
of such currency if such currency is Dollars or (ii) the Equivalent Amount of
Dollars if such currency is any currency other than Dollars.
"DOMESTIC INCORPORATED SUBSIDIARY" means a Subsidiary of the Company
organized under the laws of a jurisdiction located in the United States of
America.
"EBITDA" means, for any period, on a consolidated basis for the Company
and its Subsidiaries, the sum of the amounts for such period, without
duplication, of (i) Net Income, plus (ii) Interest Expense to the extent
deducted in computing Net Income, plus (iii) charges against income for foreign,
federal, state and local taxes to the extent deducted in computing Net Income,
plus (iv) depreciation expense to the extent deducted in computing Net Income,
plus (v) amortization expense, including, without limitation, amortization of
goodwill and other intangible assets to the extent deducted in computing Net
Income, plus (vi) other non-cash charges classified as long-term deferrals in
accordance with Agreement Accounting Principles to the extent deducted in
computing Net Income, plus (vii) other extraordinary non-cash charges to the
extent deducted in computing Net Income, minus (viii) other extraordinary
non-cash credits to the extent added in computing Net Income, plus (ix)
nonrecurring after-tax losses (or minus nonrecurring after-tax gains).
"EFFECTIVE COMMITMENT AMOUNTS" is defined in Section 2.6(b).
"ELIGIBLE CURRENCY" means any currency other than Dollars with respect
to which the Administrative Agent or the applicable Borrower has not given
notice in accordance with Section 2.23 and that is readily available, freely
traded, in which deposits are customarily offered to banks in the London
interbank market, convertible into Dollars in the international interbank market
available to the Lenders in such market and as to which an Equivalent Amount may
be readily calculated. If, after the designation pursuant to the terms of this
Agreement of any currency as an Agreed Currency or Alternate Currency, currency
control or other exchange regulations are imposed in the country in which such
currency is issued with the result that different types of such
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<PAGE> 23
currency are introduced, such country's currency is, in the determination of the
Administrative Agent, no longer readily available or freely traded or (ii) as to
which, in the determination of the Administrative Agent, an Equivalent Amount is
not readily calculable (each of clause (i) and (ii), a "DISQUALIFYING EVENT"),
then the Administrative Agent shall promptly notify the Lenders and the Company,
and such country's currency shall no longer be an Agreed Currency or Alternate
Currency until such time as the Disqualifying Event(s) no longer exist, but in
any event within five (5) Business Days of receipt of such notice from the
Administrative Agent, the applicable Borrowers shall repay all Loans in such
currency to which the Disqualifying Event applies or convert such Loan into
Loans in Dollars or another Agreed Currency or Alternate Currency, subject to
the other terms contained in Articles II and IV.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to foreign, federal, state and
local laws or regulations relating to or addressing pollution or protection of
the environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601 et seq., the Occupational Safety and Health Act of 1970,
29 U.S.C. ss. 651 et seq., and the Resource Conservation and Recovery Act of
1976, 42 U.S.C. ss. 6901 et seq., in each case including any amendments thereto,
any successor statutes, and any regulations or guidance promulgated thereunder,
and any state or local equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable requirement
of law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the closure of any property or the transfer, sale or
lease of any property or deed or title for any property for environmental
reasons, including, but not limited to, any so-called "Industrial Site Recovery
Act" or "Responsible Property Transfer Act."
"EQUIPMENT" means all of the Company's and its Subsidiaries' present
and future (i) equipment, including, without limitation, machinery,
manufacturing, distribution, selling, data processing and office equipment,
assembly systems, tools, molds, dies, fixtures, appliances, furniture,
furnishings, vehicles, vessels, aircraft, aircraft engines, and trade fixtures,
(ii) other tangible personal property (other than the Company's or its
Subsidiaries' Inventory), and (iii) any and all accessions, parts and
appurtenances attached to any of the foregoing or used in connection therewith,
and any substitutions therefor and replacements, products and proceeds thereof.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock). Equity Interests will not
include any Incentive Arrangements or obligations or payments thereunder.
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<PAGE> 24
"EQUIVALENT AMOUNT" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetic mean of the buy and sell spot
rates of exchange of the Administrative Agent or Alternate Currency Bank, as
applicable, in the London interbank market (or other market where the
Administrative Agent's or Alternate Currency Bank's, as applicable, foreign
exchange operations in respect of such currency are then being conducted) for
such other currency at or about 11:00 a.m. (local time) two (2) Business Days
prior to the date on which such amount is to be determined, rounded up to the
nearest amount of such currency as determined by the applicable Alternate
Currency Bank from time to time; provided, however, that if at the time of any
such determination, for any reason, no such spot rate is being quoted, the
Administrative Agent or Alternate Currency Bank's, as applicable, may use any
reasonable method it deems appropriate to determine such amount, and such
determination shall be conclusive absent manifest error.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"EURO" means the euro referred to in the Council Regulation (EC) No.
1103/97 dated 17 June 1997 passed by the Council of the European Union, or, if
different, the then lawful currency of the member states of the European Union
that participate in the third stage of the Economic and Monetary Union.
"EUROCURRENCY AUCTION" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins pursuant to Section 2.1.
"EUROCURRENCY BASE RATE" means, with respect to a Eurocurrency Rate
Loan or Eurocurrency Bid Rate Loan for any specified Interest Period, (a) for
any Eurocurrency Bid Rate Loan or Eurocurrency Rate Loan in any Agreed Currency
other than euro, either (i) the rate of interest per annum equal to the rate for
deposits in the applicable Agreed Currency in the approximate amount of the Pro
Rata Share of the Administrative Agent of such Eurocurrency Rate Advance with a
maturity approximately equal to such Interest Period which appears on Telerate
Page 3740 or Telerate Page 3750, as applicable, or, if there is more than one
such rate, the average of such rates rounded to the nearest 1/100 of 1%, as of
11:00 a.m. (London time) two (2) Business Days prior to the first day of such
Interest Period or (ii) if no such rate of interest appears on Telerate Page
3740 or Telerate Page 3750, as applicable, for any specified Interest Period,
the rate at which deposits in the applicable Agreed Currency are offered by the
Administrative Agent to first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of such Interest Period, in the approximate amount of the Pro Rata Share of
the Administrative Agent of such Eurocurrency Rate Loan, or, in the case of a
Eurocurrency Bid Rate Loan, the amount of the Eurocurrency Bid Rate Loan
requested by the Company, and having a maturity approximately equal to such
Interest Period; and (b) with respect to any Eurocurrency Rate Loan in euro for
any Interest Period, the interest rate per annum equal to the rate determined by
the Administrative Agent to be the rate at which deposits in euro appear on
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<PAGE> 25
the Telerate Page 248 as of 11:00 a.m. (Brussels time), on the date that is two
(2) TARGET Settlement Days preceding the first day of such Interest Period;
provided, that if such rate does not appear on the Telerate Page 248, then
Eurocurrency Base Rate shall be an interest rate per annum equal to the
arithmetic mean determined by the Administrative Agent (rounded upwards to the
nearest .01%) of the rates per annum at which deposits in euro are offered by
three (3) leading banks in the euro-zone interbank market on or about 11:00 a.m.
(Brussels time), on the date which is two (2) TARGET Settlement Days prior to
the first day of such Interest Period to other leading banks in the euro-zone
interbank market, in the case of each of clause (a) and clause (b), as adjusted
for Reserves. The terms "Telerate Page 3740", "Telerate Page 3750" and "Telerate
Page 248" mean the display designated as "Page 3740", "Page 3750" and "Page
248", as applicable, on the Associated Press-Dow Jones Telerate Service (or such
other page as may replace Page 3740, Page 3750 or Page 248, as applicable, on
the Associated Press-Dow Jones Telerate Service or such other service as may be
nominated by the British Bankers' Association as the information vendor for the
purpose of displaying British Bankers' Association interest rate settlement
rates for the relevant Agreed Currency). Any Eurocurrency Base Rate determined
on the basis of the rate displayed on Telerate Page 3740 or Telerate Page 3750
or Telerate Page 248 in accordance with the foregoing provisions of this
subparagraph shall be subject to corrections, if any, made in such rate and
displayed by the Associated Press-Dow Jones Telerate Service within one hour of
the time when such rate is first displayed by such service.
"EUROCURRENCY BID RATE" means, with respect to a Eurocurrency Bid Rate
Loan made by a given Lender for the relevant Interest Period, the sum of (a) the
Eurocurrency Base Rate and (b) the Competitive Bid Margin offered by such Lender
and accepted by the Company.
"EUROCURRENCY BID RATE ADVANCE" means a Competitive Bid Advance which
bears interest at a Eurocurrency Bid Rate.
"EUROCURRENCY BID RATE LOAN" means a Loan which bears interest at the
Eurocurrency Bid Rate.
"EUROCURRENCY PAYMENT OFFICE" of the Administrative Agent shall mean,
for each of the Agreed Currencies, any agency, branch or Affiliate of the
Administrative Agent, specified as the "Eurocurrency Payment Office" for such
Agreed Currency in Exhibit A-1 hereto or such other agency, branch, Affiliate or
correspondence bank of the Administrative Agent, as it may from time to time
specify to the applicable Borrowers and each Lender as its Eurocurrency Payment
Office.
"EUROCURRENCY RATE" means, with respect to a Eurocurrency Rate Loan for
the relevant Interest Period, the Eurocurrency Base Rate applicable to such
Interest Period plus the then Applicable Eurocurrency Margin, changing as and
when the Applicable Eurocurrency Margin changes.
"EUROCURRENCY RATE ADVANCE" means an Advance (other than a Eurocurrency
Bid Rate Advance) which bears interest at the Eurocurrency Rate.
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<PAGE> 26
"EUROCURRENCY RATE LOAN" means a Loan made on a fully syndicated basis
pursuant to Section 2.2, which bears interest at the Eurocurrency Rate.
"5-YEAR CLO LENDER" means each "Lender" under (and as defined in) the
5-Year Finance Facility Agreement which has a commitment to make "Advances"
thereunder.
"5-YEAR FINANCE FACILITY AGREEMENT" means that certain 5-Year Finance
Facility Agreement dated of even date herewith by and among the Company,
Windmill Funding Corporation and ABN AMRO Bank N.V. (individually and in its
capacity as CLO Administrative Agent), as the same may be amended, modified,
supplemented and/or restated from time to time in accordance with the terms
thereof and of this Agreement.
"FACILITY TERMINATION DATE" shall mean the date on which all of the
Termination Conditions have been satisfied.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"FEE LETTERS" means, collectively, the Administrative Agent Fee Letter
and that certain fee letter, dated as of June 7, 1999, by and among ANC, the
Lead Arrangers and the Underwriting Lenders.
"FINANCING" means, with respect to any Person, the issuance or sale by
such Person of any Equity Interests of such Person or any Indebtedness
consisting of debt securities of such Person.
"FIRST CHICAGO" means The First National Bank of Chicago, in its
individual capacity, and its successors.
"FIXED-RATE LOANS" means, collectively, the Eurocurrency Rate Loans,
the Eurocurrency Bid Rate Loans, the Absolute Rate Loans and the Alternate
Currency Loans.
"FLOATING RATE" means, for any day for any Loan, a rate per annum equal
to the Alternate Base Rate for such day, changing when and as the Alternate Base
Rate changes, plus the then Applicable Floating Rate Margin.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
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<PAGE> 27
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Floating Rate.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit plan as
defined in Section 3(3) of ERISA which is maintained or contributed to for the
benefit of the employees of the Company, any of its Subsidiaries or any members
of its Controlled Group and is not covered by ERISA pursuant to ERISA Section
4(b)(4).
"FOREIGN INCORPORATED SUBSIDIARY" means a Subsidiary of the Company
which is not a Domestic Incorporated Subsidiary.
"FOREIGN PENSION PLAN" means any employee benefit plan as described in
Section 3(3) of ERISA for which the Company or any member of its Controlled
Group is a sponsor or administrator and which (i) is maintained or contributed
to for the benefit of employees of the Company, any of its Subsidiaries or any
member of its Controlled Group, (ii) is not covered by ERISA pursuant to Section
4(b)(4) of ERISA, and (iii) under applicable local law, is required to be funded
through a trust or other funding vehicle.
"GOVERNMENTAL ACTS" is defined in Section 3.10(A) hereof.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative authority or
functions of or pertaining to government, including any authority or other
quasi-governmental entity established to perform any of such functions.
"GROSS NEGLIGENCE" means recklessness, or actions taken or omitted with
conscious indifference to or the complete disregard of consequences or rights of
others affected. Gross Negligence does not mean the absence of ordinary care or
diligence, or an inadvertent act or inadvertent failure to act. If the term
"gross negligence" is used with respect to the Administrative Agent or any
Lender or any indemnitee in any of the other Loan Documents, it shall have the
meaning set forth herein.
"GUARANTEED OBLIGATIONS" is defined in Section 10.1 hereof.
"GUARANTY" means each of (i) that certain Guaranty (and any and all
supplements thereto) executed from time to time by each Subsidiary Borrower that
is a Domestic Incorporated Subsidiary and each Material Domestic Subsidiary of
the Company listed on Schedule 6.8 and each other Subsidiary Borrower that is a
Domestic Incorporated Subsidiary and each other Material Domestic Subsidiary of
the Company as required pursuant to Section 7.2(k) in favor of the
Administrative Agent for the benefit of itself and the Holders of Obligations,
in substantially the form of Exhibit I-1 attached hereto, and (ii) the guaranty
by the Company of all of the Obligations of the Subsidiary Borrowers pursuant to
this Agreement and the Alternate Currency Addenda, in each case as amended,
restated, supplemented or otherwise modified from time to time.
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<PAGE> 28
"HEDGING AGREEMENTS" is defined in Section 7.3(P) hereof.
"HEDGING OBLIGATIONS" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, commodity prices,
exchange rates or forward rates applicable to such party's assets, liabilities
or exchange transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency or interest rate options, puts and warrants, and (ii) any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"HOLDERS OF OBLIGATIONS" means the holders of the Obligations from time
to time and shall include (i) each Lender in respect of its Loans, (ii) each
Issuing Bank in respect of Reimbursement Obligations owed to it, (iii) the
Agents, the Lenders and the Issuing Banks in respect of all other present and
future obligations and liabilities of the Company or any of its Subsidiaries of
every type and description arising under or in connection with this Agreement or
any other Loan Document, (iv) each Indemnitee in respect of the obligations and
liabilities of the Company or any of its Subsidiaries to such Person hereunder
or under the other Loan Documents, and (v) their respective successors,
transferees and assigns.
"INCENTIVE ARRANGEMENTS" means any stock appreciation rights, "phantom"
stock plans, employment agreements, non-competition agreements, subscription and
stockholders agreements and other incentive and bonus plans and similar
arrangements made in connection with the retention of executives, officers or
employees of the Company and its Subsidiaries.
"INDEBTEDNESS" of a person means, without duplication, such person's
(i) obligations for borrowed money, including, without limitation, subordinated
indebtedness, (ii) obligations representing the deferred purchase price of
property or services (other than accounts payable arising in the ordinary course
of such person's business payable on terms customary in the trade and other than
earn-outs or other similar forms of contingent purchase prices), (iii)
obligations, whether or not assumed, secured by liens on or payable out of the
proceeds or production from property now or hereafter owned or acquired by such
person, (iv) obligations which are evidenced by notes, acceptances, other
instruments, letters of credit or letter of credit reimbursement arrangements,
(v) Capitalized Lease Obligations, (vi) Hedging Obligations, (vii) Contingent
Obligations, (viii) outstanding principal balances (representing securitized but
unliquidated assets) under asset securitization agreements (including, without
limitation, the outstanding principal balance of Receivables under Receivables
transactions) and (ix) the implied debt component of synthetic leases of which
such person is lessee or any other off-balance sheet financing arrangements
(including, without limitation, any such arrangements giving rise to any
Off-Balance Sheet Liabilities).
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<PAGE> 29
"INDEMNIFIED MATTERS" is defined in Section 11.7(B) hereof.
"INDEMNITEES" is defined in Section 11.7(B) hereof.
"INTEGRATION BLOCKAGE DEFAULT" is defined in Section 2.6(b).
"INTEREST EXPENSE" means, for any period, the total interest expense of
the Company and its consolidated Subsidiaries, whether paid or accrued
(including the interest component of Capitalized Leases, commitment and facility
fees and fees for stand-by letters of credit), all as determined in conformity
with Agreement Accounting Principles.
"INTEREST COVERAGE RATIO" is defined in Section 7.4(A) hereof.
"INTEREST PERIOD" means (i) any Alternate Currency Interest Period,
(ii) any Absolute Rate Interest Period, and (iii) with respect to a Eurocurrency
Rate Loan or a Eurocurrency Bid Rate Loan, a period of one (1), two (2), three
(3) months or six (6) months, commencing on a Business Day selected by the
applicable Borrower on which a Eurocurrency Rate Advance is made to the such
Borrower pursuant to this Agreement; provided, however, notwithstanding anything
in this Agreement to the contrary for the period from the Closing Date to the
earlier of (y) the date that is 90 days after the Closing Date and (z) the date
upon which the Lead Arrangers confirms that the loan syndication process has
been complete (the "SYNDICATION PERIOD"), "Interest Period" means, with respect
to a Eurocurrency Rate Advance, a period of seven (7) days. Other than during
the Syndication Period, such Interest Period described in clause (iii) above
shall end on (but exclude) the day which corresponds numerically to such date
one, two, three or six months thereafter; provided, however, that if there is no
such numerically corresponding day in such next, second, third or sixth
succeeding month, such Interest Period shall end on the last Business Day of
such next, second, third or sixth succeeding month. If an Interest Period would
otherwise end on a day which is not a Business Day, such Interest Period shall
end on the next succeeding Business Day, provided, however, that if said next
succeeding Business Day falls in a new calendar month, such Interest Period
shall end on the immediately preceding Business Day.
"INVENTORY" shall mean any and all goods, including, without
limitation, goods in transit, wheresoever located, whether now owned or
hereafter acquired by the Company or any of its Subsidiaries, which are held for
sale or lease, furnished under any contract of service or held as raw materials,
work in process or supplies, and all materials used or consumed in the business
of Company or any of its Subsidiaries, and shall include all right, title and
interest of the Company or any of its Subsidiaries in any property the sale or
other disposition of which has given rise to Receivables and which has been
returned to or repossessed or stopped in transit by the Company or any of its
Subsidiaries.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
other securities, issued by any other Person, (ii) any purchase
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by that Person of all or substantially all of the assets of a business (whether
of a division, branch, unit operation, or otherwise) conducted by another
Person, and (iii) any loan, advance (other than deposits with financial
institutions available for withdrawal on demand, prepaid expenses, accounts
receivable, advances to employees and similar items made or incurred in the
ordinary course of business) or capital contribution by that Person to any other
Person, including all Indebtedness to such Person arising from a sale of
property by such Person other than in the ordinary course of its business.
"INVITATION FOR COMPETITIVE BID QUOTES" means an Invitation for
Competitive Bid Quotes substantially in the form of Exhibit M hereto, completed
and delivered by the Administrative Agent to the Lenders in accordance with
Section 2.1(C).
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"ISSUING BANKS" means First Chicago or any of its Affiliates or any of
the other Lenders in its separate capacity as an issuer of Letters of Credit
pursuant to Section 3.1. The designation of any Lender as an Issuing Bank after
the date hereof shall be subject to the prior written consent of the
Administrative Agent, which consent shall not be unreasonably withheld.
"L/C DOCUMENTS" is defined in Section 3.4 hereof.
"L/C DRAFT" means a draft drawn on an Issuing Bank pursuant to a Letter
of Credit.
"L/C INTEREST" shall have the meaning ascribed to such term in Section
3.6 hereof.
"L/C OBLIGATIONS" means, without duplication, an amount equal to the
sum of (i) the aggregate of the Dollar Amount then available for drawing under
each of the Letters of Credit, (ii) the Dollar Amount equal to the face amount
of all outstanding L/C Drafts corresponding to the Letters of Credit, which L/C
Drafts have been accepted by the applicable Issuing Bank, (iii) the aggregate
outstanding Dollar Amount of all Reimbursement Obligations at such time and (iv)
the aggregate Dollar Amount equal to the face amount of all Letters of Credit
requested by the Borrowers but not yet issued (unless the request for an
unissued Letter of Credit has been denied).
"LEAD ARRANGERS" means, collectively, Chase Securities Inc. and Banc
One Capital Markets, Inc., in their respective capacity as Lead Arranger for the
loan transaction evidenced by this Agreement.
"LENDERS" means the lending institutions listed on the signature pages
of this Agreement and each New Lender which becomes a Lender hereto pursuant to
the provisions of Section 2.6(b) and their respective successors and assigns.
"LENDING INSTALLATION" means, with respect to a Lender or the
Administrative Agent, any
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<PAGE> 31
office, branch, subsidiary or affiliate of such Lender or the Administrative
Agent.
"LETTER OF CREDIT" means the letters of credit to be (a) issued by the
Issuing Banks pursuant to Section 3.1 hereof or (b) deemed issued by the Issuing
Banks pursuant to Section 3.2 hereof.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN(S)" means, with respect to a Lender, such Lender's portion of (a)
any Advance made pursuant to Section 2.2 hereof, (b) any Advance in which such
Lender has purchased an interest pursuant to Section 2.6(b), and (c) any loans
made under the 5-Year Finance Facility Agreement and converted to Obligations
under Section 2.6(b) hereof, as applicable, and in the case of any Alternate
Currency Bank, any Alternate Currency Loan made by it pursuant to Section 2.21
and the applicable Alternate Currency Addendum and in the case of any Lender
which has made a Competitive Bid Loan, any Competitive Bid Loan made by it
pursuant to Section 2.1, and collectively, all Revolving Loans, Alternate
Currency Loans and Competitive Bid Loans.
"LOAN ACCOUNT" is defined in Section 2.13(A) hereof.
"LOAN DOCUMENTS" means this Agreement, each Alternate Currency Addendum
executed hereunder, each Assumption Letter executed hereunder, the Guaranty, the
Subordination Agreement and all other documents, instruments, notes and
agreements executed in connection therewith or contemplated thereby (other than
the 364-Day Credit Agreement, the CLO Facilities, and the documents related
thereto), as the same may be amended, restated or otherwise modified and in
effect from time to time.
"MARGIN STOCK" shall have the meaning ascribed to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of ANC, the Company, or the Company and its
Subsidiaries, taken as a whole, (b) the collective ability of the Company or any
of its Subsidiaries to perform their respective obligations under the Loan
Documents in any material respect, or (c) the ability of the Lenders or the
Agents to enforce in any material respect the Obligations.
"MATERIAL DOMESTIC SUBSIDIARY" means each of ANC and Pechiney North
America, Inc., a Delaware corporation, and each other Domestic Incorporated
Subsidiary of the Company (other than ANC Receivables Corporation) that is a
Material Subsidiary.
"MATERIAL SUBSIDIARY" means (x) a Subsidiary of the Company (other
than ANC
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<PAGE> 32
Receivables Corporation) if (i) such Subsidiary's total assets exceeds
$50,000,000 as of the end of the most recently completed fiscal quarter of the
Company or (ii) such Subsidiary's total sales exceeds $50,000,000 as of the end
of the most recently completed four consecutive fiscal quarters of the Company,
all determined on the same basis as described in Section 7.1, and (y) any
Subsidiary Borrower.
"MAXIMUM EUROCURRENCY AMOUNT" means $400,000,000 or such other greater
amount as the Company may from time to time designate in writing to the
Administrative Agent provided such designated amount shall be agreed to by the
Required Lenders.
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either the Company or any member of the Controlled Group.
"NATIONAL CURRENCY UNIT" means the unit of currency (other than a euro)
of each member state of the European Union that participates in the third stage
of Economic and Monetary Union.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, Financing or
Sale and Leaseback Transaction by any Person, (a) cash or Cash Equivalents
(freely convertible into Dollars) received by such Person or any Subsidiary of
such Person from such Asset Sale or Sale and Leaseback Transaction (including
cash received as consideration for the assumption or incurrence of liabilities
incurred in connection with or in anticipation of such Asset Sale or Sale and
Leaseback Transaction) or Financing, after (i) provision for all income or other
taxes measured by or resulting from such Asset Sale, Financing or Sale and
Leaseback Transaction, (ii) payment of all brokerage commissions and other fees
and expenses and commissions related to such Asset Sale, Financing or Sale and
Leaseback Transaction, (iii) repayment of Indebtedness (and any premium or
penalty thereon) secured by a Lien on any asset disposed of in such Asset Sale
or Sale and Leaseback Transaction or which is or may be required (by the express
terms of the instrument governing such Indebtedness or by applicable law) to be
repaid in connection with such Asset Sale or Sale and Leaseback Transaction
(including payments made to obtain or avoid the need for the consent of any
holder of such Indebtedness), and (iv) deduction of appropriate amounts to be
provided by such Person or a Subsidiary of such Person as a reserve, in
accordance with Agreement Accounting Principles, against any liabilities
associated with the assets sold or disposed of in such Asset Sale or Sale and
Leaseback Transaction and retained by such Person or a Subsidiary of such Person
after such Asset Sale or Sale and Leaseback Transaction, including, without
limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with the assets sold or disposed of in such Asset Sale or
Sale and Leaseback Transaction, as applicable; and (b) cash or Cash Equivalents
payments in respect of any other consideration received by such Person or any
Subsidiary of such Person from such Asset Sale, Financing or Sale and Leaseback
Transaction upon receipt of such cash payments by such Person or such
Subsidiary.
"NET INCOME" means, for any period, the net income (or loss) after
taxes of the Company
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and its Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with Agreement Accounting Principles.
"NEW LENDER" is defined in Section 2.6(b).
"NON PRO RATA LOAN" is defined in Section 9.2 hereof.
"NOTICE OF ASSIGNMENT" is defined in Section 14.3(B) hereof.
"OBLIGATIONS" means all Loans, L/C Obligations, advances, debts,
liabilities, obligations, covenants and duties owing by the Borrowers or any of
their Subsidiaries to the Administrative Agent, any Lender, the Arranger, any
Affiliate of the Administrative Agent or any Lender, any Issuing Bank or any
Indemnitee, of any kind or nature, present or future, arising under this
Agreement, the L/C Documents, any Alternate Currency Addendum or any other Loan
Document, whether or not evidenced by any note, guaranty or other instrument,
whether or not for the payment of money, whether arising by reason of an
extension of credit, loan, guaranty, indemnification, or in any other manner,
whether direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising and however
acquired. The term includes, without limitation, all interest, charges,
expenses, fees, reasonable attorneys' fees and disbursements, reasonable
paralegals' fees (in each case whether or not allowed), and any other sum
chargeable to the Company or any of its Subsidiaries under this Agreement or any
other Loan Document.
"OFF-BALANCE SHEET LIABILITIES" of a Person means (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to Receivables sold by such Person or any of its Subsidiaries, (b) any liability
of such Person or any of its Subsidiaries under any sale and leaseback
transactions which do not create a liability on the consolidated balance sheet
of such Person, (c) any liability of such Person or any of its Subsidiaries
under any financing lease or so- called "synthetic" lease transaction, or (d)
any obligations of such Person or any of its Subsidiaries arising with respect
to any other transaction which is the functional equivalent of or takes the
place of borrowing but which does not constitute a liability on the consolidated
balance sheets of such Person and its Subsidiaries.
"OTHER TAXES" is defined in Section 2.15(E)(ii) hereof.
"PARTICIPANTS" is defined in Section 14.2(A) hereof.
"PAYMENT DATE" means the first day of each March, June, September,
December, the Termination Date (or such earlier date on which the Aggregate
Commitment shall terminate or be cancelled), and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
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<PAGE> 34
"PBGC AGREEMENT" means that certain confidential term sheet dated June
25, 1999 between the Company and the PBGC, setting forth the undertakings of the
Company to make contributions to certain of its U.S. Plans, and any definitive
documentation replacing such confidential term sheet to the extent such
documentation sets forth the terms described in such term sheet as in effect on
the date hereof.
"PECHINEY" means Pechiney, S.A., a societe anonyme organized under
the laws of the Republic of France.
"PERMITTED ACQUISITION" is defined in Section 7.3(G) hereof.
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means the Contingent
Obligations of the Company and its Subsidiaries identified as such on Schedule
1.1.1 to this Agreement.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the Company
and its Subsidiaries identified as such on Schedule 1.1.2 to this Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Company and
its Subsidiaries identified as such on Schedule 1.1.3 to this Agreement.
"PERMITTED PURCHASE MONEY INDEBTEDNESS" means secured or unsecured
purchase money Indebtedness (including Capitalized Leases) incurred by the
Company or any of its Subsidiaries after the Closing Date to finance the
acquisition of fixed assets or in conjunction with a Permitted Acquisition and
secured by purchase money Liens (including the interest of a lessor under a
Capitalized Lease and Liens to which any property is subject at the time of the
Company's or its Subsidiaries' acquisition thereof), if (1) at the time of such
incurrence, no Default or Unmatured Default has occurred and is continuing or
would result from such incurrence, (2) such Indebtedness has a scheduled
maturity and is not due on demand, (3) such Indebtedness does not exceed the
lower of the fair market value or the cost of the applicable fixed assets on the
date acquired; provided, that such Liens shall not apply to any property of the
Company or its Subsidiaries other than that purchased or subject to such
Capitalized Lease and proceeds thereof.
"PERMITTED REFINANCING INDEBTEDNESS" means any replacement, renewal,
refinancing or extension of any Indebtedness permitted by this Agreement that
(i) does not exceed the aggregate principal amount (plus accrued interest and
any applicable premium and associated fees and expenses) of the Indebtedness
being replaced, renewed, refinanced or extended, (ii) does not have a Weighted
Average Life to Maturity at the time of such replacement, renewal, refinancing
or extension that is less than the Weighted Average Life to Maturity of the
Indebtedness being replaced, renewed, refinanced or extended, (iii) does not
rank at the time of such replacement, renewal, refinancing or extension senior
to the Indebtedness being replaced, renewed, refinanced or extended, and (iv)
does not contain terms (including, without limitation, terms relating to
security, amortization, interest rate, premiums, fees, covenants, event of
default and remedies) materially less favorable to the Company, its Subsidiaries
or the Lenders than those applicable to
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<PAGE> 35
the Indebtedness being replaced, renewed, refinanced or extended.
"PERSON" means any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company or other entity of any kind, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA,
other than a Multiemployer Plan, in respect of which the Company or any member
of the Controlled Group is, or within the immediately preceding six (6) years
was, an "employer" as defined in Section 3(5) of ERISA.
"POUNDS STERLING" shall mean the lawful currency of England.
"PRO RATA SHARE" means, with respect to any Lender, the percentage
obtained by dividing (x) such Lender's Revolving Loan Commitment at such time
(as adjusted from time to time in accordance with the provisions of this
Agreement) by (y) the Aggregate Revolving Loan Commitment at such time (as
adjusted from time to time in accordance with the provisions of this Agreement);
provided, however, if all of the Revolving Loan Commitments are terminated
pursuant to the terms of this Agreement, then "Pro Rata Share" means the
percentage obtained by dividing (x) the sum of (A) such Lender's Revolving
Loans, plus (B) such Lender's share of the obligations to purchase
participations in Alternate Currency Loans and Letters of Credit plus (C) such
Lender's Competitive Bid Advances, by (y) the sum of (A) the aggregate
outstanding amount of all Revolving Loans, plus (B) the aggregate outstanding
amount of all Alternate Currency Loans and all Letters of Credit, plus (C) the
aggregate outstanding amount of all Competitive Bid Advances.
"PURCHASERS" is defined in Section 14.3(A) hereof.
"RATE OPTION" means the Eurocurrency Rate, the Floating Rate, the
Competitive Bid Rate or the Alternate Currency Rate, as applicable.
"RECEIVABLE(S)" means and includes all of the Company's and its
Subsidiaries' presently existing and hereafter arising or acquired accounts,
accounts receivable, and all present and future rights of the Company or its
Subsidiaries, as applicable, to payment for goods sold or leased or for services
rendered (except those evidenced by instruments or chattel paper), whether or
not they have been earned by performance, and all rights in any merchandise or
goods which any of the same may represent, and all rights, title, security and
guaranties with respect to each of the foregoing, including, without limitation,
any right of stoppage in transit.
"REGISTER" is defined in Section 14.3(C) hereof.
"REGISTRATION STATEMENT" means the Company's S-1 Registration
Statement filed with the
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<PAGE> 36
Commission as of June 4, 1999, as amended on or prior to the date hereof.
"REGULATION T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying Margin Stock applicable to member banks of the Federal
Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"REIMBURSEMENT OBLIGATION" is defined in Section 3.7 hereof.
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including the movement of Contaminants
through or in the air, soil, surface water or groundwater.
"RENTALS" of a Person means the aggregate fixed amounts payable by such
Person under any lease of real or personal property that has an initial or
remaining non-cancelable lease term in excess of one year but does not include
any amounts payable under Capitalized Leases of such Person.
"REPLACEMENT LENDER" is defined in Section 2.20 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation or otherwise
waived the requirement of Section 4043(a) of ERISA that it be notified within
thirty (30) days after such event occurs, provided, however, that a failure to
meet the minimum funding standards of Section 412 of the Code and of Section 302
of ERISA shall be a Reportable Event regardless of the issuance of any such
waiver of the notice requirement in accordance with either Section 4043(a) of
ERISA or Section 412(d) of the Code.
"REQUIRED LENDERS" means:
(x) so long as no Integration Blockage Default shall have
occurred, Lenders hereunder and 5-Year CLO Lenders whose
Aggregate Pro Rata Shares, in the aggregate, are at
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least fifty-one percent (51%); provided, however, that, if any
Person shall have failed (A) to fund its Pro Rata Share of (i)
any Revolving Loan requested by the applicable Borrower, (ii)
any Revolving Loan required to be made in connection with
reimbursement for any L/C Obligations, or (iii) any
participation in any Alternate Currency Loan pursuant to
Section 2.21(E), which such Lenders are obligated to fund
under the terms of this Agreement, or (B) to purchase
interests in Loans hereunder pursuant to Section 2.6(b), in
either case and any such failure has not been cured, then for
so long as such failure continues, "REQUIRED LENDERS" means
Lenders hereunder (excluding all Lenders whose failure to fund
their respective Pro Rata Shares of such Revolving Loans or
Alternate Currency Loans has not been so cured) and 5-Year CLO
Lenders (excluding all 5-Year CLO Lenders whose failure to
purchase interests hereunder pursuant to Section 2.6(b) has
not been so cured) whose Aggregate Pro Rata Shares represent
at least fifty-one percent (51%) of the aggregate Aggregate
Pro Rata Shares of such Lenders and 5- Year CLO Lenders;
provided, further, however, that, if the Revolving Loan
Commitments have been terminated pursuant to the terms of this
Agreement other than as a result of the occurrence of an
Integration Blockage Default, "REQUIRED LENDERS" means Lenders
(without regard to such Lenders' performance of their
respective obligations hereunder) and 5-Year CLO Lenders whose
aggregate ratable shares (stated as a percentage) of the
aggregate outstanding principal balance of all Loans plus the
aggregate outstanding principal balance of all "Advances"
(calculated at the "Matured Value") under (and as such terms
are defined in) the 5- Year Finance Facility Agreement are at
least fifty-one percent (51%); and
(y) at all times after an Integration Blockage Default shall
have occurred, Lenders whose Pro Rata Shares, in the
aggregate, are at least fifty-one percent (51%); provided,
however, that, if any of the Lenders shall have failed (A)
to fund its Pro Rata Share of (i) any Revolving Loan
requested by the applicable Borrower, (ii) any Revolving
Loan required to be made in connection with reimbursement
for any L/C Obligations, or (iii) any participation in any
Alternate Currency Loan pursuant to Section 2.21(E), or (B)
to purchase interests in Loans hereunder pursuant to Section
2.6(b), in either case and any such failure has not been
cured, then for so long as such failure continues, "REQUIRED
LENDERS" means Lenders (excluding all Lenders whose failure
to fund their respective Pro Rata Shares of such Revolving
Loans or Alternate Currency Loans, or to purchase interests
in Loans hereunder pursuant to Section 2.6(b), in either
case has not been so cured) whose Pro Rata Shares represent
at least fifty-one percent (51%) of the aggregate Pro Rata
Shares of such Lenders; provided further, however, that, if
the Revolving Loan Commitments have been terminated pursuant
to the terms of this Agreement, "REQUIRED LENDERS" means
Lenders (without regard to such Lenders' performance of
their respective obligations hereunder) whose aggregate
ratable shares (stated as a percentage) of the aggregate
outstanding principal balance of all Loans and L/C
Obligations are at least fifty-one percent (51%).
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"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act of 1933, the Securities
Exchange Act of 1934, Regulations T, U and X, ERISA, the Fair Labor Standards
Act, the Worker Adjustment and Retraining Notification Act, Americans with
Disabilities Act of 1990, and any certificate of occupancy, zoning ordinance,
building, environmental or land use requirement or permit or environmental,
labor, employment, occupational safety or health law, rule or regulation,
including Environmental, Health or Safety Requirements of Law.
"RESERVES" shall mean the maximum reserve requirement, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor) with
respect to "Eurocurrency liabilities" or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurocurrency Rate Loans is determined or category of extensions of credit or
other assets which includes loans by a non-United States office of any Lender to
United States residents.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any Equity Interests of the Company now or
hereafter outstanding, except a dividend payable solely in the Company's Capital
Stock (other than Disqualified Stock) or in options, warrants or other rights to
purchase such Capital Stock, (ii) any redemption, retirement, purchase or other
acquisition for value, direct or indirect, of any Equity Interests of the
Company or any of its Subsidiaries now or hereafter outstanding, other than in
exchange for, or out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Company) of other Equity Interests of the
Company (other than Disqualified Stock), (iii) any redemption, purchase,
retirement, defeasance, prepayment or other acquisition for value, direct or
indirect, of any Indebtedness subordinated to the Obligations, and (iv) any
payment of a claim for the rescission of the purchase or sale of, or for
material damages arising from the purchase or sale of, any Indebtedness (other
than the Obligations) or any Equity Interests of the Company, or any of its
Subsidiaries, or of a claim for reimbursement, indemnification or contribution
arising out of or related to any such claim for damages or rescission.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the
amount by which (x) the Aggregate Revolving Loan Commitment at such time minus
for the first sixty (60) days following the Closing Date, the aggregate
outstanding principal amount of the private placement indebtedness of the
Company and its Subsidiaries described on Schedule 1.1.2 and Schedule 6.22,
exceeds (y) the Dollar Amount of the Revolving Credit Obligations outstanding at
such time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum
of (i) the outstanding principal Dollar Amount of the Revolving Loans at such
time, plus (ii) the outstanding L/C Obligations at such time, plus (iii) the
Dollar Amount of the outstanding principal amount of
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<PAGE> 39
the Alternate Currency Loans at such time, plus (iv) the outstanding principal
amount of all Competitive Bid Loans at such time.
"REVOLVING LOAN" is defined in Section 2.2 hereof.
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of
such Lender to make Revolving Loans and to purchase participations in Letters of
Credit and to participate in Alternate Currency Loans not exceeding the amount
set forth on Exhibit A to this Agreement opposite its name thereon under the
heading "Revolving Loan Commitment" or the signature page of the assignment and
acceptance by which it became a Lender or, in the case of any "New Lender", such
New Lender's "Conversion Amount" under (and as defined in) the 5-Year Finance
Facility Agreement immediately prior to when such "New Lender" becomes a Lender
hereunder pursuant to Section 2.6(b), as such amount may be modified from time
to time pursuant to the terms of this Agreement or to give effect to any
applicable assignment and acceptance.
"REVOLVING LOAN TERMINATION DATE" means July 21, 2004.
"RISK-BASED CAPITAL GUIDELINES" is defined in Section 4.2 hereof.
"SALE AND LEASEBACK TRANSACTION" shall mean any lease, whether an
operating lease or a Capitalized Lease, of any property (whether real or
personal or mixed), (i) which the Company or one of its Subsidiaries sold or
transferred or is to sell or transfer to any other Person, or (ii) which the
Company or one of its Subsidiaries intends to use for substantially the same
purposes as any other property which has been or is to be sold or transferred by
the Company or one of its Subsidiaries to any other Person in connection with
such lease
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time.
"SELLING LENDER(S)" is defined in Section 2.6(b).
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Company or any
member of the Controlled Group for employees of the Company or any member of the
Controlled Group.
"SOLVENT" means, when used with respect to any Person, that at the time
of determination:
(i) the fair value of its assets (both at fair valuation and
at present fair saleable value) is equal to or in excess of the total
amount of its liabilities, including, without limitation, contingent
liabilities; and
(ii) it is then able and expects to be able to pay its debts
as they mature; and
(iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
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With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can be reasonably be expected to become an actual or
matured liability.
"SUBORDINATION AGREEMENT" means that certain Subordination Agreement
(and any and all supplements thereto) executed from time to time by each
Material Subsidiary of the Company listed on Schedule 6.8 and each other
Material Subsidiary of the Company as required pursuant to Section 7.2(k) in
favor of the Administrative Agent for the benefit of itself and the Holders of
Obligations, in substantially the form of Exhibit I-2 attached hereto, as the
same may be amended, restated, supplemented or otherwise modified from time to
time.
"SUBSIDIARY" of a Person means (i) any corporation more than fifty
percent (50%) of the outstanding securities having ordinary voting power of
which shall at the time be owned or controlled, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person and one or more
of its Subsidiaries, or (ii) any partnership, association, joint venture or
similar business organization more than fifty percent (50%) of the ownership
interests having ordinary voting power of which shall at the time be so owned or
controlled. Unless otherwise expressly provided, all references herein to a
"Subsidiary" means a Subsidiary of the Company.
"SUBSIDIARY BORROWER" means each of the Company's Subsidiaries listed
on Schedule 1.1.4 and any other Subsidiaries of the Company duly designated by
the Company pursuant to Section 2.24 to request Advances hereunder, which
Subsidiary shall have delivered to the Administrative Agent an Assumption Letter
in accordance with Section 2.24 and such other documents as may be required
pursuant to this Agreement, in each case together with its respective successors
and assigns, including a debtor-in-possession on behalf of such Subsidiary
Borrower.
"SUPPORTED CONTINGENT OBLIGATIONS" means those certain obligations and
liabilities supported by indemnities from Pechiney Plastic Packaging, Inc. or
guarantees from Pechiney or Waste Management, Inc., in each case as set forth on
Schedule 1.1.5.
"SYNDICATION AGENT" means The Chase Manhattan Bank, in its capacity as
syndication agent for the loan transaction evidenced by this Agreement, together
with its successors and assigns.
"SYNDICATION PERIOD" shall have the meaning set forth in the definition
of "Interest Period" above.
"364-DAY CREDIT AGREEMENT" means that certain 364-Day Credit Agreement,
dated as of July 22, 1999 among the Company, the subsidiary borrowers from time
to time parties thereto, the Agents and the financial institutions from time to
time parties thereto as lenders, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
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"364-DAY FINANCE FACILITY AGREEMENT" means that certain 364-Day Finance
Facility Agreement dated of even date herewith by and among the Company,
Windmill Funding Corporation and ABN AMRO Bank N.V. (individually and in its
capacity as CLO Administrative Agent), as the same may be amended, modified,
supplemented and/or restated from time to time in accordance with the terms
thereof and of this Agreement.
"TARGET SETTLEMENT DAY" means any day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.
"TAXES" is defined in Section 2.15(E)(i) hereof.
"TERMINATION CONDITIONS" is defined in Section 2.19.
"TERMINATION DATE" means the earlier of (a) the Revolving Loan
Termination Date, and (b) the date of termination in whole of the Aggregate
Revolving Loan Commitment pursuant to Section 2.6 hereof or the Revolving Loan
Commitments pursuant to Section 9.1 hereof.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Company or any member of the Controlled
Group from a Benefit Plan during a plan year in which the Company or such
Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan participants
who are employees of the Company or any member of the Controlled Group; (iii)
the imposition of an obligation on the Company or any member of the Controlled
Group under Section 4041 of ERISA to provide affected parties written notice of
intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC or any similar
foreign governmental authority of proceedings to terminate a Benefit Plan or
Foreign Pension Plan; (v) any event or condition which constitutes grounds under
Section 4042 of ERISA which are reasonably likely to lead to the termination of,
or the appointment of a trustee to administer, any Benefit Plan; (vi) that a
foreign governmental authority shall appoint or institute proceedings to appoint
a trustee to administer any Foreign Pension Plan in place of the existing
administrator, or (vii) the partial or complete withdrawal of the Company or any
member of the Controlled Group from a Multiemployer Plan or Foreign Pension
Plan.
"TOTAL NET INDEBTEDNESS" shall mean, as of any date of determination,
(a) the sum of (i) the aggregate indebtedness for borrowed money, guarantees and
letters of credit without duplication (but excluding the Supported Contingent
Obligations) of the Company and its Subsidiaries plus (ii) Capitalized Lease
Obligations, minus (b) the aggregate cash and Cash Equivalents of the Company
and its Subsidiaries, in each case as of such date of determination.
"TOTAL NET INDEBTEDNESS TO CAPITAL RATIO" means, as of any date of
determination, the ratio of (a) Total Net Indebtedness, to (b) the sum of (i)
the Total Net Indebtedness plus (ii) Consolidated Net Worth, including minority
interests, in each case as of such date of
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determination.
"TRANSFEREE" is defined in Section 14.5 hereof.
"TYPE" means, with respect to any Loan, its nature as a Floating Rate
Loan or a Eurocurrency Rate Loan.
"UNDERWRITING LENDERS" means, collectively, First Chicago, The Chase
Manhattan Bank, ABN AMRO Bank N.V., Royal Bank of Canada and Banque Nationale de
Paris.
"UNFUNDED LIABILITIES" means (i) in the case of Single Employer Plans,
the amount (if any) by which the aggregate accumulated benefit obligations
exceeds the aggregate fair market value of assets of all Single Employer Plans
as of the most recent measurement date, all as determined under FAS 87 using the
methods and assumptions used by the Company for financial accounting purposes,
and (ii) in the case of Multiemployer Plans, the withdrawal liability that would
be incurred by the Controlled Group if all members of the Controlled Group
completely withdrew from all Multiemployer Plans.
"UNMATURED DEFAULT" means an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"WEIGHTED AVERAGE LIFE TO MATURITY" means when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"YEAR 2000 ISSUES" means, with respect to any Person, anticipated
costs, problems and uncertainties associated with the inability of certain
computer applications and imbedded systems to effectively handle data, including
dates, prior to, on and after January 1, 2000, as it affects the business,
operations, and financial condition of such Person, and such Person's customers,
suppliers and vendors.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Any accounting terms used in
this Agreement which are not specifically defined herein shall have the meanings
customarily given them in accordance with generally accepted accounting
principles in existence as of the date hereof.
1.2 References. Any references to Subsidiaries of the Company set
forth herein shall not in any way be construed as consent by the Administrative
Agent or any Lender to the establishment, maintenance or acquisition of any
Subsidiary, except as may otherwise be permitted
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hereunder.
1.3 Supplemental Disclosure. At any time at the request of the
Administrative Agent and at such additional times as the Company determines, the
Company shall supplement each schedule or representation herein or in the other
Loan Documents with respect to any matter hereafter arising which, if existing
or occurring at the date of this Agreement, would have been required to be set
forth or described in such schedule or as an exception to such representation or
which is necessary to correct any information in such schedule or representation
which has been rendered inaccurate thereby. Unless any such supplement to such
schedule or representation discloses the existence or occurrence of events,
facts or circumstances which are not prohibited by the terms of this Agreement
or any other Loan Documents, such supplement to such schedule or representation
shall not be deemed an amendment thereof unless expressly consented to in
writing by Administrative Agent and the Required Lenders, and no such
amendments, except as the same may be consented to in a writing which expressly
includes a waiver, shall be or be deemed a waiver by the Administrative Agent or
any Lender of any Default disclosed therein. Any items disclosed in any such
supplemental disclosures shall be included in the calculation of any limits,
baskets or similar restrictions contained in this Agreement or any of the other
Loan Documents.
1.4. Rounding and Other Consequential Changes. Without prejudice to any
method of conversion or rounding prescribed by any legislative measures of the
Council of the European Union, each reference in this Agreement to a fixed
amount or to fixed amounts in a National Currency Unit to be paid to or by the
Administrative Agent shall be replaced by a reference to such comparable and
convenient fixed amount or fixed amounts in euro as the Administrative Agent may
from time to time specify unless such National Currency Unit remains available
and the Company and the Administrative Agent agree to use such National Currency
Unit instead of the euro.
ARTICLE II: REVOLVING LOAN FACILITIES
2.1. Competitive Bid Advances.
(A) Competitive Bid Option. In addition to Advances pursuant to Section
2.2, but subject to the terms and conditions of this Agreement (including,
without limitation, the limitation set forth in Section 2.1(B) as to the maximum
aggregate principal amount of all outstanding Advances hereunder), the Company
may, as set forth in this Section 2.1, request the Lenders, prior to the
Termination Date, to make offers to make Competitive Bid Advances to the Company
in Dollars. Each Lender may, but shall have no obligation to, make such offers
and the Company may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section 2.1. The aggregate outstanding amount of
Competitive Bid Advances shall reduce the available portion of each Lender's
Revolving Loan Commitment ratably in the proportion such Lender's Pro Rata Share
of the Aggregate Revolving Loan Commitment regardless of which Lender or Lenders
make such Competitive Bid Advances.
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(B) Competitive Bid Quote Request. When the Company wishes to request
offers to make Competitive Bid Loans under this Section 2.1, it shall transmit
to the Administrative Agent by facsimile a Competitive Bid Quote Request
substantially in the form of Exhibit L hereto so as to be received no later than
(x) 10:00 a.m. (Chicago time) at least five (5) Business Days prior to the
Borrowing Date proposed therein, in the case of a Eurocurrency Auction or (y)
9:00 a.m. (Chicago time) at least one (1) Business Day prior to the Borrowing
Date proposed therein, in the case of an Absolute Rate Auction specifying:
(i) the proposed Borrowing Date, which shall be a Business
Day, for the proposed Competitive Bid Advance,
(ii) the aggregate principal amount of such Competitive
Bid Advance,
(iii) whether the Competitive Bid Quotes requested are to
set forth a Eurocurrency Bid Rate or an Absolute Rate, or both, and
(iv) the Interest Period applicable thereto (which may not
end after the Termination Date).
The Company may request offers to make Competitive Bid Loans for more than one
Interest Period in a single Competitive Bid Quote Request. No Competitive Bid
Quote Request shall be given within five (5) Business Days (or such other number
of days as the Company and the Administrative Agent may agree) of any other
Competitive Bid Quote Request. A Competitive Bid Quote Request that does not
conform substantially to the format of Exhibit L hereto shall be rejected, and
the Administrative Agent shall promptly notify the Company of such rejection by
facsimile.
(C) Invitation for Competitive Bid Quotes. Promptly and in any event
before the close of business on the same Business Day of receipt of a
Competitive Bid Quote Request that is not rejected pursuant to Section 2.1(B),
the Administrative Agent shall send to each of the Lenders by facsimile an
Invitation for Competitive Bid Quotes substantially in the form of Exhibit M
hereto, which shall constitute an invitation by the Company to each Lender to
submit Competitive Bid Quotes offering to make the Competitive Bid Loans to
which such Competitive Bid Quote Request relates in accordance with this Section
2.1.
(D) Submission and Contents of Competitive Bid Quotes. (i) Each Lender
may, in its sole discretion, submit a Competitive Bid Quote containing an offer
or offers to make Competitive Bid Loans in response to any Invitation for
Competitive Bid Quotes. Each Competitive Bid Quote must comply with the
requirements of this Section 2.1(D) and must be submitted to the Administrative
Agent by facsimile at its offices specified in or pursuant to Article XVII not
later than (x) 1:00 p.m. (Chicago time) at least four (4) Business Days prior to
the proposed Borrowing Date, in the case of a Eurocurrency Auction or (y) 9:00
a.m. (Chicago time) on the proposed Borrowing Date, in the case of an Absolute
Rate Auction (or, in either case upon reasonable prior
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notice to the Lenders, such other time and date as the Company and the
Administrative Agent may agree); provided that Competitive Bid Quotes submitted
by the Administrative Agent may only be submitted if the Administrative Agent
notifies the Company of the terms of the offer or offers contained therein not
later than 15 minutes prior to the latest time at which the relevant Competitive
Bid Quotes must be submitted by the other Lenders. Subject to Articles V and XI,
any Competitive Bid Quote so made shall be irrevocable except with the written
consent of the Administrative Agent given on the instructions of the Company.
(ii) Each Competitive Bid Quote shall be in substantially the form of
Exhibit N hereto and shall in any case specify:
(a) the proposed Borrowing Date, which shall be the same as
that set forth in the applicable Invitation for Competitive Bid
Quotes,
(b) the principal amount of the Competitive Bid Loan for which
each such offer is being made, which principal amount (1) may be
greater than, less than or equal to the Revolving Loan Commitment of
the quoting Lender, (2) must be at least $5,000,000 (and in integral
multiples of $1,000,000 if in excess thereof), and (3) may not exceed
the principal amount of Competitive Bid Loans for which offers were
requested,
(c) in the case of a Eurocurrency Auction, the Competitive
Bid Margin offered for each such Competitive Bid Loan,
(d) the minimum amount, if any, of the Competitive Bid Loan
which may be accepted by the Company,
(e) in the case of an Absolute Rate Auction, the Absolute
Rate offered for each such Competitive Bid Loan,
(f) the identity of the quoting Lender, and
(g) the applicable Interest Period.
(iii) The Administrative Agent shall reject any Competitive Bid
Quote that:
(a) is not substantially in the form of Exhibit N hereto or
does not specify all of the information required by
Section 2.1(D)(ii);
(b) contains qualifying, conditional or similar language,
other than any such language contained in Exhibit N hereto;
(c) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bid Quotes; or
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(d) arrives after the time set forth in Section 2.1(D)(i).
-----------------
If any Competitive Bid Quote shall be rejected pursuant to this Section
2.1(D)(iii), then the Administrative Agent shall notify the relevant Lender of
such rejection as soon as practical.
(E) Notice to Company. The Administrative Agent shall promptly notify
the Company of the terms (i) of any Competitive Bid Quote submitted by a Lender
that is in accordance with Section 2.1(D) and (ii) of any Competitive Bid Quote
that amends, modifies or is otherwise inconsistent with a previous Competitive
Bid Quote submitted by such Lender with respect to the same Competitive Bid
Quote Request. Any such subsequent Competitive Bid Quote shall be disregarded by
the Administrative Agent unless such subsequent Competitive Bid Quote
specifically states that it is submitted solely to correct a manifest error in
such former Competitive Bid Quote. The Administrative Agent's notice to the
Company shall specify the aggregate principal amount of Competitive Bid Loans
for which offers have been received for each Interest Period specified in the
related Competitive Bid Quote Request and the respective principal amounts and
Eurocurrency Bid Rates or Absolute Rates, as the case may be, so offered.
(F) Acceptance and Notice by Company. Not later than (x) 9:00 a.m.
(Chicago time) at least three (3) Business Days prior to the proposed Borrowing
Date, in the case of a Eurocurrency Auction or (y) 10:00 a.m. (Chicago time) on
the proposed Borrowing Date, in the case of an Absolute Rate Auction (or, in
either case upon reasonable prior notice to the Lenders, such other time and
date as the Company and the Administrative Agent may agree), the Company shall
notify the Administrative Agent of its acceptance or rejection of the offers so
notified to it pursuant to Section 2.1(E); provided, however, that the failure
by the Company to give such notice to the Administrative Agent shall be deemed
to be a rejection of all such offers. In the case of acceptance, such notice (a
"COMPETITIVE BID BORROWING NOTICE") shall specify the aggregate principal amount
of offers for each Interest Period that are accepted. The Company may accept any
Competitive Bid Quote in whole or in part (subject to the terms of Section
2.1(D)(ii)(d)); provided that:
(a) the aggregate principal amount of each Competitive Bid
Advance may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request,
(b) acceptance of offers may only be made on the basis of
ascending Eurocurrency Bid Rates or Absolute Rates, as the case may
be, and
(c) the Company may not accept any offer that is described in
Section 2.1(D)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(G) Allocation by Administrative Agent. If offers are made by two or
more Lenders with the same Eurocurrency Bid Rates or Absolute Rates, as the case
may be, for a greater aggregate principal amount than the amount in respect of
which offers are accepted for the related Interest Period, the principal amount
of Competitive Bid Loans in respect of which such offers are accepted
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shall be allocated by the Administrative Agent among such Lenders as nearly as
possible (in such multiples, not greater than $1,000,000, as the Administrative
Agent may deem appropriate) in proportion to the aggregate principal amount of
such offers provided, however, that no Lender shall be allocated a portion of
any Competitive Bid Advance which is less than the minimum amount which such
Lender has indicated that it is willing to accept. Allocations by the
Administrative Agent of the amounts of Competitive Bid Loans shall be conclusive
in the absence of manifest error. The Administrative Agent shall promptly, but
in any event on the same Business Day, notify each Lender of its receipt of a
Competitive Bid Borrowing Notice and the aggregate principal amount of such
Competitive Bid Advance allocated to each participating Lender.
(H) Administration Fee. The Company hereby agrees to pay to the
Administrative Agent an administration fee as detailed in the Administrative
Agent Fee Letter per each Competitive Bid Quote Request transmitted by the
Company to the Administrative Agent pursuant to Section 2.1(B). Such
administration fee shall be payable in arrears on each Payment Date hereafter,
on the Termination Date (or such earlier date on which the Aggregate Revolving
Loan Commitment shall terminate or be canceled), and on the Facility Termination
Date for any period then ending for which such fee, if any, shall not have been
theretofore paid.
2.2 Revolving Loans. (A) Upon the satisfaction of the conditions
precedent set forth in Sections 5.1, 5.2 and 5.3, as applicable, from and
including the Closing Date and prior to the Termination Date, each Lender
severally and not jointly agrees, on the terms and conditions set forth in this
Agreement, to make revolving loans to the Borrowers from time to time, in
Dollars or Eurocurrency Rate Loans in any Agreed Currency, in a Dollar Amount
not to exceed such Lender's Pro Rata Share of Revolving Credit Availability at
such time (each individually, a "REVOLVING LOAN" and, collectively, the
"REVOLVING LOANS"); provided, however, at no time shall the Dollar Amount of the
Revolving Credit Obligations exceed the Aggregate Revolving Loan Commitment;
provided, further, however, that upon giving effect to each Advance, the
aggregate outstanding principal Dollar Amount of all Eurocurrency Rate Advances
in Agreed Currencies other than Dollars and all L/C Obligations in Agreed
Currencies other than Dollars and all Alternate Currency Loans shall not exceed
the Maximum Eurocurrency Amount at any time prior to the Termination Date;
provided, further, however, that upon giving effect to each Advance, the
aggregate outstanding principal Dollar Amount of all Eurocurrency Rate Advances
and Alternate Currency Loans and L/C Obligations in (x) Pounds Sterling shall
not exceed $100,000,000 or (y) euro shall not exceed $300,000,000. Subject to
the terms of this Agreement, the Borrowers may borrow, repay and reborrow
Revolving Loans at any time prior to the Termination Date. The Revolving Loans
made on the Closing Date or on or before the third (3rd) Business Day thereafter
shall initially be Floating Rate Loans and thereafter may be continued as
Floating Rate Loans or converted into Eurocurrency Rate Loans in the manner
provided in Section 2.10 and subject to the other conditions and limitations
therein set forth and set forth in this Article II and set forth in the
definition of Interest Period. Revolving Loans made after the third (3rd)
Business Day after the Closing Date shall be, at the option of the applicable
Borrower, selected in accordance with Section 2.10, either Floating Rate Loans
or Eurocurrency Rate Loans. On the Termination Date, the applicable Borrower
shall repay in full the outstanding principal balance of the Revolving Loans.
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Each Advance under this Section 2.2 shall consist of Revolving Loans made by
each Lender ratably in proportion to such Lender's respective Pro Rata Share.
Subject to the terms and conditions hereof, during the term of this Agreement,
the applicable Alternate Currency Bank hereby agrees to make Alternate Currency
Loans to the applicable Borrower pursuant to the applicable Alternate Currency
Addendum as the applicable Borrower may from time to time request pursuant to
Section 2.21 and the applicable Alternate Currency Addendum.
(B) Borrowing/Conversion/Continuation Notice. The applicable Borrower
shall deliver to the Administrative Agent a Borrowing/Conversion/Continuation
Notice, signed by it, in accordance with the terms of Section 2.8. The
Administrative Agent shall promptly notify each Lender with a Revolving Loan
Commitment greater than zero of such request.
(C) Making of Revolving Loans. Promptly after receipt of the
Borrowing/Conversion/Continuation Notice under Section 2.8 in respect of
Revolving Loans, the Administrative Agent shall notify each Lender with a
Revolving Loan Commitment greater than zero by telex or telecopy, or other
similar form of transmission, of the requested Revolving Loan. Each Lender with
a Revolving Loan Commitment greater than zero shall make available its Revolving
Loan in accordance with the terms of Section 2.7. The Administrative Agent will
promptly make the funds so received from the Lenders available to the applicable
Borrower at the Administrative Agent's office in Chicago, Illinois on the
applicable Borrowing Date and shall disburse such proceeds in accordance with
the applicable Borrower's disbursement instructions set forth in such
Borrowing/Conversion/Continuation Notice. The failure of any Lender to deposit
the amount described above with the Administrative Agent on the applicable
Borrowing Date shall not relieve any other Lender of its obligations hereunder
to make its Revolving Loan on such Borrowing Date.
2.3. [Reserved].
2.4 Rate Options for all Advances; Maximum Interest Periods. The
Revolving Loans may be Floating Rate Advances or Eurocurrency Rate Advances, or
a combination thereof, selected by the Company in accordance with Section 2.10.
The Company may select, in accordance with Section 2.10, Rate Options and
Interest Periods applicable to portions of the Revolving Loans and Alternate
Currency Loans; provided that there shall be no more than twenty (20) Interest
Periods in effect with respect to all of the Loans at any time (unless otherwise
provided in the applicable Alternate Currency Addendum with respect to Alternate
Currency Loans). Each Alternate Currency Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at the Alternate Currency Rate as set forth in the applicable Alternate
Currency Addendum.
2.5 Optional Payments; Mandatory Prepayments.
(A) Optional Payments. The Company may from time to time and at any
time upon at least one (1) Business Day's prior written notice repay or prepay,
without penalty or premium all or
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any part of outstanding Floating Rate Advances in an aggregate minimum amount of
$15,000,000 and in integral multiples of $1,000,000 in excess thereof.
Eurocurrency Rate Advances, Eurocurrency Bid Rate Advances and Absolute Rate
Advances may be voluntarily repaid or prepaid prior to the last day of the
applicable Interest Period, subject to the indemnification provisions contained
in Section 4.4; provided, that the applicable Borrower may not so prepay
Eurocurrency Rate Advances, Eurocurrency Bid Rate Advances or Absolute Rate
Advances unless it shall have provided at least five (5) Business Days' prior
written notice to the Administrative Agent of such prepayment. Each Subsidiary
Borrower may, upon prior written notice to the Administrative Agent and to the
applicable Alternate Currency Bank as prescribed in the applicable Alternate
Currency Addendum and specifying that it is prepaying all or a portion of its
Alternate Currency Loans, prepay its Alternate Currency Loans in whole at any
time, or from time to time in part in Dollar Amount aggregating $5,000,000 or
any larger multiple Dollar Amount of $1,000,000 (or as otherwise specified in
the applicable Alternate Currency Addendum) by paying the principal amount to be
paid together with all accrued and unpaid interest thereon to and including the
date of payment; provided that any such payment occurring prior to the last day
of any Interest Period related to such Alternate Currency Loan shall be subject
to the indemnification provisions contained in Section 4.4.
(B) Mandatory Prepayments of Revolving Loans. (i) If at any time and
for any reason (other than fluctuations in currency exchange rates) the Dollar
Amount of the Revolving Credit Obligations is greater than the Aggregate
Revolving Loan Commitment, the Company shall immediately make a mandatory
prepayment of the Obligations in an amount equal to such excess.
(ii) If on the last Business Day of any month:
(x) the Dollar Amount of the Revolving Credit Obligations
exceeds one hundred percent (100%) of the Aggregate
Revolving Loan Commitment as a result of fluctuations
in currency exchange rates, the applicable Borrower
shall immediately prepay Loans for the ratable benefit
of the Lenders (to be applied to such Loans as such
Borrower shall direct at the time of such payment) in
an aggregate amount such that after giving effect
thereto the Dollar Amount of the Revolving Credit
Obligations is less than or equal to the Aggregate
Revolving Loan Commitment; or
(y) the Dollar Amount of all outstanding Alternate Currency
Loans under the Alternate Currency Addenda exceeds one
hundred percent (100%) of the aggregate Alternate
Currency Commitments with respect thereto as a result
of fluctuations in currency exchange rates, the
applicable Borrower shall on such date prepay, or cause
to be prepaid, Alternate Currency Loans in an aggregate
amount such that after giving effect thereto the Dollar
Amount of all such Alternate Currency Loans is less
than or equal to the aggregate Alternate Currency
Commitments with respect thereto; or
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(z) the Dollar Amount of the aggregate outstanding
principal amount of Alternate Currency Loans in the
same Alternate Currency exceeds the aggregate Alternate
Currency Commitments with respect thereto as a result
of fluctuations in currency exchange rates, the
applicable Borrowers shall on such date prepay
Alternate Currency Loans in such Alternate Currency
in an aggregate amount such that after giving effect
thereto the Dollar amount of all Alternate Currency
Loans is less than or equal to the aggregate Alternate
Currency Commitments with respect thereto.
(iii) The Company shall make all mandatory prepayments required under
Section 2.6.
(iv) If at any time after the date hereof and for any reason the
Company shall, or it shall permit any Subsidiary to, consummate any Sale and
Leaseback Transaction the Net Cash Proceeds of which, together with the Net Cash
Proceeds of all other Sale and Leaseback Transactions since the Closing Date
would exceed in the aggregate $50,000,000, the Company shall immediately make a
mandatory prepayment of the Obligations in an amount equal to such excess
multiplied by the ratio the Aggregate Revolving Loan Commitment bears to the
Aggregate Commitment; provided, that if any 5-Year CLO Lender declines to have
its share of any mandatory prepayment required under Section 6 of the 5-Year
Finance Facility Agreement applied to reduce such "Advances", the Company shall
cause the amount declined to be applied in accordance with clause (v) below.
(v) All of the mandatory prepayments made under this Section 2.5(B)
shall be applied first to Floating Rate Loans and Alternate Currency Loans
bearing a fluctuating Alternate Currency Rate and to any Eurocurrency Rate Loans
and Alternate Currency Loans bearing a fixed Alternate Currency Rate maturing on
such date and then to subsequently maturing Eurocurrency Rate Loans and
Alternate Currency Loans bearing a fixed Alternate Currency Rate in order of
maturity.
2.6 Changes in Commitments.
(a) Reductions in Commitments
(i) The Company may permanently reduce the Aggregate Revolving
Loan Commitment in whole, or in part ratably among the Lenders, in an
aggregate minimum amount of $25,000,000 with respect thereto and
integral multiples of $5,000,000 in excess of that amount with respect
thereto (unless the Aggregate Revolving Loan Commitment is reduced in
whole), upon at least three (3) Business Day's prior written notice to
the Administrative Agent, which notice shall specify the amount of any
such reduction; provided, however, that the amount of the Aggregate
Revolving Loan Commitment may not be reduced below the aggregate
principal Dollar Amount of the outstanding Revolving Credit
Obligations. All accrued facility fees shall be payable on the
effective date of any termination of all or any part the obligations of
the Lenders to make Loans hereunder. Each Subsidiary Borrower may, upon
three (3) Business Days prior written notice to the
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Administrative Agent and to the applicable Alternate Currency Bank,
terminate entirely at any time or reduce from time to time by an
aggregate amount of $5,000,000 or any larger multiple of $1,000,000 (or
as set forth on the applicable Alternate Currency Addendum), the unused
portions of the applicable Alternate Currency Commitment as specified
by the applicable Subsidiary Borrower in such notice to the
Administrative Agent and the applicable Alternate Currency Bank;
provided, however, that at no time shall the Alternate Currency
Commitments be reduced to a figure less than the total of the
outstanding principal amount of all Alternate Currency Loans.
(ii) If at any time and for any reason the Company shall, or
it shall permit any Subsidiary to, consummate any Asset Sale (other
than Asset Sales permitted under Sections 7.3(B)(i) and (ii)) or Sale
and Leaseback Transaction which represents the disposition, together
with all other Asset Sales and Sale and Leaseback Transactions since
the Closing Date (each such Asset Sale and each such Sale and Leaseback
Transaction being valued at book value), in the aggregate of greater
than fifteen percent (15%) of the Consolidated Net Assets of the
Company as of the date of such Asset Sale or Sale and Leaseback
Transaction (calculated without giving effect to such Asset Sale or
Sale and Leaseback Transaction, as applicable) (the "EXCESS PROCEEDS"),
which Asset Sales and Sale and Leaseback Transactions shall be
permitted only so long as no Default or Unmatured Default shall have
occurred and is continuing as of the date of such transaction or, after
the consummation of the Asset Sale or Sale and Leaseback Transaction,
as applicable, and after giving effect thereto, would exist, the
Aggregate Revolving Loan Commitment shall be permanently reduced by an
amount equal to the portion of such Excess Proceeds as required by
Section 7.2(N) and the Company shall immediately make a mandatory
prepayment of the Obligations in an amount equal to such portion of
such Excess Proceeds.
(iii) If all or any portion of the private placement
indebtedness of the Company and its Subsidiaries described on Schedule
1.1.2 and Schedule 6.22 shall remain outstanding on or after the 60th
day after the Closing Date, the Aggregate Revolving Loan Commitment
shall be permanently reduced by the portion of such outstanding
Indebtedness as required by Section 7.2(N) and the Company shall
immediately make a mandatory prepayment of the Obligations an amount
equal to such portion of such outstanding Indebtedness.
(b) Increases of the Aggregate Revolving Loan Commitment; Conversion
of Advances.
(i) Applicable Definitions. The following terms shall have the
following meanings:
"BUYING LENDER" means each Lender (including, if applicable, each New
Lender) on the Facility Conversion Date whose Pro Rata Share (as adjusted
hereunder) of the Revolving Loans is greater than the outstanding principal
balance of its outstanding Revolving Loans (including "Advances" converted to
Loans hereunder).
"FACILITY CONVERSION DATE" shall mean any date upon which the
Administrative Agent
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receives written notice (a "FACILITY CONVERSION NOTICE") from the CLO
Administrative Agent that either Windmill Funding Corporation has transferred
all of the outstanding "Advances" (as defined in the 5-Year Finance Facility
Agreement) made by Windmill Funding Corporation under the 5-Year Finance
Facility Agreement to the other 5-Year CLO Lenders or Windmill Funding
Corporation has exercised its option not to make Advances under the 5-Year
Finance Facility Agreement (a "PUT EVENT"), provided on or prior to the date the
Administrative Agent receives such Facility Conversion Notice no Integration
Blockage Default shall have occurred.
"FACILITY CONVERSION NOTICE" is defined in the definition of "Facility
Conversion Date".
"INTEGRATION BLOCKAGE DEFAULT" means any Default or Unmatured Default
which has not been declared by a vote of the Required Lenders as defined in
clause (x) of the definition thereof, and the CLO Administrative Agent, to be
inapplicable to block the integration and equalization provisions of this
Section 2.6(b)
"PUT EVENT" is defined in the definition of "Facility Conversion Date".
"SELLING LENDER" means each Lender (including, if applicable, each New
Lender) on the Facility Conversion Date whose Pro Rata Share (as adjusted
hereunder) of the Revolving Loans is less than the outstanding principal balance
of its outstanding Revolving Loans (including "Advances" converted to Loans
hereunder).
(ii) Increase of Revolving Loan Commitments; Adjustment of Pro Rata
Shares. Effective upon receipt by the Administrative Agent of a Facility
Conversion Notice on a Facility Conversion Date, (A) the Aggregate Revolving
Loan Commitment shall be immediately and automatically increased by an amount
equal to the then effective "Maximum Matured Value" under (and as defined in)
the 5-Year Finance Facility Agreement, (B) each 5-Year CLO Lender (other than
Windmill Funding Corporation) which had a "Commitment" under (and as defined in)
the 5-Year Finance Facility Agreement (the "NEW LENDERS") shall have a Revolving
Loan Commitment equal to such 5-Year CLO Lender's "Conversion Amount" under (and
as defined in) the 5-Year Finance Facility Agreement on the date of the Facility
Conversion Notice; provided that the Revolving Loan Commitment of each Lender
hereunder immediately prior to such Facility Conversion Date (the "EXISTING
LENDERS") shall not be increased. On such Facility Conversion Date, each New
Lender shall immediately and automatically be a party hereto as a Lender and
shall have the rights and obligations of a Lender hereunder. On such Facility
Conversion Date, each Existing Lender's Pro Rata Share shall immediately and
automatically be adjusted to reflect the fact that the Revolving Loan Commitment
of each Existing Lender (other than the New Lenders) shall not have changed but
the Aggregate Revolving Loan Commitment shall have increased. The Company and
each New Lender agrees that on such Facility Conversion Date, the indebtedness
previously owed by the Company to the New Lenders under the 5-Year Finance
Facility Agreement shall thereafter be Obligations under this Agreement in an
amount equal to the indebtedness previously owed to the New Lenders under the
5-Year Finance Facility Agreement and the Company shall thereafter owe such
amounts to the New Lenders as Lenders under the terms and conditions of this
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Agreement and no amounts shall thereafter be owed to the New Lenders under the
5-Year Finance Facility Agreement (other than as a result of the provisions
thereof which are stated to survive the termination of such agreement).
(iii) Conversion of 5-Year Finance Facility Advances to Loans under the
Agreement; Deemed Repayment/Reborrowing of all Fixed Rate Loans. On the Facility
Conversion Date all outstanding "Advances" (as defined in the 5-Year Finance
Facility Agreement) made or held by the 5-Year CLO Lenders shall be
automatically converted to Loans hereunder. In order to effect such conversion
and to facilitate the provisions of clause (iv) below, the Company shall be
deemed to have prepaid all such "Advances" that were outstanding thereunder as
"Eurodollar Advances" and all outstanding Eurocurrency Rate Advances hereunder
as of the Facility Conversion Date and reborrowed such amount as Revolving Loans
consisting of Floating Rate Advances and/or Eurocurrency Rate Advances (chosen
in accordance with the provisions of Section 2.2 and Section 2.10) and the
indemnification provisions under Section 4.4 shall apply.
(iv) Purchases and Sales of Interests in Revolving Loans. Effective
on the Facility Conversion Date, each of the Existing Lenders and the New
Lenders agrees, on the terms set forth herein, to effect purchases and
assignments of all Revolving Loans (whether previously outstanding or converted
from "Advances" under the 5-Year Finance Facility Agreement) such that after
such purchases and assignments each Lender has funded its Pro Rata Share of all
Revolving Loans. On the Facility Conversion Date, each Buying Lender shall be
deemed to have unconditionally and irrevocably purchased from each Selling
Lender, without recourse or warranty, an undivided interest in each such Selling
Lenders' Revolving Loans (including, as applicable, "Advances" under the 5-Year
Finance Facility Agreement that were converted to Loans hereunder), and within
ten (10) Business Days following such purchase each such Buying Lender shall pay
to the Administrative Agent for the ratable account of each such Selling Lender
an amount equal to the principal amount of the undivided interest in the
Revolving Loans purchased by such Buying Lender pursuant to this Section 2.6(b).
2.7 Method of Borrowing. Not later than 12:00 p.m. (Chicago time) on
each Borrowing Date, each Lender shall make available its Revolving Loan in
immediately available funds in the Agreed Currency to the Administrative Agent
at its address specified pursuant to Article XV, unless the Administrative Agent
has notified the Lenders that such Loan is to be made available to the Company
at the Administrative Agent's Eurocurrency Payment office, in which case each
Lender shall make available its Loan or Loans, in funds immediately available to
the Administrative Agent at its Eurocurrency Payment Office, not later than
12:00 p.m. (local time in the city of the Administrative Agent's Eurocurrency
Payment Office) in the Agreed Currency designated by the Administrative Agent.
The Administrative Agent will promptly make the funds so received from the
Lenders available to the Company at the Administrative Agent's aforesaid
address.
2.8 Method of Selecting Types and Interest Periods for Advances.
The applicable Borrower shall select the Type of Advance and, in the case of
each Eurocurrency Rate Advance,
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the Interest Period, Agreed Currency and Alternate Currency applicable to each
Advance from time to time. The applicable Borrower shall give the Administrative
Agent irrevocable notice in substantially the form of Exhibit B hereto (a
"BORROWING/CONVERSION/CONTINUATION NOTICE") not later than 9:00 a.m. (Chicago
time) (a) on or before the Borrowing Date of each Floating Rate Advance, and (b)
three (3) Business Days before the Borrowing Date for each Eurocurrency Rate
Advance to be made in Dollars, and (c) four (4) Business Days before the
Borrowing Date for each Eurocurrency Rate Advance to be made in any Agreed
Currency other than Dollars and (d) four (4) Business Days before the Borrowing
Date for each Alternate Currency Loan (or such other period as may be agreed to
by the Administrative Agent), and the applicable Borrower shall give the
applicable Alternate Currency Bank irrevocable notice by 10:00 a.m. (local time)
two (2) Business Days prior to the Borrowing Date for such Alternate Currency
Loan (or such other period as may be specified in the applicable Alternate
Currency Addendum), specifying: (i) the Borrowing Date (which shall be a
Business Day) of such Advance; (ii) the aggregate amount of such Advance; (iii)
the Type of Advance selected; and (iv) in the case of each Eurocurrency Rate
Loan, the Interest Period and Agreed Currency or Alternate Currency applicable
thereto. Notwithstanding the foregoing, if the Company has submitted a
Competitive Bid Quote Request pursuant to Section 2.1(B), a
Borrowing/Conversion/Continuation Notice for a Floating Rate Advance may be
given not later than fifteen (15) minutes after the time which the Company is
required to reject one or more bids offered in connection with an Absolute Rate
Auction pursuant to Section 2.1(F) and a Borrowing/Conversion/Continuation
Notice for a Eurocurrency Rate Loan may be given not later than fifteen (15)
minutes after the time the Company is required to reject one or more bids
offered in connection with a Eurocurrency Auction pursuant to Section 2.1(F).
The Company shall select Interest Periods so that, to the best of the Company's
knowledge, it will not be necessary to prepay all or any portion of any
Eurocurrency Rate Loan prior to the last day of the applicable Interest Period
in order to make mandatory prepayments as required pursuant to the terms hereof.
Each Floating Rate Advance, each Alternate Currency Loan bearing a fluctuating
Alternate Currency Rate and all Obligations other than Loans shall bear interest
from and including the date of the making of such Advance, in the case of Loans,
and the date such Obligation is due and owing in the case of such other
Obligations, to (but not including) the date of repayment thereof at the
Floating Rate or Alternate Currency Rate, as applicable, changing when and as
such Floating Rate or Alternate Currency Rate, as applicable, changes. Changes
in the rate of interest on that portion of any Advance maintained as a Floating
Rate Loan will take effect simultaneously with each change in the Alternate Base
Rate. Changes in the rate of interest on any portion of any Alternate Currency
Loan bearing a fluctuating Alternate Currency Rate will take effect
simultaneously with each change in such Alternate Currency Rate. Each
Eurocurrency Rate Advance shall bear interest from and including the first day
of the Interest Period applicable thereto to (but not including) the last day of
such Interest Period at the interest rate determined as applicable to such
Eurocurrency Rate Advance and shall change as and when the Applicable
Eurocurrency Margin changes.
2.9 Minimum Amount of Each Advance. Each Advance (other than an Advance
to repay a Reimbursement Obligation) shall be in the minimum Dollar Amount of
$25,000,000 (or the Approximate Equivalent Amount of any Agreed Currency other
than Dollars or any Alternate Currency) and in Dollar Amount multiples of
$1,000,000 (or the Approximate Equivalent Amount
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of any Agreed Currency other than Dollars or any Alternate Currency) if in
excess thereof (or such other amounts as may be specified in the applicable
Alternate Currency Addendum), provided, however, that any Floating Rate Advance
may be in the amount of the unused Aggregate Revolving Loan Commitment.
2.10 Method of Selecting Types and Interest Periods for Conversion
and Continuation of Advances.
(A) Right to Convert. The applicable Borrower may elect from time to
time, subject to the provisions of Section 2.4 and this Section 2.10, to convert
all or any part of a Loan (other than a Competitive Bid Loan) of any Type into
any other Type or Types of Loans (other than a Competitive Bid Loan); provided
that any conversion of any Eurocurrency Rate Advance shall be made on, and only
on, the last day of the Interest Period applicable thereto.
(B) Automatic Conversion and Continuation. Floating Rate Loans shall
continue as Floating Rate Loans unless and until such Floating Rate Loans are
converted into Eurocurrency Rate Loans. Eurocurrency Rate Loans shall continue
as Eurocurrency Rate Loans until the end of the then applicable Interest Period
therefor, at which time such Eurocurrency Rate Loans shall be automatically
converted into Floating Rate Loans unless the Company shall have given the
Administrative Agent notice in accordance with Section 2.10(D) requesting that,
at the end of such Interest Period, such Eurocurrency Rate Loans continue as a
Eurocurrency Rate Loan. Unless a Borrowing/Conversion/Continuation Notice shall
have timely been given in accordance with the terms of this Section 2.10,
Eurocurrency Rate Advances in an Agreed Currency other than Dollars and
Alternate Currency Loans shall automatically continue as Eurocurrency Rate
Advances in the same Agreed Currency or Alternate Currency Loans in the same
Alternate Currency, as applicable, with an Interest Period of one (1) month.
(C) No Conversion Post-Default or Post-Unmatured Default.
Notwithstanding anything to the contrary contained in Section 2.10(A) or Section
2.10(B), no Loan may be converted into or continued as a Eurocurrency Rate Loan
(except with the consent of the Required Lenders) when any Default or Unmatured
Default has occurred and is continuing.
(D) Borrowing/Conversion/Continuation Notice. The Company shall give
the Administrative Agent irrevocable notice (a "BORROWING/CONVERSION/
CONTINUATION NOTICE") of each conversion of a Floating Rate Loan into a
Eurocurrency Rate Loan or continuation of a Eurocurrency Rate Loan not later
than 9:00 a.m. (Chicago time) (x) three (3) Business Days prior to the date of
the requested conversion or continuation, with respect to any Loan to be
converted or continued as a Eurocurrency Rate Loan in Dollars, (y) four
(4) Business Days prior to the date of the requested conversion or
continuation with respect to any Loan to be converted or continued as a
Eurocurrency Rate Loan in an Agreed Currency other than Dollars, and (z) four
(4) Business Days before the date of the requested conversion or continuation
Borrowing Date with respect to the conversion or continuation of any Alternate
Currency Loan (or such other period as may be agreed to by the Administrative
Agent), and the applicable Subsidiary Borrower shall give the
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applicable Alternate Currency Bank irrevocable notice by 10:00 a.m. (local time)
two (2) Business Days prior to the conversion or continuation of such Alternate
Currency Loan (or such other period as may specified in the applicable Alternate
Currency Addendum), specifying: (1) the requested date (which shall be a
Business Day) of such conversion or continuation; (2) the amount and Type of the
Loan to be converted or continued; and (3) the amount of Eurocurrency Rate
Loan(s) or Alternate Currency Loan(s), as applicable, into which such Loan is to
be converted or continued, the Agreed Currency or Alternate Currency, as
applicable, and the duration of the Interest Period applicable thereto.
(E) Notwithstanding anything herein to the contrary, (x) Eurocurrency
Rate Advances in an Agreed Currency may be continued as Eurocurrency Rate
Advances only in the same Agreed Currency, and (y) Alternate Currency Loans in
an Alternate Currency may be continued as Alternate Currency Loans only in the
same Alternate Currency.
2.11 Default Rate. After the occurrence and during the continuance
of a Default, at the direction of the Required Lenders:
(x) the interest rate(s) applicable to the Obligations (other
than Alternate Currency Loans and Competitive Bid Loans) and
to the fees payable under Section 3.8 with respect to Letters
of Credit shall be equal to (a) the Eurocurrency Base Rate
plus the highest Applicable Eurocurrency Margin plus two
percent (2.00%) per annum for all Eurocurrency Rate Loans,
and (b) the Alternate Base Rate for such date, changing as
and when the Alternate Base Rate changes plus the highest
Applicable Floating Rate Margin plus two percent (2.00%)
per annum for all other such Obligations and fees;
(y) the principal balance of, and, to the extent permitted by law,
any overdue interest on any Alternate Currency Loan shall bear
interest, payable upon demand, for each day until paid at the
rate per annum equal to two percent (2.00%) plus the interest
rate applicable to such Alternate Currency Loan immediately
prior to the Default; and
(z) the interest rate(s) applicable to all Competitive Bid Loans
shall be equal to the then applicable interest rate for such
Competitive Bid Loan plus two percent (2.00%) per annum.
2.12 Method of Payment. All payments of principal, interest, fees,
commissions and L/C Obligations hereunder shall be made, without setoff,
deduction or counterclaim (unless indicated otherwise in Section 2.15(E)), in
immediately available funds to the Administrative Agent (i) at the
Administrative Agent's address specified pursuant to Article XV with respect to
Advances or other Obligations denominated in Dollars and (ii) at the
Administrative Agent's Eurocurrency Payment Office with respect to any Advance
or other Obligations denominated in an Agreed Currency other than Dollars, or at
any other Lending Installation of the Administrative Agent specified in writing
by the Administrative Agent to the Company, by 1:00 p.m. (Chicago time) on the
date when due
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and shall be applied (a) first, ratably among the Lenders with respect to any
principal and interest due in connection with Advances (other than Competitive
Bid Advances) and (b) second, after all amounts described in clause (a) have
been satisfied, ratably among those Lenders for whom any payment of principal
and interest is due in connection with any Competitive Bid Advances, in each
case, unless such amount is not to be shared ratably in accordance with the
terms hereof. Each Advance shall be repaid or prepaid in the Agreed Currency in
which it was made in the amount borrowed and interest payable thereon shall also
be paid in such currency. Each payment delivered to the Administrative Agent for
the account of any Lender shall be delivered promptly by the Administrative
Agent to such Lender in the same type of funds which the Administrative Agent
received at its address specified pursuant to Article XV or at any Lending
Installation specified in a notice received by the Administrative Agent from
such Lender. The Company authorizes the Administrative Agent to charge the
account of the Company maintained with First Chicago, after one (1) Business
Day's prior written notice to the Company, for each payment of principal,
interest, fees, commissions and L/C Obligations as it becomes due hereunder.
Each reference to the Administrative Agent in this Section 2.12 shall also be
deemed to refer, and shall apply equally, to each Issuing Bank, in the case of
payments required to be made by the Company to any Issuing Bank pursuant to
Article III.
All payments to be made by the Borrowers hereunder in respect of any
Alternate Currency Loans shall be made in the currencies in which such Loans are
denominated and in funds immediately available, at the office or branch from
which the Loan was made pursuant to Section 2.21 and the applicable Alternate
Currency Addendum not later than 3:00 p.m. (local time) on the date on which
such payment shall become due. Promptly upon receipt of any payment of principal
of the Alternate Currency Loans the applicable Alternate Currency Bank shall
give written notice to the Administrative Agent by telex or telecopy of the
receipt of such payment.
Notwithstanding the foregoing provisions of this Section, if, after the
making of any Advance in any currency other than Dollars, currency control or
exchange regulations are imposed in the country which issues such Agreed
Currency or Alternate Currency, as applicable, with the result that different
types of such Agreed Currency or Alternate Currency, as applicable, (the "NEW
CURRENCY") are introduced and the type of currency in which the Advance was made
(the "ORIGINAL CURRENCY") no longer exists or any Borrower is not able to make
payment to the Administrative Agent for the account of the Lenders or Alternate
Currency Bank, as applicable, in such Original Currency, then all payments to be
made by the Borrowers hereunder in such currency shall be made to the
Administrative Agent or Alternate Currency Bank, as applicable, in such amount
and such type of the New Currency or Dollars as shall be equivalent to the
amount of such payment otherwise due hereunder in the Original Currency, it
being the intention of the parties hereto that the Borrowers take all risks of
the imposition of any such currency control or exchange regulations. In
addition, notwithstanding the foregoing provisions of this Section, if, after
the making of any Advance in any currency other than Dollars, the applicable
Borrower is not able to make payment to the Administrative Agent for the account
of the Lenders or the applicable Alternate Currency Bank in the type of currency
in which such Advance was made because of the imposition of any such currency
control or exchange regulation, then such Advance shall instead
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be repaid when due in Dollars in a principal amount equal to the Dollar Amount
(as of the date of repayment) of such Advance.
2.13 Evidence of Debt.
(A) Each Lender shall maintain in accordance with its usual practice an
account or accounts (a "LOAN ACCOUNT") evidencing the indebtedness of the
Borrowers to such Lender owing to such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(B) The Register maintained by the Administrative Agent pursuant to
Section 14.3(C) shall include a control account, and a subsidiary account for
each Lender, in which accounts (taken together) shall be recorded (i) the date
and the amount of each Loan made hereunder, the Type thereof and the Interest
Period, if any, applicable thereto, (ii) the amount and the currency of any
principal or interest due and payable or to become due and payable from the
Borrowers to each Lender hereunder, (iii) the effective date and amount of each
Assignment Agreement delivered to and accepted by it and the parties thereto
pursuant to Section 14.3, (iv) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender's
share thereof, (v) the amount of any increase in the Aggregate Revolving Loan
Commitment pursuant to Section 2.6(b), and (vi) all other appropriate debits and
credits as provided in this Agreement, including, without limitation, all fees,
charges, expenses and interest.
(C) The entries made in the Loan Account, the Register and the other
accounts maintained pursuant to subsections (A) or (B) of this Section shall be
presumptively correct for all purposes, absent manifest error, unless the
applicable Borrower objects to information contained in the Loan Accounts, the
Register or the other accounts within thirty (30) days of the applicable
Borrower's receipt of such information; provided that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrowers to repay the Loans in
accordance with the terms of this Agreement.
(D) Any Lender may request that the Revolving Loans or Competitive Bid
Loans made by it each be evidenced by a promissory note in substantially the
forms of Exhibit K-1 or K-2, respectively, to evidence such Lender's Revolving
Loans or Competitive Bid Loans, as applicable. In such event, the applicable
Borrower shall prepare, execute and deliver to such Lender a promissory note for
such Loans payable to the order of such Lender and in a form approved by the
Administrative Agent and consistent with the terms of this Agreement.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 14.3) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein.
2.14 Telephonic Notices. The Borrowers authorize the Lenders and the
Administrative Agent to extend Advances, effect selections of Types of Advances
and submit Competitive Bid Quotes and to transfer funds based on telephonic
notices made by any person or persons the
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Administrative Agent or any Lender in good faith believes to be acting on behalf
of the applicable Borrower. The Borrowers agree to deliver promptly to the
Administrative Agent a written confirmation, signed by an Authorized Officer, if
such confirmation is requested by the Administrative Agent or any Lender, of
each telephonic notice. If the written confirmation differs in any material
respect from the action taken by the Administrative Agent and the Lenders, the
records of the Administrative Agent and the Lenders shall govern absent manifest
error. In case of disagreement concerning such notices, if the Administrative
Agent has recorded telephonic borrowing notices, such recordings will be made
available to the applicable Borrower upon the Company's request therefor.
2.15 Promise to Pay; Interest and Fees; Interest Payment Dates;
Interest and Fee Basis; Taxes; Loan and Control Accounts.
(A) Promise to Pay. All Advances shall be paid in full by the
applicable Borrowers on the earlier of (i) the Termination Date and (ii) the
Facility Termination Date; provided, that all Competitive Bid Advances shall be
paid in full by the Company on the last day of the Interest Period applicable
thereto, or, if earlier, on the Termination Date or Facility Termination Date,
as applicable. Each Borrower unconditionally promises to pay when due the
principal amount of each Loan and all other Obligations incurred by it, and to
pay all unpaid interest accrued thereon, in accordance with the terms of this
Agreement and the other Loan Documents.
(B) Interest Payment Dates. Interest accrued on each Floating Rate Loan
and each Alternate Currency Loan bearing a fluctuating Alternate Currency Rate
shall be payable on each Payment Date, commencing with the first such date to
occur after the date hereof, upon any prepayment whether by acceleration or
otherwise, and at maturity (whether by acceleration or otherwise). Interest
accrued on each Fixed-Rate Loan shall be payable on the last day of its
applicable Interest Period, on any date on which the Fixed-Rate Loan is prepaid,
whether by acceleration or otherwise, and at maturity. Interest accrued on each
Fixed-Rate Loan having an Interest Period longer than three months shall also be
payable on the last day of each three-month interval during such Interest
Period. Interest accrued on the principal balance of all other Obligations shall
be payable in arrears (i) on the last day of each calendar month, commencing on
the first such day following the incurrence of such Obligation, (ii) upon
repayment thereof in full or in part, and (iii) if not theretofore paid in full,
at the time such other Obligation becomes due and payable (whether by
acceleration or otherwise).
(C) Fees.
(i) The Company shall pay to the Administrative Agent, for the
account of the Lenders in accordance with their Pro Rata Shares, from
and after the Closing Date until the Facility Termination Date, a
facility fee accruing at the rate of the then Applicable Facility Fee
Percentage, on such Lender's Revolving Loan Commitment (whether used or
unused), or if all of the Revolving Loan Commitments are terminated
pursuant to the terms of this Agreement, on the sum of (A) such
Lender's Revolving Loans, plus (B) such Lender's
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share of the obligations to purchase participations in Alternate
Currency Loans and Letters of Credit, plus (C) such Lender's
Competitive Bid Advances. The facility fee shall be payable in arrears
on each Payment Date hereafter (with the first such payment being
calculated for the period from the date of this Agreement and ending on
September 1, 1999), and, in addition, on any date on which the
Aggregate Revolving Loan Commitment shall be terminated in whole or,
with respect to such terminated amount, in part.
(ii) The Company agrees to pay to the Administrative Agent,
for the sole account of the Administrative Agent, the Lead Arrangers
and the Underwriting Lenders (unless otherwise agreed between the
Administrative Agent, the Lead Arrangers, the Underwriting Lenders and
any Lender) the fees set forth in the Fee Letters, payable at the times
and in the amounts set forth therein.
(iii) The applicable Borrower agrees to pay to the applicable
Alternate Currency Bank, for its sole account, a fronting fee equal to
an amount agreed to between the applicable Borrower and the applicable
Alternate Currency Bank on the average daily outstanding Dollar Amount
of all Alternate Currency Loans.
(D) Interest and Fee Basis; Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Facility Fee Percentage.
(i) Interest on all Fixed-Rate Loans (except as provided
otherwise in the applicable Alternate Currency Addendum in the case of
an Alternate Currency Loan) and fees shall be calculated for actual
days elapsed on the basis of a 360-day year. Interest on all Floating
Rate Loans shall be calculated for actual days elapsed on the basis of
a 365-, or when appropriate 366-, day year. Interest shall be payable
for the day an Obligation is incurred but not for the day of any
payment on the amount paid if payment is received prior to 2:00 p.m.
(Chicago time) at the place of payment. If any payment of principal of
or interest on a Loan or any payment of any other Obligations shall
become due on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in
computing interest, fees and commissions in connection with such
payment.
(ii) The Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Facility Fee Percentage shall be
determined on the basis of the then applicable Average Total Net
Indebtedness to Capital Ratio as described in this Section 2.15(D)(ii),
from time to time by reference to the following table:
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AVERAGE
TOTAL NET APPLICABLE
INDEBTEDNESS APPLICABLE FACILITY
TO CAPITAL APPLICABLE EUROCURRENCY FEE
RATIO FLOATING MARGIN PERCENTAGE
RATE MARGIN
===============================================================================
Greater than or 0.25% 1.20% 0.30%
equal to 0.50 to 1.0
Greater than or
equal to 0.45 to 1.0 0.0% 1.00% 0.25%
and less than 0.50
to 1.0
Greater than or
equal to 0.40 to 1.0 0.0% 0.90% 0.225%
and less than 0.45
to 1.0
Less than 0.40 to
1.0 0.0% 0.80% 0.20%
===============================================================================
Upon receipt of the financial statements delivered pursuant to
Sections 7.1(A)(i) and (ii), as applicable, the Applicable Floating
Rate Margin, Applicable Eurocurrency Margin and Applicable Facility Fee
Percentage shall be adjusted, such adjustment being effective five (5)
Business Days following the Administrative Agent's receipt of such
financial statements and the compliance certificate required to be
delivered in connection therewith pursuant to Section 7.1(A)(iii);
provided, that if the Company shall not have timely delivered its
financial statements in accordance with Section 7.1(A)(i) or (ii), as
applicable, then commencing on the date upon which such financial
statements should have been delivered and continuing until such
financial statements are actually delivered, it shall be assumed for
purposes of determining the Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Facility Fee Percentage that the
Average Total Net Indebtedness to Capital Ratio was greater than 0.50
to 1.0; provided, further that all calculations of "Average Total Net
Indebtedness" under this Section 2.15(D) shall be made exclusive of any
impact on the financial statements arising from Supported Contingent
Obligations, unless (i) the Company shall not receive cash
reimbursement for any and all cash payments made under any Supported
Contingent Obligations promptly, and in any event within ninety (90)
days, following the Company making any such payment, in which event
"Average Total Net Indebtedness" shall thereafter be calculated by
including the total outstanding amount of such Supported Contingent
Obligation (to the extent unreimbursed or otherwise unsupported to the
satisfaction of the Administrative Agent) in "Average Total
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Net Indebtedness", or (ii) any judgment is entered under Viskase
Corporation v. American National Can Company, Civ. 93-C-7651, before
the U.S. District Court of the Northern District of Illinois, Eastern
Division or any related proceedings holding that the aggregate
liability of the Company and its Subsidiaries thereunder shall be in an
amount in excess of $106,000,000, and such judgment shall remain (x)
undischarged, unvacated or unstayed or (y) unbonded by Pechiney or any
bonding agent in reliance upon a letter of credit or other
reimbursement obligation of Pechiney or any other Person other than the
Company or its Subsidiaries in the amount of such aggregate liability,
in the case of either clause (x) or (y), for a period of thirty (30)
days or such other period permitted by court order, in which event
"Average Total Net Indebtedness" shall thereafter be calculated by
giving effect to the amount of such judgment which is undischarged,
unvacated, unstayed or unbonded on the financial condition of the
Company and its Subsidiaries.
(iii) Notwithstanding anything herein to the contrary, from
the date of this Agreement to but not including the fifth (5th)
Business Day following receipt of the Company's financial statements
delivered pursuant to Section 7.1(A)(i) for the fiscal quarter ending
March 31, 2000, the Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Facility Fee Percentage shall be
determined based upon an Average Total Net Indebtedness to Capital
Ratio greater than or equal to 0.45 to 1.0 and less than or equal to
0.50 to 1.0, or, if higher, the Average Total Net Indebtedness to
Capital Ratio calculated as of the end of each of the three fiscal
quarters immediately following the Closing Date; provided, that for
purposes of calculating Average Total Net Indebtedness for the three
fiscal quarters immediately following the Closing Date, Average Total
Net Indebtedness shall be calculated (x) for the fiscal quarter ending
on September 30, 1999, for such fiscal quarter, (y) for the fiscal
quarter ending on December 31, 1999, for the two fiscal quarter period
then ending, and (z) for the fiscal quarter ending on March 31, 2000,
for the three fiscal quarter period then ending.
(iv) Notwithstanding anything herein to the contrary, in the
event that there is any amendment to the terms of Section 3(d) of the
5-Year Finance Facility Agreement and the effect of such an amendment
is to increase the "Applicable Eurodollar Rate Margins", the
"Applicable Floating Rate Margins" and/or "Applicable Facility Fee
Percentages" under (and as defined in) the 5-Year Finance Facility
Agreement, then there shall automatically be effective a corresponding
amendment to the terms of this Section 2.15(D) with respect to the
Applicable Eurocurrency Rate Margins, Applicable Floating Rate Margins
and/or Applicable Facility Fee Percentages.
(E) Taxes.
(i) Any and all payments by the Borrowers hereunder
(whether in respect of principal, interest, fees or otherwise) shall
be made free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or
withholdings or any interest, penalties and liabilities with respect
thereto including those arising after the
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date hereof as a result of the adoption of or any change in any law,
treaty, rule, regulation, guideline or determination of a Governmental
Authority or any change in the interpretation or application thereof by
a Governmental Authority but excluding, in the case of each Lender and
the Administrative Agent, such taxes (including income taxes, franchise
taxes and branch profit taxes) as are imposed on or measured by such
Lender's or the Administrative Agent's, as the case may be, net income
by the United States of America or any Governmental Authority of the
jurisdiction under the laws of which such Lender or the Administrative
Agent, as the case may be, is organized (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings, and liabilities
which the Administrative Agent or a Lender determines to be applicable
to this Agreement, the other Loan Documents, the Revolving Loan
Commitments, the Loans or the Letters of Credit being hereinafter
referred to as "TAXES"). If any Borrower shall be required by law to
deduct or withhold any Taxes from or in respect of any sum payable
hereunder or under the other Loan Documents to any Lender or the
Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions or withholdings
(including deductions applicable to additional sums payable under this
Section 2.15(E)) such Lender or Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions
or withholdings been made, (ii) the applicable Borrower shall make such
deductions or withholdings, and (iii) the applicable Borrower shall pay
the full amount deducted or withheld to the relevant taxation authority
or other authority in accordance with applicable law. If a withholding
tax of the United States of America or any other Governmental Authority
shall be or become applicable (y) after the date of this Agreement, to
such payments by the applicable Borrower made to the Lending
Installation or any other office that a Lender may claim as its Lending
Installation, or (z) after such Lender's selection and designation of
any other Lending Installation, to such payments made to such other
Lending Installation, such Lender shall use reasonable efforts to make,
fund and maintain the affected Loans through another Lending
Installation of such Lender in another jurisdiction so as to reduce the
applicable Borrower's liability hereunder, if the making, funding or
maintenance of such Loans through such other Lending Installation of
such Lender does not, in the judgment of such Lender, otherwise
adversely affect such Loans, or obligations under the Revolving Loan
Commitments of such Lender.
(ii) In addition, the Borrowers agree to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges, or similar levies which arise from any payment made
hereunder, from the issuance of Letters of Credit hereunder, or from
the execution, delivery or registration of, or otherwise with respect
to, this Agreement, the other Loan Documents, the Revolving Loan
Commitments, the Loans or the Letters of Credit (hereinafter referred
to as "OTHER TAXES").
(iii) The Company and each Subsidiary Borrower indemnifies
each Lender and the Administrative Agent for the full amount of Taxes
and Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any Governmental Authority on amounts payable under
this Section 2.15(E)) paid by such Lender or the Administrative Agent
(as
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the case may be) and any liability (including penalties, interest, and
expenses) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within thirty (30) days after the date
such Lender or the Administrative Agent (as the case may be) makes
written demand therefor. If the Taxes or Other Taxes with respect to
which the Company or any Subsidiary Borrower has made either a direct
payment to the taxation or other authority or an indemnification
payment hereunder are subsequently refunded to any Lender, such Lender
will return to the applicable Borrower an amount equal to the lesser of
the indemnification payment or the refunded amount. A certificate as to
any additional amount payable to any Lender or the Administrative Agent
under this Section 2.15(E) submitted to the applicable Borrower and the
Administrative Agent (if a Lender is so submitting) by such Lender or
the Administrative Agent shall show in reasonable detail the amount
payable and the calculations used to determine such amount and shall,
absent manifest error, be final, conclusive and binding upon all
parties hereto. With respect to such deduction or withholding for or on
account of any Taxes and to confirm that all such Taxes have been paid
to the appropriate Governmental Authorities, the applicable Borrower
shall promptly (and in any event not later than thirty (30) days after
receipt) furnish to each Lender and the Administrative Agent such
certificates, receipts and other documents as may be required (in the
reasonable judgment of such Lender or the Administrative Agent) to
establish any tax credit to which such Lender or the Administrative
Agent may be entitled.
(iv) Within thirty (30) days after the date of any payment
of Taxes or Other Taxes by the Company or any Subsidiary Borrower, the
Company shall furnish to the Administrative Agent the original or a
certified copy of a receipt evidencing payment thereof.
(v) Without prejudice to the survival of any other
agreement of the Company and the Subsidiary Borrowers hereunder, the
agreements and obligations of the Borrowers contained in this Section
2.15(E) shall survive the payment in full of all Obligations, the
termination of the Letters of Credit and the termination of this
Agreement.
(vi) Each Lender (including any Replacement Lender or
Purchaser) that is not created or organized under the laws of the
United States of America or a political subdivision thereof (each a
"NON-U.S. LENDER") shall deliver to the Company and the Administrative
Agent on or before the Closing Date, or, if later, the date on which
such Lender becomes a Lender pursuant to Section 14.3 hereof (and from
time to time thereafter upon the request of the Company or the
Administrative Agent, but only for so long as such Non-U.S. Lender is
legally entitled to do so), either (1)(x) two (2) duly completed copies
of either (A) IRS Form W-8BEN (or, if delivered on or before December
31, 1999, IRS Form 1001), or (B) IRS Form W-8ECI (or, if delivered on
or before December 31, 1999, IRS Form 4224), or in either case an
applicable successor form, and (y) for periods prior to January 1,
2000, a duly completed copy of IRS Form W-8 or W-9 or applicable
successor form; or (2) in the case of a Non-U.S. Lender that is not
legally entitled to deliver either
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form listed in clause (vi)(1)(x), (x) a certificate of a duly
authorized officer of such Non-U.S. Lender to the effect that such
Non-U.S. Lender is not (A) a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of the Company
or any Subsidiary Borrower within the meaning of Section 881(c)(3)(B)
of the Code, or (C) a controlled foreign corporation receiving interest
from a related person within the meaning of Section 881(c)(3)(C) of the
Code (such certificate, an "EXEMPTION CERTIFICATE") and (y) two (2)
duly completed copies of IRS Form W-8BEN or applicable successor form.
Each such Lender further agrees to deliver to the Company and the
Administrative Agent from time to time a true and accurate certificate
executed in duplicate by a duly authorized officer of such Lender in a
form satisfactory to the Company and the Administrative Agent, before
or promptly upon the occurrence of any event requiring a change in the
most recent certificate previously delivered by it to the Company and
the Administrative Agent pursuant to this Section 2.15(E)(vi). Further,
each Lender which delivers a form or certificate pursuant to this
clause (vi) covenants and agrees to deliver to the Company and the
Administrative Agent within fifteen (15) days prior to the expiration
of such form, for so long as this Agreement is still in effect, another
such certificate and/or two (2) accurate and complete original
newly-signed copies of the applicable form (or any successor form or
forms required under the Code or the applicable regulations promulgated
thereunder).
Each Lender shall promptly furnish to the Company and the
Administrative Agent such additional documents as may be reasonably
required by any Borrower or the Administrative Agent to establish any
exemption from or reduction of any Taxes or Other Taxes required to be
deducted or withheld and which may be obtained without undue expense to
such Lender. Notwithstanding any other provision of this Section
2.15(E), no Borrower shall be obligated to gross up any payments to any
Lender pursuant to Section 2.15(E)(i), or to indemnify any Lender
pursuant to Section 2.15(E)(iii), in respect of United States federal
withholding taxes to the extent imposed as a result of (x) the failure
of such Lender to deliver to the Company the form or forms and/or an
Exemption Certificate, as applicable to such Lender, pursuant to
Section 2.15(E)(vi), (y) such form or forms and/or Exemption
Certificate not establishing a complete exemption from U.S. federal
withholding tax or the information or certifications made therein by
the Lender being untrue or inaccurate on the date delivered in any
material respect, or (z) the Lender designating a successor Lending
Installation at which it maintains its Loans which has the effect of
causing such Lender to become obligated for tax payments in excess of
those in effect immediately prior to such designation; provided,
however, that the applicable Borrower shall be obligated to gross up
any payments to any such Lender pursuant to Section 2.15(E)(i), and to
indemnify any such Lender pursuant to Section 2.15(E)(iii), in respect
of United States federal withholding taxes if (x) any such failure to
deliver a form or forms or an Exemption Certificate or the failure of
such form or forms or exemption certificate to establish a complete
exemption from U.S. federal withholding tax or inaccuracy or untruth
contained therein resulted from a change in any applicable statute,
treaty, regulation or other applicable law or any interpretation of any
of the foregoing occurring after the date hereof, which change rendered
such Lender no longer legally
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entitled to deliver such form or forms or Exemption Certificate or
otherwise ineligible for a complete exemption from U.S. federal
withholding tax, or rendered the information or the certifications made
in such form or forms or Exemption Certificate untrue or inaccurate in
any material respect, (ii) the redesignation of the Lender's Lending
Installation was made at the request of the Company or (iii) the
obligation to gross up payments to any such Lender pursuant to Section
2.15(E)(i), or to indemnify any such Lender pursuant to Section
2.15(E)(iii), is with respect to a Purchaser that becomes a Purchaser
as a result of an assignment made at the request of the Company.
(vii) Upon the request, and at the expense of the Company,
each Lender to which any Borrower is required to pay any additional
amount pursuant to this Section 2.15(E), shall reasonably afford the
applicable Borrower the opportunity to contest, and shall reasonably
cooperate with the applicable Borrower in contesting, the imposition of
any Tax giving rise to such payment; provided, that (i) such Lender
shall not be required to afford the applicable Borrower the opportunity
to so contest unless the applicable Borrower shall have confirmed in
writing to such Lender its obligation to pay such amounts pursuant to
this Agreement; and (ii) the Company shall reimburse such Lender for
its reasonable attorneys' and accountants' fees and disbursements
incurred in so cooperating with the applicable Borrower in contesting
the imposition of such Tax; provided, however, that notwithstanding the
foregoing, no Lender shall be required to afford any Borrower the
opportunity to contest, or cooperate with the applicable Borrower in
contesting, the imposition of any Taxes, if such Lender in good faith
determines that to do so would have an adverse effect on it.
2.16 Notification of Advances, Interest Rates, Prepayments and
Aggregate Revolving Loan Commitment Reductions. Promptly after receipt thereof,
the Administrative Agent will notify each Lender of the contents of each
Aggregate Revolving Loan Commitment reduction notice, Borrowing/Conversion/
Continuation Notice, and repayment notice received by it hereunder. The
Administrative Agent will notify the applicable Borrower and each Lender of
the interest rate and Agreed Currency applicable to each Fixed-Rate Loan
promptly upon determination of such interest rate and Agreed Currency and
will give each Lender prompt notice of each change in the Alternate Base Rate.
2.17 Lending Installations. Each Lender may book its Loans or Letters
of Credit at any Lending Installation selected by such Lender and may change its
Lending Installation from time to time. All terms of this Agreement shall apply
to any such Lending Installation. Each Lender may, by written or facsimile
notice to the Administrative Agent and the Company, designate a Lending
Installation through which Loans will be made by it and for whose account Loan
payments and/or payments of L/C Obligations are to be made.
2.18 Non-Receipt of Funds by the Administrative Agent. Unless a
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or
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(ii) in the case of any Borrower, a payment of principal, interest or fees to
the Administrative Agent for the account of the Lenders, that it does not intend
to make such payment, the Administrative Agent may assume that such payment has
been made. The Administrative Agent may, but shall not be obligated to, make the
amount of such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the applicable Borrower, as the case may be, has
not in fact made such payment to the Administrative Agent, the recipient of such
payment shall, on demand by the Administrative Agent, repay to the
Administrative Agent the amount so made available together with interest thereon
in respect of each day during the period commencing on the date such amount was
so made available by the Administrative Agent until the date the Administrative
Agent recovers such amount at a rate per annum equal to (i) in the case of
payment by a Lender, the Federal Funds Effective Rate for such day or (ii) in
the case of payment by a Borrower, the interest rate applicable to the relevant
Loan.
2.19 Termination Date. This Agreement shall be effective until the
Facility Termination Date. Notwithstanding the termination of this Agreement,
until (A) all of the Obligations (other than contingent indemnity obligations)
shall have been fully and indefeasibly paid and satisfied, (B) all financing
arrangements among the Company, the Subsidiary Borrowers and the Lenders
pursuant to the Loan Documents shall have been terminated and (C) all of the
Letters of Credit shall have expired, been canceled or terminated, or cash
collateralized pursuant to the terms of this Agreement or supported by a letter
of credit acceptable to the Administrative Agent (collectively, the "TERMINATION
CONDITIONS"), all of the rights and remedies under this Agreement and the other
Loan Documents shall survive.
2.20 Replacement of Certain Lenders. In the event a Lender ("AFFECTED
LENDER") shall have: (i) failed to fund its Pro Rata Share of any Advance
requested by the applicable Borrower, or to make payment in respect of any
Alternate Currency Loan purchased by such Lender pursuant to Section 2.21(E),
which such Lender is obligated to fund under the terms of this Agreement and
which failure has not been cured, (ii) requested compensation from any Borrower
under Sections 2.15(E), 4.1 or 4.2 to recover Taxes, Other Taxes or other
additional costs incurred by such Lender which are not being incurred generally
by the other Lenders except as provided under any applicable Alternate Currency
Addendum, (iii) delivered a notice pursuant to Section 4.3 claiming that such
Lender is unable to extend Eurocurrency Rate Loans to the Company for reasons
not generally applicable to the other Lenders or (iv) has invoked Section 11.2;
then, in any such case, after engagement of one or more "Replacement Lenders"
(as defined below) by the Company and/or the Administrative Agent, the Company
or the Administrative Agent may make written demand on such Affected Lender
(with a copy to the Administrative Agent in the case of a demand by the Company
and a copy to the Company in the case of a demand by the Administrative Agent)
for the Affected Lender to assign, and such Affected Lender shall use
commercially reasonable efforts to assign pursuant to one or more duly executed
Assignment Agreements five (5) Business Days after the date of such demand, to
one or more financial institutions that comply with the provisions of Section
14.3(A) which the Company or the Administrative Agent, as the case may be, shall
have engaged for such purpose ("REPLACEMENT LENDER"), all of such Affected
Lender's rights and obligations under this Agreement and the other Loan
Documents (including, without
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limitation, its Revolving Loan Commitment, all Loans owing to it, all of its
participation interests in existing Letters of Credit, and its obligation to
participate in additional Letters of Credit and Alternate Currency Loans
hereunder) in accordance with Section 14.3. The Administrative Agent agrees,
upon the occurrence of such events with respect to an Affected Lender and upon
the written request of the Company, to use its reasonable efforts to obtain the
commitments from one or more financial institutions to act as a Replacement
Lender. The Administrative Agent is authorized to execute one or more of such
assignment agreements as attorney-in-fact for any Affected Lender failing to
execute and deliver the same within five (5) Business Days after the date of
such demand. Further, with respect to such assignment the Affected Lender shall
have concurrently received, in cash, all amounts due and owing to the Affected
Lender hereunder or under any other Loan Document, including, without
limitation, the aggregate outstanding principal amount of the Loans owed to such
Lender, together with accrued interest thereon through the date of such
assignment, amounts payable under Sections 2.15(E), 4.1, and 4.2 with respect to
such Affected Lender and compensation payable under Section 2.15(C) in the event
of any replacement of any Affected Lender under clause (ii) or clause (iii) of
this Section 2.20; provided that upon such Affected Lender's replacement, such
Affected Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.15(E), 4.1, 4.2, 4.4, and 11.7, as well
as to any fees accrued for its account hereunder and not yet paid, and shall
continue to be obligated under Section 12.8. Upon the replacement of any
Affected Lender pursuant to this Section 2.20, the provisions of Section 9.2
shall continue to apply with respect to Loans which are then outstanding with
respect to which the Affected Lender failed to fund its Pro Rata Share and which
failure has not been cured.
2.21 Alternate Currency Loans.
(A) Upon the satisfaction of the conditions precedent set forth in
Article V hereof and set forth in the applicable Alternate Currency Addendum,
from and including the later of the date of this Agreement and the date of
execution of the applicable Alternate Currency Addendum and prior to Termination
Date (unless an earlier termination date shall be specified in or pursuant to
the applicable Alternate Currency Addendum), each Alternate Currency Bank
agrees, on the terms and conditions set forth in this Agreement and in the
applicable Alternate Currency Addendum, to make Alternate Currency Loans under
such Alternate Currency Addendum to the applicable Borrower party to such
Alternate Currency Addendum from time to time in the applicable Alternate
Currency, in an amount not to exceed each such Alternate Currency Bank's
applicable Alternate Currency Commitment; provided, however, at no time shall
the Dollar Amount of the outstanding principal amount of the Alternate Currency
Loans for all Alternate Currencies plus the outstanding principal amount of all
Eurocurrency Rate Loans in Agreed Currencies other than Dollars exceed the
Dollar Amount of $400,000,000 other than as a result of currency fluctuations
and then only to the extent permitted in Section 2.5(B)(ii); provided, further,
at no time shall the Dollar Amount of the Alternate Currency Loans for any
specific Alternate Currency exceed the maximum amount specified as the maximum
amount for such Alternate Currency in the applicable Alternate Currency Addendum
other than as a result of currency fluctuations and then only to the extent
permitted in Section 2.5(B)(ii). Subject to the terms of this Agreement and the
applicable
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Alternate Currency Addendum, the applicable Borrowers may borrow, repay and
reborrow Alternate Currency Loans in the applicable Alternate Currency at any
time prior to the Termination Date (unless an earlier termination date shall be
specified in or pursuant to the applicable Alternate Currency Addendum). On the
Termination Date (unless an earlier termination date shall be specified in or
pursuant to the applicable Alternate Currency Addendum), the outstanding
principal balance of the Alternate Currency Loans shall be paid in full by the
applicable Borrower and prior to Termination Date (unless an earlier termination
date shall be specified in or pursuant to the applicable Alternate Currency
Addendum) prepayments of the Alternate Currency Loans shall be made by the
applicable Borrower if and to the extent required in Section 2.5(B)(ii).
(B) Borrowing Notice. When the applicable Borrower desires to borrow
under this Section 2.21, the applicable Borrower shall deliver to the applicable
Alternate Currency Bank and the Administrative Agent a
Borrowing/Conversion/Continuation Notice, signed by it, as provided in Section
2.8 specifying that such Borrower is requesting an Alternate Currency Loan
pursuant to this Section 2.21, and the Administrative Agent shall give prompt
notice to the Lenders of any such request for an Alternate Currency Loan. Any
Borrowing/Conversion/Continuation Notice given pursuant to this Section 2.21
shall be irrevocable.
(C) Termination. Except as otherwise required by applicable law, in no
event shall any Alternate Currency Bank have the right to accelerate the
Alternate Currency Loans outstanding under any Alternate Currency Addendum or to
terminate its commitments (if any) thereunder to make Alternate Currency Loans
prior to the stated termination date in respect thereof, except that each
Alternate Currency Bank shall have such rights upon an acceleration of the Loans
and a termination of the Revolving Credit Commitments pursuant to Article IX.
(D) Statements. Each Alternate Currency Bank shall furnish to the
Administrative Agent not less frequently than monthly, and at any other time at
the reasonable request of the Administrative Agent, a statement setting forth
the outstanding Alternate Currency Loans made and repaid during the period since
the last such report under such Alternate Currency Addendum.
(E) Risk Participation. Immediately upon the making of any Alternate
Currency Loan by the applicable Alternate Currency Bank, each Lender with a Pro
Rata Share shall be deemed to have automatically, irrevocably and
unconditionally purchased and received from such Alternate Currency Bank an
undivided interest and participation in and to such Alternate Currency Loan in
an amount equal to the Dollar Amount of such Alternate Currency Loan multiplied
by such Lender's Pro Rata Share. Immediately and automatically upon the
occurrence of an Event of Default under Sections 8.1(A), (F) or (G), each Lender
shall unconditionally and irrevocably purchase from the applicable Alternate
Currency Bank, without recourse or warranty, an undivided interest in and
participation in each Alternate Currency Loan ratably in accordance with such
Lender's Pro Rata Share of the amount of such Loan, and immediately and
automatically all Alternate Currency Loans shall be converted to and
redenominated in Dollars equal to the Dollar Amount of each such Alternate
Currency Loan determined as of the date of such conversion; provided, that to
the extent such conversion shall occur other than at the end of an Interest
Period,
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the applicable Borrower shall pay to the applicable Alternate Currency Bank, all
losses and breakage costs related thereto in accordance with Section 4.4. Each
of the Lenders shall pay to the applicable Alternate Currency Bank not later
than two (2) Business Days following a request for payment from such Alternate
Currency Bank, in Dollars, an amount equal to the undivided interest in and
participation in the Alternate Currency Loan purchased by such Lender pursuant
to this Section 2.21(E). In the event that any Lender fails to make payment to
the applicable Alternate Currency Bank of any amount due under this Section
2.21(E), the Administrative Agent shall be entitled to receive, retain and apply
against such obligation the principal and interest otherwise payable to such
Lender hereunder until the Administrative Agent receives from such Lender an
amount sufficient to discharge such Lender's payment obligation as prescribed in
this Section 2.21(E) together with interest thereon at the Federal Funds
Effective Rate for each day during the period commencing on the date of demand
by the applicable Alternate Currency Bank and ending on the date such obligation
is fully satisfied. The Administrative Agent will promptly remit all payments
received as provided above to the applicable Alternate Currency Bank. In
consideration of the risk participations prescribed in this Section 2.21(E),
each Lender shall receive, from the accrued interest paid by the applicable
Borrower on each Alternate Currency Loan, a fee equal to such Lender's Pro Rata
Share of the Applicable Eurocurrency Margin component of the interest accrued on
such Loan, as in effect from time to time during the period such interest
accrued. Such portion of the interest paid by the applicable Borrower on
Alternate Currency Loans to the applicable Alternate Currency Bank shall be paid
as promptly as possible by such Alternate Currency Bank to the Administrative
Agent, and the Administrative Agent shall as promptly as possible convert such
amount into Dollars at the spot rate of exchange in accordance with its normal
banking practices and apply such resulting amount ratably among the Lenders
(including the Alternate Currency Banks) in proportion to their Pro Rata Share.
(F) Other Provisions Applicable to Alternate Currency Loans. The
specification of payment of Alternate Currency Loans in the related Alternate
Currency at a specific place pursuant to this Agreement is of the essence. Such
Alternate Currency shall be the currency of account and payment of such Loans
under this Agreement and the applicable Alternate Currency Addendum.
Notwithstanding anything in this Agreement, the obligation of the applicable
Borrower in respect of such Loans shall not be discharged by an amount paid in
any other currency or at another place, whether pursuant to a judgment or
otherwise, to the extent the amount so paid, on prompt conversion into the
applicable Alternate Currency and transfer to such Lender under normal banking
procedure, does not yield the amount of such Alternate Currency due under this
Agreement and the applicable Alternate Currency Addendum. In the event that any
payment, whether pursuant to a judgment or otherwise, upon conversion and
transfer, does not result in payment of the amount of such Alternate Currency
due under this Agreement or the applicable Alternate Currency Addendum, such
Lender shall have an independent cause of action against each of the Borrowers
for the currency deficit.
2.22 Judgment Currency. If, for the purposes of obtaining judgment
in any court, it is necessary to convert a sum due from any Borrower hereunder
in the currency expressed to be payable herein (the "SPECIFIED CURRENCY") into
another currency, the parties hereto agree, to the
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fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the specified currency with such other
currency at the Administrative Agent's main office in Chicago, Illinois on the
Business Day preceding that on which the final, non-appealable judgment is
given. The obligations of each Borrower in respect of any sum due to any Lender
or the Administrative Agent hereunder shall, notwithstanding any judgment in a
currency other than the specified currency, be discharged only to the extent
that on the Business Day following receipt by such Lender or the Administrative
Agent (as the case may be) of any sum adjudged to be so due in such other
currency such Lender or the Administrative Agent (as the case may be) may in
accordance with normal, reasonable banking procedures purchase the specified
currency with such other currency. If the amount of the specified currency so
purchased is less than the sum originally due to such Lender or the
Administrative Agent, as the case may be, in the specified currency, each
Borrower agrees, to the fullest extent that it may effectively do so, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender or the Administrative Agent, as the case may be, against such loss, and
if the amount of the specified currency so purchased exceeds (a) the sum
originally due to any Lender or the Administrative Agent, as the case may be, in
the specified currency and (b) any amounts shared with other Lenders as a result
of allocations of such excess as a disproportionate payment to such Lender under
Section 13.2, such Lender or the Administrative Agent, as the case may be,
agrees to remit such excess to such Borrower.
2.23 Market Disruption; Denomination of Amounts in Dollars; Dollar
Equivalent of Reimbursement Obligations. (A) Notwithstanding the satisfaction of
all conditions referred to in this Article II with respect to any Advance in any
Agreed Currency other than Dollars or Alternate Currency, as applicable, if
there shall occur on or prior to the date of such Advance any change in national
or international financial, political or economic conditions or currency
exchange rates or exchange controls which would in the reasonable opinion of the
Company, any Subsidiary Borrower, any Alternate Currency Bank, Administrative
Agent or the Required Lenders make it impracticable for the Eurocurrency Rate
Loans or Alternate Currency Loans comprising such Advance to be denominated in
the Agreed Currency or Alternate Currency, as applicable, specified by the
applicable Borrower, then the Administrative Agent shall forthwith give notice
thereof to such Borrower , the applicable Alternate Currency Bank and the
Lenders, or the applicable Borrower shall give notice to the Administrative
Agent, the applicable Alternate Currency Bank and the Lenders, as the case may
be, and such Eurocurrency Rate Loans or Alternate Currency Loans shall not be
denominated in such currency but shall be made on such Borrowing Date in
Dollars, in an aggregate principal amount equal to the Dollar Amount of the
aggregate principal amount specified in the related Borrowing Notice, as
Floating Rate Loans, unless the applicable Borrower notifies the Administrative
Agent at least one (1) Business Day before such date that (i) it elects not to
borrow on such date or (ii) it elects to borrow on such date in a different
Agreed Currency or Alternate Currency, as the case may be, in which the
denomination of such Loans would in the opinion of the Administrative Agent, any
Alternate Currency Bank, if applicable, and the Required Lenders be practicable
and in an aggregate principal amount equal to the Dollar Amount of the aggregate
principal amount specified in the related Borrowing Notice.
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(B) Except as set forth in Sections 2.2, 2.5 and 2.21, all amounts
referenced in this Article II shall be calculated using the Dollar Amount
determined based upon the Equivalent Amount in effect as of the date of any
determination thereof; provided, however, to the extent that any Borrower shall
be obligated hereunder to pay in Dollars any Advance denominated in a currency
other than Dollars, such amount shall be paid in Dollars using the Dollar Amount
of the Advance (calculated based upon the Equivalent Amount in effect on the
date of payment thereof) and in the event that the applicable Borrower does not
reimburse the Administrative Agent and the Lenders are required to fund a
purchase of a participation in such Advance, such purchase shall be made in
Dollars in an amount equal to the Dollar Amount of such Advance (calculated
based upon the Equivalent Amount in effect on the date of payment thereof).
Notwithstanding anything herein to the contrary, the full risk of currency
fluctuations shall be borne by the Borrowers and the Borrowers agree to
indemnify and hold harmless each Issuing Bank, the Alternate Currency Banks, the
Administrative Agent and the Lenders from and against any loss resulting from
any borrowing denominated in a currency other than in Dollars and for which the
Lenders are not reimbursed on the day of such borrowing.
2.24 Subsidiary Borrowers. The Company may at any time or from time to
time, with the consent of the Administrative Agent add as a party to this
Agreement any Subsidiary to be a "Subsidiary Borrower" hereunder by the
execution and delivery to the Administrative Agent and the Lenders of (a) a duly
completed Assumption Letter by such Subsidiary, with the written consent of the
Company at the foot thereof and (b) such other guaranty and subordinated
intercompany indebtedness documents as may be reasonably required by the
Administrative Agent, such documents with respect to any additional Subsidiaries
to be substantially similar in form and substance to the Loan Documents executed
on or about the date hereof by the Subsidiaries parties hereto as of the Closing
Date. Upon such execution, delivery and consent such Subsidiary shall for all
purposes be a party hereto as a Subsidiary Borrower as fully as if it had
executed and delivered this Agreement. So long as the principal of and interest
on any Advances made to any Subsidiary Borrower under this Agreement shall have
been repaid or paid in full, all Letters of Credit issued for the account of
such Subsidiary Borrower have expired or been returned and terminated and all
other obligations of such Subsidiary Borrower under this Agreement shall have
been fully performed, the Company may, by not less than five (5) Business Days'
prior notice to the Administrative Agent (which shall promptly notify the
Lenders thereof), terminate such Subsidiary Borrower's status as a "Subsidiary
Borrower".
ARTICLE III: THE LETTER OF CREDIT FACILITY
3.1 Obligation to Issue Letters of Credit. Subject to the terms and
conditions of this Agreement and in reliance upon the representations,
warranties and covenants of the Company herein set forth, each Issuing Bank
hereby agrees to issue for the account of the Company or any Subsidiary Borrower
through such Issuing Bank's branches as it and the Company may jointly agree,
one or more Letters of Credit denominated in Dollars or an Agreed Currency in
accordance with this Article III, from time to time during the period,
commencing on the Closing Date and
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ending on the Business Day prior to the Termination Date.
3.2 Transitional Provision. Schedule 3.2 contains a schedule of certain
letters of credit issued for the account of the Company and its Subsidiaries
prior to the Closing Date. Subject to the satisfaction of the conditions
contained in Sections 5.1, 5.2 and 5.3, from and after the Closing Date such
letters of credit shall be deemed to be Letters of Credit issued pursuant to
this Article III.
3.3 Types and Amounts. No Issuing Bank shall have any obligation to
and no Issuing Bank shall:
(A) issue (or amend) any Letter of Credit if on the date of
issuance (or amendment), before or after giving effect to the Letter of
Credit requested hereunder, (i) the Dollar Amount of the Revolving
Credit Obligations at such time would exceed the lesser of the
Aggregate Revolving Loan Commitment at such time, or (ii) the aggregate
outstanding Dollar Amount of the L/C Obligations would exceed
$100,000,000, or (iii) the Dollar Amount of all Eurocurrency Rate Loans
and Letters of Credit in Agreed Currencies other than Dollars would
exceed the Maximum Eurocurrency Amount; or
(B) issue (or amend) any Letter of Credit which has an
expiration date later than the date which is the earlier of one (1)
year after the date of issuance thereof or five (5) Business Days
immediately preceding the Termination Date.
In no event shall any program letter of credit issued by ABN AMRO Bank
N.V. under and in connection with the CLO Facilities be deemed to be a Letter of
Credit issued pursuant to this Article III.
3.4 Conditions. In addition to being subject to the satisfaction of the
conditions contained in Sections 5.1, 5.2 and 5.3, the obligation of an Issuing
Bank to issue any Letter of Credit is subject to the satisfaction in full of the
following conditions:
(A) the Company shall have delivered to the applicable Issuing
Bank (at such times and in such manner as such Issuing Bank may
reasonably prescribe) and the Administrative Agent, a request for
issuance of such Letter of Credit in substantially the form of Exhibit
C hereto (each such request a "REQUEST FOR LETTER OF CREDIT"), duly
executed applications for such Letter of Credit, and such other
documents, instructions and agreements as may be required pursuant to
the terms thereof (all such applications, documents, instructions, and
agreements being referred to herein as the "L/C DOCUMENTS"), and the
proposed Letter of Credit shall be reasonably satisfactory to such
Issuing Bank as to form and content; and
(B) as of the date of issuance no order, judgment or decree of
any court, arbitrator or Governmental Authority shall purport by its
terms to enjoin or restrain
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the applicable Issuing Bank from issuing such Letter of Credit and no
law, rule or regulation applicable to such Issuing Bank and no request
or directive (whether or not having the force of law) from a
Governmental Authority with jurisdiction over such Issuing Bank shall
prohibit or request that such Issuing Bank refrain from the issuance of
Letters of Credit generally or the issuance of that Letter of Credit.
3.5 Procedure for Issuance of Letters of Credit. (A) Subject to the
terms and conditions of this Article III and provided that the applicable
conditions set forth in Sections 5.1, 5.2 and 5.3 hereof have been satisfied,
the applicable Issuing Bank shall, on the requested date, issue a Letter of
Credit on behalf of the Company or a Subsidiary Borrower, as applicable in
accordance with such Issuing Bank's usual and customary business practices and,
in this connection, such Issuing Bank may assume that the applicable conditions
set forth in Section 5.3 hereof have been satisfied unless it shall have
received notice to the contrary from the Administrative Agent or a Lender or has
knowledge that the applicable conditions have not been met.
(B) Promptly, and in any event not more than one (1) Business Day
following the date of issuance of any Letter of Credit, the applicable Issuing
Bank shall give the Administrative Agent written or telex notice, or telephonic
notice confirmed promptly thereafter in writing, of the issuance of a Letter of
Credit (provided, however, that the failure to provide such notice shall not
result in any liability on the part of such Issuing Bank), and the
Administrative Agent shall promptly give notice to the Lenders of each such
issuance.
(C) No Issuing Bank shall extend or amend any Letter of Credit unless
the requirements of this Section 3.5 are met as though a new Letter of Credit
was being requested and issued.
3.6 Letter of Credit Participation. On the date of this Agreement, with
respect to the Letters of Credit identified on Schedule 3.2, and immediately
upon the issuance of each Letter of Credit hereunder, each Lender with a Pro
Rata Share shall be deemed to have automatically, irrevocably and
unconditionally purchased and received from the applicable Issuing Bank an
undivided interest and participation in and to such Letter of Credit, the
obligations of the Company in respect thereof, and the liability of such Issuing
Bank thereunder (collectively, an "L/C INTEREST") in an amount equal to the
Dollar Amount available for drawing under such Letter of Credit multiplied by
such Lender's Pro Rata Share. Each Issuing Bank will notify each Lender promptly
upon presentation to it of an L/C Draft or upon any other draw under a Letter of
Credit. On or before the Business Day on which an Issuing Bank makes payment of
each such L/C Draft or, in the case of any other draw on a Letter of Credit, on
demand by the Administrative Agent or the applicable Issuing Bank, each Lender
shall make payment to the Administrative Agent, for the account of the
applicable Issuing Bank, in immediately available funds in the Agreed Currency
in an amount equal to such Lender's Pro Rata Share of the Dollar Amount of such
payment or draw. The obligation of each Lender to reimburse the Issuing Banks
under this Section 3.6 shall be unconditional, continuing, irrevocable and
absolute. In the event that any Lender fails to make payment to the
Administrative Agent of any amount due under this Section 3.6, the
Administrative Agent shall be entitled to receive, retain and apply against such
obligation the principal and interest
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otherwise payable to such Lender hereunder until the Administrative Agent
receives such payment from such Lender or such obligation is otherwise fully
satisfied; provided, however, that nothing contained in this sentence shall
relieve such Lender of its obligation to reimburse the applicable Issuing Bank
for such amount in accordance with this Section 3.6.
3.7 Reimbursement Obligation. The Company agrees unconditionally,
irrevocably and absolutely to pay immediately to the Administrative Agent, for
the account of the Lenders, the amount of each advance drawn under or pursuant
to a Letter of Credit or an L/C Draft related thereto (such obligation of the
Company to reimburse the Administrative Agent for an advance made under a Letter
of Credit or L/C Draft being hereinafter referred to as a "REIMBURSEMENT
OBLIGATION" with respect to such Letter of Credit or L/C Draft), each such
reimbursement to be made by the Company no later than the Business Day on which
the applicable Issuing Bank makes payment of each such L/C Draft or, if the
Company shall have received notice of a Reimbursement Obligation later than
12:00 p.m. (Chicago time), on any Business Day or on a day which is not a
Business Day, no later than 12:00 p.m. (Chicago time), on the immediately
following Business Day or, in the case of any other draw on a Letter of Credit,
the date specified in the demand of such Issuing Bank. If the Company at any
time fails to repay a Reimbursement Obligation pursuant to this Section 3.7, the
Company shall be deemed to have elected to borrow Revolving Loans from the
Lenders, as of the date of the advance giving rise to the Reimbursement
Obligation, equal in amount to the Dollar Amount of the unpaid Reimbursement
Obligation. Such Revolving Loans shall be made as of the date of the payment
giving rise to such Reimbursement Obligation, automatically, without notice and
without any requirement to satisfy the conditions precedent otherwise applicable
to an Advance of Revolving Loans. Such Revolving Loans shall constitute a
Floating Rate Advance, the proceeds of which Advance shall be used to repay such
Reimbursement Obligation. If, for any reason, the Company fails to repay a
Reimbursement Obligation on the day such Reimbursement Obligation arises and,
for any reason, the Lenders are unable to make or have no obligation to make
Revolving Loans, then such Reimbursement Obligation shall bear interest from and
after such day, until paid in full, at the interest rate applicable to a
Floating Rate Advance.
3.8 Letter of Credit Fees. The Company agrees to pay:
(A) quarterly, in arrears, to the Administrative Agent for
the ratable benefit of the Lenders, except as set forth in Section 9.2,
a letter of credit fee at a rate per annum equal to the Applicable L/C
Fee Percentage on the average daily outstanding Dollar Amount available
for drawing under all Letters of Credit;
(B) quarterly, in arrears, to the applicable Issuing Bank, a
letter of credit fronting fee in an amount agreed to between the
Company and the applicable Issuing Bank on the average daily
outstanding face amount available for drawing under all Letters of
Credit issued by such Issuing Bank; and
(C) to the applicable Issuing Bank, all customary fees and
other issuance,
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amendment, document examination, negotiation and presentment expenses
and related charges in connection with the issuance, amendment,
presentation of L/C Drafts, and the like customarily charged by such
Issuing Banks with respect to standby and commercial Letters of Credit,
including, without limitation, standard commissions with respect to
commercial Letters of Credit, payable at the time of invoice of such
amounts.
3.9 Issuing Bank Reporting Requirements. In addition to the notices
required by Section 3.5(B), each Issuing Bank shall, no later than the tenth
(10th) Business Day following the last day of each month, provide to the
Administrative Agent, upon the Administrative Agent's request, schedules, in
form and substance reasonably satisfactory to the Administrative Agent, showing
the date of issue, account party, Agreed Currency and amount in such Agreed
Currency, expiration date and the reference number of each Letter of Credit
issued by it outstanding at any time during such month and the aggregate amount
payable by the Company during such month. In addition, upon the request of the
Administrative Agent, each Issuing Bank shall furnish to the Administrative
Agent copies of any Letter of Credit and any application for or reimbursement
agreement with respect to a Letter of Credit to which the Issuing Bank is party
and such other documentation as may reasonably be requested by the
Administrative Agent. Upon the request of any Lender, the Administrative Agent
will provide to such Lender information concerning such Letters of Credit.
3.10 Indemnification; Exoneration. (A) In addition to amounts payable
as elsewhere provided in this Article III, the Company hereby agrees to protect,
indemnify, pay and save harmless the Administrative Agent, each Issuing Bank and
each Lender from and against any and all liabilities and costs which the
Administrative Agent, such Issuing Bank or such Lender may incur or be subject
to as a consequence, direct or indirect, of (i) the issuance of any Letter of
Credit other than, in the case of the applicable Issuing Bank, as a result of
its Gross Negligence or willful misconduct, as determined by the final judgment
of a court of competent jurisdiction, or (ii) the failure of the applicable
Issuing Bank to honor a drawing under a Letter of Credit as a result of any act
or omission, whether rightful or wrongful, of any present or future de jure or
de facto Governmental Authority (all such acts or omissions herein called
"GOVERNMENTAL ACTS").
(B) As among the Company, the Lenders, the Administrative Agent and the
Issuing Banks, the Company assumes all risks of the acts and omissions of, or
misuse of such Letter of Credit by, the beneficiary of any Letters of Credit. In
furtherance and not in limitation of the foregoing, subject to the provisions of
the Letter of Credit applications and Letter of Credit reimbursement agreements
executed by the Company at the time of request for any Letter of Credit, neither
the Administrative Agent, any Issuing Bank nor any Lender shall be responsible
(in the absence of Gross Negligence or willful misconduct in connection
therewith, as determined by the final judgment of a court of competent
jurisdiction): (i) for the form, validity, sufficiency, accuracy, genuineness or
legal effect of any document submitted by any party in connection with the
application for and issuance of the Letters of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent
or forged; (ii) for the validity or sufficiency of any instrument transferring
or assigning or purporting to transfer or assign a Letter of Credit or
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the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason; (iii) for failure
of the beneficiary of a Letter of Credit to comply duly with conditions not
expressly provided on the face of such Letter of Credit and required in order to
draw upon such Letter of Credit; (iv) for errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex, or other similar form of teletransmission or otherwise; (v) for errors in
interpretation of technical trade terms; (vi) for any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under any Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of a Letter of Credit of the proceeds of any
drawing under such Letter of Credit; and (viii) for any consequences arising
from causes beyond the control of the Administrative Agent, the Issuing Banks
and the Lenders, including, without limitation, any Governmental Acts. None of
the above shall affect, impair, or prevent the vesting of any Issuing Bank's
rights or powers under this Section 3.10.
(C) In furtherance and extension and not in limitation of the specific
provisions hereinabove set forth, any action taken or omitted by any Issuing
Bank under or in connection with the Letters of Credit or any related
certificates shall not, in the absence of Gross Negligence or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, put the applicable Issuing Bank, the Administrative Agent or any
Lender under any resulting liability to the Company or relieve the Company of
any of its obligations hereunder to any such Person.
(D) Without prejudice to the survival of any other agreement of the
Company hereunder, the agreements and obligations of the Company contained in
this Section 3.10 shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination of this
Agreement.
3.11 Cash Collateral. Notwithstanding anything to the contrary herein
or in any application for a Letter of Credit, after the occurrence and during
the continuance of a Default, the Company shall, on the Business Day that it
receives Administrative Agent's demand, deliver to the Administrative Agent for
the benefit of the Lenders and the Issuing Banks, cash, or other collateral of a
type satisfactory to the Required Lenders, having a value, as determined by such
Lenders, equal to one hundred percent (100%) of the aggregate Dollar Amount of
the outstanding L/C Obligations. In addition, if the Revolving Credit
Availability is at any time less than the Dollar Amount of all contingent L/C
Obligations outstanding at any time, the Company shall deposit cash collateral
with the Administrative Agent in Dollars in an amount equal to one-hundred five
percent (105%) of the Dollar Amount by which such L/C Obligations exceed such
Revolving Credit Availability. Any such collateral shall be held by the
Administrative Agent in a separate account appropriately designated as a cash
collateral account in relation to this Agreement and the Letters of Credit and
retained by the Administrative Agent for the benefit of the Lenders and the
Issuing Banks as collateral security for the Company's obligations in respect of
this Agreement and each of the Letters of Credit and L/C Drafts. Such amounts
shall be applied to reimburse the Issuing Banks for drawings or payments under
or pursuant to Letters of Credit or L/C Drafts, or if no such reimbursement is
required, to payment of such of the other Obligations as the
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Administrative Agent shall determine. If no Default shall be continuing, amounts
remaining in any cash collateral account established pursuant to this Section
3.11 which are not to be applied to reimburse an Issuing Bank for amounts
actually paid or to be paid by such Issuing Bank in respect of a Letter of
Credit or L/C Draft, shall be returned to the Company within one (1) Business
Day (after deduction of the Administrative Agent's expenses incurred in
connection with such cash collateral account).
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1 Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) adopted after the date of this Agreement and having
general applicability to all banks within the jurisdiction in which such Lender
operates (excluding, for the avoidance of doubt, the effect of and phasing in of
capital requirements or other regulations or guidelines passed prior to the date
of this Agreement), or any interpretation or application thereof by any
Governmental Authority charged with the interpretation or application thereof,
or the compliance of any Lender therewith,
(A) subjects any Lender or any applicable Lending Installation
to any tax, duty, charge or withholding on or from payments due from
any Borrower (excluding taxation of the overall net income of any
Lender or taxation of a similar basis, which are governed by Section
2.15(E)), or changes the basis of taxation of payments to any Lender in
respect of its Revolving Loan Commitment, Loans, its L/C Interests, the
Letters of Credit or other amounts due it hereunder, or
(B) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation (other
than reserves and assessments taken into account in determining the
interest rate applicable to Eurocurrency Rate Loans) with respect to
its Revolving Loan Commitment, Loans, L/C Interests or the Letters of
Credit, or
(C) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining its Revolving Loan Commitment, Loans,
the L/C Interests or the Letters of Credit or reduces any amount
received by any Lender or any applicable Lending Installation in
connection with its Revolving Loan Commitment, Loans or Letters of
Credit, or requires any Lender or any applicable Lending Installation
to make any payment calculated by reference to the amount of Revolving
Loan Commitment, Loans or L/C Interests held or interest received by it
or by reference to the Letters of Credit, by an amount deemed material
by such Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Revolving Loan Commitment, Loans, L/C
Interests, or Letters of Credit or to
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reduce any amount received under this Agreement, then, within fifteen (15) days
after receipt by the Company or any other Borrower of written demand by such
Lender pursuant to Section 4.5, the applicable Borrowers shall pay such Lender
that portion of such increased expense incurred or reduction in an amount
received which such Lender determines is attributable to making, funding and
maintaining its Loans, L/C Interests, Letters of Credit and its Revolving Loan
Commitment.
4.2 Changes in Capital Adequacy Regulations. If a Lender determines (i)
the amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a "Change" (as defined below), and (ii) such
increase in capital will result in an increase in the cost to such Lender of
maintaining its Revolving Loan Commitment, Loans, L/C Interests, the Letters of
Credit or its obligation to make Loans hereunder, then, within fifteen (15) days
after receipt by the Company or any other Borrower of written demand by such
Lender pursuant to Section 4.5, the applicable Borrowers shall pay such Lender
the amount necessary to compensate for any shortfall in the rate of return on
the portion of such increased capital which such Lender reasonably determines is
attributable to this Agreement, its Revolving Loan Commitment, its Loans, its
L/C Interests, the Letters of Credit or its obligation to make Loans hereunder
(after taking into account such Lender's policies as to capital adequacy).
"CHANGE" means (i) any change after the date of this Agreement in the
"Risk-Based Capital Guidelines" (as defined below) excluding, for the avoidance
of doubt, the effect of any phasing in of such Risk-Based Capital Guidelines or
any other capital requirements passed prior to the date hereof, or (ii) any
adoption of or change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement and having general
applicability to all banks and financial institutions within the jurisdiction in
which such Lender operates which affects the amount of capital required or
expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i)
the risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
4.3 Availability of Types of Advances. If (i) any Lender determines
that maintenance of its Eurocurrency Rate Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, or (ii) the Required Lenders determine
that (x) deposits of a type, currency or maturity appropriate to match fund
Fixed-Rate Advances are not available or (y) the interest rate applicable to a
Fixed-Rate Advance does not accurately reflect the cost of making or maintaining
such an Advance, then the Administrative Agent shall suspend the availability of
the affected Type of Advance and, in the case of any occurrence set forth in
clause (i), require any Advances of the affected Type to be repaid or converted
into another Type.
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4.4 Funding Indemnification. If any payment of a Fixed-Rate Advance
occurs on a date which is not the last day of the applicable Interest Period
occurs on a date which is not the last day of the applicable interest period,
whether because of acceleration, prepayment, or otherwise, or a Fixed-Rate
Advance is not made on the date specified by the applicable Borrower for any
reason other than default by the Lenders, the Borrowers indemnify each Lender
for any loss or cost incurred by it resulting therefrom, including, without
limitation, any loss or cost in liquidating or employing deposits acquired to
fund or maintain the Fixed-Rate Advance. In connection with (a) any assignment
by any Lender of any portion of the Loans made pursuant to Section 14.3 and made
during the Syndication Period, and if, notwithstanding the provisions of Section
2.4 and (b) any assignment by a Lender of any portion of the Loans made pursuant
to Section 2.6(b), the Company has requested and the Administrative Agent has
consented to the use of the Eurocurrency Rate, the Company shall be deemed to
have repaid all outstanding Eurocurrency Rate Advances as of the effective date
of such assignment and reborrowed such amount as a Floating Rate Advance and/or
Eurocurrency Rate Advance (chosen in accordance with the provisions of Section
2.4) and the indemnification provisions under this Section 4.4 shall apply.
4.5 Lender Statements; Survival of Indemnity. If reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to
its Fixed-Rate Loans to reduce any liability of any Borrower to such Lender
under Sections 4.1 and 4.2 or to avoid the unavailability of a Type of Advance
under Section 4.3, so long as such designation is not disadvantageous to such
Lender. Each Lender requiring compensation pursuant to Section 2.15(E) or to
this Article IV shall use its reasonable efforts to notify the Company and the
Administrative Agent in writing of any Change, law, policy, rule, guideline or
directive giving rise to such demand for compensation not later than ninety (90)
days following the date upon which the responsible account officer of such
Lender knows or should have known of such Change, law, policy, rule, guideline
or directive. Any demand for compensation pursuant to this Article IV shall be
in writing and shall state the amount due, if any, under Section 4.1, 4.2 or 4.4
and shall set forth in reasonable detail the calculations upon which such Lender
determined such amount. Such written demand shall be rebuttably presumed correct
for all purposes. Determination of amounts payable under such Sections in
connection with a Fixed-Rate Loan shall be calculated as though each Lender
funded its Fixed-Rate Loan through the purchase of a deposit of the type,
currency and maturity corresponding to the deposit used as a reference in
determining the Fixed-Rate applicable to such Loan, whether in fact that is the
case or not. The obligations of the Company and the other Borrowers under
Sections 4.1, 4.2 and 4.4 shall survive payment of the Obligations and
termination of this Agreement.
ARTICLE V: CONDITIONS PRECEDENT
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5.1 Initial Advances and Letters of Credit. The Lenders shall not be
required to make the initial Loans or issue any Letters of Credit unless (i)
such initial Loans are made not later than August 16, 1999; and (ii) the Company
has furnished to the Administrative Agent each of the following, with sufficient
copies for the Lenders, all in form and substance reasonably satisfactory to the
Administrative Agent and the Lenders:
(1) Copies of the Certificate of Incorporation of the Company,
each Subsidiary Borrower that is a party hereto as of the Closing Date
and each of the Guarantors (collectively, the "LOAN PARTIES"), together
with all amendments and a certificate of good standing, both certified
by the appropriate governmental officer in its jurisdiction of
incorporation;
(2) Copies, certified by the Secretary or Assistant Secretary
of each of the Loan Parties of their respective By-Laws and of their
respective Board of Directors' resolutions (and resolutions of other
bodies, if any are deemed necessary by counsel for any Lender)
authorizing the execution of the Loan Documents;
(3) An incumbency certificate, executed by the Secretary or
Assistant Secretary of each of the Loan Parties, which shall identify
by name and title and bear the signature of the officers of the
applicable Loan Party authorized to sign the Loan Documents and to make
borrowings hereunder, upon which certificate the Lenders shall be
entitled to rely until informed of any change in writing by the
applicable Loan Party;
(4) A certificate, in form and substance satisfactory to the
Administrative Agent, signed by the chief financial officer of the
Company, stating that on the date of this Agreement all the
representations in this Agreement are true and correct in all material
respects (unless such representation and warranty is made as of a
specific date, in which case, such representation and warranty shall be
true in all material respects as of such date) and no Default or
Unmatured Default has occurred and is continuing;
(5) The written opinions of the Loan Parties' US counsel, and,
if applicable, foreign counsel, addressed to the Agents and the
Lenders, in substantially the form attached hereto as Exhibit E;
(6) Evidence reasonably satisfactory to the Arrangers that the
Company and each of its Subsidiaries (a) has made an assessment of the
Year 2000 Issues; (b) has a program from remediating the Year 2000
Issues, including a timetable and budget of anticipated costs; and (c)
has source of funds as required in such budget;
(7) (a) The initial public offering of the Capital Stock of
the Company shall have been completed and the capital structure and
corporate structure of the Company and its Subsidiaries is consistent
in all material respects with the Registration Statement, (b) there
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exists no injunction or temporary restraining order which, in the
reasonable judgment of the Administrative Agent, would prohibit the
making of the Loans and the other transactions contemplated by the Loan
Documents or any litigation seeking such an injunction or restraining
order and (c) the Company (1) shall have delivered to the
Administrative Agent an executed copy of the Guarantee from Pechiney
with respect to Viskase Corporation v. American National Can Company,
Civ. 93-C-7651, before the U.S. District Court of the Northern District
of Illinois, Eastern Division, in substantially the form of the draft
faxed from counsel to the Company to counsel to the Administrative
Agent on July 12, 1999, (2) shall have delivered to the Administrative
Agent an executed copy of the Indemnification Agreement between ANC and
Pechiney with respect to certain environmental liabilities in
substantially the form of the June 22, 1999 draft faxed from counsel to
the Company to counsel to the Administrative Agent on July 12, 1999 and
(3) shall have delivered to the Administrative Agent, in form and
substance reasonably acceptable to the Administrative Agent, an
indemnification agreement from Pechiney with respect to the European
Commission investigation matters disclosed by the Company to the
Administrative Agent by facsimile on July 21, 1999;
(8) Such other documents as the Administrative Agent or any
Lender or its counsel may have reasonably requested, including, without
limitation, all of the documents reflected on the List of Closing
Documents attached as Exhibit F to this Agreement;
(9) Evidence satisfactory to the Administrative Agent of the
payment of (or of arrangements to pay concurrently with the making of
the initial Loans) all principal, interest, fees and premiums, if any,
on all loans outstanding under all outstanding funded debt and credit
facilities of ANC's and each of its Subsidiaries (including, without
limitation, all loans and other obligations owed to Pechiney or any of
its affiliates, but excluding Permitted Existing Indebtedness) in
excess of $5,000,000 and the termination of the applicable agreements
identified on Schedule 5.1 attached hereto;
(10) Evidence satisfactory to the Administrative Agent that
the Company has paid to the Underwriting Lenders and the Lead Arrangers
the fees due and payable under the Fee Letters.
5.2 Initial Advance to Each New Subsidiary Borrower. No Lender shall be
required to make an Advance hereunder or purchase participations in Letters of
Credit or Alternate Currency Loans hereunder, no Issuing Lender shall be
required to issue a Letter of Credit hereunder, and no Alternate Currency Bank
shall be required to make any Alternate Currency Loans, in each case, to a new
Subsidiary Borrower added after the Closing Date unless the Company has
furnished or caused to be furnished to the Administrative Agent with sufficient
copies for the Lenders:
(i) The Assumption Letter executed and delivered by such
Subsidiary Borrower and containing the written
consent of the Company at the foot thereof, as
contemplated by Section 2.24.
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(ii) Copies, certified by the Secretary, Assistant
Secretary, Director or Officer of the Subsidiary
Borrower, of its Board of Directors' resolutions (and
resolutions of other bodies, if any are deemed
necessary by the Administrative Agent) approving the
Assumption Letter.
(iii) An incumbency certificate, executed by the Secretary,
Assistant Secretary, Director or Officer of the
Subsidiary Borrower, which shall identify by name and
title and bear the signature of the officers of such
Subsidiary Borrower authorized to sign the Assumption
Letter and the other documents to be executed and
delivered by such Subsidiary Borrower hereunder, upon
which certificate the Administrative Agent and the
Lenders shall be entitled to rely until informed of
any change in writing by the Company.
(iv) An opinion of counsel to such Subsidiary Borrower,
substantially in the form of Exhibit H hereto or, in
the case of a new non-domestic Subsidiary Borrower,
in a form reasonably acceptable to the Administrative
Agent.
(v) Guaranty documentation and contribution agreement
documentation from such Subsidiary Borrower in form
and substance acceptable to the Administrative Agent.
(vi) With respect to the initial Advance made to any
Subsidiary Borrower organized under the laws of England
and Wales, the Administrative Agent shall have received
originals and/or copies, as applicable, of all filings
required to be made and such other evidence as the
Administrative Agent may require establishing to the
Administrative Agent's satisfaction that each Lender
and Issuing Lender is entitled to receive payments
under the Loan Documents without deduction or
withholding of any English taxes or with such
deductions and withholding of English taxes as may be
acceptable to the Administrative Agent.
5.3 Each Advance, Each Conversion or Continuation of an Advance, and
Each Letter of Credit. The Lenders shall not be required to make any Advance, or
convert or continue any Advance, or issue any Letter of Credit, unless on the
applicable Borrowing Date, or in the case of a Letter of Credit, the date on
which the Letter of Credit is to be issued:
(A) There exists no Default or Unmatured Default;
(B) All of the representations and warranties contained in
Article VI (other than Section 6.5 which representations and warranties
shall be made only on the date any Advance is made or Letter of Credit
is issued) are true and correct in all material respects as of such
Borrowing Date (unless such representation and warranty is made as of a
specific date, in which case, such representation and warranty shall be
true in all material
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respects as of such date) except for changes in the Schedules to this
Agreement reflecting transactions permitted by or not in violation of
this Agreement; and
(C) (i) The Revolving Credit Obligations do not, and after
making such proposed Advance or issuing such Letter of Credit would
not, exceed the Aggregate Revolving Loan Commitment, and (ii) the
aggregate outstanding principal Dollar Amount of all Advances in Agreed
Currencies other than Dollars and all L/C Obligations in Agreed
Currencies other than Dollars and all Alternate Currency Loans does not
and would not exceed the Maximum Eurocurrency Amount.
Each Borrowing/Conversion/Continuation Notice or Competitive Bid Quote
Request with respect to each such Advance and the letter of credit application
with respect to each Letter of Credit shall constitute a representation and
warranty by the Company that the conditions contained in Sections 5.3(A), (B)
and (C) have been satisfied (except, in the case of any conversion or
continuation of a Loan, Section 6.5). Any Lender may require a duly completed
officer's certificate in substantially the form of Exhibit G hereto and/or a
duly completed compliance certificate in substantially the form of Exhibit H
hereto as a condition to making an Advance.
ARTICLE VI: REPRESENTATIONS AND WARRANTIES
In order to induce the Agents and the Lenders to enter into this
Agreement and to make the Loans and the other financial accommodations to the
Borrowers and to issue the Letters of Credit described herein, the Company
represents and warrants as follows to each Lender and the Administrative Agent
as of the date of this Agreement and on the Closing Date, giving effect to the
consummation of the transactions contemplated by the Loan Documents on the
Closing Date, and thereafter on each date as required by Section 5.2 and 5.3:
6.1. Organization; Corporate Powers. Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of its jurisdiction of formation and has all requisite authority to conduct
its business in each jurisdiction in which its business is conducted, except
where the failure to do so would not have a Material Adverse Effect.
6.2. Authorization and Validity. As of the date of the initial funding
hereunder and at all times thereafter, the Company has the requisite power and
authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. As of the date of the initial funding
hereunder and at all times thereafter, the execution and delivery by the Company
of the Loan Documents and the performance of its obligations thereunder have
been duly authorized by proper proceedings, and the Loan Documents constitute
legal, valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
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6.3. No Conflict; Government Consent. As of the date of the initial
funding hereunder and at all times thereafter, neither the execution and
delivery by the Company of the Loan Documents, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Company or any Subsidiary or the Company's or any
Subsidiary's articles of incorporation or by-laws or other constitutive
documents and agreements or the provisions of any indenture, instrument or
agreement to which the Company or any Subsidiary is a party or is subject, or by
which it, or its property, is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any Lien in, of or on the
property of the Company or any of its Subsidiaries pursuant to the terms of any
such indenture, instrument or agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or any subdivision
thereof, is required to authorize the Company, or is required to be obtained by
the Company in connection with the execution, delivery and performance of, or
the legality, validity, binding effect or enforceability of, any of the Loan
Documents.
6.4. Financial Statements. The combined pro forma financial statements
of the Company and its Subsidiaries set forth in the Registration Statement,
present on a pro forma basis the financial condition of the Company and such
Subsidiaries as of such date, and reflect on a pro forma basis those liabilities
reflected in the notes thereto and resulting from consummation of the
transactions contemplated by this Agreement, and the payment or accrual of all
transaction costs payable on the Closing Date with respect to any of the
foregoing and demonstrate that the Company and its Subsidiaries can repay their
debt and satisfy their other obligations as and when due, and can comply with
the requirements of this Agreement. The projections and assumptions expressed in
the pro forma financials as set forth in the Company's Confidential Offering
Memorandum dated June, 1999 were prepared in good faith and represent
management's opinion based on the information available to the Company at the
time so furnished and, since the preparation thereof and up to the Closing Date,
there has occurred no change in the business, financial condition, operations,
or prospects of the Company or any of its Subsidiaries, or the Company and its
Subsidiaries taken as a whole which has had or could reasonably be expected to
have a Material Adverse Effect.
6.5. Material Adverse Change. (A) Except as described in the
Registration Statement, since December 31, 1998 up to the Closing Date, there
has occurred no change in the business, properties, condition (financial or
otherwise), prospects, performance or results of operations of ANC, or ANC and
its Subsidiaries taken as a whole or any other event which has had or could
reasonably be expected to have a Material Adverse Effect.
(B) Except as described in the Registration Statement, since the
Closing Date, there has occurred no change in the business, properties,
condition (financial or otherwise), prospects, performance or results of
operations of the Company or the Company and its Subsidiaries taken as a whole
or any other event which has had or could reasonably be expected to have a
Material Adverse Effect.
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6.6. Taxes. The Company and the Subsidiaries have filed all United
States federal tax returns and all other material tax returns which are required
to be filed and have paid all taxes due pursuant to said returns or pursuant to
any assessment received by the Company or any Subsidiary, except such taxes, if
any, as are being contested in good faith and as to which adequate reserves have
been provided. No tax liens have been filed (other than to secure payment of
contested taxes in an amount not to exceed $5,000,000 in any one case and
$10,000,000 in the aggregate) and no claims are being asserted with respect to
any such taxes. As of the date of this Agreement, the United States income tax
returns of ANC and its Subsidiaries have been surveyed by the IRS through the
fiscal year ended December 31, 1995. The charges, accruals and reserves on the
books of the Company and the Subsidiaries in respect of any taxes or other
governmental charges are adequate.
6.7. Litigation and Contingent Obligations. Except as set forth on
Schedule 6.7 hereto, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting the Company or any of its
Subsidiaries (i) challenging the validity or enforceability of any material
provision of the Loan Documents or (ii) which will have or could reasonably be
expected to have a Material Adverse Effect. There is no material loss
contingency within the meaning of Agreement Accounting Principles which has not
been reflected in the consolidated financial statements of the Company prepared
and delivered pursuant to Section 7.1(A) for the fiscal period during which such
material loss contingency was incurred. To the best knowledge of the Company,
neither the Company nor any of its Subsidiaries is (A) in violation of any
applicable Requirements of Law which violation will have or could reasonably be
expected to have a Material Adverse Effect, or (B) subject to or in default with
respect to any final judgment, writ, injunction, restraining order or order of
any nature, decree, rule or regulation of any court or Governmental Authority
which will have or could reasonably be expected to have a Material Adverse
Effect.
6.8. Subsidiaries. Schedule 6.8 hereto contains an accurate list of all
of the Subsidiaries of the Company in existence on the date of this Agreement,
setting forth their respective jurisdictions of formation and the percentage of
their respective capital stock owned by the Company or other Subsidiaries. All
of the issued and outstanding Capital Stock of such Subsidiaries have been duly
authorized and issued and are fully paid and non-assessable.
6.9. ERISA. As at March 31, 1999 the Unfunded Liabilities of all Single
Employer Plans did not in the aggregate exceed $50,000,000. Each Single Employer
Plan complies in all material respects with all applicable requirements of law
and regulations and no Reportable Event has occurred with respect to any Single
Employer Plan having any Unfunded Liability which has or may reasonably be
expected to result in a material liability to the Company. Neither the Company
nor any other members of the Controlled Group has terminated any Single Employer
Plan without in each instance funding all vested benefit obligations thereunder.
Each member of the Controlled Group has fulfilled its minimum funding
obligations with respect to each Multiemployer Plan, except where the failure to
comply could not reasonably be expected to have a Material Adverse Effect.
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6.10. Accuracy of Information. No information, exhibit or report
furnished by the Company or any Subsidiary to any Agent or to any Lender in
connection with the negotiation of, or compliance with, the Loan Documents,
including, without limitation, the Confidential Information Memorandum, dated
June 1999, contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statements contained therein not
materially misleading.
6.11. Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of those assets of the Company and its Subsidiaries
which are subject to any limitation on sale, pledge, or other restriction
hereunder.
6.12. Material Agreements. Neither the Company nor any of its
Subsidiaries is a party to any Contractual Obligation the performance of which
would reasonably be expected to have a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries is subject to any charter or other
restriction in any constitutive agreement or document affecting its business,
properties, financial condition, prospects or results of operations which could
reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any Subsidiary is in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in (i) any
Contractual Obligation to which it is a party, which default would have a
Material Adverse Effect, or (ii) any Contractual Obligation evidencing or
governing Indebtedness in which the outstanding principal amount is equal to or
in excess of $15,000,000.
6.13. Compliance With Laws. The Company and its Subsidiaries have, to
the best of the knowledge and belief of the Company, complied with all
Requirements of Law except to the extent that such non-compliance would not have
a Material Adverse Effect. Neither the Company nor any Subsidiary has received
any notice to the effect that its operations are not in material compliance with
any Requirements of Law or the subject of any federal or state investigation
evaluating whether any remedial action is needed to respond to a release of any
toxic or hazardous waste or substance into the environment, which non-compliance
or remedial action would have a Material Adverse Effect.
6.14. Ownership of Properties. On the date of this Agreement, the
Company and its Subsidiaries will have good title, free of all Liens, to all of
the properties and assets reflected in the financial statements as owned by it,
except Liens permitted under Section 7.3(C) and except for such defects of title
and Liens as could not, individually or in the aggregate, have a Material
Adverse Effect.
6.15 Statutory Indebtedness Restrictions. Neither the Company nor any
of its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness or its ability to
consummate the transactions contemplated hereby.
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6.16. Environmental Matters.
(a) Compliance: To the best of their knowledge, each of the Company and
its Subsidiaries is in compliance with all Environmental, Health or Safety
Requirements of Laws in effect in each jurisdiction where it is presently doing
business and in which the failure to so comply, in the aggregate for all such
failures, would not reasonably be likely to subject the Company to liability
that would have a Material Adverse Effect.
(b) Liability. To the best of their knowledge, neither the Company nor
any Subsidiary is subject to any liability under the Environmental, Health or
Safety Requirements of Laws in effect in each jurisdiction where it is presently
doing business that would have a Material Adverse Effect.
(c) Notices. Except as disclosed on Schedule 6.16, as of the date
hereof, neither the Company nor any Subsidiary has received any:
(i) notice from any Governmental Authority by which any of
the Company's or such Subsidiary's present or previously-owned or
leased property has been identified in any manner by any such
Governmental Authority as a hazardous substance disposal or removal
site, "Super Fund" clean-up site or candidate for removal or closure
pursuant to any Environmental, Health or Safety Requirements of Law;
or
(ii) notice of any Lien arising under or in connection with
any Environmental, Health or Safety Requirements of Law that has
attached to any of the Company's or such Subsidiary's owned or leased
property or any revenues of the Company's or such Subsidiary's owned or
leased property; or
(iii) communication, written or oral, from any Governmental
Authority concerning action or omission by the Company or such
Subsidiary in connection with its ownership or leasing of any property
resulting in the release of hazardous substance resulting in any
violation of any Environmental, Health or Safety Requirements of Law;
where the effect of which, in the aggregate for all such notices and
communications, could reasonably be likely to have a Material Adverse Effect.
6.17 Insurance. Schedule 6.17 to this Agreement accurately sets forth
as of the Closing Date all insurance policies and programs currently in effect
with respect to the respective properties and assets and business of the Company
and its Subsidiaries, specifying, for each such policy and program, (i) the
amount thereof, (ii) the risks insured against thereby, (iii) the name of the
insurer and each insured party thereunder, (iv) the expiration date thereof, and
(v) any reserves relating to any self-insurance program that is in effect. Such
insurance policies and programs reflect coverage that is reasonably consistent
with prudent industry practice.
6.18 Labor Matters.
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As of the Closing Date, to the best of the Company's knowledge no labor
disputes, strikes or walkouts affecting the operations of the Company or any of
its Subsidiaries, is pending, or, to the Company's knowledge, threatened,
planned or contemplated which could reasonably be expected to have a Material
Adverse Effect.
6.19 Solvency. After giving effect to (i) the Loans to be made on the
Closing Date or such other date as Loans requested hereunder are made, (ii) the
other transactions contemplated by this Agreement and the other Loan Documents
and (iii) the payment and accrual of all transaction costs with respect to the
foregoing, the Company and its Subsidiaries taken as a whole are Solvent.
6.20 Year 2000 Issues. Each of the Company and its Subsidiaries has
made an assessment of the Year 2000 Issues and has a program for remediating the
Year 2000 Issues on a timely basis. Based on this assessment and program, the
Company does not reasonably anticipate any Material Adverse Effect as a result
of Year 2000 Issues.
6.21 Representations and Warranties of each Subsidiary Borrower.
Each Subsidiary Borrower represents and warrants to the Lenders that:
(A) Organization and Corporate Powers. Such Subsidiary Borrower (i) is
a company duly formed and validly existing and in good standing under the laws
of the state or country of its organization (such jurisdiction being hereinafter
referred to as the "HOME COUNTRY"); (ii) has the requisite power and authority
to own its property and assets and to carry on its business substantially as now
conducted except where the failure to have such requisite authority would not
have a material adverse effect on such Subsidiary Borrower; and (iii) has the
requisite power and authority and legal right to execute and deliver the
Alternate Currency Addendum to which it is a party and each other Loan Document
to which it is a party and the performance by it of its obligations thereunder
have been duly authorized by proper corporate proceedings.
(B) Binding Effect. Each Loan Document, including, without limitation,
any Alternate Currency Addendum, executed by such Subsidiary Borrower is the
legal, valid and binding obligations of such Subsidiary Borrower enforceable in
accordance with their respective terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles.
(C) No Conflict; Government Consent. Neither the execution and delivery
by such Subsidiary Borrower of the Loan Documents to which it is a party, nor
the consummation by it of the transactions therein contemplated to be
consummated by it, nor compliance by such Subsidiary Borrower with the
provisions thereof will violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on such Subsidiary Borrower or any
of its Subsidiaries or such Subsidiary Borrower's or any of its Subsidiaries'
memoranda or articles of association or the provisions of any indenture,
instrument or agreement to which such Subsidiary Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its property, is
bound, or conflict with or constitute a default thereunder, or result in the
creation or imposition of any lien in, of or on the
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property of such Subsidiary Borrower or any of its Subsidiaries pursuant to the
terms of any such indenture, instrument or agreement in any such case which
violation, conflict, default, creation or imposition could reasonably be
expected to have a material adverse effect on such Subsidiary Borrower. No
order, consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any governmental agency is
required to authorize, or is required in connection with the execution, delivery
and performance of, or the legality, validity, binding effect or enforceability
of, any of the Loan Documents.
(D) Filing. To ensure the enforceability or admissibility in evidence
of this Agreement and each Loan Document to which such Subsidiary Borrower is a
party (including, without limitation, any Alternate Currency Addendum) in its
Home Country, it is not necessary that this Agreement or any other Loan Document
to which such Subsidiary Borrower is a party or any other document be filed or
recorded with any court or other authority in its Home Country or that any stamp
or similar tax be paid to or in respect of this Agreement or any other Loan
Document of such Subsidiary Borrower. The qualification by any Lender or the
Administrative Agent for admission to do business under the laws of such
Subsidiary Borrower's Home Country does not constitute a condition to, and the
failure to so qualify does not affect, the exercise by any Lender or the
Administrative Agent of any right, privilege, or remedy afforded to any Lender
or the Administrative Agent in connection with the Loan Documents to which such
Subsidiary Borrower is a party or the enforcement of any such right, privilege,
or remedy against Subsidiary Borrower. The performance by any Lender or the
Administrative Agent of any action required or permitted under the Loan
Documents will not (i) violate any law or regulation of such Subsidiary
Borrower's Home Country or any political subdivision thereof, (ii) result in any
tax or other monetary liability to such party pursuant to the laws of such
Subsidiary Borrower's Home Country or political subdivision or taxing authority
thereof (provided that, should any such action result in any such tax or other
monetary liability to the Lender or the Administrative Agent, the Borrowers
hereby agree to indemnify such Lender or the Administrative Agent, as the case
may be, against (x) any such tax or other monetary liability and (y) any
increase in any tax or other monetary liability which results from such action
by such Lender or the Administrative Agent and, to the extent the Borrowers make
such indemnification, the incurrence of such liability by the Administrative
Agent or any Lender will not constitute a Default) or (iii) violate any rule or
regulation of any federation or organization or similar entity of which the such
Subsidiary Borrower's Home Country is a member.
(E) No Immunity. Neither such Subsidiary Borrower nor any of its assets
is entitled to immunity from suit, execution, attachment or other legal process.
Such Subsidiary Borrower's execution and delivery of the Loan Documents to which
it is a party constitute, and the exercise of its rights and performance of and
compliance with its obligations under such Loan Documents will constitute,
private and commercial acts done and performed for private and commercial
purposes.
(F) Application of Representations and Warranties. It is understood and
agreed by the parties hereto that the representations and warranties of each
Subsidiary Borrower in this Section 6.21 shall only be applicable to such
Subsidiary Borrower on and after the date of its execution of an Assumption
Letter and, if applicable, an Alternate Currency Addendum.
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6.22 Indebtedness of the Company. As of the Closing Date, the Company
has not created, incurred or suffered to exist any Indebtedness (other than
standby letters of credit and uncommitted overnight credit lines) in an amount
in excess of $5,000,000 except as described in Schedule 6.22 hereto. At no time
since the Closing Date has the Company amended, restated, refinanced or
otherwise modified any of the Indebtedness described in Schedule 6.22 except
pursuant to Permitted Refinancing Indebtedness or payments made to reduce the
Indebtedness.
6.23 Foreign Employee Benefit Matters. (a) Each Foreign Employee
Benefit Plan is in compliance in all material respects with all laws,
regulations and rules applicable thereto and the respective requirements of the
governing documents for such Plan; (b) the aggregate of the accumulated benefit
obligations under all Foreign Pension Plans does not exceed to any material
extent the current fair market value of the assets held in the trusts or similar
funding vehicles for such Plans; (c) with respect to any Foreign Employee
Benefit Plan maintained or contributed to by the Company or any Subsidiary or
any member of its Controlled Group (other than a Foreign Pension Plan),
reasonable reserves have been established in accordance with prudent business
practice or where required by ordinary accounting practices in the jurisdiction
in which such Plan is maintained; and (d) there are no material actions, suits
or claims (other than routine claims for benefits) pending or, to the knowledge
of the Company and its Subsidiaries, threatened against the Company or any
Subsidiary of it or any member of its Controlled Group with respect to any
Foreign Employee Benefit Plan. For purposes of this Section 6.23, the term
"material" shall have the meaning set forth in Section 7.1(D).
ARTICLE VII: COVENANTS
The Company covenants and agrees that so long as any Revolving Loan
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than contingent indemnity obligations) and termination of all
Letters of Credit, unless the Required Lenders shall otherwise give prior
written consent:
7.1 Reporting. The Company shall:
(A) Financial Reporting. Furnish to the Agents and the Lenders:
(i) Quarterly Reports. As soon as practicable and in any event
within forty-five (45) days after the end of the first three quarterly
periods of each of its fiscal years, for itself and the Subsidiaries,
consolidated unaudited balance sheets as at the end of each such period
and consolidated statement of income and consolidated statement of
changes in owners' equity, and a statement of cash flows for the period
from the beginning of such fiscal year to the end of such quarter,
presented on the same basis as described in Section 7.1(A)(ii) and on a
comparative basis with the statements for such period in the prior
fiscal year of the Company.
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(ii) Annual Reports. As soon as practicable, and in any
event within ninety (90) days after the end of each of its fiscal
years, an audit report, certified by internationally recognized
independent certified public accountants, prepared in accordance with
generally accepted accounting principles, on a consolidated basis for
itself and the Subsidiaries, including balance sheets as of the end of
such period, related statement of income and consolidated statement of
changes in owners' equity, and a statement of cash flows, which audit
report shall be unqualified and shall state that such financial
statements fairly present the consolidated financial position of the
Company and its Subsidiaries as at the dates indicated and the results
of operations and cash flows for the periods indicated in conformity
with generally accepted accounting principles and that the examination
by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted
auditing standards.
(iii) Officer's Certificate. Together with each delivery of
any financial statement (a) pursuant to clauses (i) and (ii) of this
Section 7.1(A), an Officer's Certificate of the Company, substantially
in the form of Exhibit G attached hereto and made a part hereof,
stating that as of the date of such Officer's Certificate no Default or
Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof and (b) pursuant to
clauses (i) and (ii) of this Section 7.1(A), a compliance certificate,
substantially in the form of Exhibit H attached hereto and made a part
hereof, signed by the Company's chief financial officer, chief
accounting officer or treasurer, setting forth calculations for the
period then ended for Section 2.5(B), if applicable, which demonstrate
compliance, when applicable, with the provisions of Sections 7.3(A)
through (G) and Section 7.4, and which calculate the Average Total Net
Indebtedness to Capital Ratio for purposes of determining the then
Applicable Floating Rate Margin, Applicable Eurocurrency Margin and
Applicable Facility Fee Percentage.
(B) Notice of Default. Promptly upon any of the chief executive
officer, chief operating officer, chief financial officer, treasurer or
controller of the Company obtaining actual knowledge (i) of any condition or
event which constitutes a Default or Unmatured Default, or becoming aware that
any Lender or Administrative Agent has given any written notice to any
Authorized Officer with respect to a claimed Default or Unmatured Default under
this Agreement, or (ii) that any Person has given any written notice to any
Authorized Officer or any Subsidiary of the Company or taken any other action
with respect to a claimed default or event or condition of the type referred to
in Section 8.1(E), the Company shall deliver to the Administrative Agent and the
Lenders an Officer's Certificate specifying (a) the nature and period of
existence of any such claimed default, Default, Unmatured Default, condition or
event, (b) the notice given or action taken by such Person in connection
therewith, and (c) what action the Company has taken, is taking and proposes to
take with respect thereto.
(C) Lawsuits. (i) Promptly upon the Company obtaining actual knowledge
of the institution of, or written threat of, any action, suit, proceeding,
governmental investigation or arbitration, by or before any Governmental
Authority, against or affecting the Company or any of
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its Subsidiaries or any property of the Company or any of its Subsidiaries not
previously disclosed pursuant to Section 6.7, which action, suit, proceeding,
governmental investigation or arbitration exposes, or in the case of multiple
actions, suits, proceedings, governmental investigations or arbitrations arising
out of the same general allegations or circumstances which expose, in the
Company's reasonable judgment, the Company or any of its Subsidiaries to
liability in an amount aggregating $15,000,000 or more (exclusive of claims
covered by insurance policies of the Company or any of its Subsidiaries unless
the insurers of such claims have disclaimed coverage or reserved the right to
disclaim coverage on such claims and exclusive of claims covered by the
indemnity of a financially responsible indemnitor in favor of the Company or any
of its Subsidiaries unless the indemnitor has disclaimed or reserved the right
to disclaim coverage thereof), give written notice thereof to the Administrative
Agent and the Lenders and provide such other information as may be reasonably
available to enable each Lender and the Administrative Agent and its counsel to
evaluate such matters; and (ii) in addition to the requirements set forth in
clause (i) of this Section 7.1(C), upon request of the Administrative Agent or
the Required Lenders, promptly give written notice of the status of any action,
suit, proceeding, governmental investigation or arbitration covered by a report
delivered pursuant to clause (i) above and provide such other information as may
be reasonably available to it that would not jeopardize any attorney- client
privilege by disclosure to the Lenders to enable each Lender and the
Administrative Agent and its counsel to evaluate such matters.
(D) ERISA Notices. Deliver or cause to be delivered to the
Administrative Agent and the Lenders, at the Company's expense, the following
information and notices as soon as reasonably possible, and in any event:
(i) (a) within ten (10) Business Days after the Company
obtains knowledge that a Termination Event has occurred, a written
statement of the chief financial officer, treasurer or designee of the
Company describing such Termination Event and the action, if any, which
the Company has taken, is taking or proposes to take with respect
thereto, and when known, any action taken or threatened by the IRS, DOL
or PBGC with respect thereto and (b) within ten (10) Business Days
after any member of the Controlled Group obtains knowledge that a
Termination Event has occurred which could reasonably be expected to
subject the Company to liability in excess of $25,000,000, a written
statement of the chief financial officer, treasurer or designee of the
Company describing such Termination Event and the action, if any, which
the member of the Controlled Group has taken, is taking or proposes to
take with respect thereto, and when known, any action taken or
threatened by the IRS, DOL or PBGC with respect thereto;
(ii) within ten (10) Business Days after the Company or any
of its Material Subsidiaries obtains knowledge that a material
prohibited transaction (defined in Sections 406 of ERISA and Section
4975 of the Code) has occurred, a statement of the chief financial
officer, treasurer or designee of the Company describing such
transaction and the action which the Company or such Subsidiary has
taken, is taking or proposes to take with respect thereto;
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(iii) within ten (10) Business Days after the material
increase in the benefits of any existing Benefit Plan or the
establishment of any new material Benefit Plan or the commencement of,
or obligation to commence, material contributions to any Benefit Plan
or Multiemployer Plan to which the Company or any member of the
Controlled Group was not previously contributing, notification of such
increase, establishment, commencement or obligation to commence and the
amount of such contributions;
(iv) within ten (10) Business Days after the Company or any
of its Material Subsidiaries receives notice of any unfavorable
determination letter from the IRS regarding the qualification of a
Plan under Section 401(a) of the Code, copies of each such letter;
(v) within ten (10) Business Days after the establishment
of any material foreign employee benefit plan (other than the
establishment of a defined contribution plan under English law within
one hundred eighty (180) days of the Closing Date) or the commencement
of, or obligation to commence, material contributions to any foreign
employee benefit plan to which the Company or any Material Subsidiary
was not previously contributing, notification of such establishment,
commencement or obligation to commence and the amount of such
contributions;
(vi) within ten (10) Business Days after the filing thereof
with the DOL, IRS or PBGC, copies of each annual report (form 5500
series), including Schedule B thereto, filed with respect to each
Benefit Plan;
(vii) within ten (10) Business Days after receipt by the
Company or any member of the Controlled Group of each actuarial report
for any Benefit Plan or Multiemployer Plan and each annual report for
any Multiemployer Plan, copies of each such report;
(viii) within ten (10) Business Days after the filing thereof
with the IRS, a copy of each funding waiver request filed with respect
to any Benefit Plan and all communications received by the Company or a
member of the Controlled Group with respect to such request;
(ix) within ten (10) Business Days after receipt by the
Company or any member of the Controlled Group of the PBGC's intention
to terminate a Benefit Plan or to have a trustee appointed to
administer a Benefit Plan, copies of each such notice;
(x) within ten (10) Business Days after receipt by the
Company or any member of the Controlled Group of a notice from a
Multiemployer Plan regarding the imposition of material withdrawal
liability, copies of each such notice;
(xi) within ten (10) Business Days after the Company or any
member of the Controlled Group fails to make a required installment or
any other required payment under Section 412 of the Code on or before
the due date for such installment or payment, a
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notification of such failure;
(xi) within ten (10) Business Days after the establishment
of any Foreign Employee Benefit Plan or the commencement of, or
obligation to commence, contributions to any Foreign Employee Benefit
Plan to which the Company or any Subsidiary was not previously
contributing, where the aggregate annual contributions to such Plan(s)
resulting therefrom are or could reasonably be expected to be
material, notification of such establishment, commencement or
obligation to commence and the amount of such contributions; and
(xiii) within ten (10) Business Days after the Company or any
member of the Controlled Group knows that (a) a material Multiemployer
Plan has been terminated, (b) the administrator or plan sponsor of a
Multiemployer Plan intends to terminate a material Multiemployer Plan,
or (c) the PBGC has instituted or will institute proceedings under
Section 4042 of ERISA to terminate a material Multiemployer Plan.
For purposes of this Section 7.1(D), the Company, any of its Subsidiaries and
any member of the Controlled Group shall be deemed to know all facts known by
the administrator of any Plan which is a Single Employer Plan. In addition, for
purposes of this Section 7.1(D), "material" means any noncompliance or basis for
liability which could reasonably be likely to subject the Company or any of its
Subsidiaries to liability, individually or in the aggregate, in excess of
$25,000,000.
(E) Labor Matters. Notify the Administrative Agent and the Lenders in
writing, promptly upon an Authorized Officer learning of (i) any material labor
dispute to which the Company or any of its Subsidiaries may become a party,
including, without limitation, any strikes, lockouts or other disputes relating
to such Persons' plants and other facilities and (ii) any material Worker
Adjustment and Retraining Notification Act liability incurred with respect to
the closing of any plant or other facility of the Company or any of its
Subsidiaries.
(F) Other Indebtedness. Deliver to the Administrative Agent (i) a copy
of each regular report, notice or communication regarding potential or actual
defaults (including any accompanying officer's certificate) delivered by or on
behalf of the Company to the holders of funded Indebtedness with an aggregate
outstanding principal amount in excess of $15,000,000 pursuant to the terms of
the agreements governing such Indebtedness, such delivery to be made at the same
time and by the same means as such notice of default is delivered to such
holders, and (ii) a copy of each notice or other communication received by the
Company from the holders of funded Indebtedness with an aggregate outstanding
principal amount in excess of $10,000,000 regarding potential or actual defaults
pursuant to the terms of such Indebtedness, such delivery to be made promptly
after such notice or other communication is received by the Company.
(G) Other Reports. Deliver or cause to be delivered to the
Administrative Agent and the Lenders copies of (i) all financial statements,
reports and non-routine notices, if any, sent or made available generally by the
Company to its securities holders or filed with the Commission by the
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Company, and (ii) all notifications received from the Commission by the Company
or its Subsidiaries pursuant to the Securities Exchange Act of 1934 and the
rules promulgated thereunder other than routine reminders or notices that do not
relate to specific violations of rules promulgated by the Commission. Company
shall include the Administrative Agent and the Lenders on its standard
distribution lists for all press releases made available generally by the
Company or any of the Company's Subsidiaries to the public concerning material
developments in the business of the Company or any such Subsidiary.
(H) Environmental Notices. As soon as possible and in any event within
thirty (30) days after receipt by the Company, deliver to the Administrative
Agent and the Lenders a copy of (i) any notice or claim to the effect that the
Company or any of its Subsidiaries is or may be liable to any Person as a result
of the Release by the Company, any of its Subsidiaries, or any other Person of
any Contaminant into the environment, and (ii) any notice alleging any violation
of any Environmental, Health or Safety Requirements of Law by the Company or any
of its Subsidiaries if, in either case, such notice or claim relates to an event
which could reasonably be expected to subject the Company and each of its
Subsidiaries to liability individually or in the aggregate in excess of
$10,000,000.
(I) Other Information. Promptly upon receiving a request therefor from
the Administrative Agent, prepare and deliver to the Administrative Agent and
the Lenders such other information with respect to the Company or any of its
Subsidiaries, including, without limitation, schedules identifying any Asset
Sale or Financing (and the use of the Net Cash Proceeds thereof), as from time
to time may be reasonably requested by the Administrative Agent except for such
information as is customarily and reasonably regarded by the Company as
confidential.
7.2 Affirmative Covenants.
(A) Corporate Existence, Etc. Except as permitted pursuant to Section
7.3(I), the Company shall, and shall cause each of its Material Subsidiaries to,
at all times maintain its corporate existence and preserve and keep, or cause to
be preserved and kept, in full force and effect its rights and franchises
material to its businesses.
(B) Corporate Powers; Conduct of Business. The Company shall, and shall
cause each of its Material Subsidiaries to, qualify and remain qualified to do
business in each jurisdiction in which the nature of its business requires it to
be so qualified and where the failure to be so qualified will have or could
reasonably be expected to have a Material Adverse Effect. The Company will, and
will cause each Material Subsidiary to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of enterprise
as it is presently conducted.
(C) Compliance with Laws, Etc. The Company shall, and shall cause its
Material Subsidiaries to, (a) comply with all Requirements of Law and all
restrictive covenants affecting such Person or the business, prospects,
properties, assets or operations of such Person, and (b)
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obtain as needed all permits necessary for its operations and maintain such
permits in good standing unless failure to comply or obtain such permits could
not reasonably be expected to have a Material Adverse Effect.
(D) Payment of Taxes and Claims; Tax Consolidation. The Company shall
pay, and cause each of its Subsidiaries to pay, (i) all material taxes,
assessments and other governmental charges imposed upon it or on any of its
properties or assets or in respect of any of its franchises, business, income or
property before any penalty or interest accrues thereon, and (ii) all claims
(including, without limitation, claims for labor, services, materials and
supplies) for material sums which have become due and payable and which by law
have or may become a Lien (other than a Lien permitted by Section 7.3(C)) upon
any of the Company's or such Subsidiary's property or assets, prior to the time
when any penalty or fine shall be incurred with respect thereto; provided,
however, that no such taxes, assessments and governmental charges referred to in
clause (i) above or claims referred to in clause (ii) above (and interest,
penalties or fines relating thereto) need be paid if being contested in good
faith by appropriate proceedings diligently instituted and conducted and if such
reserve or other appropriate provision, if any, as shall be required in
conformity with Agreement Accounting Principles shall have been made therefor.
(E) Insurance. The Company will maintain, and will cause to be
maintained on behalf of each of its Material Subsidiaries, insurance coverage by
financially sound and reputable insurance companies or associations, against
such casualties and contingencies, of such types (including public liability,
larceny and embezzlement or other criminal misappropriation insurance) and in
such amounts as are customary for companies engaged in similar businesses and
owning and operating similar properties, it being understood that the Company
and its Material Subsidiaries may self-insure against hazards and risks with
respect to which, and in such amounts, as the Company in good faith determines
prudent and consistent with sound financial practice, and as are customary for
companies engaged in similar businesses and owning and operating similar
properties. The Company shall furnish to any Lender upon request full
information as to the insurance carried.
(F) Inspection of Property; Books and Records; Discussions. The Company
shall permit and cause each of the Company's Subsidiaries to permit, any
authorized representative(s) designated by either the Administrative Agent or
any Lender to visit and inspect, for a reasonable purpose, any of the properties
of the Company or any of its Subsidiaries, to examine, audit, check and make
copies of their respective financial and accounting records, books, journals,
orders, receipts and any correspondence and other data relating to their
respective businesses or the transactions contemplated hereby (including,
without limitation, in connection with environmental compliance, hazard or
liability), and to discuss their affairs, finances and accounts with their
officers and, with the consent of the Company (which consent shall not be
unreasonably withheld and which consent shall in any event not be required if a
Default or Unmatured Default shall have occurred and is continuing), their
independent certified public accountants, all upon reasonable notice and at such
reasonable times during normal business hours, as often as may be reasonably
requested. The Company shall keep and maintain, and cause each of the Company's
Subsidiaries
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to keep and maintain, in all material respects, proper books of record and
account in which entries in conformity with Agreement Accounting Principles
shall be made of all dealings and transactions in relation to their respective
businesses and activities. If a Default has occurred and is continuing, the
Company, upon the Administrative Agent's reasonable request, shall provide
copies of such records to the Administrative Agent or its representatives.
(G) ERISA Compliance. The Company shall, and shall cause each of the
Company's Material Subsidiaries to, establish, maintain and operate all Plans to
comply in all material respects with the provisions of ERISA, the Code, all
other applicable laws, and the regulations and interpretations thereunder and
the respective requirements of the governing documents for such Plans.
(H) Maintenance of Property. The Company shall cause all property used
or useful in the conduct of its business or the business of any Material
Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and shall cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times and except to the extent that the failure to so maintain such
property could not be reasonably expected to have a Material Adverse Effect;
provided, however, that nothing in this Section 7.2(H) shall prevent the Company
from discontinuing the operation or maintenance of any of such property if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary.
(I) Environmental Compliance. The Company and its Subsidiaries shall
use its best efforts to comply with all Environmental, Health or Safety
Requirements of Law, except where noncompliance will not have or is not
reasonably likely to have a Material Adverse Effect.
(J) Use of Proceeds. The Borrowers shall use the proceeds of the
Advances to provide funds for the additional working capital needs and other
general corporate purposes of the Company and its Subsidiaries, including,
without limitation, the financing of Permitted Acquisitions. The Company will
not, nor will it permit any Subsidiary to, use any of the proceeds of the
Advances to make any Acquisition, other than a Permitted Acquisition pursuant to
Section 7.3(G).
(K) Subsidiary Guarantees; Subsidiary Subordination Agreement. The
Company will:
(a) cause each Subsidiary Borrower that is a Domestic Incorporated
Subsidiary, each Material Domestic Subsidiary and each other
Person which executes a guaranty of the Indebtedness evidenced
by the 5-Year Finance Facility Agreement to execute the
Guaranty (and from and after the Closing Date cause each other
Subsidiary Borrower that is a Domestic Incorporated
Subsidiary, each other Material Domestic Subsidiary and each
other Person which at any time executes a guaranty of the
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Indebtedness evidenced by the 5-Year Finance Facility
Agreement to execute and deliver to the Administrative Agent,
within twenty (20) days after becoming a Subsidiary Borrower,
a Material Domestic Subsidiary or guarantor of such
Indebtedness under the 5-Year Finance Facility Agreement, as
applicable, an assumption agreement pursuant to which it
agrees to be bound by the terms and provisions of the Guaranty
(whereupon such Person shall become a "Guarantor" under this
Agreement));
(b) cause each Material Subsidiary, before it makes a loan to any
of the Borrowers or Guarantors, to execute the Subordination
Agreement (and from and after the Closing Date cause each
other Material Subsidiary to execute and deliver to the
Administrative Agent, within twenty (20) days after becoming a
Material Subsidiary, as applicable, an assumption agreement
pursuant to which it agrees to be bound by the terms and
provisions of the Subordination Agreement); and
(c) deliver and cause such Persons to deliver corporate
resolutions, opinions of counsel, and such other corporate
documentation as the Administrative Agent may reasonably
request, all in form and substance reasonably satisfactory to
the Administrative Agent.
(L) Year 2000 Issues. The Company shall, and shall cause each of its
Material Subsidiaries to, take all actions reasonably necessary to address the
Year 2000 Issues so that any such Year 2000 Issues will not have a Material
Adverse Effect. The Company shall provide the Administrative Agent and each of
the Lenders information regarding the Company's and its Subsidiaries' program to
address Year 2000 Issues. The Company shall advise the Administrative Agent if
any Year 2000 Issues will have or would reasonably be expected to have a
Material Adverse Effect.
(M) Foreign Employee Benefit Compliance. The Company shall, and shall
cause each of its Material Subsidiaries and each member of its Controlled Group
to, establish, maintain and operate all Foreign Employee Benefit Plans to comply
in all material respects with all laws, regulations and rules applicable thereto
and the respective requirements of the governing documents for such Plans,
except for failures to comply which, in the aggregate, would not be reasonably
likely to subject the Company or any of its Subsidiaries to liability,
individually or in the aggregate, in excess of $25,000,000.
(N) Reduction of Commitments. The Company shall cause any reductions in
the Aggregate Revolving Loan Commitment under Section 2.6 or in the aggregate
commitment of the 5-Year CLO Lenders under the 5-Year Finance Facility Agreement
to be made ratably to the commitments hereunder and under the 5-Year Finance
Facility Agreement in such proportion as the Aggregate Revolving Loan Commitment
bears to the Aggregate Commitment and the "Maximum Matured Amount" under (and as
defined in) the 5-Year Finance Facility Agreement bears to the Aggregate
Commitment, respectively; provided, that any 5-Year CLO Lender may
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decline to have such commitment reduction applied to reduce its commitment under
the 5-Year Finance Facility Agreement in which case the amount declined will be
applied to reduce the Aggregate Revolving Loan Commitment hereunder.
7.3 Negative Covenants.
(A) Sale of Receivables. The Company will not, nor will it permit any
Subsidiary to, sell or otherwise dispose of any Receivables, with or without
recourse, except that the Company and the Subsidiaries may sell, transfer or
pledge Receivables, provided, that the aggregate Dollar Amount of Receivables
sold, transferred or pledged, net of amounts of such Receivables collected, does
not exceed in the aggregate five percent (5%) of Consolidated Net Sales at any
one time outstanding.
(B) Sales of Assets. Neither the Company nor any of its Subsidiaries
shall consummate any Asset Sale unless (x) the Company shall have prepaid the
outstanding Advances and reduced the Aggregate Revolving Loan Commitment, and
the "Advances" under (and as defined in) the 5- Year Finance Facility Agreement
and reduced the aggregate commitment thereunder, in accordance with Sections 2.6
and 7.2(N) and (y) any such Asset Sale shall be for not less than fair market
value (as determined in good faith by the Company's chief financial officer) and
for consideration consisting of at least eighty percent (80%) of cash, except:
(i) Asset Sales in connection with the sale of Receivables
permitted under Section 7.3(A);
(ii) transfers of assets between the Company and any
wholly-owned Subsidiary of the Company or between wholly-owned
Subsidiaries of the Company not otherwise prohibited by this
Agreement;
(iii) sales, assignments, transfers, leases, conveyances or
other dispositions of other assets if such transaction (a) is for not
less than fair market value (as determined in good faith by the
Company's chief financial officer), and (b) when combined with all such
other transactions (each such transaction being valued at book value)
and all Sale and Leaseback Transactions (each such Sale and Leaseback
Transaction being valued at book value) during the period from the
Closing Date to the date of such proposed transaction, represents the
disposition of not greater than fifteen percent (15%) of the Company's
Consolidated Net Assets at the end of the fiscal year immediately
preceding that in which such transaction is proposed to be entered
into;
(iv) Asset Sales pursuant to unrelated transactions in an
amount not to exceed $1,000,000 per transaction; and
(v) sales of notes receivable and lease receivables of the
Company and its
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Subsidiaries in the ordinary course of business, including without
limitation, those listed on Schedule 7.3(B);
provided, that in no event shall any Asset Sale be permitted hereunder if a
Default or Unmatured Default shall have occurred and is continuing as of the
date of such Asset Sale or, after the consummation of the Asset Sale and after
giving effect thereto, would exist.
(C) Liens. In no event shall the Company or any of its Subsidiaries
directly or indirectly create, incur assume or permit to exist a Lien on or with
respect to the Capital Stock of any Subsidiary of the Company. In addition,
neither the Company nor any of its Subsidiaries shall directly or indirectly
create, incur, assume or permit to exist any Lien on or with respect to any of
their respective other property or assets except:
(i) Permitted Existing Liens;
(ii) Customary Permitted Liens;
(iii) Liens with respect to property acquired by the Company
or any of its Subsidiaries after the Closing Date (and not created in
contemplation of such acquisition) pursuant to a Permitted Acquisition;
provided, that such Liens shall extend only to the property so
acquired;
(iv) Liens on Receivables created in connection with a
transaction permitted under Section 7.3(A); provided, that each such
Lien represents an interest no greater than the related purchaser's
pro-rata interest in the pool of eligible receivables so sold;
(v) Rights of setoff existing as a matter of law;
(vi) Liens on property created in connection with any
transaction permitted under Section 7.3(J);
(vii) Liens securing Indebtedness of a Subsidiary to the
Company;
(viii) Additional Liens, provided the Indebtedness secured
thereby does not exceed in the aggregate $75,000,000;
(ix) Liens, if any, created by the Loan Documents or
otherwise securing the Obligations and Liens securing Indebtedness
under the 364-Day Credit Agreement and the CLO Facilities and the PBGC
Agreement only to the extent such Liens are equal and ratable with, or
subordinate to, any Liens granted to the Administrative Agent for the
benefit of the Lenders; and
(x) The replacement, extension or renewal of any Lien
permitted above upon or in
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the same property theretofore subject thereto in connection with the
replacement, extension or renewal (pursuant to Permitted Refinancing
Indebtedness) of the obligations secured thereby.
(D) Subsidiary Indebtedness. No Subsidiary of the Company shall, nor
shall the Company cause or suffer any of its Subsidiaries to, directly or
indirectly create, incur, assume or otherwise become or remain directly or
indirectly liable with respect to any Indebtedness, except:
(i) the Obligations;
(ii) Permitted Existing Indebtedness and Permitted
Refinancing Indebtedness of the type described in clause (i) of the
definition thereof;
(iii) Indebtedness in an aggregate principal amount not to
exceed $700,000,000 at any time incurred in connection with (a) the
364-Day Credit Agreement and (b) the CLO Facilities, and, in the case
of either clause (a) or (b), Permitted Refinancing Indebtedness of the
type described in clause (i) of the definition thereof;
(iv) Indebtedness necessary to manage the working capital
and capital expenditure needs of the European-based Subsidiaries of
the Company in a Dollar Amount not to exceed $75,000,000 in the
aggregate;
(v) Indebtedness arising from intercompany loans and
advances (a) from the Company or any Subsidiary to any Domestic
Incorporated Subsidiary or (b) from the Company or any Subsidiary to
any Foreign Incorporated Subsidiary; provided, that such Indebtedness
shall be expressly subordinate to the payment in full in cash of the
Obligations;
(vi) Contingent Obligations to the extent permitted under
Section 7.3(E);
(vii) Hedging Obligations to the extent otherwise permitted
under this Agreement;
(viii) Indebtedness incurred in connection with a
securitization of such Subsidiary's assets to the extent such
transaction is otherwise permitted pursuant to Section 7.3(A); and
(ix) additional unsecured Indebtedness in an aggregate
amount at any time outstanding not exceeding $75,000,000.
(E) Contingent Obligations. Neither the Company nor any of its
Subsidiaries shall directly or indirectly create or become or be liable with
respect to any Contingent Obligation, except: (i) recourse obligations resulting
from endorsement of negotiable instruments for collection in the
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ordinary course of business; (ii) Permitted Existing Contingent Obligations;
(iii) obligations, warranties, guaranties and indemnities, not relating to
Indebtedness of any Person, which have been or are undertaken or made in the
ordinary course of business and not for the benefit of or in favor of an
Affiliate of the Company or such Subsidiary; (iv) Contingent Obligations with
respect to surety, appeal and performance bonds obtained by the Company or any
Subsidiary in the ordinary course of business, (v) Contingent Obligations of the
Subsidiaries of the Company (a) under the Guaranty to which they are a party and
(b) as guarantors of the 364-Day Credit Agreement and the CLO Facilities, (vi)
obligations arising under or related to the Loan Documents, (vii) Contingent
Obligations in respect to earn-outs or other similar forms of contingent
purchase price payable in respect of Permitted Acquisitions (excluding assumed
liabilities in connection with such Permitted Acquisition), (viii) Contingent
Obligations in respect of representations and warranties customarily given in
respect of Asset Sales otherwise permitted under Section 7.3(A) or Section
7.3(B), (ix) Contingent Obligations of the Company or any of its Subsidiaries to
the extent incurred to support Indebtedness of the Company or the Company's
Subsidiaries permitted under Section 7.3(D), and (x) additional Contingent
Obligations in an aggregate amount not to exceed in the aggregate five percent
(5%) of Consolidated Net Worth at any one time outstanding.
(F) Restricted Payments. In no event shall any Restricted Payments
(other than Restricted Payments to the Company) be declared or made if either a
Default or an Unmatured Default shall have occurred and be continuing at the
date of declaration or payment thereof or would result therefrom.
(G) Conduct of Business; Subsidiaries; Acquisitions. Neither the
Company nor any of its Subsidiaries shall engage in any business other than the
businesses engaged in by the Company on the date hereof and any business or
activities which are similar, related or incidental thereto or logical
extensions thereof. The Company shall not create, acquire or capitalize any
Subsidiary after the date hereof unless (i) no Default or Unmatured Default
which is not being cured shall have occurred and be continuing or would result
therefrom; (ii) after such creation, acquisition or capitalization, all of the
representations and warranties contained herein shall be true and correct in all
material respects (unless such representation and warranty is made as of a
specific date, in which case, such representation or warranty shall be true in
all material respects as of such date); and (iii) after such creation,
acquisition or capitalization the Company shall be in compliance with the terms
of Section 7.2(K). The Company shall not make any Acquisitions, other than
Acquisitions meeting the following requirements or otherwise approved by the
Required Lenders (each such Acquisition constituting a "PERMITTED ACQUISITION"):
(i) no Default or Unmatured Default shall have occurred
and be continuing or would result from such Acquisition or the
incurrence of any Indebtedness in connection therewith;
(ii) the purchase is consummated pursuant to a negotiated
acquisition agreement on a non-hostile basis and approved by the target
company's board of directors (and shareholders, if necessary) prior to
the consummation of the Acquisition;
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(iii) if the purchase price payable in respect to any such
Acquisition (including, without limitation, cash or stock consideration
paid and Indebtedness or other liabilities assumed) exceeds
$50,000,000, and prior to each such Acquisition, the Company shall
deliver to the Administrative Agent and the Lenders a certificate from
one of the Authorized Officers, demonstrating to the satisfaction of
the Administrative Agent that after giving effect to such Acquisition,
on a pro forma basis in respect of each such Acquisition as if the
Acquisition and such incurrence of Indebtedness had occurred on the
first day of the twelve-month period ending on the last day of the
Company's most recently completed fiscal quarter, the Company would
have been in compliance with the financial covenants in Section 7.4 and
not otherwise in Default;
(iv) the purchase price for the Acquisition shall not
exceed, together with all other Permitted Acquisitions permitted under
this Section 7.3(G), without the prior written consent of the Required
Lenders an amount equal to fifteen percent (15%) of the Consolidated
Net Assets of the Company (calculated as of the date of such
Acquisition without giving effect to such Acquisition) (including the
incurrence or assumption of any Indebtedness in connection therewith),
in the aggregate during the term of this Agreement, and the Company
shall have complied with all of the requirements of the Loan Documents
in respect thereof; and
(v) the businesses being acquired shall be similar to
that of the Company and its Subsidiaries as of the Closing Date,
related or incidental thereto or logical extensions thereof.
(H) Transactions with Shareholders and Affiliates. Except as set forth
on Schedule 7.3(H), neither the Company nor any of its Subsidiaries shall
directly or indirectly enter into or permit to exist any transaction (including,
without limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or make loans or advances to, Pechiney or any
holder or holders of ten percent (10%) or more of the Equity Interests of the
Company, or with any Affiliate of the Company which is not its Subsidiary, on
terms that are less favorable to the Company or any of its Subsidiaries, as
applicable, than those that might be obtained in an arm's length transaction at
the time from Persons who are not such a holder or Affiliate, except for
Restricted Payments permitted by Section 7.3(F) and loans and advances made in
the ordinary course of business, consistent with past practice. Administrative
Agent and Lenders acknowledge and consent to the transactions between the
Company and its Affiliates described in the Company's public filings as of the
Closing Date.
(I) Restriction on Fundamental Changes. Neither the Company nor any of
its Material Subsidiaries shall enter into any merger or consolidation, or
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or
convey, lease, sell, transfer or otherwise dispose of, in one transaction or
series of transactions, all or substantially all of the Company's consolidated
business or property (each such transaction a "FUNDAMENTAL CHANGE"), whether now
or hereafter acquired, except (i) Fundamental Changes permitted under Sections
7.3(B), 7.3(D) or 7.3(G), (ii) a
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Subsidiary of the Company may be merged into or consolidated with the Company
(in which case the Company shall be the surviving corporation) or any Subsidiary
of the Company provided the Company owns, directly or indirectly, a percentage
of the equity of the merged entity not less than the percentage it owned of the
Subsidiary prior to such Fundamental Change and if the predecessor Subsidiary
was a Guarantor, the surviving Subsidiary shall be a Guarantor hereunder, (iii)
any liquidation of any Subsidiary of the Company into the Company or another
Subsidiary of the Company, as applicable, and (iv) the Company may merge with
and into any other Person, or any Subsidiary of the Company may consolidate or
merge with any other Person, provided, that (A) no Default or Unmatured Default
shall exist immediately after giving effect to such Fundamental Change, (B) in
the case of any merger of the Company, the Company is the surviving corporation
in such merger and such merger is with a Person in a line of business
substantially similar to that of the Company and its Subsidiaries as of the
Closing Date, and (C) in the case of any merger or consolidation of any
Subsidiary of the Company, the surviving corporation in such Fundamental Change
is or becomes as a result thereof a Subsidiary of the Company in which surviving
Subsidiary the Company shall have directly or indirectly, not less than the
ownership percentage of the Company in the Subsidiary before the Fundamental
Change and if the predecessor Subsidiary was a Guarantor, the surviving
Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a
Person in a line of business substantially similar to that of the Company and
its Subsidiaries as of the Closing Date.
(J) Sales and Leasebacks. Unless the Company shall have prepaid the
outstanding Advances in accordance with Section 2.5, and, if applicable, reduced
the Aggregate Revolving Loan Commitment in accordance with Sections 2.6 and
7.2(N), neither the Company nor any of its Subsidiaries shall become liable,
directly, by assumption or by Contingent Obligation, with respect to any Sale
and Leaseback Transaction, to the extent that the Net Cash Proceeds of such Sale
and Leaseback Transaction, together with the Net Cash Proceeds of all other Sale
and Leaseback Transactions after the Closing Date, is in an aggregate amount
greater than $50,000,000.
(K) Margin Regulations. Neither the Company nor any of its
Subsidiaries, shall use all or any portion of the proceeds of any credit
extended under this Agreement to purchase or carry Margin Stock in violation of
Regulation U.
(L) ERISA. (a) The Company shall not
(i) engage, or permit any of its Subsidiaries to engage,
in any material prohibited transaction described in Sections 406 of
ERISA or 4975 of the Code for which a statutory or class exemption is
not available or a private exemption has not been previously obtained
from the DOL;
(ii) permit to exist any material accumulated funding
deficiency (as defined in Sections 302 of ERISA and 412 of the Code),
with respect to any Benefit Plan, whether or not waived;
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(iii) fail, or permit any Controlled Group member to fail,
to pay timely required material contributions or annual installments
due with respect to any waived funding deficiency to any Benefit Plan;
(iv) terminate, or permit any Controlled Group member to
terminate, any Benefit Plan which would result in any material
liability of the Company or any Controlled Group member under Title IV
of ERISA;
(v) fail to make any material contribution or payment to
any Multiemployer Plan which the Company or any Controlled Group
member may be required to make under any agreement relating to such
Multiemployer Plan, or any law pertaining thereto;
(vi) permit any unfunded liabilities with respect to any
Foreign Pension Plan except to the extent that any such unfunded
liabilities are being funded by annual contributions made by the
Borrower or any member of its Controlled Group and such annual
contributions are not less than the minimum amounts, if any, required
under applicable local law;
(vii) fail, or permit any of its Subsidiaries or Controlled
Group members to fail, to pay any required contributions or payments to
a Foreign Pension Plan on or before the due date for such required
installment or payment;
(viii) fail, or permit any Controlled Group member to fail, to
pay any required material installment or any other payment required
under Section 412 of the Code on or before the due date for such
installment or other payment; or
(ix) amend, or permit any Controlled Group member to amend,
a Plan resulting in a material increase in current liability for the
plan year such that the Company or any Controlled Group member is
required to provide security to such Plan under Section 401(a)(29) of
the Code.
(b) For purposes of this Section 7.3(L), "material" means any
noncompliance or basis for liability which could reasonably be likely
to subject the Company or any of its Material Subsidiaries to
liability, individually or in the aggregate, in excess of $25,000,000.
(M) Corporate Documents. Neither the Company nor any of its Material
Subsidiaries shall amend, modify or otherwise change any of the terms or
provisions in any of their respective constituent documents as in effect on the
date hereof in any manner materially adverse to the interests of the Lenders,
without the prior written consent of the Required Lenders, except in connection
with a Permitted Acquisition.
(N) Fiscal Year. Neither the Company nor any of its consolidated
Material Subsidiaries shall change its fiscal year for accounting or tax
purposes from a period consisting of the 12-month
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period ending on the last day of December of each year, except as required by
Agreement Accounting Principles or by law and disclosed to the Lenders and the
Administrative Agent.
(O) Subsidiary Covenants. The Company will not, and will not permit any
Material Subsidiary to, create or otherwise cause to become effective any
consensual encumbrance or restriction of any kind on the ability of any
Subsidiary to pay dividends or make any other distribution on its stock, or make
any other Restricted Payment, pay any Indebtedness or other Obligation owed to
the Company or any other Subsidiary, make loans or advances or other Investments
in the Company or any other Subsidiary, or sell, transfer or otherwise convey
any of its property to the Company or any other Subsidiary.
(P) Hedging Obligations. The Company shall not and shall not permit any
of its Subsidiaries to enter into any interest rate, commodity or foreign
currency exchange, swap, collar, cap or similar agreements evidencing Hedging
Obligations, other than interest rate, foreign currency or commodity exchange,
swap, collar, cap or similar agreements entered into by the Company or its
Subsidiaries pursuant to which the Company or its Subsidiaries has hedged its
actual or anticipated interest rate, foreign currency or commodity exposure.
Such permitted hedging agreements entered into by the Company or its
Subsidiaries and any Lender or any affiliate of any Lender are sometimes
referred to herein as "HEDGING AGREEMENTS."
(Q) Maximum Net Rentals Obligations. The Company shall not permit
Rentals (net of rental income) of the Company and its Subsidiaries to exceed
$50,000,000 in the aggregate during any twelve-month period.
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7.4 Financial Covenants. The Company shall comply with the following
(provided, that all calculations of the financial covenants under this Section
7.4 shall be made exclusive of any impact on the financial statements arising
from Supported Contingent Obligations, unless (i) the Company shall not receive
cash reimbursement for any and all cash payments made under any Supported
Contingent Obligations promptly, and in any event within ninety (90) days,
following the Company making any such payment, in which event the financial
covenants in this Section 7.4 shall be calculated by giving effect to any
payment in respect of such Supported Contingent Obligation and shall include the
total outstanding amount of such Supported Contingent Obligation (to the extent
unreimbursed or otherwise unsupported to the satisfaction of the Administrative
Agent) in such calculations, or (ii) any judgment is entered under Viskase
Corporation v. American National Can Company, Civ. 93-C-7651, before the U.S.
District Court of the Northern District of Illinois, Eastern Division or any
related proceedings holding that the aggregate liability of the Company and its
Subsidiaries thereunder shall be in an amount in excess of $106,000,000, and
such judgment shall remain (x) undischarged, unvacated or unstayed or (y)
unbonded by Pechiney or any bonding agent in reliance upon a letter of credit or
other reimbursement obligation of Pechiney or any other Person other than the
Company or its Subsidiaries in the amount of such aggregate liability, in the
case of either clause (x) or (y), for a period of thirty (30) days or such other
period permitted by court order, in which event the financial covenants in this
Section 7.4 shall be calculated by giving effect to the amount of such judgment
which is undischarged, unvacated, unstayed or unbonded on the financial
condition of the Company and its Subsidiaries):
(A) Minimum Interest Coverage Ratio. The Company and its consolidated
Subsidiaries shall maintain a ratio ("INTEREST COVERAGE RATIO") of (i) EBITDA
during such period, to (ii) Interest Expense during such period which shall not
be less than (x) 3.50 to 1.00 as of the end of the first three fiscal quarters
following the Closing Date (calculated (a) for the fiscal quarter ending on
September 30, 1999, for such fiscal quarter, (b) for the fiscal quarter ending
on December 31, 1999, for the two fiscal quarter period then ending, and (c) for
the fiscal quarter ending on March 31, 2000, for the three fiscal quarter period
then ending); and (y) 4.00 to 1.00 for each four (4) fiscal quarter period
thereafter beginning with the four (4) fiscal quarter period ending on June 30,
2000. In each case, the Interest Coverage Ratio shall be determined as of the
last day of each fiscal quarter for the one (1), two (2), three (3) or four (4)
fiscal quarter period ending on such day, as applicable, calculated, with
respect to Permitted Acquisitions, on a pro forma basis, broken down by fiscal
quarter in the Company's reasonable judgment. For purposes of clause (i) above,
EBITDA shall be calculated without giving effect to any restructuring charges
related to the three plant closings described in the Registration Statement.
(B) Maximum Total Net Indebtedness to Capital Ratio. At no time shall
the Company and its consolidated Subsidiaries permit the Total Net Indebtedness
to Capital Ratio to be greater than 0.55 to 1.00.
(C) Minimum Consolidated Net Worth. The Company shall not permit its
Consolidated Net Worth at any time to be less than the sum of (a) $950,000,000
plus (b) fifty percent (50%) of Net Income (if positive) calculated separately
(x) on December 31, 1999 for the two fiscal quarter
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period ending on December 31, 1999 and (y) for each fiscal year thereafter
commencing with the fiscal year ending on December 31, 2000.
ARTICLE VIII: DEFAULTS
8.1 Defaults. Each of the following occurrences shall constitute a
Default under this Agreement:
(A) Failure to Make Payments When Due. The Company or any Subsidiary
Borrower shall (i) fail to pay when due any of the Obligations consisting of
principal with respect to the Loans or (ii) shall fail to pay within five (5)
Business Days of the date when due any of the other Obligations under this
Agreement or the other Loan Documents.
(B) Breach of Certain Covenants. The Company shall fail duly and
punctually to perform or observe any agreement, covenant or obligation binding
on the Company under:
(i) Sections 7.1 or 7.2 and such failure shall continue
unremedied for thirty (30) days; or
(ii) Sections 7.3 or 7.4.
(C) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by the Company or any Subsidiary Borrower to the
Administrative Agent or any Lender herein or by the Company or any Subsidiary
Borrower or any of their Subsidiaries in any of the other Loan Documents or in
any statement or certificate or information at any time given by any such Person
pursuant to any of the Loan Documents shall be false as to a material fact or
matter on the date as of which made or deemed made.
(D) Other Defaults. The Company or any Subsidiary Borrower shall
default in the performance of or compliance with any term contained in this
Agreement (other than as covered by paragraphs (A) or (B) or (C) of this Section
8.1), or the Company or any Subsidiary Borrower or any of their Subsidiaries
shall default in the performance of or compliance with any term contained in any
of the other Loan Documents, and such default shall continue for thirty (30)
days after the occurrence and notice or the Company's becoming aware thereof.
(E) Default as to Other Indebtedness.
(x)(i) Any "Default" shall occur under (and as defined in)
the 364-Day Credit Agreement or any "Event of Default" shall occur
under the 5-Year Finance Facility Agreement or under the 364-Day
Finance Facility Agreement, and, in each case shall be continuing
beyond any period of grace, if any, provided with respect thereto; or
(ii) any breach, default or event of default shall occur, or any other
condition shall exist under any
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instrument, agreement or indenture pertaining to any such Indebtedness,
beyond any period of grace, if any, provided with respect thereto; if
the effect thereof, in either case under clause (i) or clause (ii), is
to cause an acceleration, mandatory redemption, a requirement that the
Company offer to purchase such Indebtedness or other required
repurchase of such Indebtedness, or permit the holder(s) of such
Indebtedness to accelerate the maturity of any such Indebtedness or
require a redemption or other repurchase of such Indebtedness; or any
such Indebtedness shall be otherwise declared to be due and payable (by
acceleration or otherwise) or required to be prepaid, redeemed or
otherwise repurchased by the Company or any of its Subsidiaries (other
than by a regularly scheduled required prepayment) prior to the stated
maturity thereof; or
(y) the Company or any of its Subsidiaries shall (i) fail to
make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) with respect to any
Indebtedness (other than Indebtedness hereunder, but including, without
limitation, Disqualified Stock), beyond any period of grace provided
with respect thereto, which individually or together with other such
Indebtedness as to which any such failure exists has an aggregate
outstanding principal amount in excess of $15,000,000; or (ii) suffer
to exist any breach, default or event of default, or any other
condition under any instrument, agreement or indenture pertaining to
any such Indebtedness having such aggregate outstanding principal
amount, beyond any period of grace, if any, provided with respect
thereto; if the effect thereof, in either case under clause (i) or
(ii), is to cause an acceleration, mandatory redemption, a requirement
that the Company offer to purchase such Indebtedness or other required
repurchase of such Indebtedness or require a redemption or other
repurchase of such Indebtedness; or any such Indebtedness shall be
otherwise declared to be due and payable (by acceleration or otherwise)
or required to be prepaid, redeemed or otherwise repurchased by the
Company or any of its Subsidiaries (other than by a regularly scheduled
required prepayment) prior to the stated maturity thereof; or
(z) the Company or any of its Subsidiaries shall fail to make
any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) with respect to any
Indebtedness (other than Indebtedness hereunder, but including, without
limitation, Disqualified Stock), beyond any period of grace provided
with respect thereto, which individually or together with other such
Indebtedness as to which any such failure exists has an aggregate
outstanding principal amount in excess of $40,000,000; or any breach,
default or event of default shall occur, or any other condition shall
exist under any instrument, agreement or indenture pertaining to any
such Indebtedness having such aggregate outstanding principal amount,
beyond any period of grace, if any, provided with respect thereto, if
the effect thereof is to cause an acceleration, mandatory redemption, a
requirement that the Company offer to purchase such Indebtedness or
other required repurchase of such Indebtedness, or permit the holder(s)
of such Indebtedness to accelerate the maturity of any such
Indebtedness or require a redemption or other repurchase of such
Indebtedness; or any such Indebtedness shall be
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otherwise declared to be due and payable (by acceleration or otherwise)
or required to be prepaid, redeemed or otherwise repurchased by the
Company or any of its Subsidiaries (other than by a regularly scheduled
required prepayment) prior to the stated maturity thereof.
(F) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the
Company or any of the Company's Material Subsidiaries and the petition
shall not be dismissed, stayed, bonded or discharged within forty-five
(45) days after commencement of the case; or a court having
jurisdiction in the premises shall enter a decree or order for relief
in respect of the Company or any of the Company's Material
Subsidiaries in an involuntary case, under any applicable bankruptcy,
insolvency or other similar law now or hereinafter in effect; or any
other similar relief shall be granted under any applicable federal,
state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the
Company or any of the Company's Material Subsidiaries or over all or a
substantial part of the property of the Company or any of the Company's
Material Subsidiaries shall be entered; or an interim receiver, trustee
or other custodian of the Company or any of the Company's Material
Subsidiaries or of all or a substantial part of the property of the
Company or any of the Company's Material Subsidiaries shall be
appointed or a warrant of attachment, execution or similar process
against any substantial part of the property of the Company or any of
the Company's Material Subsidiaries shall be issued and any such event
shall not be stayed, dismissed, bonded or discharged within forty-five
(45) days after entry, appointment or issuance.
(G) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Company or
any of the Company's Material Subsidiaries shall (i) commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (ii) consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, (iii) consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property, (iv) make any assignment for the benefit of creditors or
(v) take any corporate action to authorize any of the foregoing.
(H) Judgments and Attachments. Any money judgment(s) (other than a
money judgment covered by insurance as to which the applicable insurance company
has not disclaimed or reserved the right to disclaim coverage), writ or warrant
of attachment, or similar process against the Company or any of its Subsidiaries
or any of their respective assets involving in any single case or in the
aggregate an amount in excess of $15,000,000 is or are entered and shall remain
undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days
or in any event later than fifteen (15) days prior to the date of any proposed
sale thereunder.
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(I) Dissolution. Any order, judgment or decree shall be entered against
the Company or any Material Subsidiary decreeing its involuntary dissolution or
split up and such order shall remain undischarged and unstayed for a period in
excess of forty-five (45) days; or the Company or any Material Subsidiary shall
otherwise dissolve or cease to exist except as specifically permitted by this
Agreement.
(J) Loan Documents. The Company or any of the Company's Subsidiaries
seeks to repudiate its material obligations under any of the Loan Documents to
which they are a party.
(K) Termination Event. Any Termination Event occurs which the Required
Lenders believe is reasonably likely to subject the Company to liability in
excess of $25,000,000. The Unfunded Liabilities of all Single Employer Plans
shall exceed in the aggregate $300,000,000.
(L) Waiver of Minimum Funding Standard. If the plan administrator of
any Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and any Lender believes the
substantial business hardship upon which the application for the waiver is based
could reasonably be expected to subject either the Company or any Controlled
Group member to liability in excess of $25,000,000.
(M) Change of Control. A Change of Control shall occur.
(N) Guarantor Revocation. Any guarantor of the Obligations shall
terminate or revoke any of its obligations under the applicable Guaranty or
breach any of the material terms of such Guaranty.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with Section 9.3.
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS,
AMENDMENTS AND REMEDIES
9.1 Termination of Revolving Loan Commitments; Acceleration. If any
Default described in Section 8.1(F) or 8.1(G) occurs with respect to the Company
or any Material Subsidiary, the obligations of the Lenders to make Loans
(including, without limitation, Alternate Currency Loans) hereunder and the
obligation of any Issuing Banks to issue Letters of Credit hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Administrative Agent
or any Lender. If any other Default occurs, the Required Lenders may terminate
or suspend the obligations of the Lenders to make Loans (including, without
limitation, Alternate Currency Loans) hereunder and the obligation of the
Issuing Banks to issue Letters of Credit hereunder, or declare the Obligations
to be due and payable, or both, whereupon the Obligations shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which the Borrowers expressly waive.
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9.2 Defaulting Lender. In the event that any Lender fails to fund its
Pro Rata Share of any Advance requested or deemed requested by the applicable
Borrower, which such Lender is obligated to fund under the terms of this
Agreement (the funded portion of such Advance being hereinafter referred to as a
"NON PRO RATA LOAN"), until the earlier of such Lender's cure of such failure
and the termination of the Revolving Loan Commitments, the proceeds of all
amounts thereafter repaid to the Administrative Agent by the applicable Borrower
and otherwise required to be applied to such Lender's share of all other
Obligations pursuant to the terms of this Agreement shall be advanced to the
applicable Borrower by the Administrative Agent on behalf of such Lender to
cure, in full or in part, such failure by such Lender, but shall nevertheless be
deemed to have been paid to such Lender in satisfaction of such other
Obligations. Notwithstanding anything in this Agreement to the contrary:
(i) the foregoing provisions of this Section 9.2 shall
apply only with respect to the proceeds of payments of Obligations and
shall not affect the conversion or continuation of Loans pursuant to
Section 2.10;
(ii) any such Lender shall be deemed to have cured its
failure to fund its Pro Rata Share of any Advance at such time as an
amount equal to such Lender's original Pro Rata Share of the requested
principal portion of such Advance is fully funded to the applicable
Borrower, whether made by such Lender itself or by operation of the
terms of this Section 9.2, and whether or not the Non Pro Rata Loan
with respect thereto has been repaid, converted or continued;
(iii) amounts advanced to the applicable Borrower to cure,
in full or in part, any such Lender's failure to fund its Pro Rata
Share of any Advance ("CURE LOANS") shall bear interest at the rate
applicable to Floating Rate Loans in effect from time to time, and for
all other purposes of this Agreement shall be treated as if they were
Floating Rate Loans;
(iv) regardless of whether or not a Default has occurred or
is continuing, and notwithstanding the instructions of the applicable
Borrower as to its desired application, all repayments of principal
which, in accordance with the other terms of this Agreement, would be
applied to the outstanding Floating Rate Loans shall be applied first,
ratably to all Floating Rate Loans constituting Non Pro Rata Loans,
second, ratably to Floating Rate Loans other than those constituting
Non Pro Rata Loans or Cure Loans and, third, ratably to Floating Rate
Loans constituting Cure Loans;
(v) for so long as and until the earlier of any such Lender's
cure of the failure to fund its Pro Rata Share of any Advance and the
termination of the Revolving Loan Commitments, the term "Required
Lenders" for purposes of this Agreement shall mean Lenders (excluding
all Lenders whose failure to fund their respective Pro Rata Share of
such Advance have not been so cured) whose Pro Rata
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Shares represent at least fifty-one percent (51%) of the aggregate Pro
Rata Shares of such Lenders; and
(vi) for so long as and until any such Lender's failure to
fund its Pro Rata Share of any Advance is cured in accordance with
Section 9.2(ii), (A) such Lender shall not be entitled to any facility
fees with respect to its Revolving Loan Commitment and (B) such Lender
shall not be entitled to any letter of credit fees, which facility fees
and letter of credit fees shall accrue in favor of the Lenders which
have funded their respective Pro Rata Share of such requested Advance,
shall be allocated among such performing Lenders ratably based upon
their relative Revolving Loan Commitments, and shall be calculated
based upon the average amount by which the aggregate Revolving Loan
Commitments of such performing Lenders exceeds the sum of (I) the
outstanding principal amount of the Loans owing to such performing
Lenders, plus (II) the outstanding Reimbursement Obligations owing to
such performing Lenders, plus (III) the aggregate participation
interests of such performing Lenders arising pursuant to Section 3.6
with respect to undrawn and outstanding Letters of Credit.
9.3 Amendments.
(A) Modifications to Loan Documents. Subject to the provisions of this
Article IX, the Required Lenders (or the Administrative Agent with the consent
in writing of the Required Lenders) and the Borrowers may enter into agreements
supplemental hereto for the purpose of adding or modifying any provisions to the
Loan Documents or changing in any manner the rights of the Lenders or the
Borrowers hereunder or waiving any Default hereunder; provided, however, that no
such supplemental agreement shall, without the consent of each Lender affected
thereby and each 5-Year CLO Lender affected thereby:
(i) Postpone or extend the Revolving Loan Termination Date
or any other date fixed for any payment of principal of, or interest
on, the Loans, the Reimbursement Obligations or any fees or other
amounts payable to such Lender (except with respect to (a) any
modifications of the provisions relating to prepayments of Loans and
other Obligations and (b) a waiver of the application of the default
rate of interest pursuant to Section 2.11 hereof).
(ii) Reduce the principal amount of any Loans or L/C
Obligations, or reduce the rate or extend the time of payment of
interest or fees thereon.
(iii) Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders hereunder and
5-Year CLO Lenders specified to be the applicable percentage in this
Agreement to act on specified matters or amend the definitions of
"Aggregate Pro Rata Share", "Required Lenders" or "Pro Rata Share".
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(iv) Increase the amount of the Revolving Loan Commitment
of any Lender hereunder or increase any Lender's Aggregate Pro Rata
Share or Pro Rata Share.
(v) Permit the Company or any Subsidiary Borrower to
assign its rights under this Agreement.
(vi) Other than pursuant to a transaction permitted by the
terms of this Agreement, release any guarantor from its obligations
under the Guaranty.
(vii) Amend Section 2.6(b), Section 13.2 or this
Section 9.3.
No amendment of any provision of this Agreement relating to (a) the
Administrative Agent shall be effective without the written consent of the
Administrative Agent, and (b) any Issuing Bank shall be effective without the
written consent of such Issuing Bank. The Administrative Agent may waive payment
of the fee required under Section 14.3(B) without obtaining the consent of any
of the Lenders. Notwithstanding anything herein to the contrary, the
Administrative Agent (acting reasonably and after consultation with other
parties hereto) may by reasonable prior notice to the other parties hereto amend
this Agreement after consultation with the Company unilaterally for the
exclusive purpose of effectuating changes hereto which are necessary to the
integration of the issuance of Letters of Credit hereunder in euro and only in a
manner which shall not result in a deterioration of the position of any
Administrative Agent or Lender from its respective position as of the Closing
Date. The Administrative Agent shall notify the other parties to this Agreement
of any amendments to this Agreement which the Administrative Agent reasonably
determines to be necessary as a result of the commencement of the third stage of
the European Economic and Monetary Union. Notwithstanding anything to the
contrary contained herein, any amendments so notified shall take effect in
accordance with the terms of the relevant notification; provided, however, that
if and to the extent that the Administrative Agent determines it is not possible
to put all parties into such position, the Administrative Agent may give
priority to putting the Administrative Agent, the Arranger and the Lenders into
that position.
(B) Modifications to the 5-Year Finance Facility Agreement. So long as
no Integration Blockage Default shall have occurred, the Company agrees that no
amendment, modification, supplement, waiver or restatement of the 5-Year Finance
Facility Agreement shall be effective to modify any provisions of the 5-Year
Finance Facility Agreement or the other documents, instruments and agreements
entered into in connection therewith (other than the fee letter(s)) except
pursuant to a writing signed by the Company and the Required Lenders.
9.4 Preservation of Rights. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan or the issuance of a Letter of Credit
notwithstanding the existence of a Default or the inability of the Company or
any other Borrower to satisfy the conditions precedent to such Loan or issuance
of such Letter of Credit shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such
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right shall not preclude other or further exercise thereof or the exercise of
any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the requisite number of Lenders required pursuant to
Section 9.3, and then only to the extent in such writing specifically set forth.
All remedies contained in the Loan Documents or by law afforded shall be
cumulative and all shall be available to the Administrative Agent and the
Lenders until the Obligations have been paid in full.
ARTICLE X: GUARANTY
10.1. Guaranty. For valuable consideration, the receipt of which is
hereby acknowledged, and to induce the Lenders to make advances to each
Subsidiary Borrower and to issue and participate in Letters of Credit and
Alternate Currency Loans, the Company hereby absolutely and unconditionally
guarantees prompt payment when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter, of any and all existing
and future Obligations of each Subsidiary Borrower to the Administrative Agent,
the Lenders, the Issuing Lenders, the Alternate Currency Banks, or any of them,
under or with respect to the Loan Documents, whether for principal, interest,
fees, expenses or otherwise (collectively, the "GUARANTEED OBLIGATIONS", and
each such Subsidiary Borrower being an "OBLIGOR" and collectively, the
"OBLIGORS").
10.2. Waivers; Subordination of Subrogation. (i) The Company waives
notice of the acceptance of this guaranty and of the extension or continuation
of the Guaranteed Obligations or any part thereof. The Company further waives
presentment, protest, notice of notices delivered or demand made on any Obligor
or action or delinquency in respect of the Guaranteed Obligations or any part
thereof, including any right to require the Administrative Agent and the Lenders
to sue any Obligor, any other guarantor or any other Person obligated with
respect to the Guaranteed Obligations or any part thereof, or otherwise to
enforce payment thereof against any collateral securing the Guaranteed
Obligations or any part thereof, and provided further that if at any time any
payment of any portion of the Guaranteed Obligations is rescinded or must
otherwise be restored or returned upon the insolvency, bankruptcy or
reorganization of any of the Obligors or otherwise, the Company's obligations
hereunder with respect to such payment shall be reinstated at such time as
though such payment had not been made and whether or not the Administrative
Agent or the Lenders are in possession of this guaranty. The Administrative
Agent and the Lenders shall have no obligation to disclose or discuss with the
Company their assessments of the financial condition of the Obligors.
(ii) Until the Guaranteed Obligations have been
indefeasibly paid in full in cash, the Company (i) shall have no right
of subrogation with respect to such Guaranteed Obligations and (ii)
waives any right to enforce any remedy which the Holders of
Obligations or any Agent now have or may hereafter have against any
Obligor, any endorser or any guarantor of all or any part of the
Guaranteed Obligations or any other Person, and the Company waives any
benefit of, and any right to participate in, any
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security or collateral given to the Holders of Obligations and the
Agents to secure the payment or performance of all or any part of the
Guaranteed Obligations or any other liability of any Obligor to the
Holders of Obligations. Should the Company have the right,
notwithstanding the foregoing, to exercise its subrogation rights, the
Company hereby expressly and irrevocably (A) subordinates any and all
rights at law or in equity to subrogation, reimbursement, exoneration,
contribution, indemnification or set off that the Company may have to
the indefeasible payment in full in cash of the Guaranteed Obligations
and (B) waives any and all defenses available to a surety, guarantor or
accommodation co-obligor until the Guaranteed Obligations are
indefeasibly paid in full in cash. The Company acknowledges and agrees
that this subordination is intended to benefit the Agents and the
Holders of Obligations and shall not limit or otherwise affect the
Company's liability hereunder or the enforceability of this Guaranty,
and that the Agents, the Holders of Obligations and their respective
successors and assigns are intended third party beneficiaries of the
waivers and agreements set forth in this Section 10.2.
10.3. Guaranty Absolute. This guaranty is a guaranty of payment and not
of collection, is a primary obligation of the Company and not one of surety, and
the validity and enforceability of this guaranty shall be absolute and
unconditional irrespective of, and shall not be impaired or affected by any of
the following: (a) any extension, modification or renewal of, or indulgence with
respect to, or substitutions for, the Guaranteed Obligations or any part thereof
or any agreement relating thereto at any time; (b) any failure or omission to
enforce any right, power or remedy with respect to the Guaranteed Obligations or
any part thereof or any agreement relating thereto, or any collateral; (c) any
waiver of any right, power or remedy with respect to the Guaranteed Obligations
or any part thereof or any agreement relating thereto or with respect to any
collateral; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any collateral,
any other guaranties with respect to the Guaranteed Obligations or any part
thereof, or any other obligation of any Person with respect to the Guaranteed
Obligations or any part thereof; (e) the enforceability or validity of the
Guaranteed Obligations or any part thereof or the genuineness, enforceability or
validity of any agreement relating thereto or with respect to any collateral;
(f) the application of payments received from any source to the payment of
obligations other than the Guaranteed Obligations, any part thereof or amounts
which are not covered by this guaranty even though the Administrative Agent and
the Lenders might lawfully have elected to apply such payments to any part or
all of the Guaranteed Obligations or to amounts which are not covered by this
guaranty; (g) any change in the ownership of any Obligor or the insolvency,
bankruptcy or any other change in the legal status of any Obligor; (h) the
change in or the imposition of any law, decree, regulation or other governmental
act which does or might impair, delay or in any way affect the validity,
enforceability or the payment when due of the Guaranteed Obligations; (i) the
failure of the Company or any Obligor to maintain in full force, validity or
effect or to obtain or renew when required all governmental and other approvals,
licenses or consents required in connection with the Guaranteed Obligations or
this guaranty, or to take any other action required in connection with the
performance of all obligations pursuant to the Guaranteed Obligations or this
guaranty; (j) the existence of any claim, setoff or other rights which the
Company may have at any time against any Obligor, or any other Person in
connection
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herewith or an unrelated transaction; or (k) any other circumstances, whether or
not similar to any of the foregoing, which could constitute a defense to a
guarantor; all whether or not the Company shall have had notice or knowledge of
any act or omission referred to in the foregoing clauses (a) through (k) of this
paragraph. It is agreed that the Company's liability hereunder is several and
independent of any other guaranties or other obligations at any time in effect
with respect to the Guaranteed Obligations or any part thereof and that the
Company's liability hereunder may be enforced regardless of the existence,
validity, enforcement or non-enforcement of any such other guaranties or other
obligations or any provision of any applicable law or regulation purporting to
prohibit payment by any Obligor of the Guaranteed Obligations in the manner
agreed upon between the Obligor and the Administrative Agent and the Lenders.
10.4. Acceleration. The Company agrees that, as between the Company on
the one hand, and the Lenders and the Administrative Agent, on the other hand,
the obligations of each Obligor guaranteed under this Article X may be declared
to be forthwith due and payable, or may be deemed automatically to have been
accelerated, as provided in Section 9.1 hereof for purposes of this Article X,
notwithstanding any stay, injunction or other prohibition (whether in a
bankruptcy proceeding affecting such Obligor or otherwise) preventing such
declaration as against such Obligor and that, in the event of such declaration
or automatic acceleration, such obligations (whether or not due and payable by
such Obligor) shall forthwith become due and payable by the Company for purposes
of this Article X.
10.5. Marshaling; Reinstatement. None of the Lenders nor the
Administrative Agent nor any Person acting for or on behalf of the Lenders or
the Administrative Agent shall have any obligation to marshall any assets in
favor of the Company or against or in payment of any or all of the Guaranteed
Obligations. If the Company, any Borrower or any other guarantor of all or any
part of the Guaranteed Obligations makes a payment or payments to any Lender or
the Administrative Agent, 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 such Borrower, the Company, such other guarantor
or any other Person, or their respective estates, trustees, receivers or any
other party, including, without limitation, the Company, under any bankruptcy
law, state or federal law, common law or equitable cause, then, to the extent of
such payment or repayment, the part of the Guaranteed Obligations which has been
paid, reduced or satisfied by such amount shall be reinstated and continued in
full force and effect as of the time immediately preceding such initial payment,
reduction or satisfaction.
10.6. Termination Date. This guaranty shall continue in effect until
the earlier of (a) the Facility Termination Date, and (b) the date on which this
Agreement has otherwise expired or been terminated in accordance with its terms
and all of the Guaranteed Obligations have been paid in full in cash.
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ARTICLE XI: GENERAL PROVISIONS
11.1 Survival of Representations. All representations and warranties of
the Company contained in this Agreement shall survive delivery of this Agreement
and the making of the Loans herein contemplated so long as any principal,
accrued interest, fees, or any other amount due and payable under any Loan
Document is outstanding and unpaid (other than contingent reimbursement and
indemnification obligations) and so long as the Revolving Loan Commitments have
not been terminated.
11.2 Governmental Regulation. Anything contained in this Agreement to
the contrary notwithstanding, no Lender shall be obligated to extend credit to
the Company or any other Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
11.3 Performance of Obligations. The Borrowers agree that the
Administrative Agent may, but shall have no obligation to (i) at any time, pay
or discharge taxes, liens, security interests or other encumbrances levied or
placed on or threatened against any property of any Borrower to the extent any
such Borrower is required by the terms hereof to pay any such amount, but has
not done so and (ii), after the occurrence and during the continuance of a
Default, to make any other payment or perform any act required of the Company or
any other Borrower under any Loan Document or take any other action which the
Administrative Agent in its discretion deems necessary or desirable to protect
or preserve such property of the Borrowers. The Administrative Agent shall use
its reasonable efforts to give the applicable Borrower notice of any action
taken under this Section 11.3 prior to the taking of such action or promptly
thereafter provided the failure to give such notice shall not affect the
applicable Borrower's obligations in respect thereof. The Borrowers agree to pay
the Administrative Agent, upon demand, the principal amount of all funds
advanced by the Administrative Agent under this Section 11.3, together with
interest thereon at the rate from time to time applicable to Floating Rate Loans
from the date of such advance until the outstanding principal balance thereof is
paid in full. If any Borrower fails to make payment in respect of any such
advance under this Section 11.3 within one (1) Business Day after the date the
applicable Borrower receives written demand therefor from the Administrative
Agent, the Administrative Agent shall promptly notify each Lender and each
Lender agrees that it shall thereupon make available to the Administrative
Agent, in Dollars in immediately available funds, the amount equal to such
Lender's Pro Rata Share of such advance. If such funds are not made available to
the Administrative Agent by such Lender within one (1) Business Day after the
Administrative Agent's demand therefor, the Administrative Agent will be
entitled to recover any such amount from such Lender together with interest
thereon at the Federal Funds Effective Rate for each day during the period
commencing on the date of such demand and ending on the date such amount is
received. The failure of any Lender to make available to the Administrative
Agent its Pro Rata Share of any such unreimbursed advance under this Section
11.3 shall neither relieve any other Lender of its obligation hereunder to make
available to the Administrative Agent such other Lender's Pro Rata Share of such
advance on the date such payment is to be made nor increase
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the obligation of any other Lender to make such payment to the Administrative
Agent.
11.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
11.5 Entire Agreement. The Loan Documents embody the entire agreement
and understanding among the Borrowers, the Agents and the Lenders and supersede
all prior agreements and understandings among the Borrowers, the Agents and the
Lenders relating to the subject matter thereof.
11.6 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to which
the Administrative Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
11.7 Expenses; Indemnification.
(A) Expenses. The Borrowers shall reimburse the Agents, each Alternate
Currency Bank, each Lead Arranger and each Arranger for any reasonable costs,
internal charges and out-of-pocket expenses (including reasonable attorneys' and
paralegals' fees and time charges of attorneys and paralegals for the
Administrative Agent, which attorneys and paralegals may be employees of the
Administrative Agent) paid or incurred by the Agents, such Alternate Currency
Bank, such Lead Arranger or such Arranger in connection with the preparation,
negotiation, execution, delivery, syndication, review, amendment, modification,
and administration of the Loan Documents. The Borrowers also agree to reimburse
the Agents, each Alternate Currency Bank, each Lead Arranger and each Arranger
and each Lender for any costs, internal charges and out-of-pocket expenses
(including reasonable attorneys' and paralegals' fees and time charges of
attorneys and paralegals for the Agents, each Alternate Currency Bank, each Lead
Arranger, each Arranger and the Lenders, which attorneys and paralegals may be
employees of such Agent, such Alternate Currency Bank, such Lead Arranger, such
Arranger or the Lenders) paid or incurred by the Agents, the Alternate Currency
Banks, the Lead Arrangers or the Arrangers or any Lender in connection with the
collection of the Obligations and enforcement of the Loan Documents. In addition
to expenses set forth above, the Borrowers agree to reimburse the Administrative
Agent, promptly after the Administrative Agent's request therefor, for each
audit, or other business analysis performed by or for the benefit of the Lenders
in connection with this Agreement or the other Loan Documents in an amount equal
to the Administrative Agent's then customary charges for each person employed to
perform such audit or analysis, plus all reasonable costs and expenses
(including without limitation, travel expenses) incurred by the Administrative
Agent in the performance of such audit or analysis. Administrative Agent shall
provide the Borrowers with a detailed statement of all reimbursements requested
under this Section 11.7(A).
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(B) Indemnity. The Borrowers further agree to defend, protect,
indemnify, and hold harmless the Agents, the Lead Arrangers, the Arrangers, the
Alternate Currency Banks and each and all of the Lenders and each of their
respective Affiliates, and each of such Agent's, Lead Arranger's, Arranger's,
Alternate Currency Bank's, Lender's, or Affiliate's respective officers,
directors, trustees, investment advisors, employees, attorneys and agents
(including, without limitation, those retained in connection with the
satisfaction or attempted satisfaction of any of the conditions set forth in
Article V) (collectively, the "INDEMNITEES") from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, expenses of any kind or nature whatsoever (including, without
limitation, the fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding,
whether or not any of such Indemnitees shall be designated a party thereto),
imposed on, incurred by, or asserted against such Indemnitees in any manner
relating to or arising out of:
(i) this Agreement or any of the other Loan Documents, or
any act, event or transaction related or attendant thereto or to the
making of the Loans, and the issuance of and participation in Letters
of Credit hereunder, the management of such Loans or Letters of
Credit, the use or intended use of the proceeds of the Loans or
Letters of Credit hereunder, or any of the other transactions
contemplated by the Loan Documents; or
(ii) any liabilities, obligations, responsibilities,
losses, damages, personal injury, death, punitive damages, economic
damages, consequential damages, treble damages, intentional, willful
or wanton injury, damage or threat to the environment, natural
resources or public health or welfare, costs and expenses (including,
without limitation, attorney, expert and consulting fees and costs of
investigation, feasibility or remedial action studies), fines,
penalties and monetary sanctions, interest, direct or indirect, known
or unknown, absolute or contingent, past, present or future relating
to violation of any Environmental, Health or Safety Requirements of
Law arising from or in connection with the past, present or future
operations of the Company, its Subsidiaries or any of their respective
predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective property
of the Company or its Subsidiaries, the presence of
asbestos-containing materials at any respective property of the
Company or its Subsidiaries or the Release or threatened Release of
any Contaminant into the environment (collectively, the "INDEMNIFIED
MATTERS");
provided, however, no Borrower shall have any obligation to an Indemnitee
hereunder with respect to Indemnified Matters caused by or resulting from the
willful misconduct or Gross Negligence of such Indemnitee with respect to the
Loan Documents, as determined by the final non-appealed judgment of a court of
competent jurisdiction. If the undertaking to indemnify, pay and hold harmless
set forth in the preceding sentence may be unenforceable because it is violative
of any law or public policy, the applicable Borrower shall contribute the
maximum portion which it is permitted to pay and satisfy under applicable law,
to the payment and satisfaction of all Indemnified Matters incurred by the
Indemnitees.
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(C) Waiver of Certain Claims. The Borrowers further agree to assert no
claim against any of the Indemnitees on any theory of liability seeking
consequential, special, indirect, exemplary or punitive damages.
(D) Survival of Agreements. The obligations and agreements of the
Borrowers under this Section 11.7 shall survive the termination of this
Agreement.
11.8 Numbers of Documents. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
11.9 Accounting. Except with respect to the pricing grid calculations
in Section 2.15 and the financial covenant calculations in Section 7.4 both of
which shall be made in accordance with Agreement Accounting Principles, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with generally accepted
accounting principles as in effect from time to time, consistently applied.
11.10 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
11.11 Nonliability of Lenders. The relationship between the Borrowers
and the Lenders and the Administrative Agent shall be solely that of borrower
and lender. Neither the Administrative Agent nor any Lender shall have any
fiduciary responsibilities to the Borrowers. Neither the Administrative Agent
nor any Lender undertakes any responsibility to any Borrower to review or inform
any Borrower of any matter in connection with any phase of the Borrowers'
business or operations.
11.12 GOVERNING LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS AGREEMENT,
ON BEHALF OF ITSELF AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND
AGREEING TO IT THERE. ANY DISPUTE BETWEEN ANY BORROWER AND THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE
WITH THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT
REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
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11.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. EACH BORROWER AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO
PROCEED AGAINST EACH BORROWER OR ITS RESPECTIVE PROPERTY IN A COURT IN ANY
LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER ANY
BORROWER OR (2) IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN
FAVOR OF SUCH PERSON. EACH BORROWER AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE UNRELATED COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO
REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF SUCH PERSON. EACH BORROWER WAIVES ANY OBJECTION THAT IT
MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A
PROCEEDING DESCRIBED IN THIS SUBSECTION (B).
(C) VENUE. EACH BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT,
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DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE
PARTIES HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY
HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.
(E) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF SECTION 11.7 AND THIS SECTION 11.13, WITH ITS COUNSEL.
11.14 Other Transactions. Each of the Agents, the Lead Arrangers, the
Arrangers, the Lenders, the Issuing Banks and the Borrowers acknowledge that the
Lenders (or Affiliates of the Lenders) may, from time to time, effect
transactions for their own accounts or the accounts of customers, and hold
positions in loans or options on loans of the Company, the Company's
Subsidiaries and other companies that may be the subject of this credit
arrangement and nothing in this Agreement shall impair the right of any such
Person to enter into any such transaction (to the extent it is not expressly
prohibited by the terms of this Agreement) or give any other Person any claim or
right of action hereunder as a result of the existence of the credit
arrangements hereunder, all of which are hereby waived. In addition, certain
Affiliates of one or more of the Lenders are or may be securities firms and as
such may effect, from time to time, transactions for their own accounts or for
the accounts of customers and hold positions in securities or options on
securities of the Company, the Company's Subsidiaries and other companies that
may be the subject of this credit arrangement and nothing in this Agreement
shall impair the right of any such Person to enter into any such transaction (to
the extent it is not expressly prohibited by the terms of this Agreement) or
give any other Person any claim or right of action hereunder as a result of the
existence of the credit arrangements hereunder, all of which are hereby waived.
Other business units affiliated with each of the Agents are providing other
financial services and products to the Company and its Subsidiaries in
connection with initial public offering of the Capital Stock of the Company and
the other transactions contemplated by this Agreement. Each of the Agents, the
Lead Arrangers, the Arrangers, the Lenders, the Issuing Banks and the Borrowers
acknowledges and consents to these multiple roles, and further acknowledges that
the fact that any such unit or Affiliate is providing another service or product
or proposal therefor to the Company or any of its Subsidiaries does not mean
that such service, product, or proposal is or will be acceptable to any of the
Agents, the Lead Arrangers, the Arrangers, the Lenders, or the Issuing Banks.
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ARTICLE XII: THE ADMINISTRATIVE AGENT
12.1 Appointment; Nature of Relationship. First Chicago is appointed by
the Lenders as the Administrative Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon the
express conditions contained in this Article XII. Notwithstanding the use of the
defined term "Administrative Agent," it is expressly understood and agreed that
the Administrative Agent shall not have any fiduciary responsibilities to any
Holder of Obligations by reason of this Agreement and that the Administrative
Agent is merely acting as the representative of the Lenders with only those
duties as are expressly set forth in this Agreement and the other Loan
Documents. In its capacity as the Lenders' contractual representative, the
Administrative Agent (i) does not assume any fiduciary duties to any of the
Holders of Obligations, (ii) is a "representative" of the Holders of Obligations
within the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is
acting as an independent contractor, the rights and duties of which are limited
to those expressly set forth in this Agreement and the other Loan Documents.
Each of the Lenders, for itself and on behalf of its affiliates as Holders of
Obligations, agrees to assert no claim against the Administrative Agent on any
agency theory or any other theory of liability for breach of fiduciary duty, all
of which claims each Holder of Obligations waives.
12.2 Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action hereunder or under any of the other Loan Documents
except any action specifically provided by the Loan Documents required to be
taken by the Administrative Agent.
12.3 General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Company, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is found in a final
judgment by a court of competent jurisdiction to have arisen solely from the
Gross Negligence or willful misconduct of such Person.
12.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc.
Neither the Administrative Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into,
or verify (i) any statement, warranty or representation made in connection with
any Loan Document or any borrowing hereunder; (ii) the performance or observance
of any of the covenants or agreements of any obligor under any Loan Document;
(iii) the satisfaction of any condition specified in Article V, except receipt
of items required to be delivered solely to the Administrative Agent; (iv) the
existence or possible existence of any Default or (v) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
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writing furnished in connection therewith. The Administrative Agent shall not be
responsible to any Lender for any recitals, statements, representations or
warranties herein or in any of the other Loan Documents, or for the execution,
effectiveness, genuineness, validity, legality, enforceability, collectibility,
or sufficiency of this Agreement or any of the other Loan Documents or the
transactions contemplated thereby, or for the financial condition of any
guarantor of any or all of the Obligations, the Company or any of its
Subsidiaries.
12.5 Action on Instructions of Lenders. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders (or all of the Lenders in the event
that and to the extent that this Agreement expressly requires such), and such
instructions and any action taken or failure to act pursuant thereto shall be
binding on all of the Lenders and on all owners of Loans and on all Holders of
Obligations. The Administrative Agent shall be fully justified in failing or
refusing to take any action hereunder and under any other Loan Document unless
it shall first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action. Subject to the preceding, the
Administrative Agent will act as directed by the Required Lenders.
12.6 Employment of Agents and Counsel. The Administrative Agent may
execute any of its duties as the Administrative Agent hereunder and under any
other Loan Document by or through employees, agents, and attorney-in-fact and
shall not be answerable to the Lenders, except as to money or securities
received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall be entitled to advice of counsel concerning the
contractual arrangement between the Administrative Agent and the Lenders and all
matters pertaining to the Administrative Agent's duties hereunder and under any
other Loan Document.
12.7 Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
12.8 The Administrative Agent's and the Alternate Currency Bank's
Reimbursement and Indemnification. The Lenders agree to reimburse and indemnify
the Administrative Agent and the Alternate Currency Banks ratably in proportion
to their respective Pro Rata Shares (i) for any amounts not reimbursed by any
Borrower for which the Administrative Agent and the Alternate Currency Banks are
entitled to reimbursement by any Borrower under the Loan Documents, (ii) for any
other expenses incurred by the Administrative Agent or any Alternate Currency
Bank on behalf of the Lenders, in connection with the preparation, execution,
delivery, administration and enforcement of the Loan Documents and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature
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whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent or any Alternate Currency Bank in any way relating to or
arising out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby, or the enforcement of any of
the terms thereof or of any such other documents, provided that no Lender shall
be liable for any of the foregoing to the extent any of the foregoing is found
in a final non- appealable judgment by a court of competent jurisdiction to have
arisen from the Gross Negligence or willful misconduct of the Administrative
Agent or the applicable Alternate Currency Bank.
12.9 Rights as a Lender. With respect to its Revolving Loan
Commitment, Loans made by it, and Letters of Credit issued by it, the
Administrative Agent shall have the same rights and powers hereunder and under
any other Loan Document as any Lender or Issuing Bank and may exercise the same
as though it were not the Administrative Agent, and the term "Lender" or
"Lenders", "Issuing Bank" or "Issuing Banks" shall, unless the context otherwise
indicates, include the Administrative Agent in its individual capacity. The
Administrative Agent may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the
Company or any of its Subsidiaries in which such Person is not prohibited hereby
from engaging with any other Person.
12.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Arranger
or any other Lender and based on the financial statements prepared by the
Company and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arranger or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
12.11 Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Company. Upon any such resignation, the Required Lenders shall have the right to
appoint, on behalf of the Borrowers and the Lenders, a successor Administrative
Agent. If no successor Administrative Agent shall have been so appointed by the
Required Lenders and shall have accepted such appointment within thirty days
after the retiring Administrative Agent's giving notice of resignation, then the
retiring Administrative Agent may appoint, on behalf of the Borrowers and the
Lenders, a successor Administrative Agent. Notwithstanding anything herein to
the contrary, so long as no Default has occurred and is continuing, each such
successor Administrative Agent shall be subject to approval by the Company,
which approval shall not be unreasonably withheld. Such successor Administrative
Agent shall be a commercial bank having capital and retained earnings of at
least $500,000,000. Upon the acceptance of any appointment as the Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations
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hereunder and under the other Loan Documents. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article XII shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative
Agent hereunder and under the other Loan Documents.
12.12. No Duties Imposed Upon Syndication Agent, Co-Documentation
Agents, Lead Arrangers or Arrangers. None of the Persons identified on the cover
page to this Agreement, the signature pages to this Agreement or otherwise in
this Agreement as a "Syndication Agent" or "Co- Documentation Agent" or "Lead
Arranger" or "Arranger" shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, if such Person is a
Lender, those applicable to all Lenders as such. Without limiting the foregoing,
none of the Persons identified on the cover page to this Agreement, the
signature pages to this Agreement or otherwise in this Agreements as a
"Syndication Agent" or "Co-Documentation Agent" or "Lead Arranger" or "Arranger"
shall have or be deemed to have any fiduciary duty to or fiduciary relationship
with any Lender. In addition to the agreements set forth in Section 12.10, each
of the Lenders acknowledges that it has not relied, and will not rely, on any of
the Persons so identified in deciding to enter into this Agreement or in taking
or not taking action hereunder.
ARTICLE XIII: SETOFF; RATABLE PAYMENTS
13.1 Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Default occurs and is continuing and
after the affirmative consent of the Administrative Agent or the Required
Lenders, any Indebtedness from any Lender to the Company or any other Borrower
(including all account balances, whether provisional or final and whether or not
collected or available) may be offset and applied toward the payment of the
Obligations owing to such Lender, whether or not the Obligations, or any part
hereof, shall then be due.
13.2 Ratable Payments. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Loans (other than payments received pursuant to
Sections 4.1, 4.2 or 4.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligation or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to the obligations owing to them. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
13.3 Application of Payments. Subject to the provisions of Section 9.2,
the Administrative Agent shall, unless otherwise specified at the direction of
the Required Lenders which direction shall be consistent with the last sentence
of this Section 13.3, apply all payments and prepayments
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in respect of any Obligations in the following order:
(A) first, to pay interest on and then principal of any
portion of the Loans which the Administrative Agent may have advanced
on behalf of any Lender for which the Administrative Agent has not then
been reimbursed by such Lender or the applicable Borrower;
(B) second, to pay interest on and then principal of any
advance made under Section 11.3 for which the Administrative Agent has
not then been paid by the applicable Borrower or reimbursed by the
Lenders;
(C) third, to the ratable payment of the Obligations in
respect of any fees, expenses, reimbursements or indemnities then due
to the Administrative Agent, each Lead Arranger and each Arranger;
(D) fourth, to pay Obligations in respect of any fees,
expenses, reimbursements or indemnities then due to the Lenders and the
issuer(s) of Letters of Credit;
(E) fifth, to pay interest due in respect of Loans and L/C
Obligations;
(F) sixth, to the ratable payment or prepayment of principal
outstanding on Loans, Reimbursement Obligations in such order as the
Administrative Agent may determine in its sole discretion;
(G) seventh, to provide required cash collateral, if required
pursuant to Section 3.11 and
(H) eighth, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Company, all principal payments in respect
of Loans shall be applied first, to repay outstanding Floating Rate Loans, and
then to repay outstanding Eurocurrency Rate Loans with those Eurocurrency Rate
Loans which have earlier expiring Interest Periods being repaid prior to those
which have later expiring Interest Periods. The order of priority set forth in
this Section 13.3 and the related provisions of this Agreement are set forth
solely to determine the rights and priorities of the Administrative Agent, the
Lead Arrangers, the Arrangers, the Lenders and the issuer(s) of Letters of
Credit as among themselves. The order of priority set forth in clauses (D)
through (H) of this Section 13.3 may at any time and from time to time be
changed by the Required Lenders without necessity of notice to or consent of or
approval by the Company or any other Person. The order of priority set forth in
clauses (A) through (C) of this Section 13.3 may be changed only with the prior
written consent of the Administrative Agent, and, in the case of clause (C),
with the prior written consent of the Lead Arrangers and the Arrangers affected
thereby.
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13.4 Relations Among Lenders. The Lenders are not partners or
co-venturers, and no Lender shall be liable for the acts or omissions of, or
(except as otherwise set forth herein in case of the Administrative Agent)
authorized to act for, any other Lender.
ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
14.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that (A) no
Borrower shall have any right to assign its rights or obligations under the Loan
Documents without the consent of all of the Lenders, and any such assignment in
violation of this Section 14.1(A) shall be null and void, and (B) any assignment
by any Lender must be made in compliance with Section 14.3 hereof.
Notwithstanding clause (B) of this Section 14.1 or Section 14.3, (i) any Lender
may at any time, without the consent of any Borrower or the Administrative
Agent, assign all or any portion of its rights under this Agreement to a Federal
Reserve Bank and (ii) any Lender which is a fund or commingled investment
vehicle that invests in commercial loans in the ordinary course of its business
may at any time, without the consent of any Borrower or the Administrative
Agent, pledge or assign all or any part of its rights under this Agreement to a
trustee or other representative of holders of obligations owed or securities
issued by such Lender as collateral to secure such obligations or securities;
provided, however, that no such assignment or pledge shall release the
transferor Lender from its obligations hereunder. The Administrative Agent may
treat each Lender as the owner of the Loans made by such Lender hereunder for
all purposes hereof unless and until such Lender complies with Section 14.3
hereof in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Administrative
Agent. Any assignee or transferee of a Loan, Revolving Loan Commitment, L/C
Interest or any other interest of a lender under the Loan Documents agrees by
acceptance thereof to be bound by all the terms and provisions of the Loan
Documents. Any request, authority or consent of any Person, who at the time of
making such request or giving such authority or consent is the owner of any
Loan, shall be conclusive and binding on any subsequent owner, transferee or
assignee of such Loan.
14.2 Participations.
(A) Permitted Participants; Effect. Subject to the terms set forth in
this Section 14.2, any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in any Loan owing to such
Lender, any Revolving Loan Commitment of such Lender, any L/C Interest of such
Lender or any other interest of such Lender under the Loan Documents on a pro
rata or non-pro rata basis. Notice of such participation to the Company and the
Administrative Agent shall be required prior to any participation becoming
effective with respect to a Participant which is not a Lender or an Affiliate
thereof. Upon receiving said notice, the Administrative Agent shall record the
participation in the Register it maintains. Moreover, notwithstanding such
recordation, such participation shall not be considered an assignment under
Section 14.3 of this Agreement and such
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Participant shall not be considered a Lender. In the event of any such sale by a
Lender of participating interests to a Participant, such Lender's obligations
under the Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
such Lender shall remain the owner of all Loans made by it for all purposes
under the Loan Documents, all amounts payable by the applicable Borrower under
this Agreement shall be determined as if such Lender had not sold such
participating interests, and the applicable Borrower and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under the Loan Documents except that,
for purposes of Article IV hereof, the Participants shall be entitled to the
same rights as if they were Lenders.
(B) Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan, Letter of Credit or Revolving Loan Commitment
in which such Participant has an interest which forgives principal, interest or
fees or reduces the interest rate or fees payable pursuant to the terms of this
Agreement with respect to any such Loan or Revolving Loan Commitment, or
postpones any date fixed for any regularly-scheduled payment of principal of, or
interest or fees on, any such Loan or Revolving Loan Commitment.
14.3 Assignments.
(A) Permitted Assignments. (i) Any Lender (each such assigning Lender
under this Section 14.3 being a "SELLER") may, in accordance with applicable
law, at any time assign to one or more banks or other entities (other than the
Company or any of its Affiliates) ("PURCHASERS") all or a portion of its rights
and obligations under this Agreement (including, without limitation, its
Revolving Loan Commitment, all Loans owing to it, all of its participation
interests in existing Letters of Credit and Alternate Currency Loans, and its
obligation to participate in additional Letters of Credit and Alternate Currency
Loans hereunder) in accordance with the provisions of this Section 14.3. Each
assignment shall be of a constant, and not a varying, ratable percentage of all
of the Seller's rights and obligations under this Agreement. Such assignment
shall be substantially in the form of Exhibit D hereto and shall not be
permitted hereunder unless such assignment is either for all of such Seller's
rights and obligations under the Loan Documents or, without the prior written
consent of the Administrative Agent and the Alternate Currency Banks, involves
loans and commitments in an aggregate amount of at least $5,000,000 (which
minimum amount (i) shall not apply to any assignment between Lenders, or to an
Affiliate or Approved Fund of any Lender, and (ii) in any event may be waived by
the Administrative Agent). The written consent of the Administrative Agent and
the Alternate Currency Banks, and, prior to the occurrence of a Default, the
Company (which consent, in each such case, shall not be unreasonably withheld),
shall be required prior to an assignment becoming effective with respect to a
Purchaser which is not a Lender or an Affiliate or Approved Fund of such Lender.
(ii) Notwithstanding anything to the contrary contained herein,
any Lender (each such
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Lender, a "GRANTING BANK") may grant to a special purpose funding
vehicle (each such special purpose funding vehicle, a "SPC"),
identified as such in writing from time to time by the applicable
Granting Bank to the Administrative Agent and the Company, the option
to provide to the Company and the other Borrowers all or any part of
any Advance that such Granting Bank would otherwise be obligated to
make to the applicable Borrower pursuant to this Agreement; provided,
that (i) nothing herein shall constitute a commitment by any SPC to
make any Advance, (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Advance, the
applicable Granting Bank shall be obligated to make such Advance
pursuant to the terms hereof. The making of an Advance by any SPC
hereunder shall utilize the Revolving Loan Commitment of the applicable
Granting Bank to the same extent, and as if, such Advance were made by
such Granting Bank. Each party hereto hereby agrees that no SPC shall
be liable for any indemnity or other similar payment obligation under
this Agreement (all liability for which shall remain with the
applicable Granting Bank). All notices hereunder to any Granting Bank
or the related SPC, and all payments in respect of the Obligations due
to such Granting Bank or the related SPC, shall be made to such
Granting Bank. In addition, each Granting Bank shall vote as a Lender
hereunder without giving effect to any assignment under this Section
14.3(A)(ii), and no SPC shall have any vote as a Lender under this
Agreement for any purpose. In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day
after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join
any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section
14.3, any SPC may (i) with notice to, but without the prior written
consent of, the Company and the Administrative Agent and without paying
any processing or administrative fee therefor, assign all or a portion
of its interests in any Advances to the Granting Bank or to any
financial institutions (consented to by the Company and the
Administrative Agent in accordance with the terms of Section
14.3(A)(i)) providing liquidity and/or credit support to or for the
account of such SPC to support the funding or maintenance of Advances
and (ii) disclose on a confidential basis any non-public information
relating to its Advances to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancement
to such SPC. This Section 14.3(A)(ii) may not be amended without the
written consent of each SPC affected thereby.
(B) Effect; Effective Date. Upon (i) delivery to the Administrative
Agent and the Alternate Currency Banks of a notice of assignment, substantially
in the form attached as Appendix I to Exhibit D hereto (a "NOTICE OF
ASSIGNMENT"), together with any consent required by Section 14.3(A) hereof, (ii)
payment of a $3,500 fee by the assignee or the assignor (as agreed) to the
Administrative Agent for processing such assignment (other than an assignment by
a Lender to an affiliate of such Lender or an Approved Fund of such Lender), and
(iii) the completion of the
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recording requirements in Section 14.3(C), such assignment shall become
effective on the later of such date when the requirements in clauses (i), (ii),
and (iii) are met or the effective date specified in such Notice of Assignment.
The Notice of Assignment shall contain a representation by the Purchaser to the
effect that none of the consideration used to make the purchase of the Revolving
Loan Commitment, Loans and L/C Obligations under the applicable assignment
agreement are "plan assets" as defined under ERISA and that the rights and
interests of the Purchaser in and under the Loan Documents will not be "plan
assets" under ERISA. On and after the effective date of such assignment, such
Purchaser, if not already a Lender, shall for all purposes be a Lender party to
this Agreement and any other Loan Documents executed by the Lenders and shall
have all the rights and obligations of a Lender under the Loan Documents, to the
same extent as if it were an original party hereto, and no further consent or
action by any Borrower, the Lenders, the Alternate Currency Banks or the
Administrative Agent shall be required to release the Seller with respect to the
percentage of the Aggregate Revolving Loan Commitment, Loans and Letter of
Credit and Alternate Currency Loan participations assigned to such Purchaser.
Upon the consummation of any assignment to a Purchaser pursuant to this Section
14.3(B), the Seller, the Administrative Agent, the Alternate Currency Banks and
the Borrowers shall make appropriate arrangements so that, to the extent notes
have been issued to evidence any of the transferred Loans, replacement notes are
issued to such Seller and new notes or, as appropriate, replacement notes, are
issued to such Purchaser, in each case in principal amounts reflecting their
Revolving Loan Commitment, as adjusted pursuant to such assignment.
Notwithstanding anything to the contrary herein, no Borrower shall, at any time,
be obligated to pay under Section 2.15(E) to any Lender that is a Purchaser,
assignee or transferee any sum in excess of the sum which such Borrower would
have been obligated to pay to the Lender that was the Seller, assignor or
transferor had such assignment or transfer not been effected.
(C) The Register. Notwithstanding anything to the contrary in this
Agreement, each Borrower hereby designates the Administrative Agent, and the
Administrative Agent, hereby accepts such designation, to serve as such
Borrower's contractual representative solely for purposes of this Section
14.3(C). In this connection, the Administrative Agent shall maintain at its
address referred to in Section 15.1 a copy of each Commitment and Acceptance
delivered pursuant to Section 2.6(b) and each assignment delivered to and
accepted by it pursuant to this Section 14.3 and a register (the "REGISTER") for
the recordation of the names and addresses of the Lenders and the Revolving Loan
Commitment of, principal amount of and interest on the Loans owing to, each
Lender from time to time and whether such Lender is an original Lender, became a
Lender pursuant to Section 2.6(b) or the assignee of another Lender pursuant to
an assignment under this Section 14.3. The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the Company
and each of its Subsidiaries, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
any Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
14.4 Confidentiality. Subject to Section 14.5, the Administrative
Agent and the Lenders and their respective representatives shall hold all
nonpublic information obtained pursuant to the
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requirements of this Agreement and identified as such by the Company or any
other Borrower in accordance with such Person's customary procedures for
handling confidential information of this nature and in accordance with safe and
sound commercial lending or investment practices and in any event may make
disclosure reasonably required by a prospective Transferee in connection with
the contemplated participation or assignment or as required or requested by any
Governmental Authority or any securities exchange or similar self-regulatory
organization or representative thereof or pursuant to a regulatory examination
or legal process, or to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor, and shall
require any such Transferee to agree (and require any of its Transferees to
agree) to comply with this Section 14.4. In no event shall the Administrative
Agent or any Lender be obligated or required to return any materials furnished
by the Company; provided, however, each prospective Transferee shall be required
to agree that if it does not become a participant or assignee it shall return
all materials furnished to it by or on behalf of the Company in connection with
this Agreement.
14.5 Dissemination of Information. Each Borrower authorizes each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in such Lender's possession
concerning the Company and its Subsidiaries; provided that prior to any such
disclosure, such prospective Transferee shall agree to preserve in accordance
with Section 14.4 the confidentiality of any confidential information described
therein.
ARTICLE XV: NOTICES
15.1 Giving Notice. Except as otherwise permitted by Section 2.14 with
respect to Borrowing/Conversion/Continuation Notices, all notices and other
communications provided to any party hereto under this Agreement or any other
Loan Documents shall be in writing or by telex or by facsimile and addressed or
delivered to such party at its address set forth below its signature hereto or
at such other address as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if transmitted by
telex or facsimile, shall be deemed given when transmitted (answerback confirmed
in the case of telexes).
15.2 Change of Address. The Borrowers, the Administrative Agent and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
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ARTICLE XVI: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Company, the
Administrative Agent and the Lenders and each party has notified the
Administrative Agent by telex or telephone, that it has taken such action.
[Remainder of This Page Intentionally Blank]
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IN WITNESS WHEREOF, the Company, the Lenders and the Administrative
Agent have executed this Agreement as of the date first above written.
AMERICAN NATIONAL CAN GROUP, INC.,
as the Company
By: Dennis M. Byrd
Name: Dennis M. Byrd
Title: Vice President and Treasurer
Address: 8770 West Bryn Mawr Avenue
Chicago, IL 60631
Attention: Vice-President -- Treasurer
Telephone No.: (773) 399-3170
Facsimile No.: (773) 399-3115
with a copy to:
Attention: General Counsel
Telephone No.: (773) 399-3522
Facsimile No.: (773) 399-3527
Address: 8770 West Bryn Mawr Avenue
Chicago, IL 60631
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-1
<PAGE> 137
THE FIRST NATIONAL BANK OF
CHICAGO, as Administrative Agent, as an
Issuing Bank, as an Alternate Currency Bank
and as a Lender
By: Susan L. Comstock
Name: Susan L. Comstock
Title: First Vice President
Address:
One First National Plaza
Chicago, Illinois 60670
Attention: Susan L. Comstock
Telephone No.: (312) 732-4244
Facsimile No.: (312) 732-1916
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-2
<PAGE> 138
THE CHASE MANHATTAN BANK, as
Syndication Agent and as a Lender
By: Peter M. Hayes
Name: Peter M. Hayes
Title: Vice President
Address: 270 Park Avenue
30th Floor
New York, NY 10017
Telephone No.: (212) 270-6698
Facsimile No.: (212) 270-1629
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-3
<PAGE> 139
ABN AMRO BANK N.V., as Co-Documentation
Agent, as Arranger, as CLO Administrative
Agent and as a Lender
By: Thomas A. Kramer
Name: Thomas A. Kramer
Title: Group Vice President
By: Mary L. Honda
Name: Mary L. Honda
Title: Vice President
Address: 135 South LaSalle St.
Suite 625
Chicago, IL 60603
Attention: Mary Honda
Telephone No.: (312) 904-5220
Facsimile No.: (312) 606-8425
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-4
<PAGE> 140
ROYAL BANK OF CANADA, as Co-
Documentation Agent, as Arranger and as a
Lender
By: John Crawford
Name: John Crawford
Title: Senior Manager
Address: Credit Issues:
One Liberty Plaza, 5th Floor
New York, NY 10006
Attention: John Crawford
Telephone No.: (212) 428-6261
Facsimile No.: (212) 428-6459
E-Mail: [email protected]
Address: Administrative:
One Liberty Plaza, 4th Floor
New York, NY 10006
Attention: Danielle Giles
Telephone No.: (212) 428-6332
Facsimile No.: (212) 428-2372
E-Mail:
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-5
<PAGE> 141
BANQUE NATIONALE DE PARIS, as Arranger
By: Simon Allocca
Name: Simon Allocca
Title: Vice President
Address: 8-13 King Williams Street
London, UK EC4P 4HS
Attention: Simon Allocca
Telephone No.: +44 171 772 9886
Facsimile No.: +44 171 548 9499
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-6
<PAGE> 142
THE BANK OF TOKYO - MITSUBISHI, LTD.,
as a Lender
By: Hisashi Miyashiro
Name: Hisashi Miyashiro
Title: Deputy General Manager
Address: 227 West Monroe, Suite 2300
Chicago, IL 60606
Telephone No.: (312) 696-4662
Facsimile No.: (312) 696-4535
E-Mail: [email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-7
<PAGE> 143
FIRST UNION NATIONAL BANK, as a Lender
By: John E. Reid
Name: John E. Reid
Title: Vice President
Address: 301 South College St. TW-10
Charlotte, NC 28288-0745
Telephone No.: (704) 383-1385
Facsimile No.: (704) 383-7236
E-Mail: [email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-8
<PAGE> 144
CREDIT AGRICOLE INDOSUEZ, as a Lender
By: Craig Welch
Name: Craig Welch
Title: First Vice President
By: Michael G. Haggarty
Name: Michael G. Haggarty
Title: Vice President
Address: 520 Madison Ave. 8th Floor
New York, NY 10022
Telephone No.: (212) 418-7042
Facsimile No.: (212) 418-2228
E-Mail:
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-9
<PAGE> 145
BANK BOSTON N.A., as a Lender
By: Ravi Kacker
Name: Ravi Kacker
Title: Vice President
Address: 100 Federal Street
Mail Stop: MA BOS 01-10-01
Boston, MA 02110
Telephone No.: (617) 434-4708
Facsimile No.: (617) 434-0601
E-Mail: [email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-10
<PAGE> 146
CREDIT SUISSE - FIRST BOSTON, as a Lender
By: Bill O'Daly
Name: Bill O'Daly
Title: Vice President
By: Robert Hetu
Name: Robert Hetu
Title: Vice President
Address: Eleven Madison Avenue
New York, NY 10010-3629
Telephone No.: (212) 325-1986 (O'Daly)
Facsimile No.: (212) 325-8314
E-Mail: [email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-11
<PAGE> 147
FORTIS (USA) FINANCE, LLC, as a Lender
By: David Snyder
Name: David Snyder
Title: Senior Vice President
By: E. Matthews
Name: A. Edwin Matthews
Title: Senior Vice President
Address: 520 Madison Avenue
3rd Floor
New York, NY 10022
Attention: Loan Administration
Telephone No.: (212) 418-8700
Facsimile No.: (212) 750-9503
E-Mail: [email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-12
<PAGE> 148
FLEET NATIONAL BANK, as a Lender
By: Steve Kalin
Name: G. Steven Kalin
Title: Vice President
Address: One Federal Street
Boston, MA 02110
Telephone No.: (617) 346-0877
Facsimile No.: (617) 346-0145
E-Mail: [email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-13
<PAGE> 149
THE SUMITOMO BANK, LTD., as a Lender
By: John H. Kemper
Name: John H. Kemper
Title: Senior Vice President
Address: Lisette Villamueva-Ruiz
The Sumitomo Bank - New York Branch
227 Park Avenue
New York, NY 10172
Telephone No.: (212) 224-4185
Facsimile No.: (212) 224-5197
E-Mail: lisette_villanueva-
[email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-14
<PAGE> 150
WACHOVIA BANK, N.A., as a Lender
By: Deborah L. Coheley
Name: Deborah L. Coheley
Title: Senior Vice President
Address: 191 Peachtree St. N.E.
Atlanta, GA 30303
Telephone No.: (404) 332-1291
Facsimile No.: (404) 332-6898
E-Mail:
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-15
<PAGE> 151
HARRIS TRUST AND SAVINGS BANK, as a
Lender
By: Robert H. Wolohan
Name: Robert H. Wolohan
Title: Vice President
Address: 111 W. Monroe St., 18W
Chicago, IL 60603
Telephone No.: (312) 461-6049
Facsimile No.: (312) 765-8095
E-Mail: [email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-16
<PAGE> 152
BANK HAPOALIM B.M., as a Lender
By: Michael J. Byrne
Name: Michael J. Byrne
Title: Vice President - Senior
Lending Officer
By: Phillip E. Gansch
Name: Phillip E. Gansch
Title: Vice President
Address: Bank Hapoalim B.M.
225 N. Michigan Ave., Suite 900
Chicago, IL 60601
Attention: Michael Kearney
Telephone No.: (312) 228-6425
Facsimile No.: (312) 228-6490
E-Mail:
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-17
<PAGE> 153
BANCA DI ROMA - CHICAGO BRANCH, as a
Lender
By: Aurora Pensa
Name: Aurora Pensa (97974)
Title: Vice President
By: Luca Balestra
Name: Luca Balestra (25050)
Title: Vice President and Deputy Manager
Address: Banca Di Roma
225 W. Washington St., Suite 1200
Chicago, IL 60606
Telephone No.: (312) 704-2629
Facsimile No.: (312) 726-3058
E-Mail:
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-18
<PAGE> 154
BANCA NAZIONALE DEL LAVORO S. P. A. -
NEW YORK BRANCH, as a Lender
By: Giulio Giovine
Name: Giulio Giovine
Title: Vice President
By: Leonardo Valentini
Name: Leonardo Valentini
Title: First Vice President
Address: 25 West 51st Street
New York, NY 10019
Telephone No.: (212) 314-0239
Facsimile No.: (212) 765-2978
E-Mail: [email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-19
<PAGE> 155
BANCO BILBAO VIZCAYA S.A., as a Lender
By: John Martini Carreras
Name: John Martini Carreras
Title: Vice President
By: Alejandro Lorca
Name: Alejandro Lorca
Title: Vice President
Address: 1345 Avenue of the Americas
45th Floor
New York, NY 10122
Telephone No.: (212) 728-1653
Facsimile No.: (212) 333-2904
E-Mail: [email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-20
<PAGE> 156
THE BANK OF NEW YORK, as a Lender
By: John Lokay
Name: John M. Lokay, Jr.
Title: Vice President
Address: One Wall Street
New York, NY 10286
Telephone No.: (212) 635-1172
Facsimile No.: (212) 635-1208
E-Mail: [email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-21
<PAGE> 157
BANKERS TRUST COMPANY, as a Lender
By: Robert R. Telesca
Name: Robert R. Telesca
Title: Assistant Vice President
Address:
Telephone No.:
Facsimile No.:
E-Mail:
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-22
<PAGE> 158
BARCLAYS BANK PLC, as a Lender
By: T. Bullock
Name: Terance Bullock
Title: Vice President
Address: 222 Broadway
New York, NY 10038
Telephone No.: (212) 412-2554
Facsimile No.: (212) 412-7590
E-Mail: [email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-23
<PAGE> 159
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE, as a Lender
By: Eric Longuet
Name: Eric Longuet
Title: Vice President
By: Martha Skidmore
Name: Martha Skidmore
Title: Vice President
Address: 520 Madison Avenue
New York, NY 10022
Telephone No.: (212) 715-4456
Facsimile No.: (212) 715-4535
E-Mail: [email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-24
<PAGE> 160
THE DAI-ICHI KANGYO BANK, LTD., as a
Lender
By: N. Fukatsu
Name: Nobuyasu Fukatsu
Title: Vice President
Address: 10 South Wacker Drive
26th Floor
Chicago, IL 60606
Telephone No.: (312) 715-6362
Facsimile No.: (312) 876-2011
E-Mail: [email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-25
<PAGE> 161
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Lender
By: John R. Morrison
Name: John R. Morrison
Title: Vice President
By: Christopher E. Sarisky
Name: Christopher E. Sarisky
Title: Assistant Vice President
Address: Dresdner Bank AG - Chicago Branch
190 S. LaSalle Street, Suite 2700
Chicago, IL 60603
Attention: Jim Jerz and Craig Payne
Telephone No.: (312) 444-1851 or (312) 444-1314
Facsimile No.: (312) 444-1305 or (312) 444-1301
E-Mail: [email protected] or
[email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-26
<PAGE> 162
THE INDUSTRIAL BANK OF JAPAN,
LIMITED., as a Lender
By: Walter Wolff
Name: Walter R. Wolff
Title: Joint General Manager
Address: 227 W. Monroe , Suite 2600
Chicago, IL 60606
Telephone No.: (312) 855-1111
Facsimile No.: (312) 855-8200
E-Mail:
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-27
<PAGE> 163
KBC BANK N.V., as a Lender
By: John E. Thierfelder
Name: John E. Thierfelder
Title: Vice President
By: R. Snauffer
Name: Robert Snauffer
Title: First Vice President
Address: 125 West 55th Street
New York, NY 10019
Telephone No.: (212) 541-0600
Facsimile No.: (212) 541-0793
E-Mail:
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-28
<PAGE> 164
MERCANTILE BANK NATIONAL
ASSOCIATION, as a Lender
By: Gerald S. Kirk
Name: Gerald S. Kirk
Title: Vice President
Address: One Mercantile Center
12th Floor
St. Louis, MO 63101
Telephone No.: (314) 418-8247
Facsimile No.: (314) 418-2203
E-Mail: [email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-29
<PAGE> 165
THE SANWA BANK, LTD., as a Lender
By: Kenneth C. Eichwald
Name: Kenneth C. Eichwald
Title: First Vice President and
Assistant General Manager
Address: 10 S. Wacker Drive, 31st Floor
Chicago, IL 60606
Telephone No.: (312) 228-6410
Facsimile No.: (312) 228-6490
E-Mail:
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-30
<PAGE> 166
SUNTRUST BANK, ATLANTA, as a Lender
By: Shelley Browne
Name: Shelley Browne
Title: Managing Director
Address: 303 Peachtree Street
Mailcode 1928 3rd Floor
Atlanta, GA 30308
Telephone No.: (404) 588-7915
Facsimile No.: (404) 658-4905
E-Mail:
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-31
<PAGE> 167
UNICREDITO ITALIANO (NEW YORK), as a
Lender
By: Nicola Longo Dente
Name: Nicola Longo Dente
Title: First Vice President
By: Charles Michael
Name: Charles Michael
Title: Vice President
Address: 375 Park Avenue, 2nd Floor
New York, NY 10152
Telephone No.: (212) 546-9611
Facsimile No.: (212) 546-9665
E-Mail:
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-32
<PAGE> 168
COMERICA BANK, as a Lender
By: Herbert H. Schluderberg
Name: Herbert H. Schluderberg
Title: Vice President
Address: 203 N. LaSalle, Suite 2240
Chicago, IL 60606
Telephone No.: (312) 223-7670
Facsimile No.: (312) 223-7657
E-Mail: [email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-33
<PAGE> 169
NATIONAL CITY BANK, as a Lender
By: Matthew R. Klinger
Name: Matthew R. Klinger
Title: Assistant Vice President
Address: National City Bank
20 North Wacker Drive
Suite 3012
Chicago, IL 60606
Telephone No.: (312) 739-0953
Facsimile No.: (312) 240-0301
E-Mail: [email protected]
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-34
<PAGE> 170
THE NORTHERN TRUST COMPANY, as a
Lender
By: Nicole Boehm
Name: Nicole Boehm
Title: Commercial Credit Officer
Address: 50 S. LaSalle St.
Chicago, IL 60675
Telephone No.: (312) 444-3640
Facsimile No.: (312) 630-6062
E-Mail:
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-35
<PAGE> 171
BANQUE NATIONALE DE PARIS, as a Lender
By: Arnaud Collin du Bocage
Name: Arnaud Collin du Bocage
Title: Executive Vice President &
General Manager
Address: 209 South LaSalle Street
5th Floor
Chicago, IL 60604
Telephone No.:
Facsimile No.:
Signature Page to 5-Year Revolving Credit Agreement
dated as of July, 1999
S-36
<PAGE> 172
EXHIBIT A-1
EUROCURRENCY PAYMENT OFFICES
- -------------------------------------------------------------------------------
AGREED CURRENCY THE FIRST NATIONAL BANK OF CHICAGO, AS
ADMINISTRATIVE AGENT
- -------------------------------------------------------------------------------
DOLLARS The First National Bank of Chicago
Attn: Funding Desk / Operations
One First National Plaza
Chicago, Illinois 60670
- -------------------------------------------------------------------------------
S-37
<PAGE> 173
EXHIBIT A
TO
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
COMMITMENTS
REVOLVING LOAN COMMITMENTS
Lender Amount of Revolving Loan % of Aggregate Revolving
- ------ ------------------------ ------------------------
Commitment Loan Commitment
---------- ---------------
The First National Bank of
Chicago $44,375,000 7.395%
The Chase Manhattan Bank $44,375,000 7.395%
ABN AMRO Bank N.V. $0 0.000%
Royal Bank of Canada $44,375,000 7.395%
Banque Nationale de Paris $44,375,000 7.395%
The Bank of
Tokyo - Mitsubishi, Ltd. $30,000,000 5.000%
First Union National Bank $30,000,000 5.000%
Credit Agricole Indosuez $17,500,000 2.916%
Bank Boston N.A. $17,500,000 2.916%
Credit Suisse - First Boston $17,500,000 2.916%
Fortis (USA) Finance LLC $17,500,000 2.916%
Fleet National Bank $17,500,000 2.916%
The Sumitomo Bank, Ltd. $17,500,000 2.916%
Wachovia Bank, N.A. $17,500,000 2.916%
Harris Trust and Savings Bank $17,500,000 2.916%
<PAGE> 174
Bank Hapoalim B.M. $12,500,000 2.083%
Banca di Roma - Chicago Branch $12,500,000 2.083%
Banca Nazionale del Lavoro
S. p. A. - New York Branch $12,500,000 2.083%
Banco Bilbao Vizcaya S.A. $12,500,000 2.083%
The Bank of New York $12,500,000 2.083%
Bankers Trust Company $12,500,000 2.083%
Barclays Bank PLC $12,500,000 2.083%
Compagnie Financiere de
CIC et de L'Union Europeenne $12,500,000 2.083%
The Dai-Ichi Kangyo Bank, Ltd. $12,500,000 2.083%
Drescher Bank AG, New York
and Grand Cayman Branches $12,500,000 2.083%
The Industrial Bank
of Japan, Limited. $12,500,000 2.083%
KBC Bank N.V. $12,500,000 2.083%
Mercantile Bank
National Association $12,500,000 2.083%
The Sanwa Bank, Limited $12,500,000 2.083%
SunTrust Bank, Atlanta $12,500,000 2.083%
UniCredito Italiano (New York) $12,500,000 2.083%
Comerica Bank $7,500,000 1.250%
National City Bank $7,500,000 1.250%
The Northern Trust Company $7,500,000 1.250%
TOTAL: $600,000,000 100%
2
<PAGE> 175
EXHIBIT B
TO
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF BORROWING/CONVERSION/CONTINUATION NOTICE
TO: The First National Bank of Chicago, as contractual representative for
itself and the other Lenders (the "Administrative Agent") under that
certain 5-Year Revolving Credit Agreement dated as of July 22, 1999 among
American National Can Group, Inc. (the "Company"), the Subsidiary Borrowers
from time to time party thereto, the financial institutions parties thereto
(the "Lenders"), The Chase Manhattan Bank, individually and as syndication
agent (the "Syndication Agent") on behalf of the Lenders, ABN AMRO Bank
N.V., individually and as co-documentation agent and arranger (the
"Co-Documentation Agent and Arranger") on behalf of the Lenders, Royal Bank
of Canada, individually and as co-documentation agent and arranger (the
"Co-Documentation Agent and Arranger") on behalf of the Lenders, Banque
Nationale De Paris, individually and as arranger (the "Arranger") on behalf
of the Lenders, Chase Securities, Inc., individually and as lead arranger
and joint book manager (the "Lead Arranger and Joint Book Manager") on
behalf of the Lenders, and Banc One Capital Markets, Inc., individually and
as lead arranger and joint book manager (the "Lead Arranger and Joint Book
Manager") on behalf of the Lenders (such 5-Year Revolving Credit Agreement,
as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement").
The [Company][undersigned Subsidiary Borrower] hereby gives to the
Administrative Agent a [Borrowing/Conversion/Continuation Notice pursuant to
Section 2.8] [a Borrowing/Conversion/Continuation Notice pursuant to Section
2.10] of the Credit Agreement, and the [Company][undersigned Subsidiary
Borrower] hereby requests to [borrow] [convert] [continue] on , (the "Borrowing
Date") from the Lenders on a pro rata basis an aggregate principal amount of:
[US $____________] [______________] in the Agreed Currency described
below] in Revolving Loans as a
[ ] Floating Rate Advance
3
<PAGE> 176
[ ] Eurocurrency Rate Advance
. Applicable Interest Period of ___________ month(s).
. Agreed Currency: _________.
The undersigned hereby certifies to the Agents and the Lenders that (i) the
representations and warranties of the undersigned contained in Article VI of the
Credit Agreement are and shall be true and correct in all material respects on
and as of the date hereof and on and as of the Borrowing Date (unless such
representation and warranty is made as of a specified date, in which case, such
representation and warranty shall be true and correct in all material respects
as of such date) except for changes in the Schedules to the Credit Agreement
affecting transactions permitted by or not in violation of the Credit Agreement;
(ii) no Default or Unmatured Default has occurred and is continuing on the date
hereof or on the Borrowing Date or will result from the making of the proposed
Advance; and (iii) the conditions set forth in Section 5.3 of the Credit
Agreement have been satisfied.
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meanings in this Borrowing/Conversion/Continuation Notice.
Dated July 22, 1999
[AMERICAN NATIONAL CAN GROUP, INC.]
[SUBSIDIARY BORROWER]
By:
-------------------------------
Name:
Title:
4
<PAGE> 177
EXHIBIT C
TO
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF REQUEST FOR LETTER OF CREDIT
TO: ____________(1), an Issuing Bank under that certain 5-Year Revolving Credit
Agreement dated as of July 22, 1999 among American National Can Group, Inc.
(the "Company"), the Subsidiary Borrowers from time to time party thereto,
the financial institutions parties thereto (the "Lenders"), The First
National Bank of Chicago, individually and as Administrative Agent on
behalf of the Lenders, The Chase Manhattan Bank, individually and as
syndication agent (the "Syndication Agent") on behalf of the Lenders, ABN
AMRO Bank N.V., individually and as co-documentation agent and arranger
(the "Co-Documentation Agent and Arranger") on behalf of the Lenders, Royal
Bank of Canada, individually and as co-documentation agent and arranger
(the "Co-Documentation Agent and Arranger") on behalf of the Lenders,
Banque Nationale De Paris, individually and as arranger (the "Arranger") on
behalf of the Lenders, Chase Securities, Inc., individually and as lead
arranger and joint book manager (the "Lead Arranger and Joint Book
Manager") on behalf of the Lenders, and Banc One Capital Markets, Inc.,
individually and as lead arranger and joint book manager (the "Lead
Arranger and Joint Book Manager") on behalf of the Lenders (such 5-Year
Revolving Credit Agreement, as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Credit
Agreement").
THE FIRST NATIONAL BANK OF CHICAGO, as Administrative Agent
One First National Plaza
Chicago, IL 60670
Attn: Susan L. Comstock
Telecopier: (312) 732-4244
Confirmation: (312) 732-1916
Pursuant to Section 3.4 of the Credit Agreement, [the Company][the
undersigned Subsidiary Borrower] hereby gives to the Issuing Bank a request for
issuance of a Letter of Credit on behalf of [__________, a Subsidiary of] the
Company for the benefit of
____________________________
(1) Insert name of Issuing Bank.
5
<PAGE> 178
_____________________ 2, in the following Agreed Currency: [______________], in
the amount of [US $ ][_________ in such Agreed Currency], with an effective
date of __________, ______ (the "Effective Date") and an expiry date
of ____________, _______.
The undersigned hereby certifies that (i) the representations and
warranties of the undersigned contained in Article VI of the Credit Agreement
are and shall be true and correct in all material respects on and as of the date
hereof and on and as of the Effective Date (unless such representation and
warranty is made as of a specified date, in which case, such representation and
warranty shall be true and correct in all material respects as of such date)
except for changes in the Schedules to the Credit Agreement affecting
transactions permitted by or not in violation of the Credit Agreement; (ii) no
Default or Unmatured Default has occurred and is continuing on the date hereof
or on the Effective Date or will result from the issuance of the proposed Letter
of Credit; and (iii) the conditions set forth in Sections 3.4 and 5.3 of the
Credit Agreement have been satisfied.
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meanings in this Request for Letter of Credit.
Dated: __________ ____, _____
[AMERICAN NATIONAL CAN GROUP, INC.]
[SUBSIDIARY BORROWER]
By:
-------------------------------
Name:
Title:
____________________________
(2) Insert name of beneficiary.
6
<PAGE> 179
EXHIBIT D
TO
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "ASSIGNMENT AGREEMENT") between (the
ASSIGNOR) and (the "ASSIGNEE") is dated as of , . The parties hereto agree as
follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a 5-Year Revolving
Credit Agreement (which, as it may be amended, restated, supplemented, modified,
renewed or extended from time to time is herein called the "CREDIT Agreement")
described in Item 1 of Schedule 1 attached hereto ("SCHEDULE 1"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement relating to the facilities listed in Item 3 of
Schedule 1 and the other Loan Documents. The aggregate Commitment (or Loans, if
the applicable Commitment has been terminated) purchased by the Assignee
hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"EFFECTIVE DATE") shall be the later of the date specified in Section 14.3(B) of
the Credit Agreement and the date specified in Item 5 of Schedule 1 or two
Business Days (or such shorter period agreed to by the Administrative Agent)
after a Notice of Assignment substantially in the form of Appendix I (attached
hereto) has been delivered to the Administrative Agent. Such Notice of
Assignment must include the consents, if any, required to be delivered to the
Administrative Agent by Section 14.3(A) of the Credit Agreement. In no event
will the Effective Date occur if the payments required to be made by the
Assignee to the Assignor on the Effective Date under Sections 4 and 5 hereof are
not made on the proposed Effective Date. The Assignor will notify the Assignee
of the proposed Effective Date no later than the Business Day prior to the
proposed Effective Date. As of the Effective Date, (i) the Assignee shall have
the rights and obligations of a Lender under the Loan Documents with respect to
the rights and obligations assigned to the Assignee hereunder and (ii) the
Assignor shall relinquish its rights
7
<PAGE> 180
and be released from its corresponding obligations under the Loan Documents with
respect to the rights and obligations assigned to the Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Administrative Agent all payments of
principal, interest and fees with respect to the interest assigned hereby. The
Assignee shall advance funds directly to the Administrative Agent with respect
to all Loans and reimbursement payments made on or after the Effective Date with
respect to the interest assigned hereby. [In consideration for the sale and
assignment of Loans hereunder, (i) the Assignee shall pay the Assignor, on the
Effective Date, an amount equal to the principal amount of the portion of all
Floating Rate Loans assigned to the Assignee hereunder and (ii) with respect to
each Eurocurrency Rate Loan made by the Assignor and assigned to the Assignee
hereunder which is outstanding on the Effective Date, (a) on the last day of the
Interest Period therefor or (b) on such earlier date agreed to by the Assignor
and the Assignee or (c) on the date on which any such Eurocurrency Rate Loan
either becomes due (by acceleration or otherwise) or is prepaid (the date as
described in the foregoing clauses (a), (b) or (c) being hereinafter referred to
as the "PAYMENT DATE"), the Assignee shall pay the Assignor an amount equal to
the principal amount of the portion of such Eurocurrency Rate Loan assigned to
the Assignee which is outstanding on the Payment Date. If the Assignor and the
Assignee agree that the Payment Date for such Eurocurrency Rate Loan shall be
the Effective Date, they shall agree to the interest rate applicable to the
portion of such Loan assigned hereunder for the period from the Effective Date
to the end of the existing Interest Period applicable to such Eurocurrency Rate
Loan (the "AGREED INTEREST RATE") and any interest received by the Assignee in
excess of the Agreed Interest Rate shall be remitted to the Assignor. In the
event interest for the period from the Effective Date to but not including the
Payment Date is not paid by the applicable Borrower with respect to any
Eurocurrency Rate Loan sold by the Assignor to the Assignee hereunder, the
Assignee shall pay to the Assignor interest for such period on the portion of
such Eurocurrency Rate Loan sold by the Assignor to the Assignee hereunder at
the applicable rate provided by the Credit Agreement. In the event a prepayment
of any Eurocurrency Rate Loan which is existing on the Payment Date and assigned
by the Assignor to the Assignee hereunder occurs after the Payment Date but
before the end of the Interest Period applicable to such Eurocurrency Rate Loan,
the Assignee shall remit to the Assignor the excess of the prepayment penalty
paid with respect to the portion of such Eurocurrency Rate Loan assigned to the
Assignee hereunder over the amount which would have been paid if such prepayment
penalty was calculated based on the Agreed Interest Rate. The Assignee will also
promptly remit to the Assignor (i) any principal payments received from the
Administrative Agent with respect to Eurocurrency Rate Loans prior to the
Payment Date and (ii) any amounts of interest on Loans and fees received from
the Administrative Agent which relate to the portion of the Loans assigned to
the Assignee hereunder for periods prior to the Effective Date, in the case of
Floating Rate Loans or fees, or the Payment Date, in the case of Eurocurrency
Rate Loans, and not previously paid by the Assignee to the Assignor.]3 In the
event that either party hereto receives any payment to which the other party
hereto is entitled under this Assignment Agreement, then the party receiving
such amount shall promptly remit it to the other party hereto.
____________________________
(3) Each Assignor may insert its standard payment provisions in lieu of the
payment terms included in Exhibit.
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<PAGE> 181
5. FEES PAYABLE BY THE ASSIGNEE. The [Assignee shall pay to the Assignor a
fee on each day on which a payment of interest or commitment fees is made under
the Credit Agreement with respect to the amounts assigned to the Assignee
hereunder (other than a payment of interest or commitment fees for the period
prior to the Effective Date or, in the case of Eurocurrency Rate Loans, the
Payment Date, which the Assignee is obligated to deliver to the Assignor
pursuant to Section 4 hereof). The amount of such fee shall be the difference
between (i) the interest or fee, as applicable, paid with respect to the amounts
assigned to the Assignee hereunder and (ii) the interest or fee, as applicable,
which would have been paid with respect to the amounts assigned to the Assignee
hereunder if each interest rate was ___ of 1% less than the interest rate paid
by the applicable Borrower or if the commitment fee was ___ of 1% less than the
commitment fee paid by the applicable Borrower, as applicable. In addition, the]
[Assignee][Assignor] agrees to pay a $3,500 processing fee required to be paid
to the Administrative Agent in connection with this Assignment Agreement.(4)
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. The
Assignor represents and warrants that it has the power and authority and legal
right to execute and deliver this Assignment Agreement and to perform its
obligations hereunder. The execution and delivery by the Assignor of this
Assignment Agreement and the performance by it of its obligations hereunder have
been duly authorized by proper proceedings. It is understood and agreed that the
assignment and assumption hereunder are made without recourse to the Assignor
and that the Assignor makes no other representation or warranty of any kind to
the Assignee. Neither the Assignor, the Administrative Agent, nor any other
Lender, nor any of its officers, directors, employees, Agents or attorneys shall
be responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrowers or any guarantor, (iv) the performance of or compliance with any of
the terms or provisions of any of the Loan Documents, (v) inspecting any of the
property, books or records of the Borrowers, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee represents and warrants
that it has the power and authority and legal right to execute and deliver this
Assignment Agreement and to perform its obligations hereunder. The execution and
delivery by the Assignee of this Assignment Agreement and the performance by it
of its obligations hereunder have been duly authorized by proper proceedings.
The Assignee (i) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements requested by the Assignee and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment Agreement, (ii)
agrees that it will, independently and without reliance upon the Administrative
Agent, the Assignor or any other Lender and based on such documents and
information at it shall
____________________________
(4) Assignor and Assignee to insert applicable payment terms.
9
<PAGE> 182
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, (iii) appoints and
authorizes the Administrative Agent to take such action as contractual
representative on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto, (iv) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Loan Documents are required to be performed by it as a Lender,
(v) agrees that its payment instructions and notice instructions are as set
forth in the attachment to Schedule 1, (vi) confirms that none of the funds,
monies, assets or other consideration being used to make the purchase and
assumption hereunder are "plan assets" as defined under ERISA and that its
rights, benefits and interests in and under the Loan Documents will not be "plan
assets" under ERISA, [and (vii) attaches the forms prescribed by the Internal
Revenue Service of the United States certifying that the Assignee is entitled to
receive payments under the Loan Documents without deduction or withholding of
any United States federal income taxes].(5)
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 14.3(A) of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under [Sections 4, 5 and 8] hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the Aggregate
Revolving Loan Commitment occurs between the date of this Assignment Agreement
and the Effective Date, the percentage interest specified in Item 3 of Schedule
1 shall remain the same, but the dollar amount purchased shall be recalculated
based on such reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice of
Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by and
interpreted and enforced in accordance with the internal laws of the State of
Illinois.
____________________________
(5) To be inserted if the Assignee is not incorporated under the laws of the
United States, or a state thereof.
10
<PAGE> 183
13. NOTICES. Notices shall be given under this Assignment Agreement in the
manner set forth in the Credit Agreement. For the purpose hereof, the addresses
of the parties hereto (until notice of a change is delivered) shall be the
address set forth in the attachment to Schedule 1.
11
<PAGE> 184
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:
-------------------------------
Name:
Title
[NAME OF ASSIGNEE]
By:
--------------------------------
Name:
Title
12
<PAGE> 185
SCHEDULE 1
to ASSIGNMENT AGREEMENT
1. Description and Date of Credit Agreement:
5-YEAR REVOLVING CREDIT AGREEMENT DATED AS OF JULY 22, 1999 AMONG AMERICAN
NATIONAL CAN GROUP, INC. (THE "COMPANY"), THE SUBSIDIARY BORROWERS FROM
TIME TO TIME PARTY THERETO, THE FINANCIAL INSTITUTIONS PARTIES THERETO (THE
"LENDERS"), THE FIRST NATIONAL BANK OF CHICAGO, INDIVIDUALLY AND AS
ADMINISTRATIVE AGENT ON BEHALF OF THE LENDERS, THE CHASE MANHATTAN BANK,
INDIVIDUALLY AND AS SYNDICATION AGENT (THE "SYNDICATION AGENT") ON BEHALF
OF THE LENDERS, ABN AMRO BANK N.V., INDIVIDUALLY AND AS CO-DOCUMENTATION
AGENT AND ARRANGER (THE "CO-DOCUMENTATION AGENT AND ARRANGER") ON BEHALF OF
THE LENDERS, ROYAL BANK OF CANADA, INDIVIDUALLY AND AS CO-DOCUMENTATION
AGENT AND ARRANGER (THE "CO-DOCUMENTATION AGENT AND ARRANGER") ON BEHALF OF
THE LENDERS, BANQUE NATIONALE DE PARIS, INDIVIDUALLY AND AS ARRANGER (THE
"ARRANGER") ON BEHALF OF THE LENDERS, CHASE SECURITIES, INC., INDIVIDUALLY
AND AS LEAD ARRANGER AND JOINT BOOK MANAGER (THE "LEAD ARRANGER AND JOINT
BOOK MANAGER") ON BEHALF OF THE LENDERS, AND BANC ONE CAPITAL MARKETS,
INC., INDIVIDUALLY AND AS LEAD ARRANGER AND JOINT BOOK MANAGER (THE "LEAD
ARRANGER AND JOINT BOOK MANAGER") ON BEHALF OF THE LENDERS.
2. Date of Assignment Agreement: , _____________
3. Amounts to be Assigned(6) (As of Date of Item 2 above):
REVOLVING
LOAN
FACILITY
TOTAL OF
COMMITMENTS (LOANS) $________
UNDER THE CREDIT
AGREEMENT
ASSIGNEES PERCENTAGE
OF EACH FACILITY
PURCHASED UNDER THE ___%
ASSIGNMENT
AGREEMENT
AMOUNT OF ASSIGNED
SHARE OF EACH FACILITY $________
UNDER THE ASSIGNMENT
AGREEMENT
4. Assignee's Aggregate (Loan
_______________________________
(6) Amounts to be described in Dollars or Agreed Currency, as applicable.
13
<PAGE> 186
Amount)** Commitment Amount
Purchased Hereunder: $____________
5. Proposed Effective Date: _________ __, ____
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
-------------------------- --------------------------------
Name: Name:
Title: Title:
14
<PAGE> 187
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
15
<PAGE> 188
APPENDIX I
to Assignment Agreement
NOTICE
OF ASSIGNMENT
,
To: The First National Bank of Chicago, as Administrative Agent [and as
Alternate Currency Banks]
One First National Plaza
Chicago, Illinois 60670
Attention: Susan L. Comstock
Telephone No.: (312) 732-4244
Facsimile No.: (312) 732-1916
AMERICAN NATIONAL CAN GROUP, INC.
8770 West Bryn Mawr Avenue
Chicago, IL 60631
Attention: Vice-President-- Treasurer
Telephone No.: 773/399-3170
Facsimile No.: 773/399-3115
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that 5-Year Revolving Credit Agreement (the "Credit
Agreement") described in Item 1 of Schedule 1 attached hereto ("Schedule 1").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to the
Administrative Agent and the Alternate Currency Banks pursuant to Section
14.3(B) of the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment Agreement,
dated as of _______, _____ (the "Assignment"), pursuant to which, among other
things, the Assignor has sold, assigned, delegated and transferred to the
Assignee, and the Assignee has purchased, accepted and assumed from the Assignor
the percentage interest specified in Item 3 of Schedule 1 of all outstanding
rights and obligations under the Credit Agreement relating to the facilities
listed in Item 3 of Schedule 1. The Effective Date of the Assignment shall be
the later of the date specified in Section 14.3(B) of the Credit Agreement and
the date specified in Item 5 of Schedule 1 or two Business Days (or such shorter
period as agreed to by the Administrative Agent) after this Notice of Assignment
and any consents and fees required by Sections 14.3(A) and 14.3(B) of the Credit
Agreement have been delivered to the Administrative Agent and the
16
<PAGE> 189
Alternate Currency Banks, provided that the Effective Date shall not occur if
any condition precedent agreed to by the Assignor and the Assignee has not been
satisfied.
4. The Assignor and the Assignee hereby give to the Company and the
Alternate Currency Banks and the Administrative Agent notice of the assignment
and delegation referred to herein. The Assignor will confer with the
Administrative Agent before the date specified in Item 5 of Schedule 1 to
determine if the Assignment Agreement will become effective on such date
pursuant to Section 3 hereof, and will confer with the Administrative Agent to
determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter. The Assignor shall notify the Administrative Agent and the Alternate
Currency Banks if the Assignment Agreement does not become effective on any
proposed Effective Date as a result of the failure to satisfy the conditions
precedent agreed to by the Assignor and the Assignee. At the request of the
Administrative Agent, the Assignor will give the Administrative Agent written
confirmation of the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Administrative Agent on or
before the Effective Date the processing fee of $3,500 required by Section
14.3(B) of the Credit Agreement.
6. If notes are outstanding on the Effective Date, the Assignor and the
Assignee may request and direct that the Administrative Agent prepare and cause
the Borrowers to execute and deliver new notes or, as appropriate, replacements
notes, to the Assignor and the Assignee. The Assignor and the Assignee, as
applicable, each agree to deliver to the Administrative Agent the original note
received by it from the applicable Borrower upon its receipt of a new note in
the appropriate amount.
7. The Assignee advises the Administrative Agent and the Alternate Currency
Banks that notice and payment instructions are set forth in the attachment to
Schedule 1.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase pursuant
to the Assignment are "plan assets" as defined under ERISA and that its rights,
benefits, and interests in and under the Loan Documents will not be "plan
assets" under ERISA.
9. The Assignee authorizes the Administrative Agent and the Alternate
Currency Banks to act as its contractual representative under the Loan Documents
in accordance with the terms thereof. The Assignee acknowledges that the
Administrative Agent has no duty to supply information with respect to the
Borrowers or the Loan Documents to the Assignee until the Assignee becomes a
party to the Credit Agreement.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
----------------------------- ----------------------------------
Name: Name:
Title: Title:
17
<PAGE> 190
ACKNOWLEDGED AND CONSENTED TO:
THE FIRST NATIONAL BANK [AMERICAN NATIONAL CAN
OF CHICAGO, as Administrative Agent [and as GROUP, INC. as
Alternate Currency Bank] the Company
By: By:
Name: Name:
Title: Title:](7)
[add additional Alternate Currency Banks]
[Attach photocopy of Schedule 1 to Assignment]
_______________________________
(7) To be included, if applicble.
18
<PAGE> 191
EXHIBIT E
TO
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF THE COMPANY'S US COUNSEL'S OPINION
Attached.
19
<PAGE> 192
EXHIBIT F
TO
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
LIST OF CLOSING DOCUMENTS
[Attached]
20
<PAGE> 193
EXHIBIT G
TO
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF OFFICER'S CERTIFICATE
OFFICER'S CERTIFICATE
I, the undersigned, hereby certify that I am _____________________ the of
American National Can Group, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (the "Company"). Capitalized terms used
herein and not otherwise defined herein are as defined in that certain 5-Year
Revolving Credit Agreement dated as of July 22, 1999 among the Company, the
Subsidiary Borrowers from time to time party thereto, the financial institutions
parties thereto (the "Lenders"), The First National Bank of Chicago,
individually and as Administrative Agent on behalf of the Lenders, The Chase
Manhattan Bank, individually and as syndication agent (the "Syndication Agent")
on behalf of the Lenders, ABN AMRO Bank N.V., individually and as
co-documentation agent and arranger (the "Co-Documentation Agent and Arranger")
on behalf of the Lenders, Royal Bank of Canada, individually and as
co-documentation agent and arranger (the "Co-Documentation Agent and Arranger")
on behalf of the Lenders, Banque Nationale De Paris, individually and as
arranger (the "Arranger") on behalf of the Lenders, Chase Securities, Inc.,
individually and as lead arranger and joint book manager (the "Lead Arranger and
Joint Book Manager") on behalf of the Lenders, and Banc One Capital Markets,
Inc., individually and as lead arranger and joint book manager (the "Lead
Arranger and Joint Book Manager") on behalf of the Lenders (as amended,
restated, supplemented or modified from time to time, the "Credit Agreement").
I further certify on behalf of the Company, that as of the date hereof, to
the best of my knowledge, after diligent inquiry of all relevant persons at the
Company and its Subsidiaries, as of the date of this Officer's Certificate no
Default or Unmatured Default exists [other than the following (describe the
nature of the Default or Unmatured Default and the status thereof)].
IN WITNESS WHEREOF, I hereby subscribe my name on behalf of the Company on
this ____ day of ___________, ____.
________________________________
[Insert Name of Officer]
21
<PAGE> 194
EXHIBIT H
TO
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF COMPLIANCE CERTIFICATE
Pursuant to [Section 5.3] [Section 7.1(A)(iii)] of the 5-Year Revolving
Credit Agreement (as amended, modified, restated or supplemented from time to
time, the "Credit Agreement"), dated as of July 22, 1999 among American National
Can Group, Inc. (the "Company"), the Subsidiary Borrowers from time to time
party thereto, the financial institutions parties thereto (the "Lenders"), The
First National Bank of Chicago, individually and as Administrative Agent on
behalf of the Lenders, The Chase Manhattan Bank, individually and as syndication
agent (the "Syndication Agent") on behalf of the Lenders, ABN AMRO Bank N.V.,
individually and as co-documentation agent and arranger (the "Co-Documentation
Agent and Arranger") on behalf of the Lenders, Royal Bank of Canada,
individually and as co-documentation agent and arranger (the "Co-Documentation
Agent and Arranger") on behalf of the Lenders, Banque Nationale De Paris,
individually and as arranger (the "Arranger") on behalf of the Lenders, Chase
Securities, Inc., individually and as lead arranger and joint book manager (the
"Lead Arranger and Joint Book Manager") on behalf of the Lenders, and Banc One
Capital Markets, Inc., individually and as lead arranger and joint book manager
(the "Lead Arranger and Joint Book Manager") on behalf of the Lenders, the
Company, through its ___________________________, hereby delivers to the
Administrative Agent[, together with the financial statements being delivered to
the Administrative Agent pursuant to Section 7.1(A) of the Credit Agreement,]
this Compliance Certificate (the "Certificate") [for the accounting period from
____________, 19__ to ___________, 19__]. Capitalized terms used herein shall
have the meanings set forth in the Credit Agreement. Subsection references
herein relate to subsections of the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _____________________________ of the Company;
2. I have reviewed the terms of the Credit Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Company and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have no
knowledge of, the existence of any condition or event which constitutes a
Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate [except as set forth below]; and
4. Schedule I attached hereto sets forth financial data and computations
evidencing the Company's compliance with certain covenants of the Credit
Agreement, all of which data and computations are true, complete and correct.
22
<PAGE> 195
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this ____ day of _______, 19/20 ___.
23
<PAGE> 196
SCHEDULE I
to COMPLIANCE CERTIFICATE
I. SECTION 2.15: PRICING CALCULATIONS
NOTE: All calculations of "Average Total Net Indebtedness" under Section 2.15(D)
of the Credit Agreement shall be made exclusive of any impact on the financial
statements arising from Supported Contingent Obligations, unless (i) the Company
shall not receive cash reimbursement for any and all cash payments made under
any Supported Contingent Obligations promptly, and in any event within ninety
(90) days, following the Company making any such payment, in which event
"Average Total Net Indebtedness" shall thereafter be calculated by including the
total outstanding amount of such Supported Contingent Obligation (to the extent
unreimbursed or otherwise unsupported to the satisfaction of the Administrative
Agent) in "Average Total Net Indebtedness", or (ii) any judgment is entered
under Viskase Corporation v. American National Can Company, Civ. 93-C-7651,
before the U.S. District Court of the Northern District of Illinois, Eastern
Division or any related proceedings holding that the aggregate liability of the
Company and its Subsidiaries thereunder shall be in an amount in excess of
$106,000,000, and such judgment shall remain (x) undischarged, unvacated or
unstayed or (y) unbonded by Pechiney or any bonding agent in reliance upon a
letter of credit or other reimbursement obligation of Pechiney or any other
Person other than the Company or its Subsidiaries in the amount of such
aggregate liability, in the case of either clause (x) or (y), for a period of
thirty (30) days or such other period permitted by court order, in which event
"Average Total Net Indebtedness" shall thereafter be calculated by giving effect
to the amount of such judgment which is undischarged, unvacated, unstayed or
unbonded on the financial condition of the Company and its Subsidiaries.
AVERAGE TOTAL NET INDEBTEDNESS TO CAPITAL RATIO (Section 2.15(D))
1. Average Total Net Indebtedness (as defined)
of Company and its Subsidiaries $___________
2. Consolidated Net Worth of Company
and its Subsidiaries $___________
3. "Average Total Net Indebtedness to Capital Ratio"
(Ratio of (1) to the sum of (1) plus (2)) ___ TO 1.0
II. SECTION 7.4: FINANCIAL COVENANTS
NOTE: All calculations of the financial covenants under
Section 7.4 of the Credit Agreement shall be made exclusive of any impact on the
financial statements arising from Supported Contingent Obligations, unless (i)
the Company shall not receive cash reimbursement for any and all cash payments
made under any Supported Contingent Obligations promptly, and in any event
within ninety (90) days, following the Company making any such payment, in which
event the financial covenants in Section 7.4 of the Credit Agreement shall be
calculated by giving effect to any payment in respect of such Supported
Contingent Obligation and shall include the total outstanding amount of such
Supported Contingent Obligation (to the extent unreimbursed or otherwise
unsupported to the satisfaction of the Administrative Agent) in such
calculations, or (ii) any judgment is entered under Viskase Corporation v.
American National Can Company, Civ. 93-C-7651, before the U.S. District
24
<PAGE> 197
Court of the Northern District of Illinois, Eastern Division or any related
proceedings holding that the aggregate liability of the Company and its
Subsidiaries thereunder shall be in an amount in excess of $106,000,000, and
such judgment shall remain (x) undischarged, unvacated or unstayed or (y)
unbonded by Pechiney or any bonding agent in reliance upon a letter of credit or
other reimbursement obligation of Pechiney or any other Person other than the
Company or its Subsidiaries in the amount of such aggregate liability, in the
case of either clause (x) or (y), for a period of thirty (30) days or such other
period permitted by court order, in which event the financial covenants in
Section 7.4 of the Credit Agreement shall be calculated by giving effect to the
amount of such judgment which is undischarged, unvacated, unstayed or unbonded
on the financial condition of the Company and its Subsidiaries.
A. MINIMUM INTEREST COVERAGE RATIO (Section 7.4(A))
1. EBITDA (Net Income + accrued interest expense + taxes + depreciation +
amortization + other non-cash charges classified as long-term
deferrals + other extraordinary non-cash charges - other extraordinary
non-cash credits + other extraordinary non-cash credits to the extent
added in computing Net Income +(-) nonrecurring after-tax losses
(gains), in each case calculated without giving effect to any
restructuring charges related to the three plant closings described in
the Registration Statement)
for the period from_______ to ________ $___________
2. Interest Expense for the period from
_______ to ________ $___________
3. "Interest Coverage Ratio" (Ratio of (1) to (2)) ____ TO 1.0
(Minimum Ratio: 3.50 to 1.00 for the first three
fiscal quarters following the Closing Date, and
4.00 to 1.00 for each fiscal quarter thereafter)
B. MAXIMUM TOTAL NET INDEBTEDNESS TO CAPITAL RATIO (Section 7.4(B))
1. Total Net Indebtedness (as defined)
of Company and its Subsidiaries $___________
2. Consolidated Net Worth of Company
and its Subsidiaries $___________
3. "Total Net Indebtedness to Capital Ratio"
(Ratio of (1) to the sum of (1) plus (2)) ____ TO 1.0
(Maximum Ratio: 0.55 to 1.00 at all times)
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<PAGE> 198
C. MINIMUM CONSOLIDATED NET WORTH
(Section 7.4(C)).
1. Consolidated Net Worth of Company and
its Subsidiaries as of the last
day of the fiscal quarter ending
on __________, ____ $___________
2. $950,000,000 plus fifty percent (50%)
of Net Income (if positive) calculated
separately (x) on December 31, 1999 for
the two fiscal quarter period ending on
December 31, 1999 and (y) for each fiscal
year thereafter commencing with the fiscal
year ending on December 31, 2000 $___________
3. State whether (1) is less than (2) Yes/No
------
The Company hereby certifies, through its _________________, that the
information set forth above is accurate as of _______________, ____, to the best
of such officer's knowledge, after diligent inquiry, and that the financial
statements delivered herewith present fairly the financial position of the
Company and its Subsidiaries at the dates indicated and the results of their
operations and changes in their financial position for the periods indicated in
conformity with Agreement Accounting Principles, consistently applied.
Dated:
------------,
AMERICAN NATIONAL CAN GROUP, INC.
By:__________________________
Name:
Title:
26
<PAGE> 199
EXHIBIT I
TO
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF GUARANTY
[Attached].
27
<PAGE> 200
EXHIBIT J
TO
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF ALTERNATE CURRENCY ADDENDUM
Attached
28
<PAGE> 201
POUNDS STERLING
ALTERNATE CURRENCY ADDENDUM
POUNDS STERLING ADDENDUM (the "ADDENDUM") dated as of _________ __, ____ to the
Credit Agreement (as defined below).
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Addendum, the following terms
shall have the meanings specified below:
"ALTERNATE CURRENCY LOAN" shall mean any extension of credit, denominated
in Pounds Sterling, made to [UK Entity], a [corporation/limited liability
company] organized and existing under the laws of England and Wales pursuant to
Section 2.21 of the Credit Agreement and this Addendum. An Alternate Currency
Loan shall bear interest at the rates specified in Schedule II.
"ASSOCIATED COSTS RATE" means for any Alternate Currency Loan denominated
in Pounds Sterling for any Interest Period, a percentage rate per annum, as
determined in accordance with Annex I attached hereto on the first day of such
Interest Period, determined by the Alternate Currency Bank as reflecting the
cost, loss or difference in return which would be suffered or incurred by the
Alternate Currency Bank as a result of: (a) funding (at LIBOR and on a match
funded basis) any special deposit or cash ratio deposit required to be placed
with the Bank of England (or any other authority which replaces all or any of
its functions) and/or (b) any charge imposed by the Financial Services Authority
(or any other authority which replaces all or any of its functions).
"LIBOR" means, with respect to any Alternate Currency Loan for the relevant
Interest Period, the rate determined by the Alternate Currency Bank to be the
rate at which deposits in Pounds Sterling are offered to the Alternate Currency
Bank by first-class banks in the London interbank market at approximately 11:00
a.m. (London time) on the first day of such Interest Period, in the approximate
amount of the relevant Alternate Currency Loan, and having a maturity
approximately equal to such Interest Period.
"CREDIT AGREEMENT" shall mean the 5-Year Revolving Credit Agreement dated
as of July 22, 1999, among American National Can Group, Inc., a Delaware
corporation (the "COMPANY"), the Subsidiary Borrowers from time to time party
thereto, the financial institutions from time to time party thereto as Lenders,
and The First National Bank of Chicago, as contractual representative for itself
and the other Lenders (the "ADMINISTRATIVE AGENT"), as the same may be amended,
waived, modified or restated from time to time.
SECTION 1.02. Terms Generally. Unless otherwise defined herein, terms
defined in the Credit Agreement shall have the same meanings in this Addendum.
Wherever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without
29
<PAGE> 202
limitation". All references herein to Sections and Schedules shall be deemed
references to Sections of and Schedules to this Addendum unless the context
shall otherwise require.
ARTICLE II
THE CREDITS
SECTION 2.01. Alternate Currency Loans. (a) This Addendum (as the same may
be amended, waived, modified or restated from time to time) is an "Alternate
Currency Addendum" as defined in the Credit Agreement and is, together with the
borrowings made hereunder, subject in all respects to the terms and provisions
of the Credit Agreement except to the extent that the terms and provisions of
the Credit Agreement are modified by this Addendum. The Alternate Currency Bank
party to this Addendum is set forth on Schedule I.
(b) Any modifications to the interest payment dates, Interest Periods,
interest rates and any other special provisions applicable to Alternate Currency
Loans under this Addendum are set forth on Schedule II. If Schedule II states
"Same as Credit Agreement" with respect to any item listed thereon, then the
corresponding provisions of the Credit Agreement, without modification, shall
govern this Addendum and the Alternate Currency Loans made pursuant to this
Addendum.
(c) Any special borrowing procedures or funding arrangements for Alternate
Currency Loans under this Addendum, any provisions for the issuance of
promissory notes to evidence the Alternate Currency Loans made hereunder and any
additional information requirements applicable to Alternate Currency Loans under
this Addendum are set forth on Schedule III. If no such special procedures,
funding arrangements, provisions or additional requirements are set forth on
Schedule III, then the corresponding procedures, funding arrangements,
provisions and information requirements set forth in the Credit Agreement shall
govern this Addendum.
SECTION 2.02. Maximum Borrowing Amounts. (a) The Alternate Currency
Commitment is set forth on Schedule I.
(b) The Company or the applicable Alternate Currency Borrower may
permanently reduce the Alternate Currency Commitment under this Addendum in
whole, or in part, in an aggregate minimum Dollar Amount equal to
[$1,000,000.00] (or any larger multiple of [$100,000]) upon at least one (1)
Business Day's prior written notice to the Alternate Currency Bank, which notice
shall be given not later than 11:00 a.m. (London time) and shall specify the
amount of such reduction; provided, however, that the amount of the Alternate
Currency Commitment may not be reduced below the aggregate principal amount of
the outstanding Alternate Currency Loans with respect thereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
30
<PAGE> 203
The Alternate Currency Borrower party hereto makes and confirms each
representation and warranty applicable to the Alternate Currency Borrower or any
of its Subsidiaries contained in Article VI of the Credit Agreement. The
Alternate Currency Borrower represents and warrants to the Alternate Currency
Bank party to this Addendum that no Default or Unmatured Default has occurred
and is continuing, and no Default or Unmatured Default shall arise as a result
of the making of Alternate Currency Loans hereunder or any other transaction
contemplated hereby.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. Amendment; Termination. (a) This Addendum (including the
Schedules hereto) may not be amended without the prior written consent of the
Alternate Currency Bank.
(b) This Addendum may not be terminated without the prior written consent
of the Alternate Currency Bank party hereto unless there are no Alternate
Currency Loans outstanding hereunder, in which case no such consent shall be
required; provided, however, that this Addendum shall terminate on the date that
the Credit Agreement terminates in accordance with its terms.
SECTION 4.02. Assignments. Section 14.1 of the Credit Agreement shall apply
to assignments by the Alternate Currency Bank of obligations, commitments and
Loans hereunder; provided, however, that the Alternate Currency Bank may not
assign any obligations, commitments or rights hereunder to any Person who is not
(and does not simultaneously become) a Lender under the Credit Agreement.
SECTION 4.03. Notices. Notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Alternate Currency Borrower under this Addendum, at:
(b) if to the Alternate Currency Bank, to it at:
The First National Bank of Chicago, London Branch
1 Triton Square
London NW13FN
Attention: Dot O'Flaherty
Telecopier: 44-171-903-4148
Confirmation: 44-171-903-4150
with a copy to the Administrative Agent at its address or telecopy number
referenced in the Credit Agreement.
All notices and other communications given to any party hereto in accordance
with the provisions of this Addendum shall be deemed to have been given on the
date of receipt if delivered by hand or
31
<PAGE> 204
overnight courier service or sent by telecopy to such party as provided in this
Section or in accordance with the latest unrevoked direction from such party
given in accordance with this Section.
SECTION 4.04. Applicable Law. THIS ADDENDUM SHALL BE GOVERNED BY AND
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
ILLINOIS. WITHOUT LIMITING THE FOREGOING, ANY DISPUTE BETWEEN ANY SUBSIDIARY
BORROWER AND ANY AGENT, ANY LENDER, ARISING OUT OF, CONNECTED WITH, RELATED TO,
OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH,
THIS ADDENDUM OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN
CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE
INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE
OF ILLINOIS.
[Remainder of this Page Intentionally Blank]
32
<PAGE> 205
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be duly
executed by their duly authorized officers, all as of the date and year first
above written.
[UK ENTITY], as the Alternate Currency
Borrower under this Addendum
By:___________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO, as the
Alternate Currency Bank under this Addendum
By:___________________________
Name:
Title:
33
<PAGE> 206
SCHEDULE I
to Alternate Currency Addendum
for Pounds Sterling
ALTERNATE CURRENCY BANK
ALTERNATE CURRENCY COMMITMENT
- --------------------------------------------------------------------------------
Alternate Currency Bank Alternate Currency Commitment
Nam
- --------------------------------------------------------------------------------
The First National Bank of US $____________
Chicago
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
34
<PAGE> 207
SCHEDULE II
to Alternate Currency Addendum
for Pounds Sterling
MODIFICATIONS
1. Business Day Definition:
"BUSINESS DAY" shall mean a day (other than a Saturday or Sunday) on which banks
are open for business in London, England.
2. Interest Payment Dates: Same as Credit Agreement.
3. Interest Periods: Same as Credit Agreement.
4. Interest Rates:
Alternate Currency Loans Denominated in Pounds Sterling: Each Alternate
Currency Loan denominated in Pounds Sterling and for which an Interest Period
has been selected in accordance with the terms of Article II of the Credit
Agreement and this Addendum shall bear interest from and including the first day
of the Interest Period applicable thereto to (but not including) the last day of
such Interest Period at a rate per annum equal to the sum of (i) LIBOR for such
Alternate Currency Loan for such Interest Period plus (ii) the Applicable
Eurocurrency Margin as in effect from time to time during such Interest Period
plus (iii) the Associated Costs Rate for such Alternate Currency Loan for such
Interest Period; provided, however, after the occurrence and during the
continuance of a Default, the provisions of Section 2.11 of the Credit Agreement
shall be applicable.
5. Applicable Margins. Same as Credit Agreement.
Interest payable on the Alternate Currency Loans shall be payable to the
Alternate Currency Bank for its account.
6. Modifications to Interest Period Selection/Conversion:
Notice of selection of Interest Period or conversion/continuation shall be given
by the applicable Alternate Currency Borrower to the Alternate Currency Bank as
follows:
Alternate Currency Loans: 10:00 a.m. (London time) two Business Days prior.
7. Other:
Additional Conditions Precedent: None.
35
<PAGE> 208
Termination Date for Addendum: Same as Credit Agreement.
Maximum Number of Interest Periods: Unlimited (provided the Alternate Currency
Borrower is in compliance with minimum borrowing amounts and increments).
Prepayment Notices: The applicable Alternate Currency Borrower shall be
permitted to prepay the Alternate Currency Loans provided notice thereof is
given to the Alternate Currency Bank not later than 11:00 a.m. (London time) at
least one (1) Business Day prior to the date of such prepayment.
Authorized Officer: In addition to the authorized officers set forth in the
Credit Agreement, those individuals designated in writing by an authorized
officer to borrow on behalf of a Borrower shall also be authorized to borrow
Alternate Currency Loans hereunder.
36
<PAGE> 209
SCHEDULE III
to Alternate Currency Addendum
for Pounds Sterling
OTHER PROVISIONS
1. Borrowing Procedures:
Notice of Borrowing shall be given by the Alternate Currency Borrower to
the Alternate Currency Bank as follows:
Alternate Currency Loans: 10:00 a.m. (London time) on the date of the
proposed borrowing or such later time as the Alternate Currency Bank shall
agree to.
2. Funding Arrangements:
Minimum amounts/increments for Alternate Currency Loans, repayments and
prepayments:
Minimum amounts of(pound)[1,000,000] with increments of(pound)[500,000]
3. Promissory Notes: None required.
37
<PAGE> 210
ANNEX I
to Alternate Currency Addendum
for Pounds Sterling
ASSOCIATED COSTS RATE
1. For the purposes of this Addendum, the cost of compliance with
requirements of the Bank of England in respect of Alternate Currency Loans will
be calculated by the Alternate Currency Bank in relation to each Alternate
Currency Loan by reference to the circumstances existing on the first day of the
Interest Period in respect of such Alternate Currency Loan and, if such Interest
Period exceeds three months, at three calendar monthly intervals from the first
day of such Interest Period during its duration.
2. For the purpose of this Annex I "eligible liabilities" and "special
deposits" shall bear the meanings ascribed to them from time to time by the Bank
of England.
3. Calculations will be made on the basis of a 365 day year (or, if market
practice differs, in accordance with market practice).
4. Additional amounts calculated in accordance with this Annex I are
payable on the last day of the Interest Period to which they relate.
5. The determination of the Associated Costs Rate in relation to any period
shall, in the absence of manifest error, be conclusive and binding on all of the
parties hereto.
6. In the event of the introduction of or any change in any present or
future reserve asset ratio, cash ratio, secured deposit, monetary control ratio,
special deposit, liquidity and/or similar requirement imposed from time to time
by the Bank of England and/or any other agency of the United Kingdom (but
excluding capital adequacy requirements or any change in the minimum percentage
of eligible liabilities which authorized institutions are required to maintain
in reserve assets, cash deposit ratios, secured deposits or special deposits) or
any change in the interpretation or application of any such requirement by the
Bank of England and/or the relevant agency, the Alternate Currency Bank may, at
any time, give notice to the applicable Alternate Currency Borrower of (A) the
amendments determined by the Alternate Currency Bank to be necessary to the
above formula and/or the date of calculation so as to (but only so as to)
restore the position in terms of overall return to that which prevailed before
such change occurred and (B) the date from which the amended formula and/or the
date(s) of calculation are to apply and any such determination shall, in the
absence of manifest error, be conclusive and binding on all the parties hereto.
38
<PAGE> 211
EXHIBIT K-1
TO
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF REVOLVING LOAN NOTE (IF REQUESTED)
Attached
39
<PAGE> 212
REVOLVING LOAN NOTE
U.S. $[________________] Chicago, Illinois
[DATE]
FOR VALUE RECEIVED, the undersigned, [AMERICAN NATIONAL CAN GROUP, INC., a
Delaware corporation (the "Company")][ , a corporation (the "Subsidiary
Borrower")], HEREBY UNCONDITIONALLY PROMISES TO PAY to the order of
[________________] (the "Lender") the principal sum of [________________] AND
NO/100 DOLLARS ($[________________] ), or, if less, the aggregate unpaid amount
of all "Revolving Loans" (as defined in the Credit Agreement referred to below)
made by the Lender to such [Company][Subsidiary Borrower] pursuant to the
"Credit Agreement" (as defined below), on the "Termination Date" (as defined in
the Credit Agreement) or on such earlier date as may be required by the terms of
the Credit Agreement. Capitalized terms used herein and not otherwise defined
herein are as defined in the Credit Agreement.
The [Company][Subsidiary Borrower] promises to pay interest on the unpaid
principal amount of each Revolving Loan made to it from the date of such
Revolving Loan until such principal amount is paid in full at a rate or rates
per annum determined in accordance with the terms of the Credit Agreement.
Interest hereunder is due and payable at such times and on such dates as set
forth in the Credit Agreement.
Both principal and interest are payable in Dollars to the Administrative
Agent (as defined below), to such account as the Administrative Agent may
designate, in same day funds. At the time of each Revolving Loan, and upon each
payment or prepayment of principal of each Revolving Loan, the Lender shall make
a notation either on the schedule attached hereto and made a part hereof, or in
such Lender's own books and records, in each case specifying the amount of such
Revolving Loan, the respective Interest Period thereof (in the case of
Eurocurrency Rate Loans) or the amount of principal paid or prepaid with respect
to such Revolving Loan, as applicable; provided that the failure of the Lender
to make any such recordation or notation shall not affect the Obligations of the
[Company][Subsidiary Borrower] hereunder or under the Credit Agreement.
This Revolving Loan Note is one of the promissory notes referred to in, and
is entitled to the benefits of, that certain 5-Year Revolving Credit Agreement
dated as of July 22, 1999 among American National Can Group, Inc. (the
"Company"), the Subsidiary Borrowers from time to time party thereto, the
financial institutions parties thereto (the "Lenders"), The First National Bank
of Chicago, individually and as Administrative Agent on behalf of the Lenders,
The Chase Manhattan Bank, individually and as syndication agent (the
"Syndication Agent") on behalf of the Lenders, ABN AMRO Bank N.V., individually
and as co-documentation agent and arranger (the "Co-Documentation Agent and
Arranger") on behalf of the Lenders, Royal Bank of Canada, individually and as
co-documentation agent and arranger (the "Co-Documentation Agent and Arranger")
on behalf of the Lenders, Banque Nationale De Paris, individually and as
arranger (the "Arranger") on behalf of the Lenders, Chase Securities, Inc.,
individually and as lead arranger and joint book manager (the "Lead Arranger and
Joint
40
<PAGE> 213
Book Manager") on behalf of the Lenders, and Banc One Capital Markets, Inc.,
individually and as lead arranger and joint book manager (the "Lead Arranger and
Joint Book Manager") on behalf of the Lenders (as amended, restated,
supplemented or modified from time to time, the "Credit Agreement"). The Credit
Agreement, among other things, (i) provides for the making of Revolving Loans by
the Lender to the [Company][Subsidiary Borrower] under the Credit Agreement from
time to time in an aggregate amount not to exceed at any time outstanding the
Dollar Amount first above mentioned, the indebtedness of the
[Company][Subsidiary Borrower] resulting from each such Revolving Loan to it
being evidenced by this Revolving Loan Note, and (ii) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments of the principal hereof prior to the maturity hereof
upon the terms and conditions therein specified.
Demand, presentment, protest and notice of nonpayment and protest are
hereby waived by the [Company][Subsidiary Borrower].
Whenever in this Revolving Loan Note reference is made to the
Administrative Agent, the Lender or the [Company][Subsidiary Borrower], such
reference shall be deemed to include, as applicable, a reference to their
respective successors and assigns. The provisions of this Revolving Loan Note
shall be binding upon and shall inure to the benefit of said successors and
assigns. The [Company's][Subsidiary Borrower's] successors and assigns shall
include, without limitation, a receiver, trustee or debtor in possession of or
for the [Company][Subsidiary Borrower].
This Revolving Loan Note shall be interpreted, and the rights and
liabilities of the parties hereto determined, in accordance with the laws of the
State of Illinois.
[AMERICAN NATIONAL CAN GROUP, INC.]
[SUBSIDIARY BORROWER]
By:
----------------------
Name:
Title:
41
<PAGE> 214
SCHEDULE OF REVOLVING LOANS AND PAYMENTS OR PREPAYMENTS
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Date Amount of Type of Interest Period/ Amount of Unpaid Notation
Loan Loan Rate Principal Paid Principal Made By
or Prepaid Balance
----------------------------------------
</TABLE>
42
<PAGE> 215
EXHIBIT K-2
TO
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF NOTE
(Competitive Bid Loans)
BID NOTE
$ [DATE]
American National Can Group, Inc., a Delaware corporation (the "Company"),
promises to pay to the order of _________________ (the "Lender") the aggregate
unpaid principal amount of all Competitive Bid Loans made by the Lender to the
Company pursuant to Section 2.1 of the 5-Year Revolving Credit Agreement
hereinafter referred to (as the same may be amended or modified, herein called
the "Credit Agreement"), in lawful money of the United States in immediately
available funds at the main office of The First National Bank of Chicago, as
administrative agent (the "Administrative Agent"), in Chicago, Illinois,
together with interest, in like money and funds, on the unpaid principal amount
hereof at the rates and on the dates determined in accordance with the Credit
Agreement. The Company shall pay each Competitive Bid Loan in full on the last
day of such Competitive Bid Loan's applicable Interest Period, or, if earlier,
on the Termination Date or the Facility Termination Date (as such terms are
defined in the Credit Agreement), or, if earlier, when due under Section 9.1 of
the Credit Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or otherwise record in accordance with its usual practice, the
date and amount of each Competitive Bid Loan and the date and amount of each
principal payment hereunder; provided, however, that the failure to so record
shall not affect the Company's obligations hereunder or under the Credit
Agreement.
This Note (Competitive Bid Loans) is one of the Notes issued pursuant to,
and is entitled to the benefits of, the 5-Year Revolving Credit Agreement dated
as of July 22, 1999 among American National Can Group, Inc. (the "Company"), the
Subsidiary Borrowers from time to time party thereto, the financial institutions
parties thereto (the "Lenders"), The First National Bank of
43
<PAGE> 216
Chicago, individually and as Administrative Agent on behalf of the Lenders, The
Chase Manhattan Bank, individually and as syndication agent (the "Syndication
Agent") on behalf of the Lenders, ABN AMRO Bank N.V., individually and as
co-documentation agent and arranger (the "Co-Documentation Agent and Arranger")
on behalf of the Lenders, Royal Bank of Canada, individually and as
co-documentation agent and arranger (the "Co-Documentation Agent and Arranger")
on behalf of the Lenders, Banque Nationale De Paris, individually and as
arranger (the "Arranger") on behalf of the Lenders, Chase Securities, Inc.,
individually and as lead arranger and joint book manager (the "Lead Arranger and
Joint Book Manager") on behalf of the Lenders, and Banc One Capital Markets,
Inc., individually and as lead arranger and joint book manager (the "Lead
Arranger and Joint Book Manager") on behalf of the Lenders, to which Credit
Agreement reference is hereby made for a statement of the terms and conditions
under which this Note may be prepaid or its maturity date accelerated.
Capitalized terms used herein and not otherwise defined herein are used with the
meanings attributed to them in the Credit Agreement.
AMERICAN NATIONAL CAN GROUP, INC.
By:
------------------------------------
Name:
Title:
44
<PAGE> 217
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
PROMISSORY NOTE (COMPETITIVE BID LOANS)
OF AMERICAN NATIONAL CAN GROUP, INC.
[DATE]
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
- ---- --------- ------------ ----------- --------------
45
<PAGE> 218
EXHIBIT L
TO
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF COMPETITIVE BID QUOTE REQUEST
(Section 2.1(B))
COMPETITIVE BID QUOTE REQUEST
_________, 19
To: The First National Bank of Chicago, as administrative agent (the
"Administrative Agent")
From: American National Can Group, Inc. (the "Company")
Re: 5-Year Revolving Credit Agreement (the "Credit Agreement") dated as of July
22, 1999 among the Company, the financial institutions parties thereto (the
"Lenders"), The First National Bank of Chicago, individually and as
Administrative Agent on behalf of the Lenders, The Chase Manhattan Bank,
individually and as syndication agent (the "Syndication Agent") on behalf
of the Lenders, ABN AMRO Bank N.V., individually and as co-documentation
agent and arranger (the "Co-Documentation Agent and Arranger") on behalf of
the Lenders, Royal Bank of Canada, individually and as co-documentation
agent and arranger (the "Co-Documentation Agent and Arranger") on behalf of
the Lenders, Banque Nationale De Paris, individually and as arranger (the
"Arranger") on behalf of the Lenders, Chase Securities, Inc., individually
and as lead arranger and joint book manager (the "Lead Arranger and Joint
Book Manager") on behalf of the Lenders, and Banc One Capital Markets,
Inc., individually and as lead arranger and joint book manager (the "Lead
Arranger and Joint Book Manager") on behalf of the Lenders.
We hereby give notice pursuant to Section 2.1(B) of the Credit Agreement
that we request Competitive Bid Quotes for the following proposed Competitive
Bid Advance(s):
Borrowing Date: ______________, 19
46
<PAGE> 219
Principal Amount(1) Interest Period(2)
- ---------------- ---------------
$
Such Competitive Bid Quotes should offer a [Competitive Bid Margin]
[Absolute Rate].
Upon acceptance by the undersigned of any or all of the Competitive Bid
Advances offered by Lenders in response to this request, the undersigned shall
be deemed to affirm as of such date the representations and warranties made in
the Credit Agreement to the extent specified in Article V thereof. Capitalized
terms used herein have the meanings assigned to them in the Credit Agreement.
AMERICAN NATIONAL CAN GROUP, INC.
By:
-----------------------------------
Name:
Title:
- --------------------------
(1) Amount must be at least $5,000,000 and in integral multiples of $1,000,000
if in excess thereof.
(2) Seven days, or one, two, three or six months (Eurocurrency Auction) or at
least 7 and up to 180 days (Absolute Rate Auction), subject to the
provisions of the definitions of Eurocurrency Interest Period and Absolute
Rate Interest Period.
47
<PAGE> 220
EXHIBIT M
TO
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.1(C))
INVITATION FOR COMPETITIVE BID QUOTES
____________, 19
To: [Name of Bank]
Re: Invitation for Competitive Bid Quotes to
American National Can Group, Inc. (the "Company")
Pursuant to Section 2.1(C) of the 5-Year Revolving Credit Agreement dated
as of July 22, 1999 (the "Credit Agreement") among the Company, the Subsidiary
Borrowers from time to time party thereto, the financial institutions parties
thereto (the "Lenders"), The First National Bank of Chicago, individually and as
Administrative Agent on behalf of the Lenders, The Chase Manhattan Bank,
individually and as syndication agent (the "Syndication Agent") on behalf of the
Lenders, ABN AMRO Bank N.V., individually and as co-documentation agent and
arranger (the "Co-Documentation Agent and Arranger") on behalf of the Lenders,
Royal Bank of Canada, individually and as co-documentation agent and arranger
(the "Co-Documentation Agent and Arranger") on behalf of the Lenders, Banque
Nationale De Paris, individually and as arranger (the "Arranger") on behalf of
the Lenders, Chase Securities, Inc., individually and as lead arranger and joint
book manager (the "Lead Arranger and Joint Book Manager") on behalf of the
Lenders, and Banc One Capital Markets, Inc., individually and as lead arranger
and joint book manager (the "Lead Arranger and Joint Book Manager") on behalf of
the Lenders, we are pleased on behalf of the Company to invite you to submit
Competitive Bid Quotes to the Company for the following proposed Competitive Bid
Advance(s):
Borrowing Date: __________________ , 19
Principal Amount Interest Period
- ---------------- ---------------
$
48
<PAGE> 221
Such Competitive Bid Quotes should offer a [Competitive Bid Margin]
[Absolute Rate]. Your Competitive Bid Quote must comply with Section 2.1(D) of
the Credit Agreement and the foregoing terms in which the Competitive Bid Quote
Request was made. Capitalized terms used herein have the meanings assigned to
them in the Credit Agreement.
Please respond to this invitation by no later than [1:00 p.m.] [9:00 a.m.]
Chicago time on _________, 19___.
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
By:
----------------------------------
Authorized Officer
49
<PAGE> 222
EXHIBIT N
TO
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF COMPETITIVE BID QUOTE
(Section 2.1(D))
COMPETITIVE BID QUOTE
___________, 19
To: The First National Bank of Chicago,
as administrative agent (the "Administrative Agent")
Attn: _________________________
Re: Competitive Bid Quote to American National Can Group, Inc. (the
"Company")
In response to your invitation on behalf of the Company dated , 19 , we hereby
make the following Competitive Bid Quote pursuant to Section 2.1(D) of the
Credit Agreement hereinafter referred to and on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. Borrowing Date: ________________ , 19 ___(1)
4. We hereby offer to make Competitive Bid Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest [Competitive [Absolute Minimum
Amount(2) Period(3) Bid Margin(4)] Rate(5)] Amount
- ------ ------ ---------- ----- ------
$
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the 5-Year Revolving
Credit Agreement dated as of July 22, 1999 among the Company, the Subsidiary
Borrowers from time to time party thereto, the
50
<PAGE> 223
financial institutions parties thereto (the "Lenders"), The Chase Manhattan
Bank, individually and as syndication agent (the "Syndication Agent") on behalf
of the Lenders, ABN AMRO Bank N.V., individually and as co-documentation agent
and arranger (the "Co-Documentation Agent and Arranger") on behalf of the
Lenders, Royal Bank of Canada, individually and as co-documentation agent and
arranger (the "Co-Documentation Agent and Arranger") on behalf of the Lenders,
Banque Nationale De Paris, individually and as arranger (the "Arranger") on
behalf of the Lenders, Chase Securities, Inc., individually and as lead arranger
and joint book manager (the "Lead Arranger and Joint Book Manager") on behalf of
the Lenders, and Banc One Capital Markets, Inc., individually and as lead
arranger and joint book manager (the "Lead Arranger and Joint Book Manager") on
behalf of the Lenders, and yourselves, as Administrative Agent on behalf of the
Lenders, irrevocably obligates us to make the Competitive Bid Loan(s) for which
any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
Dated: , 19 By:
Authorized Officer
- --------------------
(1) As specified in the related Invitation for Competitive Bid Quotes.
(2) Principal amount bid for each Interest Period may not exceed principal
amount requested. Bids must be made for $5,000,000 and in integral
multiples of $1,000,000 if in excess thereof.
(3) Seven days, or one, two, three or six months (Eurocurrency Auction) or at
least 7 and up to 180 days (Absolute Rate Auction), as specified in the
related Invitation for Competitive Bid Quotes.
(4) Competitive Bid Margin over or under the Eurocurrency Base Rate determined
for the applicable Interest Period. Specify percentage (rounded to the
nearest 1/100 of 1%) and specify whether "PLUS" or "MINUS".
(4) Specify rate of interest per annum (rounded to the nearest 1/100 of 1%).
(6) Specify minimum amount which the Company may accept (see Section
2.1(D)(ii)(d)).
51
<PAGE> 224
EXHIBIT O
TO
5-YEAR REVOLVING CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF ASSUMPTION LETTER
, 19__
To the Lenders party to the
Credit Agreement referred
to below
Ladies and Gentlemen:
Reference is made to the 5-Year Revolving Credit Agreement dated as of July
22, 1999 initially among American National Can Group, Inc., the Subsidiary
Borrowers from time to time parties thereto, the Lenders parties thereto, The
First National Bank of Chicago, individually and as Administrative Agent on
behalf of the Lenders, The Chase Manhattan Bank, individually and as syndication
agent (the "Syndication Agent") on behalf of the Lenders, ABN AMRO Bank N.V.,
individually and as co-documentation agent and arranger (the "Co-Documentation
Agent and Arranger") on behalf of the Lenders, Royal Bank of Canada,
individually and as co-documentation agent and arranger (the "Co-Documentation
Agent and Arranger") on behalf of the Lenders, Banque Nationale De Paris,
individually and as arranger (the "Arranger") on behalf of the Lenders, Chase
Securities, Inc., individually and as lead arranger and joint book manager (the
"Lead Arranger and Joint Book Manager") on behalf of the Lenders, and Banc One
Capital Markets, Inc., individually and as lead arranger and joint book manager
(the "Lead Arranger and Joint Book Manager") on behalf of the Lenders (as
amended and in effect from time to time, the "Credit Agreement"). Terms defined
in the Credit Agreement and used herein are used herein as defined therein.
The undersigned, _________ (the "Subsidiary"), a ____________
[corporation], wishes to become a "Subsidiary Borrower" under the Credit
Agreement, and accordingly hereby agrees that from the date hereof it shall
become a "Subsidiary Borrower" under the Credit Agreement and agrees that from
the date hereof and until the payment in full of the principal of and interest
on all Advances made to it under the Credit Agreement and performance of all of
its other obligations thereunder, and termination hereunder of its status as a
"Subsidiary Borrower" as provided below, it shall perform, comply with and be
bound by each of the provisions of the Credit Agreement which are stated to
apply to a "Borrower" or a "Subsidiary Borrower." Without limiting the
generality of the foregoing, the Subsidiary hereby represents and warrants that:
(i) each of the representations and warranties set forth in Sections 6.1, 6.2,
6.3, and 6.22 of the Credit Agreement is hereby made by such Subsidiary
52
<PAGE> 225
on and as of the date hereof as if made on and as of the date hereof and as if
such Subsidiary is the "Company" and this Assumption Letter is the "Agreement"
referenced therein, and (ii) it has heretofore received a true and correct copy
of the Credit Agreement (including any modifications thereof or supplements or
waivers thereto) as in effect on the date hereof. In addition, the Subsidiary
hereby authorizes the Company to act on its behalf as and to the extent provided
for in Article II of the Credit Agreement in connection with the selection of
Types and Interest Periods for Advances and with the issuance of Letters of
Credit, and the conversion and continuation of Advances.
So long as the principal of and interest on all Advances and Letters of
Credit made to the Subsidiary under the Credit Agreement shall have been paid in
full and all other obligations of the Subsidiary under the Credit Agreement
shall have been fully performed, the Company may by not less than five Business
Days' prior notice to the Lenders terminate its status as a "Subsidiary
Borrower."
CHOICE OF LAW. THIS ASSUMPTION LETTER SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT
REGARD TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
53
<PAGE> 226
IN WITNESS WHEREOF, the Subsidiary has duly executed and delivered this
Assumption Letter as of the date and year first above written.
[Name of Subsidiary Borrower]
By
-----------------------------------
Title:
--------------------------------
Address for Notices under
the Credit Agreement:
Consented to:
AMERICAN NATIONAL CAN GROUP, INC.
By:
Title:
<PAGE> 1
EXHIBIT 10.34
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
among
AMERICAN NATIONAL CAN GROUP, INC.,
as the Company,
the SUBSIDIARY BORROWERS,
THE INSTITUTIONS FROM TIME TO TIME
PARTIES HERETO AS LENDERS,
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent,
THE CHASE MANHATTAN BANK,
as Syndication Agent,
ABN AMRO BANK N.V.,
as Co-Documentation Agent and Arranger,
ROYAL BANK OF CANADA,
as Co-Documentation Agent and Arranger,
BANQUE NATIONALE DE PARIS,
as Arranger,
and
CHASE SECURITIES INC., BANC ONE CAPITAL MARKETS, INC.,
as Lead Arranger and as Lead Arranger and Joint
Joint Book Manager Book Manager
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C>
ARTICLE I: DEFINITIONS..................................................................................-1-
1.1 Certain Defined Terms......................................................................-1-
1.2 References................................................................................-29-
1.3 Supplemental Disclosure...................................................................-29-
1.4. Rounding and Other Consequential Changes..................................................-29-
ARTICLE II: REVOLVING LOAN FACILITIES..................................................................-30-
2.1. Competitive Bid Advances..................................................................-30-
(A) Competitive Bid Option...........................................................-30-
(B) Competitive Bid Quote Request....................................................-30-
(C) Invitation for Competitive Bid Quotes............................................-30-
(D) Submission and Contents of Competitive Bid Quotes................................-31-
(E) Notice to Company................................................................-32-
(F) Acceptance and Notice by Company.................................................-32-
(G) Allocation by Administrative Agent...............................................-33-
(H) Administration Fee...............................................................-33-
2.2 Revolving Loans...........................................................................-33-
2.3 Swing Line Loans..........................................................................-34-
2.4 Rate Options for all Advances; Maximum Interest Periods...................................-36-
2.5 Optional Payments; Mandatory Prepayments..................................................-36-
(A) Optional Payments................................................................-36-
(B) Mandatory Prepayments of Revolving Loans.........................................-36-
2.6 Changes in Commitments....................................................................-37-
2.7 Method of Borrowing.......................................................................-39-
2.8 Method of Selecting Types and Interest Periods for Advances...............................-40-
2.9 Minimum Amount of Each Advance............................................................-40-
2.10 Method of Selecting Types and Interest Periods for Conversion and Continuation of
Advances..............................................................................-41-
(A) Right to Convert.................................................................-41-
(B) Automatic Conversion and Continuation............................................-41-
(C) No Conversion Post-Default or Post-Unmatured Default.............................-41-
(D) Borrowing/Conversion/Continuation Notice.........................................-41-
2.11 Default Rate.............................................................................-41-
2.12 Method of Payment........................................................................-42-
2.13 Evidence of Debt.........................................................................-43-
2.14 Telephonic Notices.......................................................................-43-
2.15 Promise to Pay; Interest and Fees; Interest Payment Dates; Interest and Fee Basis;
Taxes; Loan and Control Accounts......................................................-44-
(A) Promise to Pay...................................................................-44-
(B) Interest Payment Dates...........................................................-44-
(C) Fees.............................................................................-44-
(D) Interest and Fee Basis; Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Facility Fee Percentage...................-45-
(E) Taxes............................................................................-47-
</TABLE>
-ii-
<PAGE> 3
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C>
2.16 Notification of Advances, Interest Rates, Prepayments and Aggregate Revolving
Loan Commitment Reductions............................................................-51-
2.17 Lending Installations....................................................................-51-
2.18 Non-Receipt of Funds by the Administrative Agent.........................................-51-
2.19 Termination Date; Extension of Termination Date; Conversion to Term Loan.................-51-
(A) Termination Date.................................................................-51-
(B) Extension of Termination Date....................................................-51-
(C) Conversion to Term Loan..........................................................-52-
2.20 Replacement of Certain Lenders...........................................................-52-
2.21 [Reserved]...............................................................................-53-
2.22 Judgment Currency. ......................................................................-53-
2.23 Market Disruption; Denomination of Amounts in Dollars; Dollar Equivalent of
Reimbursement Obligations.............................................................-54-
2.24. Subsidiary Borrowers. ..................................................................-54-
ARTICLE III: [RESERVED].................................................................................-55-
ARTICLE IV: CHANGE IN CIRCUMSTANCES....................................................................-55-
4.1 Yield Protection..........................................................................-55-
4.2 Changes in Capital Adequacy Regulations...................................................-56-
4.3 Availability of Types of Advances.........................................................-56-
4.4 Funding Indemnification...................................................................-56-
4.5 Lender Statements; Survival of Indemnity..................................................-57-
ARTICLE V: CONDITIONS PRECEDENT........................................................................-57-
5.1 Initial Advances..........................................................................-57-
5.2. Initial Advance to Each New Subsidiary Borrower...........................................-59-
5.3 Each Advance, Each Conversion or Continuation of an Advance...............................-60-
ARTICLE VI: REPRESENTATIONS AND WARRANTIES.............................................................-60-
6.1. Organization; Corporate Powers............................................................-61-
6.2. Authorization and Validity................................................................-61-
6.3. No Conflict; Government Consent...........................................................-61-
6.4. Financial Statements......................................................................-61-
6.5. Material Adverse Change...................................................................-62-
6.6. Taxes.....................................................................................-62-
6.7. Litigation and Contingent Obligations.....................................................-62-
6.8. Subsidiaries..............................................................................-62-
6.9. ERISA.....................................................................................-62-
6.10. Accuracy of Information..................................................................-63-
</TABLE>
-iii-
<PAGE> 4
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C>
6.11. Regulation U...............................................................................-63-
6.12. Material Agreements........................................................................-63-
6.13. Compliance With Laws.......................................................................-63-
6.14. Ownership of Properties....................................................................-63-
6.15 Statutory Indebtedness Restrictions........................................................-63-
6.16. Environmental Matters......................................................................-64-
6.17 Insurance..................................................................................-64-
6.18 Labor Matters..............................................................................-65-
6.19 Solvency...................................................................................-65-
6.20 Year 2000 Issues...........................................................................-65-
6.21 Representations and Warranties of each Subsidiary Borrower.................................-65-
6.22 Indebtedness of the Company................................................................-67-
6.23 Foreign Employee Benefit Matters...........................................................-67-
ARTICLE VII: COVENANTS...................................................................................-67-
7.1 Reporting...................................................................................-67-
(A) Financial Reporting................................................................-67-
(B) Notice of Default..................................................................-68-
(C) Lawsuits...........................................................................-68-
(D) ERISA Notices......................................................................-69-
(E) Labor Matters......................................................................-71-
(F) Other Indebtedness.................................................................-71-
(G) Other Reports......................................................................-71-
(H) Environmental Notices..............................................................-71-
(I) Other Information..................................................................-71-
7.2 Affirmative Covenants.......................................................................-72-
(A) Corporate Existence, Etc...........................................................-72-
(B) Corporate Powers; Conduct of Business..............................................-72-
(C) Compliance with Laws, Etc..........................................................-72-
(D) Payment of Taxes and Claims; Tax Consolidation.....................................-72-
(E) Insurance..........................................................................-72-
(F) Inspection of Property; Books and Records; Discussions............................-73-
(G) ERISA Compliance...................................................................-73-
(H) Maintenance of Property............................................................-73-
(I) Environmental Compliance...........................................................-73-
(J) Use of Proceeds....................................................................-73-
(K) Subsidiary Guarantees; Subsidiary Subordination Agreement..........................-74-
(L) Year 2000 Issues...................................................................-74-
(M) Foreign Employee Benefit Compliance................................................-74-
7.3 Negative Covenants..........................................................................-75-
(A) Sale of Receivables................................................................-75-
(B) Sales of Assets....................................................................-75-
(C) Liens..............................................................................-76-
</TABLE>
-iv-
<PAGE> 5
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C>
(D) Subsidiary Indebtedness..........................................................-77-
(E) Contingent Obligations...........................................................-77-
(F) Restricted Payments..............................................................-78-
(G) Conduct of Business; Subsidiaries; Acquisitions..................................-78-
(H) Transactions with Shareholders and Affiliates....................................-79-
(I) Restriction on Fundamental Changes...............................................-79-
(J) Sales and Leasebacks.............................................................-80-
(K) Margin Regulations...............................................................-80-
(L) ERISA............................................................................-80-
(M) Corporate Documents..............................................................-81-
(N) Fiscal Year......................................................................-81-
(O) Subsidiary Covenants.............................................................-81-
(P) Hedging Obligations..............................................................-81-
(Q) Maximum Net Rentals Obligations..................................................-82-
7.4 Financial Covenants.......................................................................-82-
(A) Minimum Interest Coverage Ratio..................................................-82-
(B) Maximum Total Net Indebtedness to Capital Ratio..................................-83-
(C) Minimum Consolidated Net Worth...................................................-83-
ARTICLE VIII: DEFAULTS.................................................................................-83-
8.1 Defaults..................................................................................-83-
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS,
AMENDMENTS AND REMEDIES........................................................................-86-
9.1 Termination of Revolving Loan Commitments; Acceleration...................................-86-
9.2 Defaulting Lender.........................................................................-86-
9.3 Amendments................................................................................-88-
9.4 Preservation of Rights....................................................................-89-
ARTICLE X: GUARANTY....................................................................................-89-
10.1. Guaranty..............................................................................-89-
10.2. Waivers; Subordination of Subrogation.................................................-89-
10.3. Guaranty Absolute.....................................................................-90-
10.4. Acceleration..........................................................................-91-
10.5. Marshaling; Reinstatement.............................................................-91-
10.6. Termination Date......................................................................-91-
ARTICLE XI: GENERAL PROVISIONS.........................................................................-92-
11.1 Survival of Representations..............................................................-92-
11.2 Governmental Regulation..................................................................-92-
11.3 Performance of Obligations...............................................................-92-
11.4 Headings.................................................................................-92-
11.5 Entire Agreement.........................................................................-93-
</TABLE>
-v-
<PAGE> 6
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C>
11.6 Several Obligations; Benefits of this Agreement..........................................-93-
11.7 Expenses; Indemnification................................................................-93-
(A) Expenses.........................................................................-93-
(B) Indemnity........................................................................-93-
(C) Waiver of Certain Claims.........................................................-94-
(D) Survival of Agreements...........................................................-94-
11.8 Numbers of Documents.....................................................................-94-
11.9 Accounting...............................................................................-94-
11.10 Severability of Provisions..............................................................-95-
11.11 Nonliability of Lenders.................................................................-95-
11.12 GOVERNING LAW...........................................................................-95-
11.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.................................-95-
(A) EXCLUSIVE JURISDICTION...........................................................-95-
(B) OTHER JURISDICTIONS..............................................................-95-
(C) VENUE............................................................................-96-
(D) WAIVER OF JURY TRIAL.............................................................-96-
11.14 Other Transactions......................................................................-96-
ARTICLE XII: THE ADMINISTRATIVE AGENT..................................................................-97-
12.1 Appointment; Nature of Relationship......................................................-97-
12.2 Powers...................................................................................-97-
12.3 General Immunity.........................................................................-98-
12.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc.............................-98-
12.5 Action on Instructions of Lenders........................................................-98-
12.6 Employment of Agents and Counsel.........................................................-98-
12.7 Reliance on Documents; Counsel...........................................................-98-
12.8 The Administrative Agent's Reimbursement and Indemnification.............................-99-
12.9 Rights as a Lender.......................................................................-99-
12.10 Lender Credit Decision..................................................................-99-
12.11 Successor Administrative Agent..........................................................-99-
12.12. No Duties Imposed Upon Syndication Agent, Co-Documentation Agents, Lead
Arrangers or Arrangers...............................................................-100-
ARTICLE XIII: SETOFF; RATABLE PAYMENTS................................................................-100-
13.1 Setoff..................................................................................-100-
13.2 Ratable Payments........................................................................-100-
13.3 Application of Payments.................................................................-101-
13.4 Relations Among Lenders.................................................................-102-
ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS........................................-102-
14.1 Successors and Assigns..................................................................-102-
14.2 Participations..........................................................................-102-
</TABLE>
-vi-
<PAGE> 7
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C>
(A) Permitted Participants; Effect..................................................-102-
(B) Voting Rights...................................................................-103-
14.3 Assignments.............................................................................-103-
(A) Permitted Assignments...........................................................-103-
(B) Effect; Effective Date..........................................................-104-
(C) The Register....................................................................-105-
14.4 Confidentiality.........................................................................-105-
14.5 Dissemination of Information............................................................-106-
ARTICLE XV: NOTICES...................................................................................-106-
15.1 Giving Notice...........................................................................-106-
15.2 Change of Address.......................................................................-106-
ARTICLE XVI: COUNTERPARTS.............................................................................-106-
</TABLE>
-vii-
<PAGE> 8
EXHIBITS AND SCHEDULES
EXHIBITS
EXHIBIT A -- Revolving Loan Commitments
(Definitions)
EXHIBIT A-1 -- Eurocurrency Payment Offices
EXHIBIT B -- Form of Borrowing/Conversion/Continuation Notice
(Section 2.3 and Section 2.8 and Section 2.10)
EXHIBIT C -- [Reserved]
EXHIBIT D -- Form of Assignment and Acceptance Agreement
(Sections 2.20 and 14.3)
EXHIBIT E -- Form of Company's US Counsel's Opinion and Form of
Company's Foreign Counsel's Opinion (Section 5.1)
EXHIBIT F -- List of Closing Documents
(Section 5.1)
EXHIBIT G -- Form of Officer's Certificate
(Sections 5.3 and 7.1(A)(iii))
EXHIBIT H -- Form of Compliance Certificate
(Sections 5.3 and 7.1(A)(iii)
EXHIBIT I-1 -- Form of Guaranty
(Definitions)
EXHIBIT I-2 -- Form of Subordination Agreement
(Definitions)
EXHIBIT J -- [Reserved]
EXHIBIT K-1 -- Form of Revolving Loan Note (If Requested)
EXHIBIT K-2 -- Form of Competitive Bid Note (If Requested)
-viii-
<PAGE> 9
EXHIBIT L -- Form of Competitive Bid Quote Request
EXHIBIT M -- Form of Invitation for Competitive Bid Quotes
EXHIBIT N -- Form of Competitive Bid Quote
EXHIBIT O -- Form of Assumption Letter
EXHIBIT P -- Form of Commitment and Acceptance
-ix-
<PAGE> 10
SCHEDULES
Schedule 1.1.1 -- Permitted Existing Contingent Obligations (Definitions)
Schedule 1.1.2 -- Permitted Existing Indebtedness (Definitions)
Schedule 1.1.3 -- Permitted Existing Liens (Definitions)
Schedule 1.1.4 -- Subsidiary Borrowers (Definitions)
Schedule 1.1.5 -- Supported Contingent Obligations (Definitions)
Schedule 5.1 -- Terminated Indebtedness (Section 5.1)
Schedule 6.7 -- Litigation; Loss Contingencies (Section 6.7)
Schedule 6.8 -- Subsidiaries (Section 6.8)
Schedule 6.16 -- Environmental Notices (Section 6.16(c))
Schedule 6.17 -- Insurance (Sections 6.17 and 7.2(E))
Schedule 6.22 -- Existing Company Indebtedness
Schedule 7.3(B) -- Notes Receivables (Section 7.3(B)(iv))
Schedule 7.3(H) -- Transactions with Affiliates (Section 7.3(H))
-x-
<PAGE> 11
364-DAY CREDIT AGREEMENT
This 364-DAY CREDIT AGREEMENT dated as of July 22, 1999 is entered into
by and among AMERICAN NATIONAL CAN GROUP, INC., a Delaware corporation (the
"COMPANY"), one or more Subsidiaries of the Company (whether now existing or
hereafter formed, collectively referred to herein as the "SUBSIDIARY
BORROWERS"), the institutions from time to time parties hereto as Lenders,
whether by execution of this Agreement or an Assignment Agreement pursuant to
Section 14.3, and THE FIRST NATIONAL BANK OF CHICAGO, in its capacity as
contractual representative (the "ADMINISTRATIVE AGENT") for itself and the other
Lenders, THE CHASE MANHATTAN BANK, as Syndication Agent (the "SYNDICATION
AGENT"), and ABN AMRO BANK N.V., as Co-Documentation Agent (the
"CO-DOCUMENTATION AGENT") and Arranger (the "ARRANGER"), and ROYAL BANK OF
CANADA, as Co-Documentation Agent (the "CO-DOCUMENTATION AGENT") and Arranger
(the "ARRANGER"), BANQUE NATIONALE DE PARIS, as Arranger (the "ARRANGER"), CHASE
SECURITIES INC., as Lead Arranger (the "LEAD ARRANGER") and Joint Book Manager
(the "JOINT BOOK MANAGER"), and BANC ONE CAPITAL MARKETS, INC., as Lead Arranger
(the "LEAD ARRANGER") and Joint Book Manager (the "JOINT BOOK MANAGER"). The
parties hereto agree as follows:
ARTICLE I: DEFINITIONS
1.1 Certain Defined Terms. In addition to the terms defined above, the
following terms used in this Agreement shall have the following meanings,
applicable both to the singular and the plural forms of the terms defined.
As used in this Agreement:
"ABSOLUTE RATE" means, with respect to an Absolute Rate Loan made by a
given Lender for the relevant Absolute Rate Interest Period, the rate of
interest per annum (rounded to the nearest 1/100 of 1%) offered by such Lender
and accepted by the Company.
"ABSOLUTE RATE ADVANCE" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of the
Lenders to the Company at the same time and for the same Interest Period.
"ABSOLUTE RATE AUCTION" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to Section 2.1.
"ABSOLUTE RATE INTEREST PERIOD" means, with respect to an Absolute Rate
Advance, a period of not fewer than seven (7) and not more than one hundred
eighty (180) days commencing on a Business Day selected by the Company pursuant
to this Agreement. If such Absolute Rate Interest Period would end on a day
which is not a Business Day, such Absolute Rate Interest Period shall end on the
next succeeding Business Day.
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"ABSOLUTE RATE LOAN" means a Loan which bears interest at the Absolute
Rate.
"ACQUISITION" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division thereof,
whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for the election of
directors (other than securities having such power only by reason of the
happening of a contingency) or a majority (by percentage of voting power) of the
outstanding equity interests of another Person.
"ADMINISTRATIVE AGENT" means First Chicago in its capacity as
contractual representative for itself and the Lenders pursuant to Article XII
hereof and any successor Administrative Agent appointed pursuant to Article XII
hereof.
"ADMINISTRATIVE AGENT FEE LETTER" means that certain fee letter between
the Company and the Administrative Agent, dated as of June 7, 1999.
"ADVANCE" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by some or all of the Lenders to the applicable
Borrower of the same Type (or on the same interest basis in the case of
Competitive Bid Advances) and, in the case of Eurocurrency Rate Advances, in the
same currency and for the same Interest Period and includes a Competitive Bid
Advance.
"AFFECTED LENDER" is defined in Section 2.20 hereof.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of greater than twenty percent (20%) or more of any class of voting
securities (or other voting interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
Capital Stock, by contract or otherwise.
"AGENTS" means each of the Administrative Agent, the Syndication Agent
and the Co-Documentation Agents.
"AGGREGATE COMMITMENT" means, as of any date of determination, the
Aggregate Revolving Loan Commitment (or, from and after the Conversion Date, the
outstanding principal balance of the Loans) as of such date plus an amount equal
to the "Maximum Matured Value" (or, from and after the "Conversion Date", the
sum of (a) the "Matured Values" of all outstanding "Advances" held by Windmill
Funding Corporation plus (b) the aggregate principal amount of all outstanding
"Advances" made or held by the 364-Day CLO Lenders other than Windmill Funding
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<PAGE> 13
Corporation) under (and as such terms are defined in) the 364-Day Finance
Facility Agreement as of such date (which Maximum Matured Value is equal to
$50,000,000 as of the Closing Date).
"AGGREGATE PRO RATA SHARE" means, with respect to any Lender hereunder
or 364-Day CLO Lender, the percentage obtained by dividing (x) the sum of such
Person's (i) Revolving Loan Commitment (or, from and after the Conversion Date,
the outstanding principal balance of such Lender's (A) Revolving Loans plus (B)
share of the obligations to purchase participations in Swing Line Loans, plus
(C) Competitive Bid Loans) at such time (as adjusted from time to time in
accordance with the provisions of this Agreement), if applicable, plus (ii)
aggregate commitment under the 364-Day Finance Facility Agreement measured by
reference to the "Maximum Matured Value" (or, from and after the "Conversion
Date", the sum of (a) the "Matured Values" of all outstanding "Advances" held by
Windmill Funding Corporation plus (b) the aggregate principal amount of all
outstanding "Advances" made or held by the 364-Day CLO Lenders other than
Windmill Funding Corporation) under (and as such terms are defined in) the
364-Day Finance Facility Agreement, if applicable, by (y) the Aggregate
Commitment (as adjusted from time to time in accordance with the provisions of
this Agreement) at such time.
"AGGREGATE REVOLVING LOAN COMMITMENT" means the aggregate of the
Revolving Loan Commitments of all the Lenders, as may be adjusted from time to
time pursuant to the terms hereof. The initial Aggregate Revolving Loan
Commitment is Six Hundred Million and 00/100 Dollars ($600,000,000.00).
"AGREED CURRENCIES" means (i) Dollars and (ii) any other Eligible
Currency which the applicable Borrower requests the Administrative Agent to
include as an Agreed Currency hereunder and which is acceptable to one-hundred
percent (100%) of the Lenders with a Revolving Loan Commitment and one-hundred
percent (100%) of the 364-Day CLO Lenders with a commitment under the 364-Day
Finance Facility Agreement; provided that the Administrative Agent shall
promptly notify each such Lender and the 364-Day CLO Lenders of each such
request and each such Lender and 364-Day CLO Lender shall be deemed not to have
agreed to each such request unless its written consent thereto has been received
by the Administrative Agent within five (5) Business Days from the date of such
notification by the Administrative Agent to such Lender or 364-Day CLO Lender.
"AGREEMENT" means this 364-Day Credit Agreement, as it may be amended,
restated or otherwise modified and in effect from time to time.
"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles as in effect in the United States as of the date of this Agreement,
applied in a manner consistent with that used in preparing the financial
statements of the Company referred to in Section 6.4 hereof.
"ALTERNATE BASE RATE" means, for any day, a fluctuating rate of
interest per annum equal to the higher of (i) the Corporate Base Rate for such
day and (ii) the sum of (a) the Federal Funds Effective Rate for such day and
(b) one-half of one percent (0.5%) per annum.
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"ANC" means American National Can Company, a Delaware corporation, and
its successors and assigns.
"APPLICABLE EUROCURRENCY MARGIN" means, as at any date of
determination, the rate per annum then applicable to Eurocurrency Rate Loans
determined in accordance with the provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE FACILITY FEE PERCENTAGE" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under Section 2.15(C)(i) hereof determined in accordance with the
provisions of Section 2.15(D)(ii) hereof.
"APPLICABLE FLOATING RATE MARGIN" means, as at any date of
determination, the rate per annum then applicable to Floating Rate Loans
determined in accordance with the provisions of Section 2.15(D)(ii) hereof.
"APPROVED FUND" means, with respect to any Lender that is a fund or
commingled investment vehicle that invests in commercial loans, any other fund
that invests in commercial loans and is managed or advised by the same
investment advisor as such Lender or by an Affiliate of such investment advisor.
"APPROXIMATE EQUIVALENT AMOUNT" of any currency with respect to any
amount of Dollars shall mean the Equivalent Amount of such currency with respect
to such amount of Dollars at such date, rounded up to the nearest amount of such
currency as determined by the Administrative Agent from time to time.
"ARRANGERS" means each of ABN AMRO Bank N.V., Royal Bank of Canada and
Banque Nationale de Paris, in their respective capacities as arrangers for the
loan transaction evidenced by this Agreement.
"ASSIGNMENT AGREEMENT" means an assignment and acceptance agreement
entered into in connection with an assignment pursuant to Section 14.3 hereof in
substantially the form of Exhibit D.
"ASSET SALE" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including by way of a sale-leaseback transaction, and including the sale or
other transfer of any of the Equity Interests of any Subsidiary of such Person)
to any Person other than the Company or any of its wholly-owned Subsidiaries
other than (i) the sale of Inventory in the ordinary course of business, (ii)
the sale or other disposition of any obsolete, excess, damaged or worn-out
Equipment disposed of in the ordinary course of business, (iii) leases of
personal property (including leases or licenses of intellectual property), (iv)
sales of bottling or canning line equipment to customers in the ordinary course
of business consistent with past practice, and (v) sales or lease of excess,
obsolete or redundant land and buildings.
"ASSUMPTION LETTER" means a letter of a Subsidiary of the Company
addressed to the
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<PAGE> 15
Lenders in substantially the form of Exhibit O hereto pursuant to which such
Subsidiary agrees to become a "SUBSIDIARY BORROWER" and agrees to be bound by
the terms and conditions hereof.
"AUTHORIZED OFFICER" means any of the Presidents, any Vice President or
Chief Financial Officer of the Company, acting singly.
"AVERAGE TOTAL NET INDEBTEDNESS" shall mean, as of any date of
determination, (a) the sum of (i) the average of the aggregate indebtedness for
borrowed money, guarantees and letters of credit, without duplication (but
excluding the Supported Contingent Obligations) of the Company and its
Subsidiaries plus (ii) the average of the Capitalized Lease Obligations of the
Company and its Subsidiaries, minus (b) the average of the aggregate cash and
Cash Equivalents of the Company and its Subsidiaries, in each case as at the end
of each of the immediately preceding four fiscal quarters.
"AVERAGE TOTAL NET INDEBTEDNESS TO CAPITAL RATIO" means, as of any date
of determination, the ratio of (a) Average Total Net Indebtedness, to (b) the
sum of (i) the Average Total Net Indebtedness plus (ii) Consolidated Net Worth,
including minority interests, in each case as of such date of determination.
"BENEFIT PLAN" means a defined benefit plan as defined in Section 3(35)
of ERISA (other than a Multiemployer Plan or a Foreign Employee Benefit Plan) in
respect of which the Company or any other member of the Controlled Group is, or
within the immediately preceding six (6) years was, an "employer" as defined in
Section 3(5) of ERISA.
"BORROWER" means, as applicable, any of the Company and the Subsidiary
Borrowers, together with their respective successors and assigns; and
"BORROWERS" shall mean, collectively, the Company and the Subsidiary Borrowers.
"BORROWING DATE" means a date on which an Advance or Swing Line Loan is
made hereunder.
"BORROWING/CONVERSION/CONTINUATION NOTICE" is defined in Section 2.8
hereof.
"BUSINESS DAY" means (i) with respect to any borrowing, payment or rate
selection of Loans bearing interest at the Eurocurrency Rate or Eurocurrency Bid
Rate Advances, a day (other than a Saturday or Sunday) on which banks are open
for business in Chicago, Illinois and New York, New York and on which dealings
in Dollars and the other Agreed Currencies are carried on in the London
interbank market, and (ii) for all other purposes a day (other than a Saturday
or Sunday) on which banks are open for business in Chicago, Illinois and New
York, New York.
"BUYING LENDER(S)" is defined in Section 2.6(b).
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other
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<PAGE> 16
equivalents (however designated) of corporate stock, (iii) in the case of a
partnership, partnership interests (whether general or limited) and (iv) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person; provided, however, that "Capital Stock" shall not include any debt
securities convertible into equity securities prior to such conversion.
"CAPITALIZED LEASE" of a Person means any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"CASH EQUIVALENTS" means (i) marketable direct obligations issued or
unconditionally guaranteed by the governments of the United States and backed by
the full faith and credit of the United States government; (ii) domestic and
Eurocurrency certificates of deposit and time deposits, bankers' acceptances and
floating rate certificates of deposit issued by any commercial bank organized
under the laws of the United States, any state thereof, the District of
Columbia, any foreign bank, or its branches or agencies, the long-term
indebtedness of which institution at the time of acquisition is rated A- (or
better) by Standard & Poor's Ratings Group or A3 (or better) by Moody's
Investors Services, Inc., and which certificates of deposit and time deposits
are fully protected against currency fluctuations for any such deposits with a
term of more than ninety (90) days; (iii) shares of money market, mutual or
similar funds having assets in excess of $100,000,000 and the investments of
which are limited to (x) investment grade securities (i.e., securities rated at
least Baa by Moody's Investors Service, Inc. or at least BBB by Standard &
Poor's Ratings Group) and (y) commercial paper of United States and foreign
banks and bank holding companies and their subsidiaries and United States and
foreign finance, commercial industrial or utility companies which, at the time
of acquisition, are rated A-1 (or better) by Standard & Poor's Ratings Group or
P-1 (or better) by Moody's Investors Services, Inc. (all such institutions
being, "QUALIFIED INSTITUTIONS"); and (iv) commercial paper of Qualified
Institutions; provided that the maturities of such Cash Equivalents shall not
exceed three hundred sixty-five (365) days from the date of acquisition thereof.
"CHANGE" is defined in Section 4.2 hereof.
"CHANGE OF CONTROL" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act of 1934), excluding Pechiney, becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act
of 1934, provided that a person shall be deemed to have "beneficial ownership"
of all securities that such person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time), directly or
indirectly, of thirty percent (30%) or more of the combined voting power of the
Company's outstanding Capital Stock ordinarily having the right to vote at an
election of directors; or
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<PAGE> 17
(b) the majority of the board of directors of the Company fails to
consist of Continuing Directors; or
(c) the Company consolidates with or merges into another corporation or
conveys, transfers or leases all or substantially all of its property to any
Person, or any corporation consolidates with or merges into the Company, in
either event pursuant to a transaction in which the outstanding Capital Stock of
the Company is reclassified or changed into or exchanged for cash, securities or
other property; or
(d) except as otherwise permitted under the terms of this Agreement,
the Company shall cease to own and control all of the economic and voting rights
associated with all of the outstanding Capital Stock of its Subsidiaries.
"CLO ADMINISTRATIVE AGENT" means ABN AMRO Bank N.V., together with its
successors and assigns under the CLO Facilities.
"CLO FACILITIES" means, collectively, (i) the five (5) year corporate
loan option finance facilities in the original aggregate maximum matured
principal amount of $50,000,000 provided to the Company pursuant to the 5-Year
Finance Facility Agreement (the "5-YEAR FINANCE FACILITIES"), and (ii) the
364-day corporate loan option finance facilities in the original aggregate
maximum matured principal amount of $50,000,000 provided to the Company pursuant
to the 364-Day Finance Facility Agreement (the "364-DAY FINANCE FACILITIES").
"CLOSING DATE" means July 22, 1999.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"CO-DOCUMENTATION AGENT" means each of ABN AMRO Bank N.V. and Royal
Bank of Canada, in its respective capacity as co-documentation agent for the
loan transaction evidenced by this Agreement, together with its successors and
assigns.
"COMMISSION" means the Securities and Exchange Commission of the United
States of America and any Person succeeding to the functions thereof.
"COMMITMENT INCREASE DATE" is defined in Section 2.6(b).
"COMMITMENT INCREASE NOTICE" is defined in Section 2.6(b).
"COMPANY" means American National Can Group, Inc., a Delaware
corporation, together with its successors and assigns, including a
debtor-in-possession on behalf of the Company.
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"COMPETITIVE BID ADVANCE" means a borrowing hereunder consisting of the
aggregate amount of the several Competitive Bid Loans made by some or all of the
Lenders to the Company at the same time and for the same Interest Period.
"COMPETITIVE BID BORROWING NOTICE" is defined in Section 2.1(F).
"COMPETITIVE BID LOAN" means a Eurocurrency Bid Rate Loan or an
Absolute Rate Loan, or both, as the case may be and in either case in Dollars.
"COMPETITIVE BID MARGIN" means the margin above or below the applicable
Eurocurrency Base Rate offered for a Eurocurrency Bid Rate Loan, expressed as a
percentage (rounded to the nearest 1/100 of 1%) to be added or subtracted from
such Eurocurrency Base Rate.
"COMPETITIVE BID RATE" means, for any day for any Competitive Bid Loan
for the relevant Interest Period, the per annum rate of interest selected by the
Company in accordance with Section 2.1.
"COMPETITIVE BID QUOTE" means a Competitive Bid Quote substantially in
the form of Exhibit N hereto completed and delivered by a Lender to the
Administrative Agent in accordance with Section 2.1(D).
"COMPETITIVE BID QUOTE REQUEST" means a Competitive Bid Quote Request
substantially in the form of Exhibit L hereto completed and delivered by the
Company to the Administrative Agent in accordance with Section 2.1(B).
"CONSOLIDATED NET ASSETS" means the total assets of the Company and its
Subsidiaries on a consolidated basis (determined in accordance with Agreement
Accounting Principles), but excluding therefrom all goodwill under Agreement
Accounting Principles.
"CONSOLIDATED NET SALES" means all sales (net of returns and
allowances) shown on a consolidated income statement of the Company and its
Subsidiaries, prepared in accordance with Agreement Accounting Principles.
"CONSOLIDATED NET WORTH" means, at a particular date, all amounts which
would be included under shareholders' equity on the consolidated balance sheet
for the Company and its consolidated Subsidiaries, but excluding cumulative
foreign currency translation adjustments and adjustments for minimum pension
liability accounts, in each case as determined in accordance with Agreement
Accounting Principles.
"CONTAMINANT" means any waste, pollutant, hazardous substance, toxic
substance, hazardous waste, special waste, petroleum or petroleum-derived
substance or waste, asbestos, polychlorinated biphenyls ("PCBS"), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.
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"CONTINGENT OBLIGATION", as applied to any Person, means any
Contractual Obligation, contingent or otherwise, of that Person with respect to
any Indebtedness of another or other obligation or liability of another,
including, without limitation, any such Indebtedness, obligation or liability of
another directly or indirectly guaranteed, endorsed (otherwise than for
collection or deposit in the ordinary course of business), co-made or discounted
or sold with recourse by that Person, or in respect of which that Person is
otherwise directly or indirectly liable, including Contractual Obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make payment other than for value received. The amount of any
Contingent Obligation shall be equal to the present value of the portion of the
obligation so guaranteed or otherwise supported, in the case of known recurring
obligations, and the maximum reasonably anticipated liability in respect of the
portion of the obligation so guaranteed or otherwise supported assuming such
Person is required to perform thereunder, in all other cases.
"CONTINUING DIRECTOR" means, with respect to any Person as of any date
of determination, any member of the board of directors of such Person who (a)
was a member of such board of directors on the Closing Date, or (b) was
nominated for election or elected to such board of directors with the approval
of the Continuing Directors who were members of such board at the time of such
nomination or election.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any provision
of any equity or debt securities issued by that Person or any indenture,
mortgage, deed of trust, security agreement, pledge agreement, guaranty,
contract, undertaking, agreement or instrument, in any case in writing, to which
that Person is a party or by which it or any of its properties is bound, or to
which it or any of its properties is subject.
"CONTROLLED GROUP" means the group consisting of (i) any corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Company; (ii) a partnership or
other trade or business (whether or not incorporated) which is under common
control (within the meaning of Section 414(c) of the Code) with the Company; and
(iii) a member of the same affiliated service group (within the meaning of
Section 414(m) of the Code) as the Company, any corporation described in clause
(i) above or any partnership or trade or business described in clause (ii)
above.
"CONVERSION DATE" is defined in Section 2.19(C).
"CORPORATE BASE RATE" means the corporate base rate of interest
announced by First Chicago from time to time, changing when and as said
corporate base rate changes.
"CURE LOAN" is defined in Section 9.2(iii) hereof.
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"CUSTOMARY PERMITTED LIENS" means:
(i) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) with respect to the payment of taxes,
assessments or governmental charges in all cases which are not yet due
or (if foreclosure, distraint, sale or other similar proceedings shall
not have been commenced or any such proceeding after being commenced is
stayed) which are being contested in good faith by appropriate
proceedings properly instituted and diligently conducted and with
respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with Agreement Accounting Principles;
(ii) statutory Liens of landlords and Liens of suppliers,
mechanics, carriers, materialmen, warehousemen, service providers or
workmen and other similar Liens imposed by law created in the ordinary
course of business for amounts not more than sixty (60) days past due
or thereafter can be paid without penalty which are being contested in
good faith by appropriate proceedings properly instituted and
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
Agreement Accounting Principles;
(iii) Liens (other than Environmental Liens and Liens in favor
of the IRS or the PBGC) incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance or other types of social security benefits or to
secure the performance of bids, tenders, sales, contracts (other than
for the repayment of borrowed money), surety, appeal and performance
bonds; provided that (A) all such Liens do not in the aggregate
materially detract from the value of the Company's or its Subsidiary's
assets or property taken as a whole or materially impair the use
thereof in the operation of the businesses taken as a whole, and (B)
all Liens securing bonds to stay judgments or in connection with
appeals do not secure at any time an aggregate amount exceeding
$15,000,000;
(iv) Liens arising with respect to zoning restrictions,
easements, encroachments, licenses, reservations, covenants,
rights-of-way, utility easements, building restrictions and other
similar charges, restrictions or encumbrances on the use of real
property which do not in any case materially detract from the value of
the property subject thereto or materially interfere with the ordinary
use or occupancy of the real property or with the ordinary conduct of
the business of the Company or any of its Subsidiaries;
(v) Liens of attachment or judgment with respect to judgments,
writs or warrants of attachment, or similar process against the Company
or any of its Subsidiaries which do not constitute a Default under
Section 8.1(H) hereof; and
(vi) any interest or title of the lessor in the property
subject to any operating lease entered into by the Company or any of
its Subsidiaries in the ordinary course of business.
"DEFAULT" means an event described in Article VIII hereof.
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"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is ninety-one (91) days after the Revolving Loan Termination Date.
"DOL" means the United States Department of Labor and any Person
succeeding to the functions thereof.
"DOLLAR" and "$" means dollars in the lawful currency of the United
States of America.
"DOLLAR AMOUNT" of any currency at any date shall mean (i) the amount
of such currency if such currency is Dollars or (ii) the Equivalent Amount of
Dollars if such currency is any currency other than Dollars.
"DOMESTIC INCORPORATED SUBSIDIARY" means a Subsidiary of the Company
organized under the laws of a jurisdiction located in the United States of
America.
"EBITDA" means, for any period, on a consolidated basis for the Company
and its Subsidiaries, the sum of the amounts for such period, without
duplication, of (i) Net Income, plus (ii) Interest Expense to the extent
deducted in computing Net Income, plus (iii) charges against income for foreign,
federal, state and local taxes to the extent deducted in computing Net Income,
plus (iv) depreciation expense to the extent deducted in computing Net Income,
plus (v) amortization expense, including, without limitation, amortization of
goodwill and other intangible assets to the extent deducted in computing Net
Income, plus (vi) other non-cash charges classified as long-term deferrals in
accordance with Agreement Accounting Principles to the extent deducted in
computing Net Income, plus (vii) other extraordinary non-cash charges to the
extent deducted in computing Net Income, minus (viii) other extraordinary
non-cash credits to the extent added in computing Net Income, plus (ix)
nonrecurring after-tax losses (or minus nonrecurring after-tax gains).
"EFFECTIVE COMMITMENT AMOUNTS" is defined in Section 2.6(b).
"ELIGIBLE CURRENCY" means any currency other than Dollars with respect
to which the Administrative Agent or the applicable Borrower has not given
notice in accordance with Section 2.23 and that is readily available, freely
traded, in which deposits are customarily offered to banks in the London
interbank market, convertible into Dollars in the international interbank market
available to the Lenders in such market and as to which an Equivalent Amount may
be readily calculated. If, after the designation pursuant to the terms of this
Agreement of any currency as an Agreed Currency, currency control or other
exchange regulations are imposed in the country in which such currency is issued
with the result that different types of such currency are introduced, such
country's currency is, in the determination of the Administrative Agent, no
longer readily available or freely traded or (ii) as to which, in the
determination of the Administrative Agent, an Equivalent Amount is not readily
calculable (each of clause (i) and (ii), a "DISQUALIFYING EVENT"),
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then the Administrative Agent shall promptly notify the Lenders and the Company,
and such country's currency shall no longer be an Agreed Currency until such
time as the Disqualifying Event(s) no longer exist, but in any event within five
(5) Business Days of receipt of such notice from the Administrative Agent, the
applicable Borrowers shall repay all Loans in such currency to which the
Disqualifying Event applies or convert such Loan into Loans in Dollars or
another Agreed Currency, subject to the other terms contained in Articles II and
IV.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to foreign, federal, state and
local laws or regulations relating to or addressing pollution or protection of
the environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. ss. 9601 et seq., the Occupational Safety and Health Act of 1970,
29 U.S.C. ss. 651 et seq., and the Resource Conservation and Recovery Act of
1976, 42 U.S.C. ss. 6901 et seq., in each case including any amendments thereto,
any successor statutes, and any regulations or guidance promulgated thereunder,
and any state or local equivalent thereof.
"ENVIRONMENTAL LIEN" means a lien in favor of any Governmental
Authority for (a) any liability under Environmental, Health or Safety
Requirements of Law, or (b) damages arising from, or costs incurred by such
Governmental Authority in response to, a Release or threatened Release of a
Contaminant into the environment.
"ENVIRONMENTAL PROPERTY TRANSFER ACT" means any applicable requirement
of law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the closure of any property or the transfer, sale or
lease of any property or deed or title for any property for environmental
reasons, including, but not limited to, any so-called "Industrial Site Recovery
Act" or "Responsible Property Transfer Act."
"EQUIPMENT" means all of the Company's and its Subsidiaries' present
and future (i) equipment, including, without limitation, machinery,
manufacturing, distribution, selling, data processing and office equipment,
assembly systems, tools, molds, dies, fixtures, appliances, furniture,
furnishings, vehicles, vessels, aircraft, aircraft engines, and trade fixtures,
(ii) other tangible personal property (other than the Company's or its
Subsidiaries' Inventory), and (iii) any and all accessions, parts and
appurtenances attached to any of the foregoing or used in connection therewith,
and any substitutions therefor and replacements, products and proceeds thereof.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock). Equity Interests will not
include any Incentive Arrangements or obligations or payments thereunder.
"EQUIVALENT AMOUNT" of any currency with respect to any amount of
Dollars at any date shall mean the equivalent in such currency of such amount of
Dollars, calculated on the basis of the arithmetic mean of the buy and sell spot
rates of exchange of the Administrative Agent in the London interbank market (or
other market where the Administrative Agent's foreign exchange
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<PAGE> 23
operations in respect of such currency are then being conducted) for such other
currency at or about 11:00 a.m. (local time) two (2) Business Days prior to the
date on which such amount is to be determined, rounded up to the nearest amount
of such currency as determined by the Administrative Agent from time to time;
provided, however, that if at the time of any such determination, for any
reason, no such spot rate is being quoted, the Administrative Agent may use any
reasonable method it deems appropriate to determine such amount, and such
determination shall be conclusive absent manifest error.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"euro" means the euro referred to in the Council Regulation (EC) No.
1103/97 dated 17 June 1997 passed by the Council of the European Union, or, if
different, the then lawful currency of the member states of the European Union
that participate in the third stage of the Economic and Monetary Union.
"EUROCURRENCY AUCTION" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins pursuant to Section 2.1.
"EUROCURRENCY BASE RATE" means, with respect to a Eurocurrency Rate
Loan or Eurocurrency Bid Rate Loan for any specified Interest Period, (a) for
any Eurocurrency Bid Rate Loan or Eurocurrency Rate Loan in any Agreed Currency
other than euro, either (i) the rate of interest per annum equal to the rate for
deposits in the applicable Agreed Currency in the approximate amount of the Pro
Rata Share of the Administrative Agent of such Eurocurrency Rate Advance with a
maturity approximately equal to such Interest Period which appears on Telerate
Page 3740 or Telerate Page 3750, as applicable, or, if there is more than one
such rate, the average of such rates rounded to the nearest 1/100 of 1%, as of
11:00 a.m. (London time) two (2) Business Days prior to the first day of such
Interest Period or (ii) if no such rate of interest appears on Telerate Page
3740 or Telerate Page 3750, as applicable, for any specified Interest Period,
the rate at which deposits in the applicable Agreed Currency are offered by the
Administrative Agent to first-class banks in the London interbank market at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first
day of such Interest Period, in the approximate amount of the Pro Rata Share of
the Administrative Agent of such Eurocurrency Rate Loan, or, in the case of a
Eurocurrency Bid Rate Loan, the amount of the Eurocurrency Bid Rate Loan
requested by the Company, and having a maturity approximately equal to such
Interest Period; and (b) with respect to any Eurocurrency Rate Loan in euro for
any Interest Period, the interest rate per annum equal to the rate determined by
the Administrative Agent to be the rate at which deposits in euro appear on the
Telerate Page 248 as of 11:00 a.m. (Brussels time), on the date that is two (2)
TARGET Settlement Days preceding the first day of such Interest Period;
provided, that if such rate does not appear on the Telerate Page 248, then
Eurocurrency Base Rate shall be an interest rate per annum equal to the
arithmetic mean determined by the Administrative Agent (rounded upwards to the
nearest .01%) of the rates per annum at which deposits in euro are offered by
three (3) leading banks in the euro-zone interbank market on or about 11:00 a.m.
(Brussels time), on the date which
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<PAGE> 24
is two (2) TARGET Settlement Days prior to the first day of such Interest Period
to other leading banks in the euro-zone interbank market, in the case of each of
clause (a) and clause (b), as adjusted for Reserves. The terms "Telerate Page
3740", "Telerate Page 3750" and "Telerate Page 248" mean the display designated
as "Page 3740", "Page 3750" and "Page 248", as applicable, on the Associated
Press-Dow Jones Telerate Service (or such other page as may replace Page 3740,
Page 3750 or Page 248, as applicable, on the Associated Press-Dow Jones Telerate
Service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association interest rate settlement rates for the relevant Agreed
Currency). Any Eurocurrency Base Rate determined on the basis of the rate
displayed on Telerate Page 3740 or Telerate Page 3750 or Telerate Page 248 in
accordance with the foregoing provisions of this subparagraph shall be subject
to corrections, if any, made in such rate and displayed by the Associated
Press-Dow Jones Telerate Service within one hour of the time when such rate is
first displayed by such service.
"EUROCURRENCY BID RATE" means, with respect to a Eurocurrency Bid Rate
Loan made by a given Lender for the relevant Interest Period, the sum of (a) the
Eurocurrency Base Rate and (b) the Competitive Bid Margin offered by such Lender
and accepted by the Company.
"EUROCURRENCY BID RATE ADVANCE" means a Competitive Bid Advance which
bears interest at a Eurocurrency Bid Rate.
"EUROCURRENCY BID RATE LOAN" means a Loan which bears interest at the
Eurocurrency Bid Rate.
"EUROCURRENCY PAYMENT OFFICE" of the Administrative Agent shall mean,
for each of the Agreed Currencies, any agency, branch or Affiliate of the
Administrative Agent, specified as the "Eurocurrency Payment Office" for such
Agreed Currency in Exhibit A-1 hereto or such other agency, branch, Affiliate or
correspondence bank of the Administrative Agent, as it may from time to time
specify to the applicable Borrowers and each Lender as its Eurocurrency Payment
Office.
"EUROCURRENCY RATE" means, with respect to a Eurocurrency Rate Loan for
the relevant Interest Period, the Eurocurrency Base Rate applicable to such
Interest Period plus the then Applicable Eurocurrency Margin, changing as and
when the Applicable Eurocurrency Margin changes.
"EUROCURRENCY RATE ADVANCE" means an Advance (other than a Eurocurrency
Bid Rate Advance) which bears interest at the Eurocurrency Rate.
"EUROCURRENCY RATE LOAN" means a Loan made on a fully syndicated basis
pursuant to Section 2.2, which bears interest at the Eurocurrency Rate.
"5-YEAR CREDIT AGREEMENT" means that certain 5-Year Revolving Credit
Agreement, dated as of July 22, 1999 among the Company, the subsidiary borrowers
from time to time parties thereto, the Agents and the financial institutions
from time to time parties thereto as lenders, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
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<PAGE> 25
"5-YEAR FINANCE FACILITY AGREEMENT" means that certain 5-Year Finance
Facility Agreement dated of even date herewith by and among the Company,
Windmill Funding Corporation and ABN AMRO Bank N.V. (individually and in its
capacity as CLO Administrative Agent), as the same may be amended, modified,
supplemented and/or restated from time to time in accordance with the terms
thereof and of this Agreement.
"FACILITY TERMINATION DATE" shall mean the date on which all of the
Termination Conditions have been satisfied.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"FEE LETTERS" means, collectively, the Administrative Agent Fee Letter
and that certain fee letter, dated as of June 7, 1999, by and among ANC, the
Lead Arrangers and the Underwriting Lenders.
"FINANCING" means, with respect to any Person, the issuance or sale by
such Person of any Equity Interests of such Person or any Indebtedness
consisting of debt securities of such Person.
"FIRST CHICAGO" means The First National Bank of Chicago, in its
individual capacity, and its successors.
"FIXED-RATE LOANS" means, collectively, the Eurocurrency Rate Loans,
the Eurocurrency Bid Rate Loans and the Absolute Rate Loans.
"FLOATING RATE" means, for any day for any Loan, a rate per annum equal
to the Alternate Base Rate for such day, changing when and as the Alternate Base
Rate changes, plus the then Applicable Floating Rate Margin.
"FLOATING RATE ADVANCE" means an Advance which bears interest at the
Floating Rate.
"FLOATING RATE LOAN" means a Loan, or portion thereof, which bears
interest at the Floating Rate.
"FOREIGN EMPLOYEE BENEFIT PLAN" means any employee benefit plan as
defined in Section 3(3) of ERISA which is maintained or contributed to for the
benefit of the employees of
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<PAGE> 26
the Company, any of its Subsidiaries or any members of its Controlled Group and
is not covered by ERISA pursuant to ERISA Section 4(b)(4).
"FOREIGN INCORPORATED SUBSIDIARY" means a Subsidiary of the Company
which is not a Domestic Incorporated Subsidiary.
"FOREIGN PENSION PLAN" means any employee benefit plan as described in
Section 3(3) of ERISA for which the Company or any member of its Controlled
Group is a sponsor or administrator and which (i) is maintained or contributed
to for the benefit of employees of the Company, any of its Subsidiaries or any
member of its Controlled Group, (ii) is not covered by ERISA pursuant to Section
4(b)(4) of ERISA, and (iii) under applicable local law, is required to be funded
through a trust or other funding vehicle.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative authority or
functions of or pertaining to government, including any authority or other
quasi-governmental entity established to perform any of such functions.
"GROSS NEGLIGENCE" means recklessness, or actions taken or omitted with
conscious indifference to or the complete disregard of consequences or rights of
others affected. Gross Negligence does not mean the absence of ordinary care or
diligence, or an inadvertent act or inadvertent failure to act. If the term
"gross negligence" is used with respect to the Administrative Agent or any
Lender or any indemnitee in any of the other Loan Documents, it shall have the
meaning set forth herein.
"GUARANTEED OBLIGATIONS" is defined in Section 10.1 hereof.
"GUARANTY" means each of (i) that certain Guaranty (and any and all
supplements thereto) executed from time to time by each Subsidiary Borrower that
is a Domestic Incorporated Subsidiary and each Material Domestic Subsidiary of
the Company listed on Schedule 6.8 and each other Subsidiary Borrower that is a
Domestic Incorporated Subsidiary and each other Material Domestic Subsidiary of
the Company as required pursuant to Section 7.2(k) in favor of the
Administrative Agent for the benefit of itself and the Holders of Obligations,
in substantially the form of Exhibit I-1 attached hereto, and (ii) the guaranty
by the Company of all of the Obligations of the Subsidiary Borrowers pursuant to
this Agreement, in each case as amended, restated, supplemented or otherwise
modified from time to time.
"HEDGING AGREEMENTS" is defined in Section 7.3(P) hereof.
"HEDGING OBLIGATIONS" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, commodity prices,
exchange rates or forward rates
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<PAGE> 27
applicable to such party's assets, liabilities or exchange transactions,
including, but not limited to, dollar-denominated or cross-currency interest
rate exchange agreements, forward currency exchange agreements, interest rate
cap or collar protection agreements, forward rate currency or interest rate
options, puts and warrants, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any of the foregoing.
"HOLDERS OF OBLIGATIONS" means the holders of the Obligations from time
to time and shall include (i) each Lender in respect of its Loans, (ii) the
Agents, the Lenders and the Swing Line Bank in respect of all other present and
future obligations and liabilities of the Company or any of its Subsidiaries of
every type and description arising under or in connection with this Agreement or
any other Loan Document, (iii) each Indemnitee in respect of the obligations and
liabilities of the Company or any of its Subsidiaries to such Person hereunder
or under the other Loan Documents, and (v) their respective successors,
transferees and assigns.
"INCENTIVE ARRANGEMENTS" means any stock appreciation rights, "phantom"
stock plans, employment agreements, non-competition agreements, subscription and
stockholders agreements and other incentive and bonus plans and similar
arrangements made in connection with the retention of executives, officers or
employees of the Company and its Subsidiaries.
"INDEBTEDNESS" of a person means, without duplication, such person's
(i) obligations for borrowed money, including, without limitation, subordinated
indebtedness, (ii) obligations representing the deferred purchase price of
property or services (other than accounts payable arising in the ordinary course
of such person's business payable on terms customary in the trade and other than
earn-outs or other similar forms of contingent purchase prices), (iii)
obligations, whether or not assumed, secured by liens on or payable out of the
proceeds or production from property now or hereafter owned or acquired by such
person, (iv) obligations which are evidenced by notes, acceptances, other
instruments, letters of credit or letter of credit reimbursement arrangements,
(v) Capitalized Lease Obligations, (vi) Hedging Obligations, (vii) Contingent
Obligations, (viii) outstanding principal balances (representing securitized but
unliquidated assets) under asset securitization agreements (including, without
limitation, the outstanding principal balance of Receivables under Receivables
transactions) and (ix) the implied debt component of synthetic leases of which
such person is lessee or any other off-balance sheet financing arrangements
(including, without limitation, any such arrangements giving rise to any
Off-Balance Sheet Liabilities).
"INDEMNIFIED MATTERS" is defined in Section 11.7(B) hereof.
"INDEMNITEES" is defined in Section 11.7(B) hereof.
"INTEGRATION BLOCKAGE DEFAULT" is defined in Section 2.6.
"INTEREST EXPENSE" means, for any period, the total interest expense of
the Company and its consolidated Subsidiaries, whether paid or accrued
(including the interest component of Capitalized Leases, commitment and facility
fees and fees for stand-by letters of credit), all as determined in conformity
with Agreement Accounting Principles.
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<PAGE> 28
"INTEREST COVERAGE RATIO" is defined in Section 7.4(A) hereof.
"INTEREST PERIOD" means (i) any Absolute Rate Interest Period, and (ii)
with respect to a Eurocurrency Rate Loan or a Eurocurrency Bid Rate Loan, a
period of one (1), two (2), three (3) months or six (6) months, commencing on a
Business Day selected by the applicable Borrower on which a Eurocurrency Rate
Advance is made to the such Borrower pursuant to this Agreement; provided,
however, notwithstanding anything in this Agreement to the contrary for the
period from the Closing Date to the earlier of (y) the date that is 90 days
after the Closing Date and (z) the date upon which the Lead Arrangers confirms
that the loan syndication process has been complete (the "SYNDICATION PERIOD"),
"Interest Period" means, with respect to a Eurocurrency Rate Advance, a period
of seven (7) days. Other than during the Syndication Period, such Interest
Period described in clause (ii) above shall end on (but exclude) the day which
corresponds numerically to such date one, two, three or six months thereafter;
provided, however, that if there is no such numerically corresponding day in
such next, second, third or sixth succeeding month, such Interest Period shall
end on the last Business Day of such next, second, third or sixth succeeding
month. If an Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next succeeding Business
Day, provided, however, that if said next succeeding Business Day falls in a new
calendar month, such Interest Period shall end on the immediately preceding
Business Day.
"INVENTORY" shall mean any and all goods, including, without
limitation, goods in transit, wheresoever located, whether now owned or
hereafter acquired by the Company or any of its Subsidiaries, which are held for
sale or lease, furnished under any contract of service or held as raw materials,
work in process or supplies, and all materials used or consumed in the business
of Company or any of its Subsidiaries, and shall include all right, title and
interest of the Company or any of its Subsidiaries in any property the sale or
other disposition of which has given rise to Receivables and which has been
returned to or repossessed or stopped in transit by the Company or any of its
Subsidiaries.
"INVESTMENT" means, with respect to any Person, (i) any purchase or
other acquisition by that Person of any Indebtedness, Equity Interests or other
securities, or of a beneficial interest in any Indebtedness, Equity Interests or
other securities, issued by any other Person, (ii) any purchase by that Person
of all or substantially all of the assets of a business (whether of a division,
branch, unit operation, or otherwise) conducted by another Person, and (iii) any
loan, advance (other than deposits with financial institutions available for
withdrawal on demand, prepaid expenses, accounts receivable, advances to
employees and similar items made or incurred in the ordinary course of business)
or capital contribution by that Person to any other Person, including all
Indebtedness to such Person arising from a sale of property by such Person other
than in the ordinary course of its business.
"INVITATION FOR COMPETITIVE BID QUOTES" means an Invitation for
Competitive Bid Quotes substantially in the form of Exhibit M hereto, completed
and delivered by the Administrative Agent to the Lenders in accordance with
Section 2.1(C).
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<PAGE> 29
"IRS" means the Internal Revenue Service and any Person succeeding to
the functions thereof.
"LEAD ARRANGERS" means, collectively, Chase Securities Inc. and Banc
One Capital Markets, Inc., in their respective capacity as Lead Arranger for the
loan transaction evidenced by this Agreement.
"LENDERS" means the lending institutions listed on the signature pages
of this Agreement and each New Lender which becomes a Lender hereto pursuant to
the provisions of Section 2.6(b) and their respective successors and assigns.
"LENDING INSTALLATION" means, with respect to a Lender or the
Administrative Agent, any office, branch, subsidiary or affiliate of such Lender
or the Administrative Agent.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, the interest of a vendor or lessor
under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN(S)" means, with respect to a Lender, such Lender's portion of (a)
any Advance made pursuant to Section 2.2 hereof, (b) any Advance in which such
Lender has purchased an interest pursuant to Section 2.6(b), and (c) any loans
made under the 364-Day Finance Facility Agreement and converted to Obligations
under Section 2.6(b) hereof, as applicable, and in the case of the Swing Line
Bank, any Swing Line Loan made by it pursuant to Section 2.3 hereof, and in the
case of any Lender which has made a Competitive Bid Loan, any Competitive Bid
Loan made by it pursuant to Section 2.1, and collectively, all Revolving Loans,
Swing Line Loans and Competitive Bid Loans.
"LOAN ACCOUNT" is defined in Section 2.13(A) hereof.
"LOAN DOCUMENTS" means this Agreement, each Assumption Letter executed
hereunder, the Guaranty, the Subordination Agreement and all other documents,
instruments, notes and agreements executed in connection therewith or
contemplated thereby (other than the 5-Year Credit Agreement, the CLO
Facilities, and the documents related thereto), as the same may be amended,
restated or otherwise modified and in effect from time to time.
"MARGIN STOCK" shall have the meaning ascribed to such term in
Regulation U.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of ANC, the Company, or the Company and its
Subsidiaries, taken as a whole, (b) the collective ability of the Company or any
of its Subsidiaries to perform their respective obligations under the Loan
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<PAGE> 30
Documents in any material respect, or (c) the ability of the Lenders or the
Agents to enforce in any material respect the Obligations.
"MATERIAL DOMESTIC SUBSIDIARY" means each of ANC and Pechiney North
America, Inc., a Delaware corporation, and each other Domestic Incorporated
Subsidiary of the Company (other than ANC Receivables Corporation) that is a
Material Subsidiary.
"MATERIAL SUBSIDIARY" means (x) a Subsidiary of the Company (other than
ANC Receivables Corporation) if (i) such Subsidiary's total assets exceeds
$50,000,000 as of the end of the most recently completed fiscal quarter of the
Company or (ii) such Subsidiary's total sales exceeds $50,000,000 as of the end
of the most recently completed four consecutive fiscal quarters of the Company,
all determined on the same basis as described in Section 7.1, and (y) any
Subsidiary Borrower.
"MULTIEMPLOYER PLAN" means a "Multiemployer Plan" as defined in Section
4001(a)(3) of ERISA which is, or within the immediately preceding six (6) years
was, contributed to by either the Company or any member of the Controlled Group.
"NATIONAL CURRENCY UNIT" means the unit of currency (other than a euro)
of each member state of the European Union that participates in the third stage
of Economic and Monetary Union.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, Financing or
Sale and Leaseback Transaction by any Person, (a) cash or Cash Equivalents
(freely convertible into Dollars) received by such Person or any Subsidiary of
such Person from such Asset Sale or Sale and Leaseback Transaction (including
cash received as consideration for the assumption or incurrence of liabilities
incurred in connection with or in anticipation of such Asset Sale or Sale and
Leaseback Transaction) or Financing, after (i) provision for all income or other
taxes measured by or resulting from such Asset Sale, Financing or Sale and
Leaseback Transaction, (ii) payment of all brokerage commissions and other fees
and expenses and commissions related to such Asset Sale, Financing or Sale and
Leaseback Transaction, (iii) repayment of Indebtedness (and any premium or
penalty thereon) secured by a Lien on any asset disposed of in such Asset Sale
or Sale and Leaseback Transaction or which is or may be required (by the express
terms of the instrument governing such Indebtedness or by applicable law) to be
repaid in connection with such Asset Sale or Sale and Leaseback Transaction
(including payments made to obtain or avoid the need for the consent of any
holder of such Indebtedness), and (iv) deduction of appropriate amounts to be
provided by such Person or a Subsidiary of such Person as a reserve, in
accordance with Agreement Accounting Principles, against any liabilities
associated with the assets sold or disposed of in such Asset Sale or Sale and
Leaseback Transaction and retained by such Person or a Subsidiary of such Person
after such Asset Sale or Sale and Leaseback Transaction, including, without
limitation, pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any indemnification
obligations associated with the assets sold or disposed of in such Asset Sale or
Sale and Leaseback Transaction, as applicable; and (b) cash or Cash Equivalents
payments in respect of any other consideration received by such Person or any
Subsidiary of such Person from such Asset Sale, Financing or Sale and Leaseback
Transaction upon receipt of such cash payments by such Person or such
Subsidiary.
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<PAGE> 31
"NET INCOME" means, for any period, the net income (or loss) after
taxes of the Company and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period determined in conformity with
Agreement Accounting Principles.
"NEW LENDER" is defined in Section 2.6(b).
"NON PRO RATA LOAN" is defined in Section 9.2 hereof.
"NOTICE OF ASSIGNMENT" is defined in Section 14.3(B) hereof.
"NOTICE TO CONVERT" is defined in Section 2.19(C).
"OBLIGATIONS" means all Loans, advances, debts, liabilities,
obligations, covenants and duties owing by the Borrowers or any of their
Subsidiaries to the Administrative Agent, any Lender, the Swing Line Bank, the
Arranger, any Affiliate of the Administrative Agent or any Lender or any
Indemnitee, of any kind or nature, present or future, arising under this
Agreement or any other Loan Document, whether or not evidenced by any note,
guaranty or other instrument, whether or not for the payment of money, whether
arising by reason of an extension of credit, loan, guaranty, indemnification, or
in any other manner, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now existing or
hereafter arising and however acquired. The term includes, without limitation,
all interest, charges, expenses, fees, reasonable attorneys' fees and
disbursements, reasonable paralegals' fees (in each case whether or not
allowed), and any other sum chargeable to the Company or any of its Subsidiaries
under this Agreement or any other Loan Document.
"OFF-BALANCE SHEET LIABILITIES" of a Person means (a) any repurchase
obligation or liability of such Person or any of its Subsidiaries with respect
to Receivables sold by such Person or any of its Subsidiaries, (b) any liability
of such Person or any of its Subsidiaries under any sale and leaseback
transactions which do not create a liability on the consolidated balance sheet
of such Person, (c) any liability of such Person or any of its Subsidiaries
under any financing lease or so- called "synthetic" lease transaction, or (d)
any obligations of such Person or any of its Subsidiaries arising with respect
to any other transaction which is the functional equivalent of or takes the
place of borrowing but which does not constitute a liability on the consolidated
balance sheets of such Person and its Subsidiaries.
"OTHER TAXES" is defined in Section 2.15(E)(ii) hereof.
"PARTICIPANTS" is defined in Section 14.2(A) hereof.
"PAYMENT DATE" means the first day of each March, June, September,
December, the Conversion Date, the Termination Date (or such earlier date on
which the Aggregate Commitment shall terminate or be cancelled), and the
Facility Termination Date.
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<PAGE> 32
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PBGC AGREEMENT" means that certain confidential term sheet dated June
25, 1999 between the Company and the PBGC, setting forth the undertakings of the
Company to make contributions to certain of its U.S. Plans, and any definitive
documentation replacing such confidential term sheet to the extent such
documentation sets forth the terms described in such term sheet as in effect on
the date hereof.
"PECHINEY" means Pechiney, S.A., a societe anonyme organized under the
laws of the Republic of France.
"PERMITTED ACQUISITION" is defined in Section 7.3(G) hereof.
"PERMITTED EXISTING CONTINGENT OBLIGATIONS" means the Contingent
Obligations of the Company and its Subsidiaries identified as such on Schedule
1.1.1 to this Agreement.
"PERMITTED EXISTING INDEBTEDNESS" means the Indebtedness of the Company
and its Subsidiaries identified as such on Schedule 1.1.2 to this Agreement.
"PERMITTED EXISTING LIENS" means the Liens on assets of the Company and
its Subsidiaries identified as such on Schedule 1.1.3 to this Agreement.
"PERMITTED PURCHASE MONEY INDEBTEDNESS" means secured or unsecured
purchase money Indebtedness (including Capitalized Leases) incurred by the
Company or any of its Subsidiaries after the Closing Date to finance the
acquisition of fixed assets or in conjunction with a Permitted Acquisition and
secured by purchase money Liens (including the interest of a lessor under a
Capitalized Lease and Liens to which any property is subject at the time of the
Company's or its Subsidiaries' acquisition thereof), if (1) at the time of such
incurrence, no Default or Unmatured Default has occurred and is continuing or
would result from such incurrence, (2) such Indebtedness has a scheduled
maturity and is not due on demand, (3) such Indebtedness does not exceed the
lower of the fair market value or the cost of the applicable fixed assets on the
date acquired; provided, that such Liens shall not apply to any property of the
Company or its Subsidiaries other than that purchased or subject to such
Capitalized Lease and proceeds thereof.
"PERMITTED REFINANCING INDEBTEDNESS" means any replacement, renewal,
refinancing or extension of any Indebtedness permitted by this Agreement that
(i) does not exceed the aggregate principal amount (plus accrued interest and
any applicable premium and associated fees and expenses) of the Indebtedness
being replaced, renewed, refinanced or extended, (ii) does not have a Weighted
Average Life to Maturity at the time of such replacement, renewal, refinancing
or extension that is less than the Weighted Average Life to Maturity of the
Indebtedness being replaced, renewed, refinanced or extended, (iii) does not
rank at the time of such replacement, renewal, refinancing or extension senior
to the Indebtedness being replaced, renewed, refinanced or extended, and (iv)
does not contain terms (including, without limitation, terms relating to
security, amortization, interest rate, premiums, fees, covenants, event of
default and remedies) materially
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less favorable to the Company, its Subsidiaries or the Lenders than those
applicable to the Indebtedness being replaced, renewed, refinanced or extended.
"PERSON" means any individual, corporation, firm, enterprise,
partnership, trust, incorporated or unincorporated association, joint venture,
joint stock company, limited liability company or other entity of any kind, or
any government or political subdivision or any agency, department or
instrumentality thereof.
"PLAN" means an employee benefit plan defined in Section 3(3) of ERISA,
other than a Multiemployer Plan, in respect of which the Company or any member
of the Controlled Group is, or within the immediately preceding six (6) years
was, an "employer" as defined in Section 3(5) of ERISA.
"PRO RATA SHARE" means, with respect to any Lender, the percentage
obtained by dividing (x) such Lender's Revolving Loan Commitment at such time
(as adjusted from time to time in accordance with the provisions of this
Agreement) by (y) the Aggregate Revolving Loan Commitment at such time (as
adjusted from time to time in accordance with the provisions of this Agreement);
provided, however, if all of the Revolving Loan Commitments are terminated
pursuant to the terms of this Agreement, then "Pro Rata Share" means the
percentage obtained by dividing (x) the sum of (A) such Lender's Revolving
Loans, plus (B) such Lender's share of the obligations to purchase
participations in Swing Line Loans plus (C) such Lender's Competitive Bid
Advances, by (y) the sum of (A) the aggregate outstanding amount of all
Revolving Loans, plus (B) the aggregate outstanding amount of all Swing Line
Loans, plus (C) the aggregate outstanding amount of all Competitive Bid
Advances.
"PURCHASERS" is defined in Section 14.3(A) hereof.
"RATE OPTION" means the Eurocurrency Rate, the Floating Rate or the
Competitive Bid Rate, as applicable.
"RECEIVABLE(S)" means and includes all of the Company's and its
Subsidiaries' presently existing and hereafter arising or acquired accounts,
accounts receivable, and all present and future rights of the Company or its
Subsidiaries, as applicable, to payment for goods sold or leased or for services
rendered (except those evidenced by instruments or chattel paper), whether or
not they have been earned by performance, and all rights in any merchandise or
goods which any of the same may represent, and all rights, title, security and
guaranties with respect to each of the foregoing, including, without limitation,
any right of stoppage in transit.
"REGISTER" is defined in Section 14.3(C) hereof.
"REGISTRATION STATEMENT" means the Company's S-1 Registration Statement
filed with the Commission as of June 4, 1999, as amended on or prior to the date
hereof.
"REGULATION T" means Regulation T of the Board of Governors of the
Federal Reserve
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System as from time to time in effect and any successor or other regulation or
official interpretation of said Board of Governors relating to the extension of
credit by and to brokers and dealers of securities for the purpose of purchasing
or carrying margin stock (as defined therein).
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying Margin Stock applicable to member banks of the Federal
Reserve System.
"REGULATION X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"RELEASE" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including the movement of Contaminants
through or in the air, soil, surface water or groundwater.
"RENTALS" of a Person means the aggregate fixed amounts payable by such
Person under any lease of real or personal property that has an initial or
remaining non-cancelable lease term in excess of one year but does not include
any amounts payable under Capitalized Leases of such Person.
"REPLACEMENT LENDER" is defined in Section 2.20 hereof.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation or otherwise
waived the requirement of Section 4043(a) of ERISA that it be notified within
thirty (30) days after such event occurs, provided, however, that a failure to
meet the minimum funding standards of Section 412 of the Code and of Section 302
of ERISA shall be a Reportable Event regardless of the issuance of any such
waiver of the notice requirement in accordance with either Section 4043(a) of
ERISA or Section 412(d) of the Code.
"REQUIRED LENDERS" means:
(x) so long as no Integration Blockage Default shall have
occurred, Lenders hereunder and 364-Day CLO Lenders whose
Aggregate Pro Rata Shares, in the aggregate, are at least
fifty-one percent (51%); provided, however, that, if any
Person shall have failed (A) to fund its Pro Rata Share of (i)
any Revolving Loan requested by the applicable Borrower, or
(ii) any Swing Line Loan as requested by the Administrative
Agent, which such Lenders are obligated to fund under the
terms of this Agreement, or (B) to purchase interests in Loans
hereunder pursuant to Section 2.6(b), in either case and any
such failure has not been cured, then for so long as
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<PAGE> 35
such failure continues, "REQUIRED LENDERS" means Lenders
hereunder (excluding all Lenders whose failure to fund their
respective Pro Rata Shares of such Revolving Loans or Swing
Line Loans has not been so cured) and 364-Day CLO Lenders
(excluding all 364-Day CLO Lenders whose failure to purchase
interests hereunder pursuant to Section 2.6(b) has not been so
cured) whose Aggregate Pro Rata Shares represent at least
fifty-one percent (51%) of the aggregate Aggregate Pro Rata
Shares of such Lenders and 364-Day CLO Lenders; provided
further, however, that, if the Revolving Loan Commitments have
been terminated pursuant to the terms of this Agreement other
than as a result of the occurrence of an Integration Blockage
Default, "REQUIRED LENDERS" means Lenders (without regard to
such Lenders' performance of their respective obligations
hereunder) and 364-Day CLO Lenders whose aggregate ratable
shares (stated as a percentage) of the aggregate outstanding
principal balance of all Loans plus the aggregate outstanding
principal balance of all "Advances" (calculated at the
"Matured Value") under (and as such terms are defined in) the
364-Day Finance Facility Agreement are at least fifty-one
percent (51%); and
(y) at all times after an Integration Blockage Default shall have
occurred, Lenders whose Pro Rata Shares, in the aggregate, are
at least fifty-one percent (51%); provided, however, that, if
any of the Lenders shall have failed (A) to fund its Pro Rata
Share of (i) any Revolving Loan requested by the applicable
Borrower, (ii) any Revolving Loan required to be made in
connection with reimbursement for any L/C Obligations, or
(iii) any Swing Line Loan as requested by the Administrative
Agent, which such Lenders are obligated to fund under the
terms of this Agreement, or (B) to purchase interests in Loans
hereunder pursuant to Section 2.6(b), in either case and any
such failure has not been cured, then for so long as such
failure continues, "REQUIRED LENDERS" means Lenders (excluding
all Lenders whose failure to fund their respective Pro Rata
Shares of such Revolving Loans or Swing Line Loans, or to
purchase interests in Loans hereunder pursuant to Section
2.6(b), in either case has not been so cured) whose Pro Rata
Shares represent at least fifty-one percent (51%) of the
aggregate Pro Rata Shares of such Lenders; provided further,
however, that, if the Revolving Loan Commitments have been
terminated pursuant to the terms of this Agreement, "REQUIRED
LENDERS" means Lenders (without regard to such Lenders'
performance of their respective obligations hereunder) whose
aggregate ratable shares (stated as a percentage) of the
aggregate outstanding principal balance of all Loans and L/C
Obligations are at least fifty-one percent (51%).
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act of 1933, the Securities
Exchange Act of 1934,
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Regulations T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or permit or environmental, labor,
employment, occupational safety or health law, rule or regulation, including
Environmental, Health or Safety Requirements of Law.
"RESERVES" shall mean the maximum reserve requirement, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor) with
respect to "Eurocurrency liabilities" or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurocurrency Rate Loans is determined or category of extensions of credit or
other assets which includes loans by a non-United States office of any Lender to
United States residents.
"RESTRICTED PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any Equity Interests of the Company now or
hereafter outstanding, except a dividend payable solely in the Company's Capital
Stock (other than Disqualified Stock) or in options, warrants or other rights to
purchase such Capital Stock, (ii) any redemption, retirement, purchase or other
acquisition for value, direct or indirect, of any Equity Interests of the
Company or any of its Subsidiaries now or hereafter outstanding, other than in
exchange for, or out of the proceeds of, the substantially concurrent sale
(other than to a Subsidiary of the Company) of other Equity Interests of the
Company (other than Disqualified Stock), (iii) any redemption, purchase,
retirement, defeasance, prepayment or other acquisition for value, direct or
indirect, of any Indebtedness subordinated to the Obligations, and (iv) any
payment of a claim for the rescission of the purchase or sale of, or for
material damages arising from the purchase or sale of, any Indebtedness (other
than the Obligations) or any Equity Interests of the Company, or any of its
Subsidiaries, or of a claim for reimbursement, indemnification or contribution
arising out of or related to any such claim for damages or rescission.
"REVOLVING CREDIT AVAILABILITY" means, at any particular time, the
amount by which (x) the Aggregate Revolving Loan Commitment at such time exceeds
(y) the Dollar Amount of the Revolving Credit Obligations outstanding at such
time.
"REVOLVING CREDIT OBLIGATIONS" means, at any particular time, the sum
of (i) the outstanding principal Dollar Amount of the Revolving Loans at such
time, plus (ii) the outstanding principal amount of the Swing Line Loans at such
time, plus (iii) the outstanding principal amount of all Competitive Bid Loans
at such time.
"REVOLVING LOAN" is defined in Section 2.2 hereof.
"REVOLVING LOAN COMMITMENT" means, for each Lender, the obligation of
such Lender to make Revolving Loans and to participate in Swing Line Loans not
exceeding the amount set forth on Exhibit A to this Agreement opposite its name
thereon under the heading "Revolving Loan Commitment" or the signature page of
the assignment and acceptance by which it became a Lender or, in the case of any
"New Lender", such New Lender's "Conversion Amount" under (and as
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defined in) the 364-Day Finance Facility Agreement immediately prior to when
such "New Lender" becomes a Lender hereunder pursuant to Section 2.6(b), as such
amount may be modified from time to time pursuant to the terms of this Agreement
or to give effect to any applicable assignment and acceptance.
"REVOLVING LOAN TERMINATION DATE" means July 20, 2000, or any
subsequent date to which the Revolving Loan Termination Date may have been
extended pursuant to the terms of Section 2.19.
"RISK-BASED CAPITAL GUIDELINES" is defined in Section 4.2 hereof.
"SALE AND LEASEBACK TRANSACTION" shall mean any lease, whether an
operating lease or a Capitalized Lease, of any property (whether real or
personal or mixed), (i) which the Company or one of its Subsidiaries sold or
transferred or is to sell or transfer to any other Person, or (ii) which the
Company or one of its Subsidiaries intends to use for substantially the same
purposes as any other property which has been or is to be sold or transferred by
the Company or one of its Subsidiaries to any other Person in connection with
such lease.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time.
"SELLING LENDER(S)" is defined in Section 2.6(b).
"SINGLE EMPLOYER PLAN" means a Plan maintained by the Company or any
member of the Controlled Group for employees of the Company or any member of the
Controlled Group.
"SOLVENT" means, when used with respect to any Person, that at the time
of determination:
(i) the fair value of its assets (both at fair valuation and
at present fair saleable value) is equal to or in excess of the total
amount of its liabilities, including, without limitation, contingent
liabilities; and
(ii) it is then able and expects to be able to pay its debts
as they mature; and
(iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
With respect to contingent liabilities (such as litigation, guarantees and
pension plan liabilities), such liabilities shall be computed at the amount
which, in light of all the facts and circumstances existing at the time,
represent the amount which can be reasonably be expected to become an actual or
matured liability.
"SUBORDINATION AGREEMENT" means that certain Subordination Agreement
(and any and all supplements thereto) executed from time to time by the Company,
each Material Subsidiary of the Company listed on Schedule 6.8 and each other
Material Subsidiary of the Company as required
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pursuant to Section 7.2(K) in favor of the Administrative Agent for the benefit
of itself and the Holders of Obligations, in substantially the form of Exhibit
I-2 attached hereto, as the same may be amended, restated, supplemented or
otherwise modified from time to time.
"SUBSIDIARY" of a Person means (i) any corporation more than fifty
percent (50%) of the outstanding securities having ordinary voting power of
which shall at the time be owned or controlled, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person and one or more
of its Subsidiaries, or (ii) any partnership, association, joint venture or
similar business organization more than fifty percent (50%) of the ownership
interests having ordinary voting power of which shall at the time be so owned or
controlled. Unless otherwise expressly provided, all references herein to a
"Subsidiary" means a Subsidiary of the Company.
"SUBSIDIARY BORROWER" means each of the Company's Subsidiaries listed
on Schedule 1.1.4 and any other Subsidiaries of the Company duly designated by
the Company pursuant to Section 2.24 to request Advances hereunder, which
Subsidiary shall have delivered to the Administrative Agent an Assumption Letter
in accordance with Section 2.24 and such other documents as may be required
pursuant to this Agreement, in each case together with its respective successors
and assigns, including a debtor-in-possession on behalf of such Subsidiary
Borrower.
"SUPPORTED CONTINGENT OBLIGATIONS" means those certain obligations and
liabilities supported by indemnities from Pechiney Plastic Packaging, Inc. or
guarantees from Pechiney or Waste Management, Inc., in each case as set forth on
Schedule 1.1.5.
"SWING LINE BANK" means the Administrative Agent or any other Lender as
a successor Swing Line Bank pursuant to the terms hereof.
"SWING LINE COMMITMENT" means the obligation of the Swing Line Bank to
make Swing Line Loans up to a maximum principal amount of $25,000,000 at any one
time outstanding.
"SWING LINE LOAN" means a Loan made available to the Company by the
Swing Line Bank pursuant to Section 2.3 hereof.
"SYNDICATION AGENT" means The Chase Manhattan Bank, in its capacity as
syndication agent for the loan transaction evidenced by this Agreement, together
with its successors and assigns.
"SYNDICATION PERIOD" shall have the meaning set forth in the definition
of "Interest Period" above.
"364-DAY CLO LENDER" means each "Lender" under (and as defined in) the
364-Day Finance Facility Agreement which has a commitment to make "Advances"
thereunder.
"364-DAY FINANCE FACILITY AGREEMENT" means that certain 364-Day Finance
Facility Agreement dated of even date herewith by and among the Company,
Windmill Funding
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Corporation and ABN AMRO Bank N.V. (individually and in its capacity as CLO
Administrative Agent), as the same may be amended, modified, supplemented and/or
restated from time to time in accordance with the terms thereof and of this
Agreement.
"TARGET SETTLEMENT DAY" means any day on which the Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.
"TAXES" is defined in Section 2.15(E)(i) hereof.
"TERMINATION CONDITIONS" is defined in Section 2.19(A).
"TERMINATION DATE" means the earlier of (a) the Revolving Loan
Termination Date, and (b) the date of termination in whole of the Aggregate
Revolving Loan Commitment pursuant to Section 2.6 hereof or the Revolving Loan
Commitments pursuant to Section 9.1 hereof.
"TERMINATION EVENT" means (i) a Reportable Event with respect to any
Benefit Plan; (ii) the withdrawal of the Company or any member of the Controlled
Group from a Benefit Plan during a plan year in which the Company or such
Controlled Group member was a "substantial employer" as defined in Section
4001(a)(2) of ERISA or the cessation of operations which results in the
termination of employment of twenty percent (20%) of Benefit Plan participants
who are employees of the Company or any member of the Controlled Group; (iii)
the imposition of an obligation on the Company or any member of the Controlled
Group under Section 4041 of ERISA to provide affected parties written notice of
intent to terminate a Benefit Plan in a distress termination described in
Section 4041(c) of ERISA; (iv) the institution by the PBGC or any similar
foreign governmental authority of proceedings to terminate a Benefit Plan or
Foreign Pension Plan; (v) any event or condition which constitutes grounds under
Section 4042 of ERISA which are reasonably likely to lead to the termination of,
or the appointment of a trustee to administer, any Benefit Plan; (vi) that a
foreign governmental authority shall appoint or institute proceedings to appoint
a trustee to administer any Foreign Pension Plan in place of the existing
administrator, or (vii) the partial or complete withdrawal of the Company or any
member of the Controlled Group from a Multiemployer Plan or Foreign Pension
Plan.
"TOTAL NET INDEBTEDNESS" shall mean, as of any date of determination,
(a) the sum of (i) the aggregate indebtedness for borrowed money, guarantees and
letters of credit without duplication (but excluding the Supported Contingent
Obligations) of the Company and its Subsidiaries plus (ii) Capitalized Lease
Obligations, minus (b) the aggregate cash and Cash Equivalents of the Company
and its Subsidiaries, in each case as of such date of determination.
"TOTAL NET INDEBTEDNESS TO CAPITAL RATIO" means, as of any date of
determination, the ratio of (a) Total Net Indebtedness, to (b) the sum of (i)
the Total Net Indebtedness plus (ii) Consolidated Net Worth, including minority
interests, in each case as of such date of determination.
"TRANSFEREE" is defined in Section 14.5 hereof.
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"TYPE" means, with respect to any Loan, its nature as a Floating Rate
Loan or a Eurocurrency Rate Loan.
"UNDERWRITING LENDERS" means, collectively, First Chicago, The Chase
Manhattan Bank, ABN AMRO Bank N.V., Royal Bank of Canada and Banque Nationale de
Paris.
"UNFUNDED LIABILITIES" means (i) in the case of Single Employer Plans,
the amount (if any) by which the aggregate accumulated benefit obligations
exceeds the aggregate fair market value of assets of all Single Employer Plans
as of the most recent measurement date, all as determined under FAS 87 using the
methods and assumptions used by the Company for financial accounting purposes,
and (ii) in the case of Multiemployer Plans, the withdrawal liability that would
be incurred by the Controlled Group if all members of the Controlled Group
completely withdrew from all Multiemployer Plans.
"UNMATURED DEFAULT" means an event which, but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"WEIGHTED AVERAGE LIFE TO MATURITY" means when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"YEAR 2000 ISSUES" means, with respect to any Person, anticipated
costs, problems and uncertainties associated with the inability of certain
computer applications and imbedded systems to effectively handle data, including
dates, prior to, on and after January 1, 2000, as it affects the business,
operations, and financial condition of such Person, and such Person's customers,
suppliers and vendors.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms. Any accounting terms used in
this Agreement which are not specifically defined herein shall have the meanings
customarily given them in accordance with generally accepted accounting
principles in existence as of the date hereof.
1.2 References. Any references to Subsidiaries of the Company set forth
herein shall not in any way be construed as consent by the Administrative Agent
or any Lender to the establishment, maintenance or acquisition of any
Subsidiary, except as may otherwise be permitted hereunder.
1.3 Supplemental Disclosure. At any time at the request of the
Administrative Agent and at such additional times as the Company determines, the
Company shall supplement each schedule or representation herein or in the other
Loan Documents with respect to any matter hereafter arising which, if existing
or occurring at the date of this Agreement, would have been required to
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be set forth or described in such schedule or as an exception to such
representation or which is necessary to correct any information in such schedule
or representation which has been rendered inaccurate thereby. Unless any such
supplement to such schedule or representation discloses the existence or
occurrence of events, facts or circumstances which are not prohibited by the
terms of this Agreement or any other Loan Documents, such supplement to such
schedule or representation shall not be deemed an amendment thereof unless
expressly consented to in writing by Administrative Agent and the Required
Lenders, and no such amendments, except as the same may be consented to in a
writing which expressly includes a waiver, shall be or be deemed a waiver by the
Administrative Agent or any Lender of any Default disclosed therein. Any items
disclosed in any such supplemental disclosures shall be included in the
calculation of any limits, baskets or similar restrictions contained in this
Agreement or any of the other Loan Documents.
1.4. Rounding and Other Consequential Changes. Without prejudice to any
method of conversion or rounding prescribed by any legislative measures of the
Council of the European Union, each reference in this Agreement to a fixed
amount or to fixed amounts in a National Currency Unit to be paid to or by the
Administrative Agent shall be replaced by a reference to such comparable and
convenient fixed amount or fixed amounts in euro as the Administrative Agent may
from time to time specify unless such National Currency Unit remains available
and the Company and the Administrative Agent agree to use such National Currency
Unit instead of the euro.
ARTICLE II: REVOLVING LOAN FACILITIES
2.1. Competitive Bid Advances.
(A) Competitive Bid Option. In addition to Advances pursuant to Section
2.2, but subject to the terms and conditions of this Agreement (including,
without limitation, the limitation set forth in Section 2.1(B) as to the maximum
aggregate principal amount of all outstanding Advances hereunder), the Company
may, as set forth in this Section 2.1, request the Lenders, prior to the earlier
of the Conversion Date and the Termination Date, to make offers to make
Competitive Bid Advances to the Company in Dollars. Each Lender may, but shall
have no obligation to, make such offers and the Company may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section
2.1. The aggregate outstanding amount of Competitive Bid Advances shall reduce
the available portion of each Lender's Revolving Loan Commitment ratably in the
proportion such Lender's Pro Rata Share of the Aggregate Revolving Loan
Commitment regardless of which Lender or Lenders make such Competitive Bid
Advances.
(B) Competitive Bid Quote Request. When the Company wishes to request
offers to make Competitive Bid Loans under this Section 2.1, it shall transmit
to the Administrative Agent by facsimile a Competitive Bid Quote Request
substantially in the form of Exhibit L hereto so as to be received no later than
(x) 10:00 a.m. (Chicago time) at least five (5) Business Days prior to the
Borrowing Date proposed therein, in the case of a Eurocurrency Auction or (y)
9:00 a.m. (Chicago time) at least one (1) Business Day prior to the Borrowing
Date proposed therein, in the case of an Absolute Rate Auction specifying:
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(i) the proposed Borrowing Date, which shall be a Business
Day, for the proposed Competitive Bid Advance,
(ii) the aggregate principal amount of such Competitive Bid
Advance,
(iii) whether the Competitive Bid Quotes requested are to set
forth a Eurocurrency Bid Rate or an Absolute Rate, or both, and
(iv) the Interest Period applicable thereto (which may not end
after the Termination Date).
The Company may request offers to make Competitive Bid Loans for more than one
Interest Period in a single Competitive Bid Quote Request. No Competitive Bid
Quote Request shall be given within five (5) Business Days (or such other number
of days as the Company and the Administrative Agent may agree) of any other
Competitive Bid Quote Request. A Competitive Bid Quote Request that does not
conform substantially to the format of Exhibit L hereto shall be rejected, and
the Administrative Agent shall promptly notify the Company of such rejection by
facsimile.
(C) Invitation for Competitive Bid Quotes. Promptly and in any event
before the close of business on the same Business Day of receipt of a
Competitive Bid Quote Request that is not rejected pursuant to Section 2.1(B),
the Administrative Agent shall send to each of the Lenders by facsimile an
Invitation for Competitive Bid Quotes substantially in the form of Exhibit M
hereto, which shall constitute an invitation by the Company to each Lender to
submit Competitive Bid Quotes offering to make the Competitive Bid Loans to
which such Competitive Bid Quote Request relates in accordance with this Section
2.1.
(D) Submission and Contents of Competitive Bid Quotes. (i) Each Lender
may, in its sole discretion, submit a Competitive Bid Quote containing an offer
or offers to make Competitive Bid Loans in response to any Invitation for
Competitive Bid Quotes. Each Competitive Bid Quote must comply with the
requirements of this Section 2.1(D) and must be submitted to the Administrative
Agent by facsimile at its offices specified in or pursuant to Article XVII not
later than (x) 1:00 p.m. (Chicago time) at least four (4) Business Days prior to
the proposed Borrowing Date, in the case of a Eurocurrency Auction or (y) 9:00
a.m. (Chicago time) on the proposed Borrowing Date, in the case of an Absolute
Rate Auction (or, in either case upon reasonable prior notice to the Lenders,
such other time and date as the Company and the Administrative Agent may agree);
provided that Competitive Bid Quotes submitted by the Administrative Agent may
only be submitted if the Administrative Agent notifies the Company of the terms
of the offer or offers contained therein not later than 15 minutes prior to the
latest time at which the relevant Competitive Bid Quotes must be submitted by
the other Lenders. Subject to Articles V and XI, any Competitive Bid Quote so
made shall be irrevocable except with the written consent of the Administrative
Agent given on the instructions of the Company.
(ii) Each Competitive Bid Quote shall be in substantially the form of
Exhibit N hereto and shall in any case specify:
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(a) the proposed Borrowing Date, which shall be the same as
that set forth in the applicable Invitation for Competitive Bid Quotes,
(b) the principal amount of the Competitive Bid Loan for which
each such offer is being made, which principal amount (1) may be
greater than, less than or equal to the Revolving Loan Commitment of
the quoting Lender, (2) must be at least $5,000,000 (and
in integral multiples of $1,000,000 if in excess thereof), and (3) may
not exceed the principal amount of Competitive Bid Loans for which
offers were requested,
(c) in the case of a Eurocurrency Auction, the Competitive Bid
Margin offered for each such Competitive Bid Loan,
(d) the minimum amount, if any, of the Competitive Bid Loan
which may be accepted by the Company,
(e) in the case of an Absolute Rate Auction, the Absolute Rate
offered for each such Competitive Bid Loan,
(f) the identity of the quoting Lender, and
(g) the applicable Interest Period.
(iii) The Administrative Agent shall reject any Competitive Bid Quote
that:
(a) is not substantially in the form of Exhibit N hereto or
does not specify all of the information required by Section 2.1(D)(ii);
(b) contains qualifying, conditional or similar language,
other than any such language contained in Exhibit N hereto;
(c) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bid Quotes; or
(d) arrives after the time set forth in Section 2.1(D)(i).
If any Competitive Bid Quote shall be rejected pursuant to this Section
2.1(D)(iii), then the Administrative Agent shall notify the relevant Lender of
such rejection as soon as practical.
(E) Notice to Company. The Administrative Agent shall promptly notify
the Company of the terms (i) of any Competitive Bid Quote submitted by a Lender
that is in accordance with Section 2.1(D) and (ii) of any Competitive Bid Quote
that amends, modifies or is otherwise inconsistent with a previous Competitive
Bid Quote submitted by such Lender with respect to the same Competitive Bid
Quote Request. Any such subsequent Competitive Bid Quote shall be disregarded by
the Administrative Agent unless such subsequent Competitive Bid Quote
specifically states that it is submitted solely to correct a manifest error in
such former Competitive
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Bid Quote. The Administrative Agent's notice to the Company shall specify the
aggregate principal amount of Competitive Bid Loans for which offers have been
received for each Interest Period specified in the related Competitive Bid Quote
Request and the respective principal amounts and Eurocurrency Bid Rates or
Absolute Rates, as the case may be, so offered.
(F) Acceptance and Notice by Company. Not later than (x) 9:00 a.m.
(Chicago time) at least three (3) Business Days prior to the proposed Borrowing
Date, in the case of a Eurocurrency Auction or (y) 10:00 a.m. (Chicago time) on
the proposed Borrowing Date, in the case of an Absolute Rate Auction (or, in
either case upon reasonable prior notice to the Lenders, such other time and
date as the Company and the Administrative Agent may agree), the Company shall
notify the Administrative Agent of its acceptance or rejection of the offers so
notified to it pursuant to Section 2.1(E); provided, however, that the failure
by the Company to give such notice to the Administrative Agent shall be deemed
to be a rejection of all such offers. In the case of acceptance, such notice (a
"COMPETITIVE BID BORROWING NOTICE") shall specify the aggregate principal amount
of offers for each Interest Period that are accepted. The Company may accept any
Competitive Bid Quote in whole or in part (subject to the terms of Section
2.1(D)(ii)(d)); provided that:
(a) the aggregate principal amount of each Competitive Bid
Advance may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request,
(b) acceptance of offers may only be made on the basis of
ascending Eurocurrency Bid Rates or Absolute Rates, as the case may be,
and
(c) the Company may not accept any offer that is described in
Section 2.1(D)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(G) Allocation by Administrative Agent. If offers are made by two or
more Lenders with the same Eurocurrency Bid Rates or Absolute Rates, as the case
may be, for a greater aggregate principal amount than the amount in respect of
which offers are accepted for the related Interest Period, the principal amount
of Competitive Bid Loans in respect of which such offers are accepted shall be
allocated by the Administrative Agent among such Lenders as nearly as possible
(in such multiples, not greater than $1,000,000, as the Administrative Agent may
deem appropriate) in proportion to the aggregate principal amount of such offers
provided, however, that no Lender shall be allocated a portion of any
Competitive Bid Advance which is less than the minimum amount which such Lender
has indicated that it is willing to accept. Allocations by the Administrative
Agent of the amounts of Competitive Bid Loans shall be conclusive in the absence
of manifest error. The Administrative Agent shall promptly, but in any event on
the same Business Day, notify each Lender of its receipt of a Competitive Bid
Borrowing Notice and the aggregate principal amount of such Competitive Bid
Advance allocated to each participating Lender.
(H) Administration Fee. The Company hereby agrees to pay to the
Administrative Agent an administration fee as detailed in the Administrative
Agent Fee Letter per each Competitive Bid Quote Request transmitted by the
Company to the Administrative Agent pursuant to Section 2.1(B). Such
administration fee shall be payable in arrears on each Payment Date hereafter,
on the
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<PAGE> 45
Termination Date (or such earlier date on which the Aggregate Revolving Loan
Commitment shall terminate or be canceled), and on the Facility Termination
Date, for any period then ending for which such fee, if any, shall not have been
theretofore paid.
2.2 Revolving Loans. (A) Upon the satisfaction of the conditions precedent
set forth in Sections 5.1, 5.2 and 5.3, as applicable, from and including the
Closing Date and prior to the earlier of the Conversion Date and the Termination
Date, each Lender severally and not jointly agrees, on the terms and conditions
set forth in this Agreement, to make revolving loans to the Borrowers from time
to time, in Dollars or Eurocurrency Rate Loans in any Agreed Currency, in a
Dollar Amount not to exceed such Lender's Pro Rata Share of Revolving Credit
Availability at such time (each individually, a "REVOLVING LOAN" and,
collectively, the "REVOLVING LOANS"); provided, however, at no time shall the
Dollar Amount of the Revolving Credit Obligations exceed the Aggregate Revolving
Loan Commitment. Subject to the terms of this Agreement, the Borrowers may
borrow, repay and reborrow Revolving Loans at any time prior to the earlier of
the Conversion Date and the Termination Date. The Revolving Loans made on the
Closing Date or on or before the third (3rd) Business Day thereafter shall
initially be Floating Rate Loans and thereafter may be continued as Floating
Rate Loans or converted into Eurocurrency Rate Loans in the manner provided in
Section 2.10 and subject to the other conditions and limitations therein set
forth and set forth in this Article II and set forth in the definition of
Interest Period. Revolving Loans made after the third (3rd) Business Day after
the Closing Date shall be, at the option of the applicable Borrower, selected in
accordance with Section 2.10, either Floating Rate Loans or Eurocurrency Rate
Loans. On the Termination Date, or, if the Company shall have converted the
Advances hereunder to a term loan pursuant to Section 2.19(C), on the date that
is 364 days after the Conversion Date, the applicable Borrower shall repay in
full the outstanding principal balance of the Revolving Loans. Each Advance
under this Section 2.2 shall consist of Revolving Loans made by each Lender
ratably in proportion to such Lender's respective Pro Rata Share.
(B) Borrowing/Conversion/Continuation Notice. The applicable Borrower shall
deliver to the Administrative Agent a Borrowing/Conversion/Continuation Notice,
signed by it, in accordance with the terms of Section 2.8. The Administrative
Agent shall promptly notify each Lender with a Revolving Loan Commitment greater
than zero of such request.
(C) Making of Revolving Loans. Promptly after receipt of the
Borrowing/Conversion/Continuation Notice under Section 2.8 in respect of
Revolving Loans, the Administrative Agent shall notify each Lender with a
Revolving Loan Commitment greater than zero by telex or telecopy, or other
similar form of transmission, of the requested Revolving Loan. Each Lender with
a Revolving Loan Commitment greater than zero shall make available its Revolving
Loan in accordance with the terms of Section 2.7. The Administrative Agent will
promptly make the funds so received from the Lenders available to the applicable
Borrower at the Administrative Agent's office in Chicago, Illinois on the
applicable Borrowing Date and shall disburse such proceeds in accordance with
the applicable Borrower's disbursement instructions set forth in such
Borrowing/Conversion/Continuation Notice. The failure of any Lender to deposit
the amount described above with the Administrative Agent on the applicable
Borrowing Date shall not relieve any other Lender of its obligations hereunder
to make its Revolving Loan on such Borrowing Date.
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2.3 Swing Line Loans. (A) Amount of Swing Line Loans. Upon the
satisfaction of the conditions precedent set forth in Section 5.1, 5.2 and 5.3,
as applicable, from and including the Closing Date and prior to the earlier of
the Conversion Date and the Termination Date, the Swing Line Bank agrees, on the
terms and conditions set forth in this Agreement, to make swing line loans to
the Company from time to time, in Dollars, in an amount not to exceed the Swing
Line Commitment (each, individually, a "SWING LINE LOAN" and collectively, the
"SWING LINE LOANS"); provided, however, at no time shall the Dollar Amount of
the Revolving Credit Obligations exceed the Aggregate Revolving Loan Commitment;
and provided, further, that at no time shall the sum of (a) the Swing Line
Lender's Pro Rata Share of the Swing Line Loans, plus (b) the outstanding Dollar
Amount of Revolving Loans made by the Swing Line Bank pursuant to Section 2.2,
exceed the Swing Line Bank's Revolving Loan Commitment at such time. Subject to
the terms of this Agreement, the Company may borrow, repay and reborrow Swing
Line Loans at any time prior to the earlier of the Conversion Date and the
Termination Date.
(B) Borrowing/Conversion/Continuation Notice. The Company shall deliver to
the Administrative Agent and the Swing Line Bank a Borrowing/Conversion/
Continuation Notice, signed by it, not later than 12:00 p.m. (Chicago time) on
the Borrowing Date of each Swing Line Loan bearing a fixed rate of interest, or
3:00 p.m. (Chicago time) on the Borrowing Date of each Swing Line Loan bearing
interest at the Floating Rate (or at such later time as may be acceptable to the
Swing Line Bank in its sole discretion), in each case, specifying (i) the
applicable Borrowing Date (which date shall be a Business Day and which may be
the same date as the date the Borrowing/Conversion/Continuation Notice is given,
and (ii) the aggregate amount of the requested Swing Line Loan which shall be an
amount not less than $1,000,000. The Swing Line Loans shall bear interest at the
Floating Rate or at a fixed rate of interest for an interest period as agreed to
by the Swing Line Bank and the Company (which interest period shall not in any
event exceed five (5) Business Days).
(C) Making of Swing Line Loans. Promptly after receipt of the
Borrowing/Conversion/ Continuation Notice under Section 2.3(B) in respect of
Swing Line Loans, the Administrative Agent shall notify each Lender by telex or
telecopy, or other similar form of transmission, of the requested Swing Line
Loan. Not later than 4:00 p.m. (Chicago time) on the applicable Borrowing Date,
the Swing Line Bank shall make available its Swing Line Loan, in funds
immediately available in Chicago to the Administrative Agent at its address
specified pursuant to Article XV. The Administrative Agent will promptly make
the funds so received from the Swing Line Bank available to the Company on the
Borrowing Date at the Administrative Agent's aforesaid address.
(D) Repayment of Swing Line Loans. Each Swing Line Loan shall be paid in
full by the Company (x) on or before the fifth (5th) Business Day after the
Borrowing Date for such Swing Line Loan in the case of a Swing Line Loan bearing
interest at the Floating Rate, and (y) as of the last day of the applicable
interest period in the case of a Swing Line Loan bearing interest at an agreed
upon fixed rate of interest. The Company may at any time pay, without penalty or
premium, all outstanding Swing Line Loans bearing interest at the Floating Rate,
or, in a minimum amount of $500,000 and increments of $100,000 in excess
thereof, any portion of the outstanding Swing Line Loans bearing interest at the
Floating Rate, upon notice to the Administrative Agent and the Swing Line Bank.
The Company may voluntarily prepay any outstanding Swing Line Loan
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bearing a fixed rate of interest prior to the last day of the interest period
applicable thereto, subject to the indemnification provisions contained in
Section 4.4. In addition, the Administrative Agent (i) may at any time in its
sole discretion with respect to any outstanding Swing Line Loan, or (ii) shall
(a) on the fifth (5th) Business Day after the Borrowing Date of any Swing Line
Loan bearing interest at the Floating Rate or (b) on the last day of the
applicable interest period for any Swing Line Loan bearing interest at a fixed
rate, require each Lender (including the Swing Line Bank) to make a Revolving
Loan in the amount of such Lender's Pro Rata Share of such Swing Line Loan, for
the purpose of repaying such Swing Line Loan. Not later than 2:00 p.m. (Chicago
time) on the date of any notice received pursuant to this Section 2.3(D), each
Lender shall make available its required Revolving Loan or Revolving Loans, in
funds immediately available in Chicago to the Administrative Agent at its
address specified pursuant to Article XV. Revolving Loans made pursuant to this
Section 2.3(D) shall initially be Floating Rate Loans and thereafter may be
continued as Floating Rate Loans or converted into Eurocurrency Rate Loans in
the manner provided in Section 2.10 and subject to the other conditions and
limitations therein set forth and set forth in this Article II. Unless a Lender
shall have notified the Swing Line Bank, prior to its making any Swing Line
Loan, that any applicable condition precedent set forth in Sections 5.1, 5.2 and
5.3, as applicable, had not then been satisfied, such Lender's obligation to
make Revolving Loans pursuant to this Section 2.3(D) to repay Swing Line Loans
shall be unconditional, continuing, irrevocable and absolute and shall not be
affected by any circumstances, including, without limitation, (a) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against the Administrative Agent, the Swing Line Bank or any other Person, (b)
the occurrence or continuance of a Default or Unmatured Default, (c) any adverse
change in the condition (financial or otherwise) of the Company, or (d) any
other circumstances, happening or event whatsoever. In the event that any Lender
fails to make payment to the Administrative Agent of any amount due under this
Section 2.3(D), the Administrative Agent shall be entitled to receive, retain
and apply against such obligation the principal and interest otherwise payable
to such Lender hereunder until the Administrative Agent receives such payment
from such Lender or such obligation is otherwise fully satisfied. In addition to
the foregoing, if for any reason any Lender fails to make payment to the
Administrative Agent of any amount due under this Section 2.3(D), such Lender
shall be deemed, at the option of the Administrative Agent, to have
unconditionally and irrevocably purchased from the Swing Line Bank, without
recourse or warranty, an undivided interest and participation in the applicable
Swing Line Loan in the amount of such Revolving Loan, and such interest and
participation may be recovered from such Lender together with interest thereon
at the Federal Funds Effective Rate for each day during the period commencing on
the date of demand and ending on the date such amount is received. On the
Termination Date, the Company shall repay in full the outstanding principal
balance of the Swing Line Loans.
2.4 Rate Options for all Advances; Maximum Interest Periods. The Swing
Line Loans shall bear interest at the Floating Rate or at a fixed rate of
interest for an interest period as agreed to by the Swing Line Bank and the
Company (which interest period shall not in any event exceed five (5) Business
Days). The Revolving Loans may be Floating Rate Advances or Eurocurrency Rate
Advances, or a combination thereof, selected by the Company in accordance with
Section 2.10. The Company may select, in accordance with Section 2.10, Rate
Options and Interest Periods applicable to portions of the Revolving Loans;
provided that there shall be no more than twenty (20) Interest Periods in effect
with respect to all of the Loans at any time.
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2.5 Optional Payments; Mandatory Prepayments.
(A) Optional Payments. The Company may from time to time and at any time
upon at least one (1) Business Day's prior written notice repay or prepay,
without penalty or premium all or any part of outstanding Floating Rate Advances
in an aggregate minimum amount of $15,000,000 and in integral multiples of
$1,000,000 in excess thereof. Eurocurrency Rate Advances, Eurocurrency Bid Rate
Advances and Absolute Rate Advances may be voluntarily repaid or prepaid prior
to the last day of the applicable Interest Period, subject to the
indemnification provisions contained in Section 4.4; provided, that the
applicable Borrower may not so prepay Eurocurrency Rate Advances, Eurocurrency
Bid Rate Advances or Absolute Rate Advances unless it shall have provided at
least five (5) Business Days' prior written notice to the Administrative Agent
of such prepayment.
(B) Mandatory Prepayments of Revolving Loans. (i) If at any time and for
any reason (other than fluctuations in currency exchange rates) the Dollar
Amount of the Revolving Credit Obligations is greater than the Aggregate
Revolving Loan Commitment, the Company shall immediately make a mandatory
prepayment of the Obligations in an amount equal to such excess.
(ii) If on the last Business Day of any month, the Dollar Amount of the
Revolving Credit Obligations exceeds one hundred percent (100%) of the Aggregate
Revolving Loan Commitment, applicable Borrower shall immediately prepay Loans
for the ratable benefit of the Lenders (to be applied to such Loans as such
Borrower shall direct at the time of such payment) in an aggregate amount such
that after giving effect thereto the Dollar Amount of the Revolving Credit
Obligations is less than or equal to the Aggregate Revolving Loan Commitment.
(iii) Upon and simultaneously with any optional repayment or prepayment of
the "Facility Obligations" under (and as defined in) the 364-Day Finance
Facility Agreement following the Conversion Date (other than in connection with
a "Refunding Borrowing" as defined therein), the Company shall immediately
notify the Administrative Agent and the Lenders thereof and the Company agrees
to prepay the Obligations such that the outstanding principal balance of the
Loans shall be reduced by an amount such that the relative size that the
outstanding principal balance of the Loans bears to the sum of (a) the "Matured
Values" of all outstanding "Advances" held by Windmill Funding Corporation plus
(b) the aggregate principal amount of all outstanding "Advances" made or held by
the 364-Day CLO Lenders other than Windmill Funding Corporation, remains
constant.
(iv) After each of the 5-Year Credit Agreement and the 5-Year CLO Finance
Facility Agreement have been terminated and all obligations thereunder (other
than contingent indemnification obligations) have been paid in full, if at any
time and for any reason the Company shall, or it shall permit any Subsidiary to,
consummate any Asset Sale (other than Asset Sales permitted under Sections
7.3(B)(i) and (ii)) or Sale and Leaseback Transaction which represents the
disposition, together with all other Asset Sales and Sale and Leaseback
Transactions since the Closing Date (each such Asset Sale and each such Sale and
Leaseback Transaction being valued at book value), in the aggregate of greater
than fifteen percent (15%) of the Consolidated Net Assets of the Company as of
the date of such Asset Sale or Sale and Leaseback Transaction (calculated
without giving effect to such Asset Sale or Sale and Leaseback Transaction, as
applicable) (the
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"EXCESS PROCEEDS"), which Asset Sales and Sale and Leaseback Transactions shall
be permitted only so long as no Default or Unmatured Default shall have occurred
and is continuing as of the date of such transaction or, after the consummation
of the Asset Sale or Sale and Leaseback Transaction, as applicable, and after
giving effect thereto, would exist, the Aggregate Revolving Loan Commitment, if
any, shall be permanently reduced by an amount equal to the portion of such
Excess Proceeds not otherwise applied to the 5-Year Credit Agreement and the
5-Year CLO Finance Facility Agreement as required by Section 7.2(N) and the
Company shall immediately make a mandatory prepayment of the Obligations in an
amount equal to such portion of such Excess Proceeds.
(v) All of the mandatory prepayments made under this Section 2.5(B) shall
be applied first to Floating Rate Loans and to any Eurocurrency Rate Loans
maturing on such date and then to subsequently maturing Eurocurrency Rate Loans
in order of maturity.
2.6 Changes in Commitments.
(a) Reductions in Commitments. The Company may permanently reduce the
Aggregate Revolving Loan Commitment in whole, or in part ratably among the
Lenders, in an aggregate minimum amount of $25,000,000 with respect thereto and
integral multiples of $5,000,000 in excess of that amount with respect thereto
(unless the Aggregate Revolving Loan Commitment is reduced in whole), upon at
least three (3) Business Day's prior written notice to the Administrative Agent,
which notice shall specify the amount of any such reduction; provided, however,
that the amount of the Aggregate Revolving Loan Commitment may not be reduced
below the aggregate principal Dollar Amount of the outstanding Revolving Credit
Obligations. All accrued facility fees shall be payable on the effective date of
any termination of all or any part the obligations of the Lenders to make Loans
hereunder.
(b) Increases of the Aggregate Revolving Loan Commitment; Conversion of
Advances.
(i) Applicable Definitions. The following terms shall have the following
meanings:
"BUYING LENDER" means each Lender (including, if applicable, each New
Lender) on the Facility Conversion Date whose Pro Rata Share (as adjusted
hereunder) of the Revolving Loans is greater than the outstanding principal
balance of its outstanding Revolving Loans (including "Advances" converted to
Loans hereunder).
"FACILITY CONVERSION DATE" shall mean any date upon which the
Administrative Agent receives written notice (a "FACILITY CONVERSION NOTICE")
from the CLO Administrative Agent that either Windmill Funding Corporation has
transferred all of the outstanding "Advances" (as defined in the 364-Day Finance
Facility Agreement) made by Windmill Funding Corporation under the 364-Day
Finance Facility Agreement to the other 364-Day CLO Lenders or Windmill Funding
Corporation has exercised its option not to make Advances under the 364-Day
Finance Facility Agreement (a "PUT EVENT"), provided on or prior to the date the
Administrative Agent receives such Facility Conversion Notice no Integration
Blockage Default shall have occurred.
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"FACILITY CONVERSION NOTICE" is defined in the definition of "Facility
Conversion Date".
"INTEGRATION BLOCKAGE DEFAULT" means any Default or Unmatured Default which
has not been declared by a vote of the Required Lenders as defined in clause (x)
of the definition thereof, and the CLO Administrative Agent, to be inapplicable
to block the integration and equalization provisions of this Section 2.6(b)
"PUT EVENT" is defined in the definition of "Facility Conversion Date".
"SELLING LENDER" means each Lender (including, if applicable, each New
Lender) on the Facility Conversion Date whose Pro Rata Share (as adjusted
hereunder) of the Revolving Loans is less than the outstanding principal balance
of its outstanding Revolving Loans (including "Advances" converted to Loans
hereunder).
(ii) Increase of Revolving Loan Commitments; Adjustment of Pro Rata Shares.
Effective upon receipt by the Administrative Agent of a Facility Conversion
Notice on a Facility Conversion Date, (A) the Aggregate Revolving Loan
Commitment (or, after the Conversion Date, the outstanding principal balance of
the Loans under this Agreement) shall be immediately and automatically increased
by an amount equal to the then effective "Maximum Matured Value" under (and as
defined in) the 364-Day Finance Facility Agreement, (B) each 364-Day CLO Lender
(other than Windmill Funding Corporation) which had a "Commitment" under (and as
defined in) the 364-Day Finance Facility Agreement (the "NEW LENDERS") shall
have a Revolving Loan Commitment (or, after the Conversion Date, a Loan) equal
to such 364-Day CLO Lender's "Conversion Amount" under (and as defined in) the
364-Day Finance Facility Agreement on the date of the Facility Conversion
Notice; provided that the Revolving Loan Commitment of each Lender hereunder
immediately prior to such Facility Conversion Date (the "EXISTING LENDERS") (or,
after the Conversion Date, the outstanding principal balance of the Loans of
each of the Existing Lenders under this Agreement) shall not be increased. On
such Facility Conversion Date, each New Lender shall immediately and
automatically be a party hereto as a Lender and shall have the rights and
obligations of a Lender hereunder. On such Facility Conversion Date, each
Existing Lender's Pro Rata Share shall immediately and automatically be adjusted
to reflect the fact that the Revolving Loan Commitment (or, after the Conversion
Date, the outstanding principal balance of the Loans of each Existing Lender
under this Agreement) of each Existing Lender (other than the New Lenders) shall
not have changed but the Aggregate Revolving Loan Commitment shall have
increased. The Company and each New Lender agrees that on such Facility
Conversion Date, the indebtedness previously owed by the Company to the New
Lenders under the 364-Day Finance Facility Agreement shall thereafter be
Obligations under this Agreement in an amount equal to the indebtedness
previously owed to the New Lenders under the 364-Day Finance Facility Agreement
and the Company shall thereafter owe such amounts to the New Lenders as Lenders
under the terms and conditions of this Agreement and no amounts shall thereafter
be owed to the New Lenders under the 364-Day Finance Facility Agreement (other
than as a result of the provisions thereof which are stated to survive the
termination of such agreement).
(iii) Conversion of 364-Day Finance Facility Advances to Loans under the
Agreement;
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Deemed Repayment/Reborrowing of all Fixed Rate Loans. On the Facility Conversion
Date all outstanding "Advances" (as defined in the 364-Day Finance Facility
Agreement) made or held by the 364-Day CLO Lenders shall be automatically
converted to Loans hereunder. In order to effect such conversion and to
facilitate the provisions of clause (iv) below, the Company shall be deemed to
have prepaid all such "Advances" that were outstanding thereunder as "Eurodollar
Advances" and all outstanding Eurocurrency Rate Advances hereunder as of the
Facility Conversion Date and reborrowed such amount as Revolving Loans
consisting of Floating Rate Advances and/or Eurocurrency Rate Advances (chosen
in accordance with the provisions of Section 2.2 and Section 2.10) and the
indemnification provisions under Section 4.4 shall apply.
(iv) Purchases and Sales of Interests in Revolving Loans. Effective on the
Facility Conversion Date, each of the Existing Lenders and the New Lenders
agrees, on the terms set forth herein, to effect purchases and assignments of
all Revolving Loans (or, after the Conversion Date, Loans other than the Swing
Line Loans and Competitive Bid Loans) (whether previously outstanding or
converted from "Advances" under the 364-Day Finance Facility Agreement) such
that after such purchases and assignments each Lender has funded its Pro Rata
Share of all Revolving Loans (or, after the Conversion Date, Loans other than
the Swing Line Loans and Competitive Bid Loans). On the Facility Conversion
Date, each Buying Lender shall be deemed to have unconditionally and irrevocably
purchased from each Selling Lender, without recourse or warranty, an undivided
interest in each such Selling Lenders' Revolving Loans (or, after the Conversion
Date, Loans other than the Swing Line Loans and Competitive Bid Loans)
(including, as applicable, "Advances" under the 364-Day Finance Facility
Agreement that were converted to Loans hereunder), and within ten (10) Business
Days following such purchase each such Buying Lender shall pay to the
Administrative Agent for the ratable account of each such Selling Lender an
amount equal to the principal amount of the undivided interest in the Revolving
Loans (or, after the Conversion Date, Loans other than the Swing Line Loans and
Competitive Bid Loans) purchased by such Buying Lender pursuant to this Section
2.6(b).
2.7 Method of Borrowing. Not later than 12:00 p.m. (Chicago time) on each
Borrowing Date, each Lender shall make available its Revolving Loan in
immediately available funds in the Agreed Currency to the Administrative Agent
at its address specified pursuant to Article XV, unless the Administrative Agent
has notified the Lenders that such Loan is to be made available to the Company
at the Administrative Agent's Eurocurrency Payment office, in which case each
Lender shall make available its Loan or Loans, in funds immediately available to
the Administrative Agent at its Eurocurrency Payment Office, not later than
12:00 p.m. (local time in the city of the Administrative Agent's Eurocurrency
Payment Office) in the Agreed Currency designated by the Administrative Agent.
The Administrative Agent will promptly make the funds so received from the
Lenders available to the Company at the Administrative Agent's aforesaid
address.
2.8 Method of Selecting Types and Interest Periods for Advances. The
applicable Borrower shall select the Type of Advance and, in the case of each
Eurocurrency Rate Advance, the Interest Period and Agreed Currency applicable to
each Advance from time to time. The applicable Borrower shall give the
Administrative Agent irrevocable notice in substantially the form of Exhibit B
hereto (a "BORROWING/CONVERSION/CONTINUATION NOTICE") not later than 9:00
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a.m. (Chicago time) (a) on or before the Borrowing Date of each Floating Rate
Advance, and (b) three (3) Business Days before the Borrowing Date for each
Eurocurrency Rate Advance to be made in Dollars, and (c) four (4) Business Days
before the Borrowing Date for each Eurocurrency Rate Advance to be made in any
Agreed Currency other than Dollars, specifying: (i) the Borrowing Date (which
shall be a Business Day) of such Advance; (ii) the aggregate amount of such
Advance; (iii) the Type of Advance selected; and (iv) in the case of each
Eurocurrency Rate Loan, the Interest Period and Agreed Currency applicable
thereto. Notwithstanding the foregoing, if the Company has submitted a
Competitive Bid Quote Request pursuant to Section 2.1(B), a Borrowing/Conversion
/Continuation Notice for a Floating Rate Advance may be given not later than
fifteen (15) minutes after the time which the Company is required to reject one
or more bids offered in connection with an Absolute Rate Auction pursuant to
Section 2.1(F) and a Borrowing/Conversion/Continuation Notice for a Eurocurrency
Rate Loan may be given not later than fifteen (15) minutes after the time the
Company is required to reject one or more bids offered in connection with a
Eurocurrency Auction pursuant to Section 2.1(F). The Company shall select
Interest Periods so that, to the best of the Company's knowledge, it will not be
necessary to prepay all or any portion of any Eurocurrency Rate Loan prior to
the last day of the applicable Interest Period in order to make mandatory
prepayments as required pursuant to the terms hereof. Each Floating Rate Advance
and all Obligations other than Loans shall bear interest from and including the
date of the making of such Advance, in the case of Loans, and the date such
Obligation is due and owing in the case of such other Obligations, to (but not
including) the date of repayment thereof at the Floating Rate changing when and
as such Floating Rate changes. Changes in the rate of interest on that portion
of any Advance maintained as a Floating Rate Loan will take effect
simultaneously with each change in the Alternate Base Rate. Each Eurocurrency
Rate Advance shall bear interest from and including the first day of the
Interest Period applicable thereto to (but not including) the last day of such
Interest Period at the interest rate determined as applicable to such
Eurocurrency Rate Advance and shall change as and when the Applicable
Eurocurrency Margin changes.
2.9 Minimum Amount of Each Advance. Each Advance (other than an Advance to
repay Swing Line Loans) shall be in the minimum Dollar Amount of $25,000,000 (or
the Approximate Equivalent Amount of any Agreed Currency other than Dollars) and
in Dollar Amount multiples of $1,000,000 (or the Approximate Equivalent Amount
of any Agreed Currency other than Dollars) if in excess thereof, provided,
however, that any Floating Rate Advance may be in the amount of the unused
Aggregate Revolving Loan Commitment.
2.10 Method of Selecting Types and Interest Periods for Conversion and
Continuation of Advances.
(A) Right to Convert. The applicable Borrower may elect from time to time,
subject to the provisions of Section 2.4 and this Section 2.10, to convert all
or any part of a Loan (other than a Competitive Bid Loan) of any Type into any
other Type or Types of Loans (other than a Competitive Bid Loan); provided that
any conversion of any Eurocurrency Rate Advance shall be made on, and only on,
the last day of the Interest Period applicable thereto.
(B) Automatic Conversion and Continuation. Floating Rate Loans shall
continue as
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Floating Rate Loans unless and until such Floating Rate Loans are converted into
Eurocurrency Rate Loans. Eurocurrency Rate Loans shall continue as Eurocurrency
Rate Loans until the end of the then applicable Interest Period therefor, at
which time such Eurocurrency Rate Loans shall be automatically converted into
Floating Rate Loans unless the Company shall have given the Administrative Agent
notice in accordance with Section 2.10(D) requesting that, at the end of such
Interest Period, such Eurocurrency Rate Loans continue as a Eurocurrency Rate
Loan. Unless a Borrowing/Conversion/Continuation Notice shall have timely been
given in accordance with the terms of this Section 2.10, Eurocurrency Rate
Advances in an Agreed Currency other than Dollars shall automatically continue
as Eurocurrency Rate Advances in the same Agreed Currency with an Interest
Period of one (1) month.
(C) No Conversion Post-Default or Post-Unmatured Default. Notwithstanding
anything to the contrary contained in Section 2.10(A) or Section 2.10(B), no
Loan may be converted into or continued as a Eurocurrency Rate Loan (except with
the consent of the Required Lenders) when any Default or Unmatured Default has
occurred and is continuing.
(D) Borrowing/Conversion/Continuation Notice. The Company shall give the
Administrative Agent irrevocable notice (a "BORROWING/CONVERSION/CONTINUATION
NOTICE") of each conversion of a Floating Rate Loan into a Eurocurrency Rate
Loan or continuation of a Eurocurrency Rate Loan not later than 9:00 a.m.
(Chicago time) (x) three (3) Business Days prior to the date of the requested
conversion or continuation, with respect to any Loan to be converted or
continued as a Eurocurrency Rate Loan in Dollars, and (y) four (4) Business Days
prior to the date of the requested conversion or continuation with respect to
any Loan to be converted or continued as a Eurocurrency Rate Loan in an Agreed
Currency other than Dollars, specifying: (1) the requested date (which shall be
a Business Day) of such conversion or continuation; (2) the amount and Type of
the Loan to be converted or continued; and (3) the amount of Eurocurrency Rate
Loan(s) into which such Loan is to be converted or continued, the Agreed
Currency and the duration of the Interest Period applicable thereto.
(E) Notwithstanding anything herein to the contrary, Eurocurrency Rate
Advances in an Agreed Currency may be continued as Eurocurrency Rate Advances
only in the same Agreed Currency.
2.11 Default Rate. After the occurrence and during the continuance of a
Default, at the direction of the Required Lenders:
(x) the interest rate(s) applicable to the Obligations (other than
Competitive Bid Loans) shall be equal to (a) the Eurocurrency Base
Rate plus the highest Applicable Eurocurrency Margin plus two percent
(2.00%) per annum for all Eurocurrency Rate Loans, and (b) the
Alternate Base Rate for such date, changing as and when the Alternate
Base Rate changes plus the highest Applicable Floating Rate Margin
plus two percent (2.00%) per annum for all other such Obligations and
fees; and
(y) the interest rate(s) applicable to all Competitive Bid Loans shall be
equal to the then applicable interest rate for such Competitive Bid
Loan plus two percent (2.00%) per
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annum.
2.12 Method of Payment. All payments of principal, interest, fees and
commissions hereunder shall be made, without setoff, deduction or counterclaim
(unless indicated otherwise in Section 2.15(E)), in immediately available funds
to the Administrative Agent (i) at the Administrative Agent's address specified
pursuant to Article XV with respect to Advances or other Obligations denominated
in Dollars and (ii) at the Administrative Agent's Eurocurrency Payment Office
with respect to any Advance or other Obligations denominated in an Agreed
Currency other than Dollars, or at any other Lending Installation of the
Administrative Agent specified in writing by the Administrative Agent to the
Company, by 1:00 p.m. (Chicago time) on the date when due and shall be applied
(a) first, ratably among the Lenders with respect to any principal and interest
due in connection with Advances (other than Competitive Bid Advances) and (b)
second, after all amounts described in clause (a) have been satisfied, ratably
among those Lenders for whom any payment of principal and interest is due in
connection with any Competitive Bid Advances, in each case, unless such amount
is not to be shared ratably in accordance with the terms hereof. Each Advance
shall be repaid or prepaid in the Agreed Currency in which it was made in the
amount borrowed and interest payable thereon shall also be paid in such
currency. Each payment delivered to the Administrative Agent for the account of
any Lender shall be delivered promptly by the Administrative Agent to such
Lender in the same type of funds which the Administrative Agent received at its
address specified pursuant to Article XV or at any Lending Installation
specified in a notice received by the Administrative Agent from such Lender. The
Company authorizes the Administrative Agent to charge the account of the Company
maintained with First Chicago, after one (1) Business Day's prior written notice
to the Company, for each payment of principal, interest, fees and commissions as
it becomes due hereunder.
Notwithstanding the foregoing provisions of this Section, if, after the
making of any Advance in any currency other than Dollars, currency control or
exchange regulations are imposed in the country which issues such Agreed
Currency with the result that different types of such Agreed Currency (the "NEW
CURRENCY") are introduced and the type of currency in which the Advance was made
(the "ORIGINAL CURRENCY") no longer exists or any Borrower is not able to make
payment to the Administrative Agent for the account of the Lenders in such
Original Currency, then all payments to be made by the Borrowers hereunder in
such currency shall be made to the Administrative Agent in such amount and such
type of the New Currency or Dollars as shall be equivalent to the amount of such
payment otherwise due hereunder in the Original Currency, it being the intention
of the parties hereto that the Borrowers take all risks of the imposition of any
such currency control or exchange regulations. In addition, notwithstanding the
foregoing provisions of this Section, if, after the making of any Advance in any
currency other than Dollars, the applicable Borrower is not able to make payment
to the Administrative Agent for the account of the Lenders in the type of
currency in which such Advance was made because of the imposition of any such
currency control or exchange regulation, then such Advance shall instead be
repaid when due in Dollars in a principal amount equal to the Dollar Amount (as
of the date of repayment) of such Advance.
2.13 Evidence of Debt.
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(A) Each Lender shall maintain in accordance with its usual practice an
account or accounts (a "LOAN ACCOUNT") evidencing the indebtedness of the
Borrowers to such Lender owing to such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(B) The Register maintained by the Administrative Agent pursuant to Section
14.3(C) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date and
the amount of each Loan made hereunder, the Type thereof and the Interest
Period, if any, applicable thereto, (ii) the amount and the currency of any
principal or interest due and payable or to become due and payable from the
Borrowers to each Lender hereunder, (iii) the effective date and amount of each
Assignment Agreement delivered to and accepted by it and the parties thereto
pursuant to Section 14.3, (iv) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender's
share thereof, (v) the amount of any increase in the Aggregate Revolving Loan
Commitment pursuant to Section 2.6(b), and (vi) all other appropriate debits and
credits as provided in this Agreement, including, without limitation, all fees,
charges, expenses and interest.
(C) The entries made in the Loan Account, the Register and the other
accounts maintained pursuant to subsections (A) or (B) of this Section shall be
presumptively correct for all purposes, absent manifest error, unless the
applicable Borrower objects to information contained in the Loan Accounts, the
Register or the other accounts within thirty (30) days of the applicable
Borrower's receipt of such information; provided that the failure of any Lender
or the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrowers to repay the Loans in
accordance with the terms of this Agreement.
(D) Any Lender may request that the Revolving Loans or Competitive Bid
Loans made by it each be evidenced by a promissory note in substantially the
forms of Exhibit K-1 or K-2, respectively, to evidence such Lender's Revolving
Loans or Competitive Bid Loans, as applicable. In such event, the applicable
Borrower shall prepare, execute and deliver to such Lender a promissory note for
such Loans payable to the order of such Lender and in a form approved by the
Administrative Agent and consistent with the terms of this Agreement.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 14.3) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein.
2.14 Telephonic Notices. The Borrowers authorize the Lenders and the
Administrative Agent to extend Advances, effect selections of Types of Advances
and submit Competitive Bid Quotes and to transfer funds based on telephonic
notices made by any person or persons the Administrative Agent or any Lender in
good faith believes to be acting on behalf of the applicable Borrower. The
Borrowers agree to deliver promptly to the Administrative Agent a written
confirmation, signed by an Authorized Officer, if such confirmation is requested
by the Administrative Agent or any Lender, of each telephonic notice. If the
written confirmation differs in any material respect from the action taken by
the Administrative Agent and the Lenders, the records of the Administrative
Agent and the Lenders shall govern absent manifest error. In case of
disagreement concerning such notices, if the Administrative Agent has recorded
telephonic
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borrowing notices, such recordings will be made available to the applicable
Borrower upon the Company's request therefor.
2.15 Promise to Pay; Interest and Fees; Interest Payment Dates; Interest
and Fee Basis; Taxes; Loan and Control Accounts.
(A) Promise to Pay. All Advances shall be paid in full by the applicable
Borrowers on the Termination Date, or, if the Company shall have converted the
Advances hereunder to a term loan pursuant to Section 2.19(C), on the date that
is 364 days after the Conversion Date; provided, that all Competitive Bid
Advances shall be paid in full by the Company on the last day of the Interest
Period applicable thereto, or, if earlier, on the Termination Date. Each
Borrower unconditionally promises to pay when due the principal amount of each
Loan and all other Obligations incurred by it, and to pay all unpaid interest
accrued thereon, in accordance with the terms of this Agreement and the other
Loan Documents.
(B) Interest Payment Dates. Interest accrued on each Floating Rate Loan
shall be payable on each Payment Date, commencing with the first such date to
occur after the date hereof, upon any prepayment whether by acceleration or
otherwise, and at maturity (whether by acceleration or otherwise). Interest
accrued on each Fixed-Rate Loan shall be payable on the last day of its
applicable Interest Period, on any date on which the Fixed-Rate Loan is prepaid,
whether by acceleration or otherwise, and at maturity. Interest accrued on each
Fixed-Rate Loan having an Interest Period longer than three months shall also be
payable on the last day of each three-month interval during such Interest
Period. Interest accrued on the principal balance of all other Obligations shall
be payable in arrears (i) on the last day of each calendar month, commencing on
the first such day following the incurrence of such Obligation, (ii) upon
repayment thereof in full or in part, and (iii) if not theretofore paid in full,
at the time such other Obligation becomes due and payable (whether by
acceleration or otherwise).
(C) Fees.
(i) The Company shall pay to the Administrative Agent, for the account
of the Lenders in accordance with their Pro Rata Shares, from and after the
Closing Date until the Facility Termination Date, a facility fee accruing
at the rate of the then Applicable Facility Fee Percentage, on such
Lender's Revolving Loan Commitment (whether used or unused), or if all of
the Revolving Loan Commitments are terminated pursuant to the terms of this
Agreement, on the sum of (A) such Lender's Revolving Loans, plus (B) such
Lender's Competitive Bid Advances. The facility fee shall be payable in
arrears on each Payment Date hereafter (with the first such payment being
calculated for the period from the date of this Agreement and ending on
September 1, 1999), and, in addition, on the Termination Date, or with
respect to any terminated amount, on any date the Aggregate Revolving Loan
Commitment shall be terminated in part.
(ii) The Company agrees to pay to the Administrative Agent, for the
sole account of the Administrative Agent, the Lead Arrangers and the
Underwriting Lenders (unless otherwise agreed between the Administrative
Agent, the Lead Arrangers, the
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Underwriting Lenders and any Lender) the fees set forth in the Fee Letters,
payable at the times and in the amounts set forth therein.
(D) Interest and Fee Basis; Applicable Floating Rate Margin, Applicable
Eurocurrency Margin and Applicable Facility Fee Percentage.
(i) Interest on all Fixed-Rate Loans and fees shall be calculated for
actual days elapsed on the basis of a 360-day year. Interest on all
Floating Rate Loans shall be calculated for actual days elapsed on the
basis of a 365-, or when appropriate 366-, day year. Interest shall be
payable for the day an Obligation is incurred but not for the day of any
payment on the amount paid if payment is received prior to 2:00 p.m.
(Chicago time) at the place of payment. If any payment of principal of or
interest on a Loan or any payment of any other Obligations shall become due
on a day which is not a Business Day, such payment shall be made on the
next succeeding Business Day and, in the case of a principal payment, such
extension of time shall be included in computing interest, fees and
commissions in connection with such payment.
(ii) The Applicable Floating Rate Margin, Applicable Eurocurrency
Margin and Applicable Facility Fee Percentage shall be determined on the
basis of the then applicable Average Total Net Indebtedness to Capital
Ratio as described in this Section 2.15(D)(ii), from time to time by
reference to the following table:
===============================================================================
AVERAGE
TOTAL NET APPLICABLE
INDEBTEDNESS APPLICABLE APPLICABLE FACILITY
TO CAPITAL FLOATING EUROCURRENCY FEE
RATIO RATE MARGIN MARGIN PERCENTAGE
===============================================================================
Greater than or
equal to 0.50 to 1.0 0.25% 1.25% 0.25%
- -------------------------------------------------------------------------------
Greater than or
equal to 0.45 to 1.0
and less than 0.50 to 1.0 0.00% 1.05% 0.20%
- -------------------------------------------------------------------------------
Greater than or
equal to 0.40 to 1.0
and less than 0.45 to 1.0 0.00% 0.95% 0.175%
- -------------------------------------------------------------------------------
Less than 0.40 to 1.0 0.00% 0.85% 0.15%
===============================================================================
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Upon receipt of the financial statements delivered pursuant to
Sections 7.1(A)(i) and (ii), as applicable, the Applicable Floating Rate
Margin, Applicable Eurocurrency Margin and Applicable Facility Fee
Percentage shall be adjusted, such adjustment being effective five (5)
Business Days following the Administrative Agent's receipt of such
financial statements and the compliance certificate required to be
delivered in connection therewith pursuant to Section 7.1(A)(iii);
provided, that if the Company shall not have timely delivered its financial
statements in accordance with Section 7.1(A)(i) or (ii), as applicable,
then commencing on the date upon which such financial statements should
have been delivered and continuing until such financial statements are
actually delivered, it shall be assumed for purposes of determining the
Applicable Floating Rate Margin, Applicable Eurocurrency Margin and
Applicable Facility Fee Percentage that the Average Total Net Indebtedness
to Capital Ratio was greater than 0.50 to 1.0; provided, further that all
calculations of "Average Total Net Indebtedness" under this Section 2.15(D)
shall be made exclusive of any impact on the financial statements arising
from Supported Contingent Obligations, unless (i) the Company shall not
receive cash reimbursement for any and all cash payments made under any
Supported Contingent Obligations promptly, and in any event within ninety
(90) days, following the Company making any such payment, in which event
"Average Total Net Indebtedness" shall thereafter be calculated by
including the total outstanding amount of such Supported Contingent
Obligation (to the extent unreimbursed or otherwise unsupported to the
satisfaction of the Administrative Agent) in "Average Total Net
Indebtedness", or (ii) any judgment is entered under Viskase Corporation v.
American National Can Company, Civ. 93-C-7651, before the U.S. District
Court of the Northern District of Illinois, Eastern Division or any related
proceedings holding that the aggregate liability of the Company and its
Subsidiaries thereunder shall be in an amount in excess of $106,000,000,
and such judgment shall remain (x) undischarged, unvacated or unstayed or
(y) unbonded by Pechiney or any bonding agent in reliance upon a letter of
credit or other reimbursement obligation of Pechiney or any other Person
other than the Company or its Subsidiaries in the amount of such aggregate
liability, in the case of either clause (x) or (y), for a period of thirty
(30) days or such other period permitted by court order, in which event
"Average Total Net Indebtedness" shall thereafter be calculated by giving
effect to the amount of such judgment which is undischarged, unvacated,
unstayed or unbonded on the financial condition of the Company and its
Subsidiaries.
(iii) Notwithstanding anything herein to the contrary, from the date
of this Agreement to but not including the fifth (5th) Business Day
following receipt of the Company's financial statements delivered pursuant
to Section 7.1(A)(i) for the fiscal quarter ending March 31, 2000, the
Applicable Floating Rate Margin, Applicable Eurocurrency Margin and
Applicable Facility Fee Percentage shall be determined based upon an
Average Total Net Indebtedness to Capital Ratio greater than or equal to
0.45 to 1.0 and less than or equal to 0.50 to 1.0, or, if higher, the
Average Total Net Indebtedness to Capital Ratio calculated as of the end of
each of the three fiscal quarters immediately following the Closing Date;
provided, that for purposes of calculating Average Total Net Indebtedness
for the three fiscal quarters immediately following the Closing Date,
Average Total Net Indebtedness shall be calculated (x) for the fiscal
quarter ending on September 30, 1999, for such fiscal quarter, (y) for the
fiscal quarter ending on December 31, 1999,
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for the two fiscal quarter period then ending, and (z) for the fiscal
quarter ending on March 31, 2000, for the three fiscal quarter period then
ending.
(iv) Notwithstanding anything herein to the contrary, in the event
that there is any amendment to the terms of Section 3(d) of the 364-Day
Finance Facility Agreement and the effect of such an amendment is to
increase the "Applicable Eurodollar Rate Margins", the "Applicable Floating
Rate Margins" and/or "Applicable Facility Fee Percentages" under (and as
defined in) the 364-Day Finance Facility Agreement, then there shall
automatically be effective a corresponding amendment to the terms of this
Section 2.15(D) with respect to the Applicable Eurocurrency Rate Margins,
Applicable Floating Rate Margins and/or Applicable Facility Fee
Percentages.
(E) Taxes.
(i) Any and all payments by the Borrowers hereunder (whether in
respect of principal, interest, fees or otherwise) shall be made free and
clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings or any interest,
penalties and liabilities with respect thereto including those arising
after the date hereof as a result of the adoption of or any change in any
law, treaty, rule, regulation, guideline or determination of a Governmental
Authority or any change in the interpretation or application thereof by a
Governmental Authority but excluding, in the case of each Lender and the
Administrative Agent, such taxes (including income taxes, franchise taxes
and branch profit taxes) as are imposed on or measured by such Lender's or
the Administrative Agent's, as the case may be, net income by the United
States of America or any Governmental Authority of the jurisdiction under
the laws of which such Lender or the Administrative Agent, as the case may
be, is organized (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings, and liabilities which the Administrative Agent or a
Lender determines to be applicable to this Agreement, the other Loan
Documents, the Revolving Loan Commitments, the Loans being hereinafter
referred to as "TAXES"). If any Borrower shall be required by law to deduct
or withhold any Taxes from or in respect of any sum payable hereunder or
under the other Loan Documents to any Lender or the Administrative Agent,
(i) the sum payable shall be increased as may be necessary so that after
making all required deductions or withholdings (including deductions
applicable to additional sums payable under this Section 2.15(E)) such
Lender or Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions or withholdings been made, (ii)
the applicable Borrower shall make such deductions or withholdings, and
(iii) the applicable Borrower shall pay the full amount deducted or
withheld to the relevant taxation authority or other authority in
accordance with applicable law. If a withholding tax of the United States
of America or any other Governmental Authority shall be or become
applicable (y) after the date of this Agreement, to such payments by the
applicable Borrower made to the Lending Installation or any other office
that a Lender may claim as its Lending Installation, or (z) after such
Lender's selection and designation of any other Lending Installation, to
such payments made to such other Lending Installation, such Lender shall
use reasonable efforts to make, fund and maintain the affected Loans
through another Lending Installation of such Lender in another jurisdiction
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so as to reduce the applicable Borrower's liability hereunder, if the
making, funding or maintenance of such Loans through such other Lending
Installation of such Lender does not, in the judgment of such Lender,
otherwise adversely affect such Loans, or obligations under the Revolving
Loan Commitments of such Lender.
(ii) In addition, the Borrowers agree to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges,
or similar levies which arise from any payment made hereunder, or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement, the other Loan Documents, the Revolving Loan Commitments or the
Loans (hereinafter referred to as "OTHER TAXES").
(iii) The Company and each Subsidiary Borrower indemnifies each Lender
and the Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed by any
Governmental Authority on amounts payable under this Section 2.15(E)) paid
by such Lender or the Administrative Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within
thirty (30) days after the date such Lender or the Administrative Agent (as
the case may be) makes written demand therefor. If the Taxes or Other Taxes
with respect to which the Company or any Subsidiary Borrower has made
either a direct payment to the taxation or other authority or an
indemnification payment hereunder are subsequently refunded to any Lender,
such Lender will return to the applicable Borrower an amount equal to the
lesser of the indemnification payment or the refunded amount. A certificate
as to any additional amount payable to any Lender or the Administrative
Agent under this Section 2.15(E) submitted to the applicable Borrower and
the Administrative Agent (if a Lender is so submitting) by such Lender or
the Administrative Agent shall show in reasonable detail the amount payable
and the calculations used to determine such amount and shall, absent
manifest error, be final, conclusive and binding upon all parties hereto.
With respect to such deduction or withholding for or on account of any
Taxes and to confirm that all such Taxes have been paid to the appropriate
Governmental Authorities, the applicable Borrower shall promptly (and in
any event not later than thirty (30) days after receipt) furnish to each
Lender and the Administrative Agent such certificates, receipts and other
documents as may be required (in the reasonable judgment of such Lender or
the Administrative Agent) to establish any tax credit to which such Lender
or the Administrative Agent may be entitled.
(iv) Within thirty (30) days after the date of any payment of Taxes or
Other Taxes by the Company or any Subsidiary Borrower, the Company shall
furnish to the Administrative Agent the original or a certified copy of a
receipt evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement of the
Company and the Subsidiary Borrowers hereunder, the agreements and
obligations of the Borrowers contained in this Section 2.15(E) shall
survive the payment in full of all Obligations and the termination of this
Agreement.
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(vi) Each Lender (including any Replacement Lender or Purchaser) that
is not created or organized under the laws of the United States of America
or a political subdivision thereof (each a "NON-U.S. LENDER") shall deliver
to the Company and the Administrative Agent on or before the Closing Date,
or, if later, the date on which such Lender becomes a Lender pursuant to
Section 14.3 hereof (and from time to time thereafter upon the request of
the Company or the Administrative Agent, but only for so long as such
Non-U.S. Lender is legally entitled to do so), either (1)(x) two (2) duly
completed copies of either (A) IRS Form W-8BEN (or, if delivered on or
before December 31, 1999, IRS Form 1001), or (B) IRS Form W-8ECI (or, if
delivered on or before December 31, 1999, IRS Form 4224), or in either case
an applicable successor form, and (y) for periods prior to January 1, 2000,
a duly completed copy of IRS Form W-8 or W-9 or applicable successor form;
or (2) in the case of a Non-U.S. Lender that is not legally entitled to
deliver either form listed in clause (vi)(1)(x), (x) a certificate of a
duly authorized officer of such Non-U.S. Lender to the effect that such
Non-U.S. Lender is not (A) a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of the Company or
any Subsidiary Borrower within the meaning of Section 881(c)(3)(B) of the
Code, or (C) a controlled foreign corporation receiving interest from a
related person within the meaning of Section 881(c)(3)(C) of the Code (such
certificate, an "EXEMPTION CERTIFICATE") and (y) two (2) duly completed
copies of IRS Form W-8BEN or applicable successor form. Each such Lender
further agrees to deliver to the Company and the Administrative Agent from
time to time a true and accurate certificate executed in duplicate by a
duly authorized officer of such Lender in a form satisfactory to the
Company and the Administrative Agent, before or promptly upon the
occurrence of any event requiring a change in the most recent certificate
previously delivered by it to the Company and the Administrative Agent
pursuant to this Section 2.15(E)(vi). Further, each Lender which delivers a
form or certificate pursuant to this clause (vi) covenants and agrees to
deliver to the Company and the Administrative Agent within fifteen (15)
days prior to the expiration of such form, for so long as this Agreement is
still in effect, another such certificate and/or two (2) accurate and
complete original newly-signed copies of the applicable form (or any
successor form or forms required under the Code or the applicable
regulations promulgated thereunder).
Each Lender shall promptly furnish to the Company and the
Administrative Agent such additional documents as may be reasonably
required by any Borrower or the Administrative Agent to establish any
exemption from or reduction of any Taxes or Other Taxes required to be
deducted or withheld and which may be obtained without undue expense to
such Lender. Notwithstanding any other provision of this Section 2.15(E),
no Borrower shall be obligated to gross up any payments to any Lender
pursuant to Section 2.15(E)(i), or to indemnify any Lender pursuant to
Section 2.15(E)(iii), in respect of United States federal withholding taxes
to the extent imposed as a result of (x) the failure of such Lender to
deliver to the Company the form or forms and/or an Exemption Certificate,
as applicable to such Lender, pursuant to Section 2.15(E)(vi), (y) such
form or forms and/or Exemption Certificate not establishing a complete
exemption from U.S. federal withholding tax or the information or
certifications made therein by the Lender being untrue or inaccurate on the
date delivered in any material respect, or (z) the Lender designating a
successor Lending Installation at which it maintains its Loans which has
the
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effect of causing such Lender to become obligated for tax payments in
excess of those in effect immediately prior to such designation; provided,
however, that the applicable Borrower shall be obligated to gross up any
payments to any such Lender pursuant to Section 2.15(E)(i), and to
indemnify any such Lender pursuant to Section 2.15(E)(iii), in respect of
United States federal withholding taxes if (x) any such failure to deliver
a form or forms or an Exemption Certificate or the failure of such form or
forms or exemption certificate to establish a complete exemption from U.S.
federal withholding tax or inaccuracy or untruth contained therein resulted
from a change in any applicable statute, treaty, regulation or other
applicable law or any interpretation of any of the foregoing occurring
after the date hereof, which change rendered such Lender no longer legally
entitled to deliver such form or forms or Exemption Certificate or
otherwise ineligible for a complete exemption from U.S. federal withholding
tax, or rendered the information or the certifications made in such form or
forms or Exemption Certificate untrue or inaccurate in any material
respect, (ii) the redesignation of the Lender's Lending Installation was
made at the request of the Company or (iii) the obligation to gross up
payments to any such Lender pursuant to Section 2.15(E)(i), or to indemnify
any such Lender pursuant to Section 2.15(E)(iii), is with respect to a
Purchaser that becomes a Purchaser as a result of an assignment made at the
request of the Company.
(vii) Upon the request, and at the expense of the Company, each Lender
to which any Borrower is required to pay any additional amount pursuant to
this Section 2.15(E), shall reasonably afford the applicable Borrower the
opportunity to contest, and shall reasonably cooperate with the applicable
Borrower in contesting, the imposition of any Tax giving rise to such
payment; provided, that (i) such Lender shall not be required to afford the
applicable Borrower the opportunity to so contest unless the applicable
Borrower shall have confirmed in writing to such Lender its obligation to
pay such amounts pursuant to this Agreement; and (ii) the Company shall
reimburse such Lender for its reasonable attorneys' and accountants' fees
and disbursements incurred in so cooperating with the applicable Borrower
in contesting the imposition of such Tax; provided, however, that
notwithstanding the foregoing, no Lender shall be required to afford any
Borrower the opportunity to contest, or cooperate with the applicable
Borrower in contesting, the imposition of any Taxes, if such Lender in good
faith determines that to do so would have an adverse effect on it.
2.16 Notification of Advances, Interest Rates, Prepayments and Aggregate
Revolving Loan Commitment Reductions. Promptly after receipt thereof, the
Administrative Agent will notify each Lender of the contents of each Aggregate
Revolving Loan Commitment reduction notice, Borrowing/Conversion/Continuation
Notice, and repayment notice received by it hereunder. The Administrative Agent
will notify the applicable Borrower and each Lender of the interest rate and
Agreed Currency applicable to each Fixed-Rate Loan promptly upon determination
of such interest rate and Agreed Currency and will give each Lender prompt
notice of each change in the Alternate Base Rate.
2.17 Lending Installations. Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time. All terms of
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this Agreement shall apply to any such Lending Installation. Each Lender may, by
written or facsimile notice to the Administrative Agent and the Company,
designate a Lending Installation through which Loans will be made by it and for
whose account Loan payments are to be made.
2.18 Non-Receipt of Funds by the Administrative Agent. Unless a Borrower or
a Lender, as the case may be, notifies the Administrative Agent prior to the
date on which it is scheduled to make payment to the Administrative Agent of (i)
in the case of a Lender, the proceeds of a Loan or (ii) in the case of any
Borrower, a payment of principal, interest or fees to the Administrative Agent
for the account of the Lenders, that it does not intend to make such payment,
the Administrative Agent may assume that such payment has been made. The
Administrative Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If
such Lender or the applicable Borrower, as the case may be, has not in fact made
such payment to the Administrative Agent, the recipient of such payment shall,
on demand by the Administrative Agent, repay to the Administrative Agent the
amount so made available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day or (ii) in the case of payment by a
Borrower, the interest rate applicable to the relevant Loan.
2.19 Termination Date; Extension of Termination Date; Conversion to Term
Loan.
(A) Termination Date. This Agreement shall be effective until the Facility
Termination Date. Notwithstanding the termination of this Agreement, until (A)
all of the Obligations (other than contingent indemnity obligations) shall have
been fully and indefeasibly paid and satisfied, and (B) all financing
arrangements among the Company, the Subsidiary Borrowers and the Lenders
pursuant to the Loan Documents shall have been terminated (collectively, the
"TERMINATION CONDITIONS"), all of the rights and remedies under this Agreement
and the other Loan Documents shall survive.
(B) Extension of Termination Date. The Aggregate Revolving Loan Commitment
shall expire on the earliest of (i) the Conversion Date, (ii) the Termination
Date and (iii) the Facility Termination Date. Within the period beginning 59
days and ending 30 days before the then effective Termination Date, the Company
may request in writing that the Termination Date be extended for an additional
period of 364 days, including the then effective Termination Date as one of the
days in the calculation of days elapsed. Within 30 days after such request (such
30th day being the "CONSENT DATE"), each Lender may, in its sole discretion,
agree to such extension to a new Termination Date not more than 364 days
following such Consent Date by giving written notice of such agreement to the
Company and the Administrative Agent (and the failure to provide such notice
shall be deemed to be a decision not to extend). The Revolving Loan Commitment
of each Lender that declines to extend with respect to the Aggregate Revolving
Loan Commitment may, at the option of the Company, be replaced in accordance
with Section 14.3 (but only to the extent a replacement Lender is then
available) or the Aggregate Revolving Loan Commitment reduced. All Obligations
due to each Lender that declines to extend its Revolving Loan Commitment under
this Section 2.19(B) shall be paid in full to the Administrative Agent for the
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account of each such Lender on the then effective Termination Date (without
giving effect to any such requested extension thereto). The Required Lenders and
all of the Borrowers must agree to any extension with respect to the Termination
Date for any such extension to become effective.
(C) Conversion to Term Loan. At the Company's option upon written notice (a
"NOTICE TO CONVERT") to the Administrative Agent (who shall promptly notify each
of the Lenders), the Company may convert the then outstanding aggregate
principal amount of the Advances hereunder to a term loan. The Notice to Convert
shall expressly state the date on which such conversion shall occur (such date
being the "CONVERSION DATE") and shall be irrevocable once given and shall
constitute a representation and warranty by the Company that the conditions
contained in Sections 5.3(A) and (B) have been satisfied as of the date of such
Notice to Convert and as of the Conversion Date. Upon delivery of such Notice to
Convert, (i) the Borrowers' option to request extensions of the Termination Date
under clause (B) above, to borrow and reborrow Revolving Loans and Swing Line
Loans hereunder, and to request Competitive Bid Loans hereunder, shall
terminate, (ii) the Aggregate Revolving Loan Commitment shall be reduced to
zero, and (iii) the outstanding principal balance of all Loans hereunder shall
be due and payable on the earliest of (a) the date that is 364 days after the
Conversion Date (or, if such date of payment is not a Business Day, on the
immediately preceding Business Day), (b) the Facility Termination Date, or, if
earlier, the last day of the applicable Interest Period in the case of
Competitive Bid Loans. All references in this Agreement to Revolving Loans,
Swing Line Loans and Competitive Bid Loans shall include such loans as converted
hereunder.
2.20 Replacement of Certain Lenders. In the event a Lender ("AFFECTED
LENDER") shall have: (i) failed to fund its Pro Rata Share of any Advance
requested by the applicable Borrower, or to fund a Revolving Loan in order to
repay Swing Line Loans pursuant to Section 2.3(D), which such Lender is
obligated to fund under the terms of this Agreement and which failure has not
been cured, (ii) requested compensation from any Borrower under Sections
2.15(E), 4.1 or 4.2 to recover Taxes, Other Taxes or other additional costs
incurred by such Lender which are not being incurred generally by the other
Lenders, (iii) delivered a notice pursuant to Section 4.3 claiming that such
Lender is unable to extend Eurocurrency Rate Loans to the Company for reasons
not generally applicable to the other Lenders or (iv) has invoked Section 11.2;
then, in any such case, after engagement of one or more "Replacement Lenders"
(as defined below) by the Company and/or the Administrative Agent, the Company
or the Administrative Agent may make written demand on such Affected Lender
(with a copy to the Administrative Agent in the case of a demand by the Company
and a copy to the Company in the case of a demand by the Administrative Agent)
for the Affected Lender to assign, and such Affected Lender shall use
commercially reasonable efforts to assign pursuant to one or more duly executed
Assignment Agreements five (5) Business Days after the date of such demand, to
one or more financial institutions that comply with the provisions of Section
14.3(A) which the Company or the Administrative Agent, as the case may be, shall
have engaged for such purpose ("REPLACEMENT LENDER"), all of such Affected
Lender's rights and obligations under this Agreement and the other Loan
Documents (including, without limitation, its Revolving Loan Commitment, all
Loans owing to it, and its obligation to participate in additional Swing Line
Loans hereunder) in accordance with Section 14.3. The Administrative Agent
agrees, upon the occurrence of such events with respect to an Affected Lender
and upon the
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written request of the Company, to use its reasonable efforts to obtain the
commitments from one or more financial institutions to act as a Replacement
Lender. The Administrative Agent is authorized to execute one or more of such
assignment agreements as attorney-in-fact for any Affected Lender failing to
execute and deliver the same within five (5) Business Days after the date of
such demand. Further, with respect to such assignment the Affected Lender shall
have concurrently received, in cash, all amounts due and owing to the Affected
Lender hereunder or under any other Loan Document, including, without
limitation, the aggregate outstanding principal amount of the Loans owed to such
Lender, together with accrued interest thereon through the date of such
assignment, amounts payable under Sections 2.15(E), 4.1, and 4.2 with respect to
such Affected Lender and compensation payable under Section 2.15(C) in the event
of any replacement of any Affected Lender under clause (ii) or clause (iii) of
this Section 2.20; provided that upon such Affected Lender's replacement, such
Affected Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.15(E), 4.1, 4.2, 4.4, and 11.7, as well
as to any fees accrued for its account hereunder and not yet paid, and shall
continue to be obligated under Section 12.8. Upon the replacement of any
Affected Lender pursuant to this Section 2.20, the provisions of Section 9.2
shall continue to apply with respect to Loans which are then outstanding with
respect to which the Affected Lender failed to fund its Pro Rata Share and which
failure has not been cured.
2.21 [Reserved].
2.22 Judgment Currency. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due from any Borrower hereunder in the
currency expressed to be payable herein (the "SPECIFIED CURRENCY") into another
currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the specified currency with such other currency at the Administrative
Agent's main office in Chicago, Illinois on the Business Day preceding that on
which the final, non-appealable judgment is given. The obligations of each
Borrower in respect of any sum due to any Lender or the Administrative Agent
hereunder shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the Business Day
following receipt by such Lender or the Administrative Agent (as the case may
be) of any sum adjudged to be so due in such other currency such Lender or the
Administrative Agent (as the case may be) may in accordance with normal,
reasonable banking procedures purchase the specified currency with such other
currency. If the amount of the specified currency so purchased is less than the
sum originally due to such Lender or the Administrative Agent, as the case may
be, in the specified currency, each Borrower agrees, to the fullest extent that
it may effectively do so, as a separate obligation and notwithstanding any such
judgment, to indemnify such Lender or the Administrative Agent, as the case may
be, against such loss, and if the amount of the specified currency so purchased
exceeds (a) the sum originally due to any Lender or the Administrative Agent, as
the case may be, in the specified currency and (b) any amounts shared with other
Lenders as a result of allocations of such excess as a disproportionate payment
to such Lender under Section 13.2, such Lender or the Administrative Agent, as
the case may be, agrees to remit such excess to such Borrower.
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2.23 Market Disruption; Denomination of Amounts in Dollars; Dollar
Equivalent of Reimbursement Obligations. (A) Notwithstanding the satisfaction of
all conditions referred to in this Article II with respect to any Advance in any
Agreed Currency other than Dollars, if there shall occur on or prior to the date
of such Advance any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which would
in the reasonable opinion of the Company, any Subsidiary Borrower,
Administrative Agent or the Required Lenders make it impracticable for the
Eurocurrency Rate Loans comprising such Advance to be denominated in the Agreed
Currency specified by the applicable Borrower, then the Administrative Agent
shall forthwith give notice thereof to such Borrower and the Lenders, or the
applicable Borrower shall give notice to the Administrative Agent and the
Lenders, as the case may be, and such Eurocurrency Rate Loans shall not be
denominated in such currency but shall be made on such Borrowing Date in
Dollars, in an aggregate principal amount equal to the Dollar Amount of the
aggregate principal amount specified in the related Borrowing Notice, as
Floating Rate Loans, unless the applicable Borrower notifies the Administrative
Agent at least one (1) Business Day before such date that (i) it elects not to
borrow on such date or (ii) it elects to borrow on such date in a different
Agreed Currency in which the denomination of such Loans would in the opinion of
the Administrative Agent and the Required Lenders be practicable and in an
aggregate principal amount equal to the Dollar Amount of the aggregate principal
amount specified in the related Borrowing Notice.
(B) Except as set forth in Sections 2.2, 2.5 and 2.21, all amounts
referenced in this Article II shall be calculated using the Dollar Amount
determined based upon the Equivalent Amount in effect as of the date of any
determination thereof; provided, however, to the extent that any Borrower shall
be obligated hereunder to pay in Dollars any Advance denominated in a currency
other than Dollars, such amount shall be paid in Dollars using the Dollar Amount
of the Advance (calculated based upon the Equivalent Amount in effect on the
date of payment thereof) and in the event that the applicable Borrower does not
reimburse the Administrative Agent and the Lenders are required to fund a
purchase of a participation in such Advance, such purchase shall be made in
Dollars in an amount equal to the Dollar Amount of such Advance (calculated
based upon the Equivalent Amount in effect on the date of payment thereof).
Notwithstanding anything herein to the contrary, the full risk of currency
fluctuations shall be borne by the Borrowers and the Borrowers agree to
indemnify and hold harmless the Administrative Agent and the Lenders from and
against any loss resulting from any borrowing denominated in a currency other
than in Dollars and for which the Lenders are not reimbursed on the day of such
borrowing.
2.24. Subsidiary Borrowers. The Company may at any time or from time to
time, with the consent of the Administrative Agent add as a party to this
Agreement any Subsidiary to be a "Subsidiary Borrower" hereunder by the
execution and delivery to the Administrative Agent and the Lenders of (a) a duly
completed Assumption Letter by such Subsidiary, with the written consent of the
Company at the foot thereof and (b) such other guaranty and subordinated
intercompany indebtedness documents as may be reasonably required by the
Administrative Agent, such documents with respect to any additional Subsidiaries
to be substantially similar in form and substance to the Loan Documents executed
on or about the date hereof by the Subsidiaries parties hereto as of the Closing
Date. Upon such execution, delivery and consent such Subsidiary shall for all
purposes be a party hereto as a Subsidiary Borrower as fully as if it had
executed and delivered
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this Agreement. So long as the principal of and interest on any Advances made to
any Subsidiary Borrower under this Agreement shall have been repaid or paid in
full and all other obligations of such Subsidiary Borrower under this Agreement
shall have been fully performed, the Company may, by not less than five (5)
Business Days' prior notice to the Administrative Agent (which shall promptly
notify the Lenders thereof), terminate such Subsidiary Borrower's status as a
"Subsidiary Borrower".
ARTICLE III: [RESERVED]
ARTICLE IV: CHANGE IN CIRCUMSTANCES
4.1 Yield Protection. If any law or any governmental or quasi-governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) adopted after the date of this Agreement and having general
applicability to all banks within the jurisdiction in which such Lender operates
(excluding, for the avoidance of doubt, the effect of and phasing in of capital
requirements or other regulations or guidelines passed prior to the date of this
Agreement), or any interpretation or application thereof by any Governmental
Authority charged with the interpretation or application thereof, or the
compliance of any Lender therewith,
(A) subjects any Lender or any applicable Lending Installation to any
tax, duty, charge or withholding on or from payments due from any Borrower
(excluding taxation of the overall net income of any Lender or taxation of
a similar basis, which are governed by Section 2.15(E)), or changes the
basis of taxation of payments to any Lender in respect of its Revolving
Loan Commitment, Loans or other amounts due it hereunder, or
(B) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or
any applicable Lending Installation (other than reserves and assessments
taken into account in determining the interest rate applicable to
Eurocurrency Rate Loans) with respect to its Revolving Loan Commitment or
Loans, or
(C) imposes any other condition the result of which is to increase the
cost to any Lender or any applicable Lending Installation of making,
funding or maintaining its Revolving Loan Commitment or Loans or reduces
any amount received by any Lender or any applicable Lending Installation in
connection with its Revolving Loan Commitment or Loans, or requires any
Lender or any applicable Lending Installation to make any payment
calculated by reference to the amount of Revolving Loan Commitment or Loans
held or interest received by it, by an amount deemed material by such
Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Revolving Loan Commitment or Loans or to
reduce any amount received under this Agreement, then, within fifteen (15) days
after receipt by the Company or any other Borrower of
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written demand by such Lender pursuant to Section 4.5, the applicable Borrowers
shall pay such Lender that portion of such increased expense incurred or
reduction in an amount received which such Lender determines is attributable to
making, funding and maintaining its Loans and its Revolving Loan Commitment.
4.2 Changes in Capital Adequacy Regulations. If a Lender determines (i) the
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a "Change" (as defined below), and (ii) such
increase in capital will result in an increase in the cost to such Lender of
maintaining its Revolving Loan Commitment, Loans or its obligation to make Loans
hereunder, then, within fifteen (15) days after receipt by the Company or any
other Borrower of written demand by such Lender pursuant to Section 4.5, the
applicable Borrowers shall pay such Lender the amount necessary to compensate
for any shortfall in the rate of return on the portion of such increased capital
which such Lender reasonably determines is attributable to this Agreement, its
Revolving Loan Commitment, its Loans or its obligation to make Loans hereunder
(after taking into account such Lender's policies as to capital adequacy).
"CHANGE" means (i) any change after the date of this Agreement in the
"Risk-Based Capital Guidelines" (as defined below) excluding, for the avoidance
of doubt, the effect of any phasing in of such Risk-Based Capital Guidelines or
any other capital requirements passed prior to the date hereof, or (ii) any
adoption of or change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement and having general
applicability to all banks and financial institutions within the jurisdiction in
which such Lender operates which affects the amount of capital required or
expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i)
the risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
4.3 Availability of Types of Advances. If (i) any Lender determines that
maintenance of its Eurocurrency Rate Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation or directive, whether or not
having the force of law, or (ii) the Required Lenders determine that (x)
deposits of a type, currency or maturity appropriate to match fund Fixed-Rate
Advances are not available or (y) the interest rate applicable to a Fixed-Rate
Advance does not accurately reflect the cost of making or maintaining such an
Advance, then the Administrative Agent shall suspend the availability of the
affected Type of Advance and, in the case of any occurrence set forth in clause
(i), require any Advances of the affected Type to be repaid or converted into
another Type.
4.4 Funding Indemnification. If any payment of a Fixed-Rate Advance occurs
on a date which is not the last day of the applicable Interest Period or of a
Swing Line Loan bearing a fixed rate of interest occurs on a date which is not
the last day of the applicable interest period, whether
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because of acceleration, prepayment, or otherwise, or a Fixed-Rate Advance or
Swing Line Loan bearing a fixed rate of interest is not made on the date
specified by the applicable Borrower for any reason other than default by the
Lenders, the Borrowers indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain the Fixed-Rate
Advance or Swing Line Loan, as applicable. In connection with (a) any assignment
by any Lender of any portion of the Loans made pursuant to Section 14.3 and made
during the Syndication Period, and if, notwithstanding the provisions of Section
2.4 and (b) any assignment by a Lender of any portion of the Loans made pursuant
to Section 2.6(b), the Company has requested and the Administrative Agent has
consented to the use of the Eurocurrency Rate, the Company shall be deemed to
have repaid all outstanding Eurocurrency Rate Advances as of the effective date
of such assignment and reborrowed such amount as a Floating Rate Advance and/or
Eurocurrency Rate Advance (chosen in accordance with the provisions of Section
2.4) and the indemnification provisions under this Section 4.4 shall apply.
4.5 Lender Statements; Survival of Indemnity. If reasonably possible, each
Lender shall designate an alternate Lending Installation with respect to its
Fixed-Rate Loans to reduce any liability of any Borrower to such Lender under
Sections 4.1 and 4.2 or to avoid the unavailability of a Type of Advance under
Section 4.3, so long as such designation is not disadvantageous to such Lender.
Each Lender requiring compensation pursuant to Section 2.15(E) or to this
Article IV shall use its reasonable efforts to notify the Company and the
Administrative Agent in writing of any Change, law, policy, rule, guideline or
directive giving rise to such demand for compensation not later than ninety (90)
days following the date upon which the responsible account officer of such
Lender knows or should have known of such Change, law, policy, rule, guideline
or directive. Any demand for compensation pursuant to this Article IV shall be
in writing and shall state the amount due, if any, under Section 4.1, 4.2 or 4.4
and shall set forth in reasonable detail the calculations upon which such Lender
determined such amount. Such written demand shall be rebuttably presumed correct
for all purposes. Determination of amounts payable under such Sections in
connection with a Fixed-Rate Loan shall be calculated as though each Lender
funded its Fixed-Rate Loan through the purchase of a deposit of the type,
currency and maturity corresponding to the deposit used as a reference in
determining the Fixed-Rate applicable to such Loan, whether in fact that is the
case or not. The obligations of the Company and the other Borrowers under
Sections 4.1, 4.2 and 4.4 shall survive payment of the Obligations and
termination of this Agreement.
ARTICLE V: CONDITIONS PRECEDENT
5.1 Initial Advances. The Lenders shall not be required to make the initial
Loans unless (i) such initial Loans are made not later than August 16, 1999; and
(ii) the Company has furnished to the Administrative Agent each of the
following, with sufficient copies for the Lenders, all in form and substance
reasonably satisfactory to the Administrative Agent and the Lenders:
(1) Copies of the Certificate of Incorporation of the Company, each
Subsidiary Borrower that is a party hereto as of the Closing Date and each
of the Guarantors (collectively, the "LOAN PARTIES"), together with all
amendments and a certificate of good
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standing, both certified by the appropriate governmental officer in its
jurisdiction of incorporation;
(2) Copies, certified by the Secretary or Assistant Secretary of each
of the Loan Parties of their respective By-Laws and of their respective
Board of Directors' resolutions (and resolutions of other bodies, if any
are deemed necessary by counsel for any Lender) authorizing the execution
of the Loan Documents;
(3) An incumbency certificate, executed by the Secretary or Assistant
Secretary of each of the Loan Parties, which shall identify by name and
title and bear the signature of the officers of the applicable Loan Party
authorized to sign the Loan Documents and to make borrowings hereunder,
upon which certificate the Lenders shall be entitled to rely until informed
of any change in writing by the applicable Loan Party;
(4) A certificate, in form and substance satisfactory to the
Administrative Agent, signed by the chief financial officer of the Company,
stating that on the date of this Agreement all the representations in this
Agreement are true and correct in all material respects (unless such
representation and warranty is made as of a specific date, in which case,
such representation and warranty shall be true in all material respects as
of such date) and no Default or Unmatured Default has occurred and is
continuing;
(5) The written opinions of the Loan Parties' US counsel, and, if
applicable, foreign counsel, addressed to the Agents and the Lenders, in
substantially the form attached hereto as Exhibit E;
(6) Evidence reasonably satisfactory to the Arrangers that the Company
and each of its Subsidiaries (a) has made an assessment of the Year 2000
Issues; (b) has a program from remediating the Year 2000 Issues, including
a timetable and budget of anticipated costs; and (c) has source of funds as
required in such budget;
(7) (a) The initial public offering of the Capital Stock of the
Company shall have been completed and the capital structure and corporate
structure of the Company and its Subsidiaries is consistent in all material
respects with the Registration Statement, (b) there exists no injunction or
temporary restraining order which, in the reasonable judgment of the
Administrative Agent, would prohibit the making of the Loans and the other
transactions contemplated by the Loan Documents or any litigation seeking
such an injunction or restraining order and (c) the Company (1) shall have
delivered to the Administrative Agent an executed copy of the Guarantee
from Pechiney with respect to Viskase Corporation v. American National Can
Company, Civ. 93-C-7651, before the U.S. District Court of the Northern
District of Illinois, Eastern Division, in substantially the form of the
draft faxed from counsel to the Company to counsel to the Administrative
Agent on July 12, 1999, (2) shall have delivered to the Administrative
Agent an executed copy of the Indemnification Agreement between ANC and
Pechiney with respect to certain environmental liabilities in substantially
the form of the June 22, 1999 draft faxed from counsel to the Company to
counsel to the Administrative Agent on July 12, 1999 and (3) shall have
delivered to the
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Administrative Agent, in form and substance reasonably acceptable to the
Administrative Agent, an indemnification agreement from Pechiney with
respect to the European Commission investigation matters disclosed by the
Company to the Administrative Agent by facsimile on July 21, 1999;
(8) Such other documents as the Administrative Agent or any Lender or
its counsel may have reasonably requested, including, without limitation,
all of the documents reflected on the List of Closing Documents attached as
Exhibit F to this Agreement;
(9) Evidence satisfactory to the Administrative Agent of the payment
of (or of arrangements to pay concurrently with the making of the initial
Loans) all principal, interest, fees and premiums, if any, on all loans
outstanding under all outstanding funded debt and credit facilities of
ANC's and each of its Subsidiaries (including, without limitation, all
loans and other obligations owed to Pechiney or any of its affiliates, but
excluding Permitted Existing Indebtedness) in excess of $5,000,000 and the
termination of the applicable agreements identified on Schedule 5.1
attached hereto;
(10) Evidence satisfactory to the Administrative Agent that the
Company has paid to the Underwriting Lenders and the Lead Arrangers the
fees due and payable under the Fee Letters.
5.2. Initial Advance to Each New Subsidiary Borrower. No Lender shall be
required to make an Advance hereunder or purchase participations in Swing Line
Loans hereunder and no Swing Line Bank shall be required to make any Swing Line
Loans hereunder, in each case, to a new Subsidiary Borrower added after the
Closing Date unless the Company has furnished or caused to be furnished to the
Administrative Agent with sufficient copies for the Lenders:
(i) The Assumption Letter executed and delivered by such Subsidiary
Borrower and containing the written consent of the Company at the
foot thereof, as contemplated by Section 2.24.
(ii) Copies, certified by the Secretary, Assistant Secretary, Director or
Officer of the Subsidiary Borrower, of its Board of Directors'
resolutions (and resolutions of other bodies, if any are deemed
necessary by the Administrative Agent) approving the Assumption
Letter.
(iii) An incumbency certificate, executed by the Secretary, Assistant
Secretary, Director or Officer of the Subsidiary Borrower, which
shall identify by name and title and bear the signature of the
officers of such Subsidiary Borrower authorized to sign the
Assumption Letter and the other documents to be executed and
delivered by such Subsidiary Borrower hereunder, upon which
certificate the Administrative Agent and the Lenders shall be
entitled to rely until informed of any change in writing by the
Company.
(iv) An opinion of counsel to such Subsidiary Borrower, substantially in
the
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form of Exhibit H hereto or, in the case of a new non-domestic
Subsidiary Borrower, in a form reasonably acceptable to the
Administrative Agent.
(v) Guaranty documentation and contribution agreement documentation from
such Subsidiary Borrower in form and substance acceptable to the
Administrative Agent.
(vi) With respect to the initial Advance or any Swing Line Loan made to
any Subsidiary Borrower organized under the laws of England and
Wales, the Administrative Agent shall have received originals and/or
copies, as applicable, of all filings required to be made and such
other evidence as the Administrative Agent may require establishing
to the Administrative Agent's satisfaction that each Lender, Swing
Line Bank or Issuing Lender is entitled to receive payments under
the Loan Documents without deduction or withholding of any English
taxes or with such deductions and withholding of English taxes as
may be acceptable to the Administrative Agent.
5.3 Each Advance, Each Conversion or Continuation of an Advance. The
Lenders shall not be required to make any Advance, or convert or continue any
Advance and no Swing Line Bank shall be required to make any Swing Line Loans
hereunder, unless on the applicable Borrowing Date:
(A) There exists no Default or Unmatured Default;
(B) All of the representations and warranties contained in Article VI
(other than Section 6.5 which representations and warranties shall be made
only on the date any Advance or Swing Line Loan is made and on the
Conversion Date) are true and correct in all material respects as of such
Borrowing Date (unless such representation and warranty is made as of a
specific date, in which case, such representation and warranty shall be
true in all material respects as of such date) except for changes in the
Schedules to this Agreement reflecting transactions permitted by or not in
violation of this Agreement; and
(C) The Revolving Credit Obligations do not, and after making such
proposed Advance would not, exceed the Aggregate Revolving Loan Commitment.
Each Borrowing/Conversion/Continuation Notice or Competitive Bid Quote
Request with respect to each such Advance shall constitute a representation and
warranty by the Company that the conditions contained in Sections 5.3(A), (B)
and (C) have been satisfied (except, in the case of any conversion or
continuation of a Loan, Section 6.5). Any Lender may require a duly completed
officer's certificate in substantially the form of Exhibit G hereto and/or a
duly completed compliance certificate in substantially the form of Exhibit H
hereto as a condition to making an Advance.
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ARTICLE VI: REPRESENTATIONS AND WARRANTIES
In order to induce the Agents and the Lenders to enter into this Agreement
and to make the Loans and the other financial accommodations to the Borrowers
described herein, the Company represents and warrants as follows to each Lender
and the Administrative Agent as of the date of this Agreement and on the Closing
Date, giving effect to the consummation of the transactions contemplated by the
Loan Documents on the Closing Date, and thereafter on the Conversion Date and on
each date as required by Section 5.2 and 5.3:
6.1. Organization; Corporate Powers. Each of the Company and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of its jurisdiction of formation and has all requisite authority to conduct
its business in each jurisdiction in which its business is conducted, except
where the failure to do so would not have a Material Adverse Effect.
6.2. Authorization and Validity. As of the date of the initial funding
hereunder and at all times thereafter, the Company has the requisite power and
authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. As of the date of the initial funding
hereunder and at all times thereafter, the execution and delivery by the Company
of the Loan Documents and the performance of its obligations thereunder have
been duly authorized by proper proceedings, and the Loan Documents constitute
legal, valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
6.3. No Conflict; Government Consent. As of the date of the initial funding
hereunder and at all times thereafter, neither the execution and delivery by the
Company of the Loan Documents, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof will violate any law,
rule, regulation, order, writ, judgment, injunction, decree or award binding on
the Company or any Subsidiary or the Company's or any Subsidiary's articles of
incorporation or by-laws or other constitutive documents and agreements or the
provisions of any indenture, instrument or agreement to which the Company or any
Subsidiary is a party or is subject, or by which it, or its property, is bound,
or conflict with or constitute a default thereunder, or result in the creation
or imposition of any Lien in, of or on the property of the Company or any of its
Subsidiaries pursuant to the terms of any such indenture, instrument or
agreement. No order, consent, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, any governmental
or public body or authority, or any subdivision thereof, is required to
authorize the Company, or is required to be obtained by the Company in
connection with the execution, delivery and performance of, or the legality,
validity, binding effect or enforceability of, any of the Loan Documents.
6.4. Financial Statements. The combined pro forma financial statements of
the Company and its Subsidiaries set forth in the Registration Statement,
present on a pro forma basis the financial condition of the Company and such
Subsidiaries as of such date, and reflect on a pro forma basis those liabilities
reflected in the notes thereto and resulting from consummation of the
transactions contemplated by this Agreement, and the payment or accrual of all
transaction costs
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payable on the Closing Date with respect to any of the foregoing and demonstrate
that the Company and its Subsidiaries can repay their debt and satisfy their
other obligations as and when due, and can comply with the requirements of this
Agreement. The projections and assumptions expressed in the pro forma financials
as set forth in the Company's Confidential Offering Memorandum dated June, 1999
were prepared in good faith and represent management's opinion based on the
information available to the Company at the time so furnished and, since the
preparation thereof and up to the Closing Date, there has occurred no change in
the business, financial condition, operations, or prospects of the Company or
any of its Subsidiaries, or the Company and its Subsidiaries taken as a whole
which has had or could reasonably be expected to have a Material Adverse Effect.
6.5. Material Adverse Change. (A) Except as described in the Registration
Statement, since December 31, 1998 up to the Closing Date, there has occurred no
change in the business, properties, condition (financial or otherwise),
prospects, performance or results of operations of ANC, or ANC and its
Subsidiaries taken as a whole or any other event which has had or could
reasonably be expected to have a Material Adverse Effect.
(B) Except as described in the Registration Statement, since the Closing
Date, there has occurred no change in the business, properties, condition
(financial or otherwise), prospects, performance or results of operations of the
Company or the Company and its Subsidiaries taken as a whole or any other event
which has had or could reasonably be expected to have a Material Adverse Effect.
6.6. Taxes. The Company and the Subsidiaries have filed all United States
federal tax returns and all other material tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by the Company or any Subsidiary, except such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been
provided. No tax liens have been filed (other than to secure payment of
contested taxes in an amount not to exceed $5,000,000 in any one case and
$10,000,000 in the aggregate) and no claims are being asserted with respect to
any such taxes. As of the date of this Agreement, the United States income tax
returns of ANC and its Subsidiaries have been surveyed by the IRS through the
fiscal year ended December 31, 1995. The charges, accruals and reserves on the
books of the Company and the Subsidiaries in respect of any taxes or other
governmental charges are adequate.
6.7. Litigation and Contingent Obligations. Except as set forth on Schedule
6.7 hereto, there is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the knowledge of any of their officers,
threatened against or affecting the Company or any of its Subsidiaries (i)
challenging the validity or enforceability of any material provision of the Loan
Documents or (ii) which will have or could reasonably be expected to have a
Material Adverse Effect. There is no material loss contingency within the
meaning of Agreement Accounting Principles which has not been reflected in the
consolidated financial statements of the Company prepared and delivered pursuant
to Section 7.1(A) for the fiscal period during which such material loss
contingency was incurred. To the best knowledge of the Company, neither the
Company nor any of its Subsidiaries is (A) in violation of any applicable
Requirements of Law which violation
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will have or could reasonably be expected to have a Material Adverse Effect, or
(B) subject to or in default with respect to any final judgment, writ,
injunction, restraining order or order of any nature, decree, rule or regulation
of any court or Governmental Authority which will have or could reasonably be
expected to have a Material Adverse Effect.
6.8. Subsidiaries. Schedule 6.8 hereto contains an accurate list of all of
the Subsidiaries of the Company in existence on the date of this Agreement,
setting forth their respective jurisdictions of formation and the percentage of
their respective capital stock owned by the Company or other Subsidiaries. All
of the issued and outstanding Capital Stock of such Subsidiaries have been duly
authorized and issued and are fully paid and non-assessable.
6.9. ERISA. As at March 31, 1999 the Unfunded Liabilities of all Single
Employer Plans did not in the aggregate exceed $50,000,000. Each Single Employer
Plan complies in all material respects with all applicable requirements of law
and regulations and no Reportable Event has occurred with respect to any Single
Employer Plan having any Unfunded Liability which has or may reasonably be
expected to result in a material liability to the Company. Neither the Company
nor any other members of the Controlled Group has terminated any Single Employer
Plan without in each instance funding all vested benefit obligations thereunder.
Each member of the Controlled Group has fulfilled its minimum funding
obligations with respect to each Multiemployer Plan, except where the failure to
comply could not reasonably be expected to have a Material Adverse Effect.
6.10. Accuracy of Information. No information, exhibit or report furnished
by the Company or any Subsidiary to any Agent or to any Lender in connection
with the negotiation of, or compliance with, the Loan Documents, including,
without limitation, the Confidential Information Memorandum, dated June 1999,
contained any material misstatement of fact or omitted to state a material fact
or any fact necessary to make the statements contained therein not materially
misleading.
6.11. Regulation U. Margin stock (as defined in Regulation U) constitutes
less than 25% of those assets of the Company and its Subsidiaries which are
subject to any limitation on sale, pledge, or other restriction hereunder.
6.12. Material Agreements. Neither the Company nor any of its Subsidiaries
is a party to any Contractual Obligation the performance of which would
reasonably be expected to have a Material Adverse Effect. Neither the Company
nor any of its Subsidiaries is subject to any charter or other restriction in
any constitutive agreement or document affecting its business, properties,
financial condition, prospects or results of operations which could reasonably
be expected to have a Material Adverse Effect. Neither the Company nor any
Subsidiary is in default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in (i) any Contractual
Obligation to which it is a party, which default would have a Material Adverse
Effect, or (ii) any Contractual Obligation evidencing or governing Indebtedness
in which the outstanding principal amount is equal to or in excess of
$15,000,000.
6.13. Compliance With Laws. The Company and its Subsidiaries have, to the
best of the
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knowledge and belief of the Company, complied with all Requirements of Law
except to the extent that such non-compliance would not have a Material Adverse
Effect. Neither the Company nor any Subsidiary has received any notice to the
effect that its operations are not in material compliance with any Requirements
of Law or the subject of any federal or state investigation evaluating whether
any remedial action is needed to respond to a release of any toxic or hazardous
waste or substance into the environment, which non-compliance or remedial action
would have a Material Adverse Effect.
6.14. Ownership of Properties. On the date of this Agreement, the Company
and its Subsidiaries will have good title, free of all Liens, to all of the
properties and assets reflected in the financial statements as owned by it,
except Liens permitted under Section 7.3(C) and except for such defects of title
and Liens as could not, individually or in the aggregate, have a Material
Adverse Effect.
6.15 Statutory Indebtedness Restrictions. Neither the Company nor any of
its Subsidiaries is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness or its ability to
consummate the transactions contemplated hereby.
6.16. Environmental Matters.
(a) Compliance: To the best of their knowledge, each of the Company and its
Subsidiaries is in compliance with all Environmental, Health or Safety
Requirements of Laws in effect in each jurisdiction where it is presently doing
business and in which the failure to so comply, in the aggregate for all such
failures, would not reasonably be likely to subject the Company to liability
that would have a Material Adverse Effect.
(b) Liability. To the best of their knowledge, neither the Company nor any
Subsidiary is subject to any liability under the Environmental, Health or Safety
Requirements of Laws in effect in each jurisdiction where it is presently doing
business that would have a Material Adverse Effect.
(c) Notices. Except as disclosed on Schedule 6.16, as of the date hereof,
neither the Company nor any Subsidiary has received any:
(i) notice from any Governmental Authority by which any of the
Company's or such Subsidiary's present or previously-owned or leased
property has been identified in any manner by any such Governmental
Authority as a hazardous substance disposal or removal site, "Super Fund"
clean-up site or candidate for removal or closure pursuant to any
Environmental, Health or Safety Requirements of Law; or
(ii) notice of any Lien arising under or in connection with any
Environmental, Health or Safety Requirements of Law that has attached to
any of the Company's or such Subsidiary's owned or leased property or any
revenues of the Company's or such Subsidiary's owned or leased property; or
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(iii) communication, written or oral, from any Governmental Authority
concerning action or omission by the Company or such Subsidiary in
connection with its ownership or leasing of any property resulting in the
release of hazardous substance resulting in any violation of any
Environmental, Health or Safety Requirements of Law;
where the effect of which, in the aggregate for all such notices and
communications, could reasonably be likely to have a Material Adverse Effect.
6.17 Insurance. Schedule 6.17 to this Agreement accurately sets forth as of
the Closing Date all insurance policies and programs currently in effect with
respect to the respective properties and assets and business of the Company and
its Subsidiaries, specifying, for each such policy and program, (i) the amount
thereof, (ii) the risks insured against thereby, (iii) the name of the insurer
and each insured party thereunder, (iv) the expiration date thereof, and (v) any
reserves relating to any self-insurance program that is in effect. Such
insurance policies and programs reflect coverage that is reasonably consistent
with prudent industry practice.
6.18 Labor Matters.
As of the Closing Date, to the best of the Company's knowledge no labor
disputes, strikes or walkouts affecting the operations of the Company or any of
its Subsidiaries, is pending, or, to the Company's knowledge, threatened,
planned or contemplated which could reasonably be expected to have a Material
Adverse Effect.
6.19 Solvency. After giving effect to (i) the Loans to be made on the
Closing Date or such other date as Loans requested hereunder are made, (ii) the
other transactions contemplated by this Agreement and the other Loan Documents
and (iii) the payment and accrual of all transaction costs with respect to the
foregoing, the Company and its Subsidiaries taken as a whole are Solvent.
6.20 Year 2000 Issues. Each of the Company and its Subsidiaries has made an
assessment of the Year 2000 Issues and has a program for remediating the Year
2000 Issues on a timely basis. Based on this assessment and program, the Company
does not reasonably anticipate any Material Adverse Effect as a result of Year
2000 Issues.
6.21 Representations and Warranties of each Subsidiary Borrower. Each
Subsidiary Borrower represents and warrants to the Lenders that:
(A) Organization and Corporate Powers. Such Subsidiary Borrower (i) is a
company duly formed and validly existing and in good standing under the laws of
the state or country of its organization (such jurisdiction being hereinafter
referred to as the "HOME COUNTRY"); (ii) has the requisite power and authority
to own its property and assets and to carry on its business substantially as now
conducted except where the failure to have such requisite authority would not
have a material adverse effect on such Subsidiary Borrower; and (iii) has the
requisite power and authority and legal right to execute and deliver each Loan
Document to which it is a party and each other Loan Document to which it is a
party and the performance by it of its obligations thereunder have been duly
authorized by proper corporate proceedings.
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(B) Binding Effect. Each Loan Document executed by such Subsidiary Borrower
is the legal, valid and binding obligations of such Subsidiary Borrower
enforceable in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and general equitable principles.
(C) No Conflict; Government Consent. Neither the execution and delivery by
such Subsidiary Borrower of the Loan Documents to which it is a party, nor the
consummation by it of the transactions therein contemplated to be consummated by
it, nor compliance by such Subsidiary Borrower with the provisions thereof will
violate any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on such Subsidiary Borrower or any of its Subsidiaries or such
Subsidiary Borrower's or any of its Subsidiaries' memoranda or articles of
association or the provisions of any indenture, instrument or agreement to which
such Subsidiary Borrower or any of its Subsidiaries is a party or is subject, or
by which it, or its property, is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any lien in, of or on the
property of such Subsidiary Borrower or any of its Subsidiaries pursuant to the
terms of any such indenture, instrument or agreement in any such case which
violation, conflict, default, creation or imposition could reasonably be
expected to have a material adverse effect on such Subsidiary Borrower. No
order, consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any governmental agency is
required to authorize, or is required in connection with the execution, delivery
and performance of, or the legality, validity, binding effect or enforceability
of, any of the Loan Documents.
(D) Filing. To ensure the enforceability or admissibility in evidence of
this Agreement and each Loan Document to which such Subsidiary Borrower is a
party in its Home Country, it is not necessary that this Agreement or any other
Loan Document to which such Subsidiary Borrower is a party or any other document
be filed or recorded with any court or other authority in its Home Country or
that any stamp or similar tax be paid to or in respect of this Agreement or any
other Loan Document of such Subsidiary Borrower. The qualification by any Lender
or the Administrative Agent for admission to do business under the laws of such
Subsidiary Borrower's Home Country does not constitute a condition to, and the
failure to so qualify does not affect, the exercise by any Lender or the
Administrative Agent of any right, privilege, or remedy afforded to any Lender
or the Administrative Agent in connection with the Loan Documents to which such
Subsidiary Borrower is a party or the enforcement of any such right, privilege,
or remedy against Subsidiary Borrower. The performance by any Lender or the
Administrative Agent of any action required or permitted under the Loan
Documents will not (i) violate any law or regulation of such Subsidiary
Borrower's Home Country or any political subdivision thereof, (ii) result in any
tax or other monetary liability to such party pursuant to the laws of such
Subsidiary Borrower's Home Country or political subdivision or taxing authority
thereof (provided that, should any such action result in any such tax or other
monetary liability to the Lender or the Administrative Agent, the Borrowers
hereby agree to indemnify such Lender or the Administrative Agent, as the case
may be, against (x) any such tax or other monetary liability and (y) any
increase in any tax or other monetary liability which results from such action
by such Lender or the Administrative Agent and, to the extent the Borrowers make
such indemnification, the incurrence of such liability by the Administrative
Agent or any Lender will not constitute a Default) or (iii) violate any rule or
regulation of any federation or organization or similar entity of which the such
Subsidiary
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Borrower's Home Country is a member.
(E) No Immunity. Neither such Subsidiary Borrower nor any of its assets is
entitled to immunity from suit, execution, attachment or other legal process.
Such Subsidiary Borrower's execution and delivery of the Loan Documents to which
it is a party constitute, and the exercise of its rights and performance of and
compliance with its obligations under such Loan Documents will constitute,
private and commercial acts done and performed for private and commercial
purposes.
(F) Application of Representations and Warranties. It is understood and
agreed by the parties hereto that the representations and warranties of each
Subsidiary Borrower in this Section 6.21 shall only be applicable to such
Subsidiary Borrower on and after the date of its execution of an Assumption
Letter.
6.22 Indebtedness of the Company. As of the Closing Date, the Company has
not created, incurred or suffered to exist any Indebtedness (other than standby
letters of credit and uncommitted overnight credit lines) in an amount in excess
of $5,000,000 except as described in Schedule 6.22 hereto. At no time since the
Closing Date has the Company amended, restated, refinanced or otherwise modified
any of the Indebtedness described in Schedule 6.22 except pursuant to Permitted
Refinancing Indebtedness or payments made to reduce the Indebtedness.
6.23 Foreign Employee Benefit Matters. (a) Each Foreign Employee Benefit
Plan is in compliance in all material respects with all laws, regulations and
rules applicable thereto and the respective requirements of the governing
documents for such Plan; (b) the aggregate of the accumulated benefit
obligations under all Foreign Pension Plans does not exceed to any material
extent the current fair market value of the assets held in the trusts or similar
funding vehicles for such Plans; (c) with respect to any Foreign Employee
Benefit Plan maintained or contributed to by the Company or any Subsidiary or
any member of its Controlled Group (other than a Foreign Pension Plan),
reasonable reserves have been established in accordance with prudent business
practice or where required by ordinary accounting practices in the jurisdiction
in which such Plan is maintained; and (d) there are no material actions, suits
or claims (other than routine claims for benefits) pending or, to the knowledge
of the Company and its Subsidiaries, threatened against the Company or any
Subsidiary of it or any member of its Controlled Group with respect to any
Foreign Employee Benefit Plan. For purposes of this Section 6.23, the term
"material" shall have the meaning set forth in Section 7.1(D).
ARTICLE VII: COVENANTS
The Company covenants and agrees that so long as any Revolving Loan
Commitments are outstanding and thereafter until payment in full of all of the
Obligations (other than contingent indemnity obligations), unless the Required
Lenders shall otherwise give prior written consent:
7.1 Reporting. The Company shall:
(A) Financial Reporting. Furnish to the Agents and the Lenders:
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(i) Quarterly Reports. As soon as practicable and in any event within
forty-five (45) days after the end of the first three quarterly periods of
each of its fiscal years, for itself and the Subsidiaries, consolidated
unaudited balance sheets as at the end of each such period and consolidated
statement of income and consolidated statement of changes in owners'
equity, and a statement of cash flows for the period from the beginning of
such fiscal year to the end of such quarter, presented on the same basis as
described in Section 7.1(A)(ii) and on a comparative basis with the
statements for such period in the prior fiscal year of the Company.
(ii) Annual Reports. As soon as practicable, and in any event within
ninety (90) days after the end of each of its fiscal years, an audit
report, certified by internationally recognized independent certified
public accountants, prepared in accordance with generally accepted
accounting principles, on a consolidated basis for itself and the
Subsidiaries, including balance sheets as of the end of such period,
related statement of income and consolidated statement of changes in
owners' equity, and a statement of cash flows, which audit report shall be
unqualified and shall state that such financial statements fairly present
the consolidated financial position of the Company and its Subsidiaries as
at the dates indicated and the results of operations and cash flows for the
periods indicated in conformity with generally accepted accounting
principles and that the examination by such accountants in connection with
such consolidated financial statements has been made in accordance with
generally accepted auditing standards.
(iii) Officer's Certificate. Together with each delivery of any
financial statement (a) pursuant to clauses (i) and (ii) of this Section
7.1(A), an Officer's Certificate of the Company, substantially in the form
of Exhibit G attached hereto and made a part hereof, stating that as of the
date of such Officer's Certificate no Default or Unmatured Default exists,
or if any Default or Unmatured Default exists, stating the nature and
status thereof and (b) pursuant to clauses (i) and (ii) of this Section
7.1(A), a compliance certificate, substantially in the form of Exhibit H
attached hereto and made a part hereof, signed by the Company's chief
financial officer, chief accounting officer or treasurer, setting forth
calculations for the period then ended for Section 2.5(B), if applicable,
which demonstrate compliance, when applicable, with the provisions of
Sections 7.3(A) through (G) and Section 7.4, and which calculate the
Average Total Net Indebtedness to Capital Ratio for purposes of determining
the then Applicable Floating Rate Margin, Applicable Eurocurrency Margin
and Applicable Facility Fee Percentage.
(B) Notice of Default. Promptly upon any of the chief executive officer,
chief operating officer, chief financial officer, treasurer or controller of the
Company obtaining actual knowledge (i) of any condition or event which
constitutes a Default or Unmatured Default, or becoming aware that any Lender or
Administrative Agent has given any written notice to any Authorized Officer with
respect to a claimed Default or Unmatured Default under this Agreement, or (ii)
that any Person has given any written notice to any Authorized Officer or any
Subsidiary of the Company or taken any other action with respect to a claimed
default or event or condition of the type referred to in Section 8.1(E), the
Company shall deliver to the Administrative Agent and the Lenders an Officer's
Certificate specifying (a) the nature and period of existence of any such
claimed default,
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Default, Unmatured Default, condition or event, (b) the notice given or action
taken by such Person in connection therewith, and (c) what action the Company
has taken, is taking and proposes to take with respect thereto.
(C) Lawsuits. (i) Promptly upon the Company obtaining actual knowledge of
the institution of, or written threat of, any action, suit, proceeding,
governmental investigation or arbitration, by or before any Governmental
Authority, against or affecting the Company or any of its Subsidiaries or any
property of the Company or any of its Subsidiaries not previously disclosed
pursuant to Section 6.7, which action, suit, proceeding, governmental
investigation or arbitration exposes, or in the case of multiple actions, suits,
proceedings, governmental investigations or arbitrations arising out of the same
general allegations or circumstances which expose, in the Company's reasonable
judgment, the Company or any of its Subsidiaries to liability in an amount
aggregating $15,000,000 or more (exclusive of claims covered by insurance
policies of the Company or any of its Subsidiaries unless the insurers of such
claims have disclaimed coverage or reserved the right to disclaim coverage on
such claims and exclusive of claims covered by the indemnity of a financially
responsible indemnitor in favor of the Company or any of its Subsidiaries unless
the indemnitor has disclaimed or reserved the right to disclaim coverage
thereof), give written notice thereof to the Administrative Agent and the
Lenders and provide such other information as may be reasonably available to
enable each Lender and the Administrative Agent and its counsel to evaluate such
matters; and (ii) in addition to the requirements set forth in clause (i) of
this Section 7.1(C), upon request of the Administrative Agent or the Required
Lenders, promptly give written notice of the status of any action, suit,
proceeding, governmental investigation or arbitration covered by a report
delivered pursuant to clause (i) above and provide such other information as may
be reasonably available to it that would not jeopardize any attorney- client
privilege by disclosure to the Lenders to enable each Lender and the
Administrative Agent and its counsel to evaluate such matters.
(D) ERISA Notices. Deliver or cause to be delivered to the Administrative
Agent and the Lenders, at the Company's expense, the following information and
notices as soon as reasonably possible, and in any event:
(i) (a) within ten (10) Business Days after the Company obtains
knowledge that a Termination Event has occurred, a written statement of the
chief financial officer, treasurer or designee of the Company describing
such Termination Event and the action, if any, which the Company has taken,
is taking or proposes to take with respect thereto, and when known, any
action taken or threatened by the IRS, DOL or PBGC with respect thereto and
(b) within ten (10) Business Days after any member of the Controlled Group
obtains knowledge that a Termination Event has occurred which could
reasonably be expected to subject the Company to liability in excess of
$25,000,000, a written statement of the chief financial officer, treasurer
or designee of the Company describing such Termination Event and the
action, if any, which the member of the Controlled Group has taken, is
taking or proposes to take with respect thereto, and when known, any action
taken or threatened by the IRS, DOL or PBGC with respect thereto;
(ii) within ten (10) Business Days after the Company or any of its
Material
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Subsidiaries obtains knowledge that a material prohibited transaction
(defined in Sections 406 of ERISA and Section 4975 of the Code) has
occurred, a statement of the chief financial officer, treasurer or designee
of the Company describing such transaction and the action which the Company
or such Subsidiary has taken, is taking or proposes to take with respect
thereto;
(iii) within ten (10) Business Days after the material increase in the
benefits of any existing Benefit Plan or the establishment of any new
material Benefit Plan or the commencement of, or obligation to commence,
material contributions to any Benefit Plan or Multiemployer Plan to which
the Company or any member of the Controlled Group was not previously
contributing, notification of such increase, establishment, commencement or
obligation to commence and the amount of such contributions;
(iv) within ten (10) Business Days after the Company or any of its
Material Subsidiaries receives notice of any unfavorable determination
letter from the IRS regarding the qualification of a Plan under Section
401(a) of the Code, copies of each such letter;
(v) within ten (10) Business Days after the establishment of any
material foreign employee benefit plan (other than the establishment of a
defined contribution plan under English law within one hundred eighty (180)
days of the Closing Date) or the commencement of, or obligation to
commence, material contributions to any foreign employee benefit plan to
which the Company or any Material Subsidiary was not previously
contributing, notification of such establishment, commencement or
obligation to commence and the amount of such contributions;
(vi) within ten (10) Business Days after the filing thereof with the
DOL, IRS or PBGC, copies of each annual report (form 5500 series),
including Schedule B thereto, filed with respect to each Benefit Plan;
(vii) within ten (10) Business Days after receipt by the Company or
any member of the Controlled Group of each actuarial report for any Benefit
Plan or Multiemployer Plan and each annual report for any Multiemployer
Plan, copies of each such report;
(viii) within ten (10) Business Days after the filing thereof with the
IRS, a copy of each funding waiver request filed with respect to any
Benefit Plan and all communications received by the Company or a member of
the Controlled Group with respect to such request;
(ix) within ten (10) Business Days after receipt by the Company or any
member of the Controlled Group of the PBGC's intention to terminate a
Benefit Plan or to have a trustee appointed to administer a Benefit Plan,
copies of each such notice;
(x) within ten (10) Business Days after receipt by the Company or any
member of the Controlled Group of a notice from a Multiemployer Plan
regarding the imposition of material withdrawal liability, copies of each
such notice;
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(xi) within ten (10) Business Days after the Company or any member of
the Controlled Group fails to make a required installment or any other
required payment under Section 412 of the Code on or before the due date
for such installment or payment, a notification of such failure;
(xii) within ten (10) Business Days after the establishment of any
Foreign Employee Benefit Plan or the commencement of, or obligation to
commence, contributions to any Foreign Employee Benefit Plan to which the
Company or any Subsidiary was not previously contributing, where the
aggregate annual contributions to such Plan(s) resulting therefrom are or
could reasonably be expected to be material, notification of such
establishment, commencement or obligation to commence and the amount of
such contributions; and
(xiii) within ten (10) Business Days after the Company or any member
of the Controlled Group knows that (a) a material Multiemployer Plan has
been terminated, (b) the administrator or plan sponsor of a Multiemployer
Plan intends to terminate a material Multiemployer Plan, or (c) the PBGC
has instituted or will institute proceedings under Section 4042 of ERISA to
terminate a material Multiemployer Plan.
For purposes of this Section 7.1(D), the Company, any of its Subsidiaries and
any member of the Controlled Group shall be deemed to know all facts known by
the administrator of any Plan which is a Single Employer Plan. In addition, for
purposes of this Section 7.1(D), "material" means any noncompliance or basis for
liability which could reasonably be likely to subject the Company or any of its
Subsidiaries to liability, individually or in the aggregate, in excess of
$25,000,000.
(E) Labor Matters. Notify the Administrative Agent and the Lenders in
writing, promptly upon an Authorized Officer learning of (i) any material labor
dispute to which the Company or any of its Subsidiaries may become a party,
including, without limitation, any strikes, lockouts or other disputes relating
to such Persons' plants and other facilities and (ii) any material Worker
Adjustment and Retraining Notification Act liability incurred with respect to
the closing of any plant or other facility of the Company or any of its
Subsidiaries.
(F) Other Indebtedness. Deliver to the Administrative Agent (i) a copy of
each regular report, notice or communication regarding potential or actual
defaults (including any accompanying officer's certificate) delivered by or on
behalf of the Company to the holders of funded Indebtedness with an aggregate
outstanding principal amount in excess of $15,000,000 pursuant to the terms of
the agreements governing such Indebtedness, such delivery to be made at the same
time and by the same means as such notice of default is delivered to such
holders, and (ii) a copy of each notice or other communication received by the
Company from the holders of funded Indebtedness with an aggregate outstanding
principal amount in excess of $10,000,000 regarding potential or actual defaults
pursuant to the terms of such Indebtedness, such delivery to be made promptly
after such notice or other communication is received by the Company.
(G) Other Reports. Deliver or cause to be delivered to the Administrative
Agent and the Lenders copies of (i) all financial statements, reports and
non-routine notices, if any, sent or made
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available generally by the Company to its securities holders or filed with the
Commission by the Company, and (ii) all notifications received from the
Commission by the Company or its Subsidiaries pursuant to the Securities
Exchange Act of 1934 and the rules promulgated thereunder other than routine
reminders or notices that do not relate to specific violations of rules
promulgated by the Commission. Company shall include the Administrative Agent
and the Lenders on its standard distribution lists for all press releases made
available generally by the Company or any of the Company's Subsidiaries to the
public concerning material developments in the business of the Company or any
such Subsidiary.
(H) Environmental Notices. As soon as possible and in any event within
thirty (30) days after receipt by the Company, deliver to the Administrative
Agent and the Lenders a copy of (i) any notice or claim to the effect that the
Company or any of its Subsidiaries is or may be liable to any Person as a result
of the Release by the Company, any of its Subsidiaries, or any other Person of
any Contaminant into the environment, and (ii) any notice alleging any violation
of any Environmental, Health or Safety Requirements of Law by the Company or any
of its Subsidiaries if, in either case, such notice or claim relates to an event
which could reasonably be expected to subject the Company and each of its
Subsidiaries to liability individually or in the aggregate in excess of
$10,000,000.
(I) Other Information. Promptly upon receiving a request therefor from the
Administrative Agent, prepare and deliver to the Administrative Agent and the
Lenders such other information with respect to the Company or any of its
Subsidiaries, including, without limitation, schedules identifying any Asset
Sale or Financing (and the use of the Net Cash Proceeds thereof), as from time
to time may be reasonably requested by the Administrative Agent except for such
information as is customarily and reasonably regarded by the Company as
confidential.
7.2 Affirmative Covenants.
(A) Corporate Existence, Etc. Except as permitted pursuant to Section
7.3(I), the Company shall, and shall cause each of its Material Subsidiaries to,
at all times maintain its corporate existence and preserve and keep, or cause to
be preserved and kept, in full force and effect its rights and franchises
material to its businesses.
(B) Corporate Powers; Conduct of Business. The Company shall, and shall
cause each of its Material Subsidiaries to, qualify and remain qualified to do
business in each jurisdiction in which the nature of its business requires it to
be so qualified and where the failure to be so qualified will have or could
reasonably be expected to have a Material Adverse Effect. The Company will, and
will cause each Material Subsidiary to, carry on and conduct its business in
substantially the same manner and in substantially the same fields of enterprise
as it is presently conducted.
(C) Compliance with Laws, Etc. The Company shall, and shall cause its
Material Subsidiaries to, (a) comply with all Requirements of Law and all
restrictive covenants affecting such Person or the business, prospects,
properties, assets or operations of such Person, and (b) obtain as needed all
permits necessary for its operations and maintain such permits in good
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standing unless failure to comply or obtain such permits could not reasonably be
expected to have a Material Adverse Effect.
(D) Payment of Taxes and Claims; Tax Consolidation. The Company shall pay,
and cause each of its Subsidiaries to pay, (i) all material taxes, assessments
and other governmental charges imposed upon it or on any of its properties or
assets or in respect of any of its franchises, business, income or property
before any penalty or interest accrues thereon, and (ii) all claims (including,
without limitation, claims for labor, services, materials and supplies) for
material sums which have become due and payable and which by law have or may
become a Lien (other than a Lien permitted by Section 7.3(C)) upon any of the
Company's or such Subsidiary's property or assets, prior to the time when any
penalty or fine shall be incurred with respect thereto; provided, however, that
no such taxes, assessments and governmental charges referred to in clause (i)
above or claims referred to in clause (ii) above (and interest, penalties or
fines relating thereto) need be paid if being contested in good faith by
appropriate proceedings diligently instituted and conducted and if such reserve
or other appropriate provision, if any, as shall be required in conformity with
Agreement Accounting Principles shall have been made therefor.
(E) Insurance. The Company will maintain, and will cause to be maintained
on behalf of each of its Material Subsidiaries, insurance coverage by
financially sound and reputable insurance companies or associations, against
such casualties and contingencies, of such types (including public liability,
larceny and embezzlement or other criminal misappropriation insurance) and in
such amounts as are customary for companies engaged in similar businesses and
owning and operating similar properties, it being understood that the Company
and its Material Subsidiaries may self-insure against hazards and risks with
respect to which, and in such amounts, as the Company in good faith determines
prudent and consistent with sound financial practice, and as are customary for
companies engaged in similar businesses and owning and operating similar
properties. The Company shall furnish to any Lender upon request full
information as to the insurance carried.
(F) Inspection of Property; Books and Records; Discussions. The Company
shall permit and cause each of the Company's Subsidiaries to permit, any
authorized representative(s) designated by either the Administrative Agent or
any Lender to visit and inspect, for a reasonable purpose, any of the properties
of the Company or any of its Subsidiaries, to examine, audit, check and make
copies of their respective financial and accounting records, books, journals,
orders, receipts and any correspondence and other data relating to their
respective businesses or the transactions contemplated hereby (including,
without limitation, in connection with environmental compliance, hazard or
liability), and to discuss their affairs, finances and accounts with their
officers and, with the consent of the Company (which consent shall not be
unreasonably withheld and which consent shall in any event not be required if a
Default or Unmatured Default shall have occurred and is continuing), their
independent certified public accountants, all upon reasonable notice and at such
reasonable times during normal business hours, as often as may be reasonably
requested. The Company shall keep and maintain, and cause each of the Company's
Subsidiaries to keep and maintain, in all material respects, proper books of
record and account in which entries in conformity with Agreement Accounting
Principles shall be made of all dealings and transactions in relation to their
respective businesses and activities. If a Default has occurred and is
continuing,
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the Company, upon the Administrative Agent's reasonable request, shall provide
copies of such records to the Administrative Agent or its representatives.
(G) ERISA Compliance. The Company shall, and shall cause each of the
Company's Material Subsidiaries to, establish, maintain and operate all Plans to
comply in all material respects with the provisions of ERISA, the Code, all
other applicable laws, and the regulations and interpretations thereunder and
the respective requirements of the governing documents for such Plans.
(H) Maintenance of Property. The Company shall cause all property used or
useful in the conduct of its business or the business of any Material Subsidiary
to be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and shall cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times
and except to the extent that the failure to so maintain such property could not
be reasonably expected to have a Material Adverse Effect; provided, however,
that nothing in this Section 7.2(H) shall prevent the Company from discontinuing
the operation or maintenance of any of such property if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary.
(I) Environmental Compliance. The Company and its Subsidiaries shall use
its best efforts to comply with all Environmental, Health or Safety Requirements
of Law, except where noncompliance will not have or is not reasonably likely to
have a Material Adverse Effect.
(J) Use of Proceeds. The Borrowers shall use the proceeds of the Advances
to provide funds for the additional working capital needs and other general
corporate purposes of the Company and its Subsidiaries, including, without
limitation, the financing of Permitted Acquisitions. The Company will not, nor
will it permit any Subsidiary to, use any of the proceeds of the Advances to
make any Acquisition, other than a Permitted Acquisition pursuant to Section
7.3(G).
(K) Subsidiary Guarantees; Subsidiary Subordination Agreement. The Company
will:
(a) cause each Subsidiary Borrower that is a Domestic Incorporated
Subsidiary, each Material Domestic Subsidiary and each other Person
which executes a guaranty of the Indebtedness evidenced by the 364-Day
Finance Facility Agreement to execute the Guaranty (and from and after
the Closing Date cause each other Subsidiary Borrower that is a
Domestic Incorporated Subsidiary, each other Material Domestic
Subsidiary and each other Person which at any time executes a guaranty
of the Indebtedness evidenced by the 364-Day Finance Facility
Agreement to execute and deliver to the Administrative Agent, within
twenty (20) days after becoming a Subsidiary Borrower, a Material
Domestic Subsidiary or guarantor of such Indebtedness under the
364-Day Finance Facility Agreement, as applicable, an assumption
agreement pursuant to which it agrees to be bound by the terms and
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provisions of the Guaranty (whereupon such Person shall become a
"Guarantor" under this Agreement));
(b) cause each Material Subsidiary, before it makes a loan to any of the
Borrowers or Guarantors, to execute the Subordination Agreement (and
from and after the Closing Date cause each other Material Subsidiary
to execute and deliver to the Administrative Agent, within twenty (20)
days after becoming a Material Subsidiary, as applicable, an
assumption agreement pursuant to which it agrees to be bound by the
terms and provisions of the Subordination Agreement); and
(c) deliver and cause such Persons to deliver corporate resolutions,
opinions of counsel, and such other corporate documentation as the
Administrative Agent may reasonably request, all in form and substance
reasonably satisfactory to the Administrative Agent.
(L) Year 2000 Issues. The Company shall, and shall cause each of its
Material Subsidiaries to, take all actions reasonably necessary to address the
Year 2000 Issues so that any such Year 2000 Issues will not have a Material
Adverse Effect. The Company shall provide the Administrative Agent and each of
the Lenders information regarding the Company's and its Subsidiaries' program to
address Year 2000 Issues. The Company shall advise the Administrative Agent if
any Year 2000 Issues will have or would reasonably be expected to have a
Material Adverse Effect.
(M) Foreign Employee Benefit Compliance. The Company shall, and shall cause
each of its Material Subsidiaries and each member of its Controlled Group to,
establish, maintain and operate all Foreign Employee Benefit Plans to comply in
all material respects with all laws, regulations and rules applicable thereto
and the respective requirements of the governing documents for such Plans,
except for failures to comply which, in the aggregate, would not be reasonably
likely to subject the Company or any of its Subsidiaries to liability,
individually or in the aggregate, in excess of $25,000,000.
(N) Reduction of Commitments. The Company shall cause any reductions in the
Aggregate Revolving Loan Commitment under Section 2.6 or in the aggregate
commitment under the 364-Day Finance Facility Agreement to be made ratably to
the commitments hereunder and under the 364-Day Finance Facility Agreement in
such proportion as the Aggregate Revolving Loan Commitment bears to the
Aggregate Commitment and the "Maximum Matured Amount" under (and as defined in)
the 364-Day Finance Facility Agreement bears to the Aggregate Commitment,
respectively; provided, that any 364-Day CLO Lender may decline to have such
commitment reduction applied to reduce its commitment under the 364-Day Finance
Facility Agreement in which case the amount declined will be applied to reduce
the Aggregate Revolving Loan Commitment hereunder.
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7.3 Negative Covenants.
(A) Sale of Receivables. The Company will not, nor will it permit any
Subsidiary to, sell or otherwise dispose of any Receivables, with or without
recourse, except that the Company and the Subsidiaries may sell, transfer or
pledge Receivables, provided, that the aggregate Dollar Amount of Receivables
sold, transferred or pledged, net of amounts of such Receivables collected, does
not exceed in the aggregate five percent (5%) of Consolidated Net Sales at any
one time outstanding.
(B) Sales of Assets. Neither the Company nor any of its Subsidiaries shall
consummate any Asset Sale unless (x) the Company shall have prepaid the
outstanding "Advances" and reduced the "Aggregate Revolving Loan Commitment"
under (and as defined in) the 5-Year Credit Agreement, and the "Advances" under
(and as defined in) the 5-Year Finance Facility Agreement and reduced the
aggregate commitment thereunder, in accordance with Sections 2.6 and 7.2(N) of
the 5-Year Credit Agreement, and thereafter prepaid the Advances and reduced the
Aggregate Revolving Loan Commitment hereunder, and the "Advances" under (and as
defined in) the 364- Day CLO Finance Facility Agreement and reduced the
aggregate commitment thereunder, in accordance with the terms of Sections 2.6
and 7.2(N) hereof, and (y) any such Asset Sale shall be for not less than fair
market value (as determined in good faith by the Company's chief financial
officer) and for consideration consisting of at least eighty percent (80%) of
cash, except:
(i) Asset Sales in connection with the sale of Receivables permitted
under Section 7.3(A);
(ii) transfers of assets between the Company and any wholly-owned
Subsidiary of the Company or between wholly-owned Subsidiaries of the
Company not otherwise prohibited by this Agreement;
(iii) sales, assignments, transfers, leases, conveyances or other
dispositions of other assets if such transaction (a) is for not less than
fair market value (as determined in good faith by the Company's chief
financial officer), and (b) when combined with all such other transactions
(each such transaction being valued at book value) and all Sale and
Leaseback Transactions (each such Sale and Leaseback Transaction being
valued at book value) during the period from the Closing Date to the date
of such proposed transaction, represents the disposition of not greater
than fifteen percent (15%) of the Company's Consolidated Net Assets at the
end of the fiscal year immediately preceding that in which such transaction
is proposed to be entered into;
(iv) Asset Sales pursuant to unrelated transactions in an amount not
to exceed $1,000,000 per transaction; and
(v) sales of notes receivable and lease receivables of the Company and
its Subsidiaries in the ordinary course of business, including without
limitation, those listed on Schedule 7.3(B);
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provided, that in no event shall any Asset Sale be permitted hereunder if a
Default or Unmatured Default shall have occurred and is continuing as of the
date of such Asset Sale or, after the consummation of the Asset Sale and after
giving effect thereto, would exist.
(C) Liens. In no event shall the Company or any of its Subsidiaries
directly or indirectly create, incur assume or permit to exist a Lien on or with
respect to the Capital Stock of any Subsidiary of the Company. In addition,
neither the Company nor any of its Subsidiaries shall directly or indirectly
create, incur, assume or permit to exist any Lien on or with respect to any of
their respective other property or assets except:
(i) Permitted Existing Liens;
(ii) Customary Permitted Liens;
(iii) Liens with respect to property acquired by the Company or any of
its Subsidiaries after the Closing Date (and not created in contemplation
of such acquisition) pursuant to a Permitted Acquisition; provided, that
such Liens shall extend only to the property so acquired;
(iv) Liens on Receivables created in connection with a transaction
permitted under Section 7.3(A); provided, that each such Lien represents an
interest no greater than the related purchaser's pro-rata interest in the
pool of eligible receivables so sold;
(v) Rights of setoff existing as a matter of law;
(vi) Liens on property created in connection with any transaction
permitted under Section 7.3(J);
(vii) Liens securing Indebtedness of a Subsidiary to the Company;
(viii) Additional Liens, provided the Indebtedness secured thereby
does not exceed in the aggregate $75,000,000;
(ix) Liens, if any, created by the Loan Documents or otherwise
securing the Obligations and Liens securing Indebtedness under the 5-Year
Credit Agreement and the CLO Facilities and the PBGC Agreement only to the
extent such Liens are equal and ratable with, or subordinate to, any Liens
granted to the Administrative Agent for the benefit of the Lenders; and
(x) The replacement, extension or renewal of any Lien permitted above
upon or in the same property theretofore subject thereto in connection with
the replacement, extension or renewal (pursuant to Permitted Refinancing
Indebtedness) of the obligations secured thereby.
(D) Subsidiary Indebtedness. No Subsidiary of the Company shall, nor shall
the Company
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cause or suffer any of its Subsidiaries to, directly or indirectly create,
incur, assume or otherwise become or remain directly or indirectly liable with
respect to any Indebtedness, except:
(i) the Obligations;
(ii) Permitted Existing Indebtedness and Permitted Refinancing
Indebtedness of the type described in clause (i) of the definition thereof;
(iii) Indebtedness in an aggregate principal amount not to exceed
$700,000,000 at any time incurred in connection with (a) the 5-Year Credit
Agreement and (b) the CLO Facilities, and, in the case of either clause (a)
or (b), Permitted Refinancing Indebtedness of the type described in clause
(i) of the definition thereof;
(iv) Indebtedness necessary to manage the working capital and capital
expenditure needs of the European-based Subsidiaries of the Company in a
Dollar Amount not to exceed $75,000,000 in the aggregate;
(v) Indebtedness arising from intercompany loans and advances (a) from
the Company or any Subsidiary to any Domestic Incorporated Subsidiary or
(b) from the Company or any Subsidiary to any Foreign Incorporated
Subsidiary; provided, that such Indebtedness shall be expressly subordinate
to the payment in full in cash of the Obligations;
(vi) Contingent Obligations to the extent permitted under Section
7.3(E);
(vii) Hedging Obligations to the extent otherwise permitted under this
Agreement;
(viii) Indebtedness incurred in connection with a securitization of
such Subsidiary's assets to the extent such transaction is otherwise
permitted pursuant to Section 7.3(A); and
(ix) additional unsecured Indebtedness in an aggregate amount at any
time outstanding not exceeding $75,000,000.
(E) Contingent Obligations. Neither the Company nor any of its Subsidiaries
shall directly or indirectly create or become or be liable with respect to any
Contingent Obligation, except: (i) recourse obligations resulting from
endorsement of negotiable instruments for collection in the ordinary course of
business; (ii) Permitted Existing Contingent Obligations; (iii) obligations,
warranties, guaranties and indemnities, not relating to Indebtedness of any
Person, which have been or are undertaken or made in the ordinary course of
business and not for the benefit of or in favor of an Affiliate of the Company
or such Subsidiary; (iv) Contingent Obligations with respect to surety, appeal
and performance bonds obtained by the Company or any Subsidiary in the ordinary
course of business, (v) Contingent Obligations of the Subsidiaries of the
Company (a) under the Guaranty to which they are a party and (b) as guarantors
of the 5-Year Credit Agreement
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and the CLO Facilities, (vi) obligations arising under or related to the Loan
Documents, (vii) Contingent Obligations in respect to earn-outs or other similar
forms of contingent purchase price payable in respect of Permitted Acquisitions
(excluding assumed liabilities in connection with such Permitted Acquisition),
(viii) Contingent Obligations in respect of representations and warranties
customarily given in respect of Asset Sales otherwise permitted under Section
7.3(A) or Section 7.3(B), (ix) Contingent Obligations of the Company or any of
its Subsidiaries to the extent incurred to support Indebtedness of the Company
or the Company's Subsidiaries permitted under Section 7.3(D), and (x) additional
Contingent Obligations in an aggregate amount not to exceed in the aggregate
five percent (5%) of Consolidated Net Worth at any one time outstanding.
(F) Restricted Payments. In no event shall any Restricted Payments (other
than Restricted Payments to the Company) be declared or made if either a Default
or an Unmatured Default shall have occurred and be continuing at the date of
declaration or payment thereof or would result therefrom.
(G) Conduct of Business; Subsidiaries; Acquisitions. Neither the Company
nor any of its Subsidiaries shall engage in any business other than the
businesses engaged in by the Company on the date hereof and any business or
activities which are similar, related or incidental thereto or logical
extensions thereof. The Company shall not create, acquire or capitalize any
Subsidiary after the date hereof unless (i) no Default or Unmatured Default
which is not being cured shall have occurred and be continuing or would result
therefrom; (ii) after such creation, acquisition or capitalization, all of the
representations and warranties contained herein shall be true and correct in all
material respects (unless such representation and warranty is made as of a
specific date, in which case, such representation or warranty shall be true in
all material respects as of such date); and (iii) after such creation,
acquisition or capitalization the Company shall be in compliance with the terms
of Section 7.2(K). The Company shall not make any Acquisitions, other than
Acquisitions meeting the following requirements or otherwise approved by the
Required Lenders (each such Acquisition constituting a "PERMITTED ACQUISITION"):
(i) no Default or Unmatured Default shall have occurred and be
continuing or would result from such Acquisition or the incurrence of any
Indebtedness in connection therewith;
(ii) the purchase is consummated pursuant to a negotiated acquisition
agreement on a non-hostile basis and approved by the target company's board
of directors (and shareholders, if necessary) prior to the consummation of
the Acquisition;
(iii) if the purchase price payable in respect to any such Acquisition
(including, without limitation, cash or stock consideration paid and
Indebtedness or other liabilities assumed) exceeds $50,000,000, and prior
to each such Acquisition, the Company shall deliver to the Administrative
Agent and the Lenders a certificate from one of the Authorized Officers,
demonstrating to the satisfaction of the Administrative Agent that after
giving effect to such Acquisition, on a pro forma basis in respect of each
such Acquisition as if the Acquisition and such incurrence of Indebtedness
had occurred on the first day of the twelve-month period ending on the last
day of the Company's most recently
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completed fiscal quarter, the Company would have been in compliance with
the financial covenants in Section 7.4 and not otherwise in Default;
(iv) the purchase price for the Acquisition shall not exceed, together
with all other Permitted Acquisitions permitted under this Section 7.3(G),
without the prior written consent of the Required Lenders an amount equal
to fifteen percent (15%) of the Consolidated Net Assets of the Company
(calculated as of the date of such Acquisition without giving effect to
such Acquisition) (including the incurrence or assumption of any
Indebtedness in connection therewith), in the aggregate during the term of
this Agreement, and the Company shall have complied with all of the
requirements of the Loan Documents in respect thereof; and
(v) the businesses being acquired shall be similar to that of the
Company and its Subsidiaries as of the Closing Date, related or incidental
thereto or logical extensions thereof.
(H) Transactions with Shareholders and Affiliates. Except as set forth on
Schedule 7.3(H), neither the Company nor any of its Subsidiaries shall directly
or indirectly enter into or permit to exist any transaction (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or make loans or advances to, Pechiney or any
holder or holders of ten percent (10%) or more of the Equity Interests of the
Company, or with any Affiliate of the Company which is not its Subsidiary, on
terms that are less favorable to the Company or any of its Subsidiaries, as
applicable, than those that might be obtained in an arm's length transaction at
the time from Persons who are not such a holder or Affiliate, except for
Restricted Payments permitted by Section 7.3(F) and loans and advances made in
the ordinary course of business, consistent with past practice. Administrative
Agent and Lenders acknowledge and consent to the transactions between the
Company and its Affiliates described in the Company's public filings as of the
Closing Date.
(I) Restriction on Fundamental Changes. Neither the Company nor any of its
Material Subsidiaries shall enter into any merger or consolidation, or
liquidate, wind-up or dissolve (or suffer any liquidation or dissolution), or
convey, lease, sell, transfer or otherwise dispose of, in one transaction or
series of transactions, all or substantially all of the Company's consolidated
business or property (each such transaction a "FUNDAMENTAL CHANGE"), whether now
or hereafter acquired, except (i) Fundamental Changes permitted under Sections
7.3(B), 7.3(D) or 7.3(G), (ii) a Subsidiary of the Company may be merged into or
consolidated with the Company (in which case the Company shall be the surviving
corporation) or any Subsidiary of the Company provided the Company owns,
directly or indirectly, a percentage of the equity of the merged entity not less
than the percentage it owned of the Subsidiary prior to such Fundamental Change
and if the predecessor Subsidiary was a Guarantor, the surviving Subsidiary
shall be a Guarantor hereunder, (iii) any liquidation of any Subsidiary of the
Company into the Company or another Subsidiary of the Company, as applicable,
and (iv) the Company may merge with and into any other Person, or any Subsidiary
of the Company may consolidate or merge with any other Person, provided, that
(A) no Default or Unmatured Default shall exist immediately after giving effect
to such Fundamental Change, (B) in the case of any merger of the Company, the
Company is the surviving corporation
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in such merger and such merger is with a Person in a line of business
substantially similar to that of the Company and its Subsidiaries as of the
Closing Date, and (C) in the case of any merger or consolidation of any
Subsidiary of the Company, the surviving corporation in such Fundamental Change
is or becomes as a result thereof a Subsidiary of the Company in which surviving
Subsidiary the Company shall have directly or indirectly, not less than the
ownership percentage of the Company in the Subsidiary before the Fundamental
Change and if the predecessor Subsidiary was a Guarantor, the surviving
Subsidiary shall be a Guarantor hereunder, and (D) such transaction is with a
Person in a line of business substantially similar to that of the Company and
its Subsidiaries as of the Closing Date.
(J) Sales and Leasebacks. Unless the Company shall have prepaid the
outstanding "Advances" in accordance with Section 2.5 of (and as defined in) the
5-Year Credit Agreement, and, if applicable, reduced the "Aggregate Revolving
Loan Commitment" in accordance with Sections 2.6 and 7.2(N) of (and as defined
in) the 5-Year Credit Agreement, neither the Company nor any of its Subsidiaries
shall become liable, directly, by assumption or by Contingent Obligation, with
respect to any Sale and Leaseback Transaction, to the extent that the Net Cash
Proceeds of such Sale and Leaseback Transaction, together with the Net Cash
Proceeds of all other Sale and Leaseback Transactions after the Closing Date, is
in an aggregate amount greater than $50,000,000.
(K) Margin Regulations. Neither the Company nor any of its Subsidiaries,
shall use all or any portion of the proceeds of any credit extended under this
Agreement to purchase or carry Margin Stock in violation of Regulation U.
(L) ERISA. (a) The Company shall not
(i) engage, or permit any of its Subsidiaries to engage, in any
material prohibited transaction described in Sections 406 of ERISA or 4975
of the Code for which a statutory or class exemption is not available or a
private exemption has not been previously obtained from the DOL;
(ii) permit to exist any material accumulated funding deficiency (as
defined in Sections 302 of ERISA and 412 of the Code), with respect to any
Benefit Plan, whether or not waived;
(iii) fail, or permit any Controlled Group member to fail, to pay
timely required material contributions or annual installments due with
respect to any waived funding deficiency to any Benefit Plan;
(iv) terminate, or permit any Controlled Group member to terminate,
any Benefit Plan which would result in any material liability of the
Company or any Controlled Group member under Title IV of ERISA;
(v) fail to make any material contribution or payment to any
Multiemployer Plan which the Company or any Controlled Group member may be
required to make under
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any agreement relating to such Multiemployer Plan, or any law pertaining
thereto;
(vi) permit any unfunded liabilities with respect to any Foreign
Pension Plan except to the extent that any such unfunded liabilities are
being funded by annual contributions made by the Borrower or any member of
its Controlled Group and such annual contributions are not less than the
minimum amounts, if any, required under applicable local law;
(vii) fail, or permit any of its Subsidiaries or Controlled Group
members to fail, to pay any required contributions or payments to a Foreign
Pension Plan on or before the due date for such required installment or
payment;
(viii) fail, or permit any Controlled Group member to fail, to pay any
required material installment or any other payment required under Section
412 of the Code on or before the due date for such installment or other
payment; or
(ix) amend, or permit any Controlled Group member to amend, a Plan
resulting in a material increase in current liability for the plan year
such that the Company or any Controlled Group member is required to provide
security to such Plan under Section 401(a)(29) of the Code.
(b) For purposes of this Section 7.3(L), "material" means any
noncompliance or basis for liability which could reasonably be likely to
subject the Company or any of its Material Subsidiaries to liability,
individually or in the aggregate, in excess of $25,000,000.
(M) Corporate Documents. Neither the Company nor any of its Material
Subsidiaries shall amend, modify or otherwise change any of the terms or
provisions in any of their respective constituent documents as in effect on the
date hereof in any manner materially adverse to the interests of the Lenders,
without the prior written consent of the Required Lenders, except in connection
with a Permitted Acquisition.
(N) Fiscal Year. Neither the Company nor any of its consolidated Material
Subsidiaries shall change its fiscal year for accounting or tax purposes from a
period consisting of the 12-month period ending on the last day of December of
each year, except as required by Agreement Accounting Principles or by law and
disclosed to the Lenders and the Administrative Agent.
(O) Subsidiary Covenants. The Company will not, and will not permit any
Material Subsidiary to, create or otherwise cause to become effective any
consensual encumbrance or restriction of any kind on the ability of any
Subsidiary to pay dividends or make any other distribution on its stock, or make
any other Restricted Payment, pay any Indebtedness or other Obligation owed to
the Company or any other Subsidiary, make loans or advances or other Investments
in the Company or any other Subsidiary, or sell, transfer or otherwise convey
any of its property to the Company or any other Subsidiary.
(P) Hedging Obligations. The Company shall not and shall not permit any of
its
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Subsidiaries to enter into any interest rate, commodity or foreign currency
exchange, swap, collar, cap or similar agreements evidencing Hedging
Obligations, other than interest rate, foreign currency or commodity exchange,
swap, collar, cap or similar agreements entered into by the Company or its
Subsidiaries pursuant to which the Company or its Subsidiaries has hedged its
actual or anticipated interest rate, foreign currency or commodity exposure.
Such permitted hedging agreements entered into by the Company or its
Subsidiaries and any Lender or any affiliate of any Lender are sometimes
referred to herein as "HEDGING AGREEMENTS."
(Q) Maximum Net Rentals Obligations. The Company shall not permit Rentals
(net of rental income) of the Company and its Subsidiaries to exceed $50,000,000
in the aggregate during any twelve-month period.
7.4 Financial Covenants. The Company shall comply with the following
(provided, that all calculations of the financial covenants under this Section
7.4 shall be made exclusive of any impact on the financial statements arising
from Supported Contingent Obligations, unless (i) the Company shall not receive
cash reimbursement for any and all cash payments made under any Supported
Contingent Obligations promptly, and in any event within ninety (90) days,
following the Company making any such payment, in which event the financial
covenants in this Section 7.4 shall be calculated by giving effect to any
payment in respect of such Supported Contingent Obligation and shall include the
total outstanding amount of such Supported Contingent Obligation (to the extent
unreimbursed or otherwise unsupported to the satisfaction of the Administrative
Agent) in such calculations, or (ii) any judgment is entered under Viskase
Corporation v. American National Can Company, Civ. 93-C-7651, before the U.S.
District Court of the Northern District of Illinois, Eastern Division or any
related proceedings holding that the aggregate liability of the Company and its
Subsidiaries thereunder shall be in an amount in excess of $106,000,000, and
such judgment shall remain (x) undischarged, unvacated or unstayed or (y)
unbonded by Pechiney or any bonding agent in reliance upon a letter of credit or
other reimbursement obligation of Pechiney or any other Person other than the
Company or its Subsidiaries in the amount of such aggregate liability, in the
case of either clause (x) or (y), for a period of thirty (30) days or such other
period permitted by court order, in which event the financial covenants in this
Section 7.4 shall be calculated by giving effect to the amount of such judgment
which is undischarged, unvacated, unstayed or unbonded on the financial
condition of the Company and its Subsidiaries):
(A) Minimum Interest Coverage Ratio. The Company and its consolidated
Subsidiaries shall maintain a ratio ("INTEREST COVERAGE RATIO") of (i) EBITDA
during such period, to (ii) Interest Expense during such period which shall not
be less than (x) 3.50 to 1.00 as of the end of the first three fiscal quarters
following the Closing Date (calculated (a) for the fiscal quarter ending on
September 30, 1999, for such fiscal quarter, (b) for the fiscal quarter ending
on December 31, 1999, for the two fiscal quarter period then ending, and (c) for
the fiscal quarter ending on March 31, 2000, for the three fiscal quarter period
then ending); and (y) 4.00 to 1.00 for each four (4) fiscal quarter period
thereafter beginning with the four (4) fiscal quarter period ending on June 30,
2000. In each case, the Interest Coverage Ratio shall be determined as of the
last day of each fiscal quarter for the one (1), two (2), three (3) or four (4)
fiscal quarter period ending on such day, as applicable, calculated, with
respect to Permitted Acquisitions, on a pro forma basis, broken down by fiscal
quarter in the Company's reasonable judgment. For purposes of clause (i) above,
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EBITDA shall be calculated without giving effect to any restructuring charges
related to the three plant closings described in the Registration Statement.
(B) Maximum Total Net Indebtedness to Capital Ratio. At no time shall the
Company and its consolidated Subsidiaries permit the Total Net Indebtedness to
Capital Ratio to be greater than 0.55 to 1.00.
(C) Minimum Consolidated Net Worth. The Company shall not permit its
Consolidated Net Worth at any time to be less than the sum of (a) $950,000,000
plus (b) fifty percent (50%) of Net Income (if positive) calculated separately
(x) on December 31, 1999 for the two fiscal quarter period ending on December
31, 1999 and (y) for each fiscal year thereafter commencing with the fiscal year
ending on December 31, 2000.
ARTICLE VIII: DEFAULTS
8.1 Defaults. Each of the following occurrences shall constitute a Default
under this Agreement:
(A) Failure to Make Payments When Due. The Company or any Subsidiary
Borrower shall (i) fail to pay when due any of the Obligations consisting of
principal with respect to the Loans or (ii) shall fail to pay within five (5)
Business Days of the date when due any of the other Obligations under this
Agreement or the other Loan Documents.
(B) Breach of Certain Covenants. The Company shall fail duly and punctually
to perform or observe any agreement, covenant or obligation binding on the
Company under:
(i) Sections 7.1 or 7.2 and such failure shall continue unremedied for
thirty (30) days; or
(ii) Sections 7.3 or 7.4.
(C) Breach of Representation or Warranty. Any representation or warranty
made or deemed made by the Company or any Subsidiary Borrower to the
Administrative Agent or any Lender herein or by the Company or any Subsidiary
Borrower or any of their Subsidiaries in any of the other Loan Documents or in
any statement or certificate or information at any time given by any such Person
pursuant to any of the Loan Documents shall be false as to a material fact or
matter on the date as of which made or deemed made.
(D) Other Defaults. The Company or any Subsidiary Borrower shall default in
the performance of or compliance with any term contained in this Agreement
(other than as covered by paragraphs (A) or (B) or (C) of this Section 8.1), or
the Company or any Subsidiary Borrower or any of their Subsidiaries shall
default in the performance of or compliance with any term contained in any of
the other Loan Documents, and such default shall continue for thirty (30) days
after the occurrence and notice or the Company's becoming aware thereof.
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(E) Default as to Other Indebtedness.
(x) (i) Any "Default" shall occur under (and as defined in) the 5-Year
Credit Agreement or any "Event of Default" shall occur under the 5-Year
Finance Facility Agreement or under the 364-Day Finance Facility Agreement,
and, in each case shall be continuing beyond any period of grace, if any,
provided with respect thereto; or (ii) any breach, default or event of
default shall occur, or any other condition shall exist under any
instrument, agreement or indenture pertaining to any such Indebtedness,
beyond any period of grace, if any, provided with respect thereto; if the
effect thereof, in either case under clause (i) or clause (ii), is to cause
an acceleration, mandatory redemption, a requirement that the Company offer
to purchase such Indebtedness or other required repurchase of such
Indebtedness, or permit the holder(s) of such Indebtedness to accelerate
the maturity of any such Indebtedness or require a redemption or other
repurchase of such Indebtedness; or any such Indebtedness shall be
otherwise declared to be due and payable (by acceleration or otherwise) or
required to be prepaid, redeemed or otherwise repurchased by the Company or
any of its Subsidiaries (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof; or
(y) the Company or any of its Subsidiaries shall (i) fail to make any
payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) with respect to any Indebtedness (other
than Indebtedness hereunder, but including, without limitation,
Disqualified Stock), beyond any period of grace provided with respect
thereto, which individually or together with other such Indebtedness as to
which any such failure exists has an aggregate outstanding principal amount
in excess of $15,000,000; or (ii) suffer to exist any breach, default or
event of default, or any other condition under any instrument, agreement or
indenture pertaining to any such Indebtedness having such aggregate
outstanding principal amount, beyond any period of grace, if any, provided
with respect thereto; if the effect thereof, in either case under clause
(i) or (ii), is to cause an acceleration, mandatory redemption, a
requirement that the Company offer to purchase such Indebtedness or other
required repurchase of such Indebtedness or require a redemption or other
repurchase of such Indebtedness; or any such Indebtedness shall be
otherwise declared to be due and payable (by acceleration or otherwise) or
required to be prepaid, redeemed or otherwise repurchased by the Company or
any of its Subsidiaries (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof; or
(z) the Company or any of its Subsidiaries shall fail to make any
payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) with respect to any Indebtedness (other
than Indebtedness hereunder, but including, without limitation,
Disqualified Stock), beyond any period of grace provided with respect
thereto, which individually or together with other such Indebtedness as to
which any such failure exists has an aggregate outstanding principal amount
in excess of $40,000,000; or any breach, default or event of default shall
occur, or any other condition shall exist under any instrument, agreement
or indenture pertaining to any such Indebtedness having such aggregate
outstanding principal amount, beyond any period of
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grace, if any, provided with respect thereto, if the effect thereof is to
cause an acceleration, mandatory redemption, a requirement that the Company
offer to purchase such Indebtedness or other required repurchase of such
Indebtedness, or permit the holder(s) of such Indebtedness to accelerate
the maturity of any such Indebtedness or require a redemption or other
repurchase of such Indebtedness; or any such Indebtedness shall be
otherwise declared to be due and payable (by acceleration or otherwise) or
required to be prepaid, redeemed or otherwise repurchased by the Company or
any of its Subsidiaries (other than by a regularly scheduled required
prepayment) prior to the stated maturity thereof.
(F) Involuntary Bankruptcy; Appointment of Receiver, Etc.
(i) An involuntary case shall be commenced against the Company or any
of the Company's Material Subsidiaries and the petition shall not be
dismissed, stayed, bonded or discharged within forty-five (45) days after
commencement of the case; or a court having jurisdiction in the premises
shall enter a decree or order for relief in respect of the Company or any
of the Company's Material Subsidiaries in an involuntary case, under any
applicable bankruptcy, insolvency or other similar law now or hereinafter
in effect; or any other similar relief shall be granted under any
applicable federal, state, local or foreign law.
(ii) A decree or order of a court having jurisdiction in the premises
for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over the Company or any of
the Company's Material Subsidiaries or over all or a substantial part of
the property of the Company or any of the Company's Material Subsidiaries
shall be entered; or an interim receiver, trustee or other custodian of the
Company or any of the Company's Material Subsidiaries or of all or a
substantial part of the property of the Company or any of the Company's
Material Subsidiaries shall be appointed or a warrant of attachment,
execution or similar process against any substantial part of the property
of the Company or any of the Company's Material Subsidiaries shall be
issued and any such event shall not be stayed, dismissed, bonded or
discharged within forty-five (45) days after entry, appointment or
issuance.
(G) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Company or any
of the Company's Material Subsidiaries shall (i) commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, (ii) consent to the entry of an order for relief in an involuntary case,
or to the conversion of an involuntary case to a voluntary case, under any such
law, (iii) consent to the appointment of or taking possession by a receiver,
trustee or other custodian for all or a substantial part of its property, (iv)
make any assignment for the benefit of creditors or (v) take any corporate
action to authorize any of the foregoing.
(H) Judgments and Attachments. Any money judgment(s) (other than a money
judgment covered by insurance as to which the applicable insurance company has
not disclaimed or reserved the right to disclaim coverage), writ or warrant of
attachment, or similar process against the Company or any of its Subsidiaries or
any of their respective assets involving in any single case or in the aggregate
an amount in excess of $15,000,000 is or are entered and shall remain
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undischarged, unvacated, unbonded or unstayed for a period of thirty (30) days
or in any event later than fifteen (15) days prior to the date of any proposed
sale thereunder.
(I) Dissolution. Any order, judgment or decree shall be entered against the
Company or any Material Subsidiary decreeing its involuntary dissolution or
split up and such order shall remain undischarged and unstayed for a period in
excess of forty-five (45) days; or the Company or any Material Subsidiary shall
otherwise dissolve or cease to exist except as specifically permitted by this
Agreement.
(J) Loan Documents. The Company or any of the Company's Subsidiaries seeks
to repudiate its material obligations under any of the Loan Documents to which
they are a party.
(K) Termination Event. Any Termination Event occurs which the Required
Lenders believe is reasonably likely to subject the Company to liability in
excess of $25,000,000. The Unfunded Liabilities of all Single Employer Plans
shall exceed in the aggregate $300,000,000.
(L) Waiver of Minimum Funding Standard. If the plan administrator of any
Plan applies under Section 412(d) of the Code for a waiver of the minimum
funding standards of Section 412(a) of the Code and any Lender believes the
substantial business hardship upon which the application for the waiver is based
could reasonably be expected to subject either the Company or any Controlled
Group member to liability in excess of $25,000,000.
(M) Change of Control. A Change of Control shall occur.
(N) Guarantor Revocation. Any guarantor of the Obligations shall terminate
or revoke any of its obligations under the applicable Guaranty or breach any of
the material terms of such Guaranty.
A Default shall be deemed "continuing" until cured or until waived in
writing in accordance with Section 9.3.
ARTICLE IX: ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES
9.1 Termination of Revolving Loan Commitments; Acceleration. If any Default
described in Section 8.1(F) or 8.1(G) occurs with respect to the Company or any
Material Subsidiary, the obligations of the Lenders to make Loans hereunder
shall automatically terminate and the Obligations shall immediately become due
and payable without any election or action on the part of the Administrative
Agent or any Lender. If any other Default occurs, the Required Lenders may
terminate or suspend the obligations of the Lenders to make Loans hereunder, or
declare the Obligations to be due and payable, or both, whereupon the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrowers expressly
waive.
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9.2 Defaulting Lender. In the event that any Lender fails to fund its Pro
Rata Share of any Advance requested or deemed requested by the applicable
Borrower, which such Lender is obligated to fund under the terms of this
Agreement (the funded portion of such Advance being hereinafter referred to as a
"NON PRO RATA LOAN"), until the earlier of such Lender's cure of such failure
and the termination of the Revolving Loan Commitments, the proceeds of all
amounts thereafter repaid to the Administrative Agent by the applicable Borrower
and otherwise required to be applied to such Lender's share of all other
Obligations pursuant to the terms of this Agreement shall be advanced to the
applicable Borrower by the Administrative Agent on behalf of such Lender to
cure, in full or in part, such failure by such Lender, but shall nevertheless be
deemed to have been paid to such Lender in satisfaction of such other
Obligations. Notwithstanding anything in this Agreement to the contrary:
(i) the foregoing provisions of this Section 9.2 shall apply only with
respect to the proceeds of payments of Obligations and shall not affect the
conversion or continuation of Loans pursuant to Section 2.10;
(ii) any such Lender shall be deemed to have cured its failure to fund
its Pro Rata Share of any Advance at such time as an amount equal to such
Lender's original Pro Rata Share of the requested principal portion of such
Advance is fully funded to the applicable Borrower, whether made by such
Lender itself or by operation of the terms of this Section 9.2, and whether
or not the Non Pro Rata Loan with respect thereto has been repaid,
converted or continued;
(iii) amounts advanced to the applicable Borrower to cure, in full or
in part, any such Lender's failure to fund its Pro Rata Share of any
Advance ("CURE LOANS") shall bear interest at the rate applicable to
Floating Rate Loans in effect from time to time, and for all other purposes
of this Agreement shall be treated as if they were Floating Rate Loans;
(iv) regardless of whether or not a Default has occurred or is
continuing, and notwithstanding the instructions of the applicable Borrower
as to its desired application, all repayments of principal which, in
accordance with the other terms of this Agreement, would be applied to the
outstanding Floating Rate Loans shall be applied first, ratably to all
Floating Rate Loans constituting Non Pro Rata Loans, second, ratably to
Floating Rate Loans other than those constituting Non Pro Rata Loans or
Cure Loans and, third, ratably to Floating Rate Loans constituting Cure
Loans;
(v) for so long as and until the earlier of any such Lender's cure of
the failure to fund its Pro Rata Share of any Advance and the termination
of the Revolving Loan Commitments, the term "Required Lenders" for purposes
of this Agreement shall mean Lenders (excluding all Lenders whose failure
to fund their respective Pro Rata Share of such Advance have not been so
cured) whose Pro Rata Shares represent at least fifty-one percent (51%) of
the aggregate Pro Rata Shares of such Lenders; and
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(vi) for so long as and until any such Lender's failure to fund its
Pro Rata Share of any Advance is cured in accordance with Section 9.2(ii),
such Lender shall not be entitled to any facility fees with respect to its
Revolving Loan Commitment, which facility fees shall accrue in favor of the
Lenders which have funded their respective Pro Rata Share of such requested
Advance, shall be allocated among such performing Lenders ratably based
upon their relative Revolving Loan Commitments, and shall be calculated
based upon the average amount by which the aggregate Revolving Loan
Commitments of such performing Lenders exceeds the sum of the outstanding
principal amount of the Loans owing to such performing Lenders.
9.3 Amendments.
(A) Modifications to Loan Documents. Subject to the provisions of this
Article IX, the Required Lenders (or the Administrative Agent with the consent
in writing of the Required Lenders) and the Borrowers may enter into agreements
supplemental hereto for the purpose of adding or modifying any provisions to the
Loan Documents or changing in any manner the rights of the Lenders or the
Borrowers hereunder or waiving any Default hereunder; provided, however, that no
such supplemental agreement shall, without the consent of each Lender affected
thereby and each 364-Day CLO Lender affected thereby:
(i) Postpone or extend the Revolving Loan Termination Date or any
other date fixed for any payment of principal of, or interest on, the Loans
or any fees or other amounts payable to such Lender (except with respect to
(a) any modifications of the provisions relating to prepayments of Loans
and other Obligations or (b) a waiver of the application of the default
rate of interest pursuant to Section 2.11 hereof or (c) as expressly
provided by the terms of Section 2.19).
(ii) Reduce the principal amount of any Loans, or reduce the rate or
extend the time of payment of interest or fees thereon.
(iii) Reduce the percentage specified in the definition of Required
Lenders or any other percentage of Lenders hereunder and 364-Day CLO
Lenders specified to be the applicable percentage in this Agreement to act
on specified matters or amend the definitions of "Aggregate Pro Rata
Share", "Required Lenders" or "Pro Rata Share".
(iv) Increase the amount of the Revolving Loan Commitment of any
Lender hereunder or increase any Lender's Aggregate Pro Rata Share or Pro
Rata Share.
(v) Permit the Company or any Subsidiary Borrower to assign its rights
under this Agreement.
(vi) Other than pursuant to a transaction permitted by the terms of
this Agreement, release any guarantor from its obligations under the
Guaranty.
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(vii) Amend Section 2.6(b), Section 13.2 or this Section 9.3.
No amendment of any provision of this Agreement relating to (a) the
Administrative Agent shall be effective without the written consent of the
Administrative Agent, and (b) Swing Line Loans shall be effective without the
written consent of the Swing Line Bank. The Administrative Agent may waive
payment of the fee required under Section 14.3(B) without obtaining the consent
of any of the Lenders. The Administrative Agent shall notify the other parties
to this Agreement of any amendments to this Agreement which the Administrative
Agent reasonably determines to be necessary as a result of the commencement of
the third stage of the European Economic and Monetary Union. Notwithstanding
anything to the contrary contained herein, any amendments so notified shall take
effect in accordance with the terms of the relevant notification; provided,
however, that if and to the extent that the Administrative Agent determines it
is not possible to put all parties into such position, the Administrative Agent
may give priority to putting the Administrative Agent, the Arranger and the
Lenders into that position.
(B) Modifications to the 364-Day Finance Facility Agreement. So long as no
Integration Blockage Default shall have occurred, the Company agrees that no
amendment, modification, supplement, waiver or restatement of the 364-Day
Finance Facility Agreement shall be effective to modify any provisions of the
364-Day Finance Facility Agreement or the other documents, instruments and
agreements entered into in connection therewith (other than the fee letter(s))
except pursuant to a writing signed by the Company and the Required Lenders.
9.4 Preservation of Rights. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of a Loan notwithstanding the existence of a Default or
the inability of the Company or any other Borrower to satisfy the conditions
precedent to such Loan shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right, and no waiver, amendment or
other variation of the terms, conditions or provisions of the Loan Documents
whatsoever shall be valid unless in writing signed by the requisite number of
Lenders required pursuant to Section 9.3, and then only to the extent in such
writing specifically set forth. All remedies contained in the Loan Documents or
by law afforded shall be cumulative and all shall be available to the
Administrative Agent and the Lenders until the Obligations have been paid in
full.
ARTICLE X: GUARANTY
10.1. Guaranty. For valuable consideration, the receipt of which is hereby
acknowledged, and to induce the Lenders to make advances to each Subsidiary
Borrower and to issue and participate in Swing Line Loans, the Company hereby
absolutely and unconditionally guarantees prompt payment when due, whether at
stated maturity, upon acceleration or otherwise, and at all times thereafter, of
any and all existing and future Obligations of each Subsidiary Borrower to the
Administrative Agent, the Lenders, the Issuing Lenders, the Swing Line Bank, or
any of them, under or with respect to the Loan Documents, whether for principal,
interest, fees, expenses or otherwise (collectively, the "GUARANTEED
OBLIGATIONS", and each such Subsidiary Borrower being
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an "OBLIGOR" and collectively, the "OBLIGORS").
10.2. Waivers; Subordination of Subrogation. (i) The Company waives notice
of the acceptance of this guaranty and of the extension or continuation of the
Guaranteed Obligations or any part thereof. The Company further waives
presentment, protest, notice of notices delivered or demand made on any Obligor
or action or delinquency in respect of the Guaranteed Obligations or any part
thereof, including any right to require the Administrative Agent and the Lenders
to sue any Obligor, any other guarantor or any other Person obligated with
respect to the Guaranteed Obligations or any part thereof, or otherwise to
enforce payment thereof against any collateral securing the Guaranteed
Obligations or any part thereof, and provided further that if at any time any
payment of any portion of the Guaranteed Obligations is rescinded or must
otherwise be restored or returned upon the insolvency, bankruptcy or
reorganization of any of the Obligors or otherwise, the Company's obligations
hereunder with respect to such payment shall be reinstated at such time as
though such payment had not been made and whether or not the Administrative
Agent or the Lenders are in possession of this guaranty. The Administrative
Agent and the Lenders shall have no obligation to disclose or discuss with the
Company their assessments of the financial condition of the Obligors.
(ii) Until the Guaranteed Obligations have been indefeasibly paid in
full in cash, the Company (i) shall have no right of subrogation with
respect to such Guaranteed Obligations and (ii) waives any right to enforce
any remedy which the Holders of Obligations or any Agent now have or may
hereafter have against any Obligor, any endorser or any guarantor of all or
any part of the Guaranteed Obligations or any other Person, and the Company
waives any benefit of, and any right to participate in, any security or
collateral given to the Holders of Obligations and the Agents to secure the
payment or performance of all or any part of the Guaranteed Obligations or
any other liability of any Obligor to the Holders of Obligations. Should
the Company have the right, notwithstanding the foregoing, to exercise its
subrogation rights, the Company hereby expressly and irrevocably (A)
subordinates any and all rights at law or in equity to subrogation,
reimbursement, exoneration, contribution, indemnification or set off that
the Company may have to the indefeasible payment in full in cash of the
Guaranteed Obligations and (B) waives any and all defenses available to a
surety, guarantor or accommodation co-obligor until the Guaranteed
Obligations are indefeasibly paid in full in cash. The Company acknowledges
and agrees that this subordination is intended to benefit the Agents and
the Holders of Obligations and shall not limit or otherwise affect the
Company's liability hereunder or the enforceability of this Guaranty, and
that the Agents, the Holders of Obligations and their respective successors
and assigns are intended third party beneficiaries of the waivers and
agreements set forth in this Section 10.2.
10.3. Guaranty Absolute. This guaranty is a guaranty of payment and not of
collection, is a primary obligation of the Company and not one of surety, and
the validity and enforceability of this guaranty shall be absolute and
unconditional irrespective of, and shall not be impaired or affected by any of
the following: (a) any extension, modification or renewal of, or indulgence with
respect to, or substitutions for, the Guaranteed Obligations or any part thereof
or any agreement relating thereto at any time; (b) any failure or omission to
enforce any right, power or remedy with respect to the Guaranteed Obligations or
any part thereof or any agreement relating thereto, or any collateral; (c) any
waiver of any right, power or remedy with
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respect to the Guaranteed Obligations or any part thereof or any agreement
relating thereto or with respect to any collateral; (d) any release, surrender,
compromise, settlement, waiver, subordination or modification, with or without
consideration, of any collateral, any other guaranties with respect to the
Guaranteed Obligations or any part thereof, or any other obligation of any
Person with respect to the Guaranteed Obligations or any part thereof; (e) the
enforceability or validity of the Guaranteed Obligations or any part thereof or
the genuineness, enforceability or validity of any agreement relating thereto or
with respect to any collateral; (f) the application of payments received from
any source to the payment of obligations other than the Guaranteed Obligations,
any part thereof or amounts which are not covered by this guaranty even though
the Administrative Agent and the Lenders might lawfully have elected to apply
such payments to any part or all of the Guaranteed Obligations or to amounts
which are not covered by this guaranty; (g) any change in the ownership of any
Obligor or the insolvency, bankruptcy or any other change in the legal status of
any Obligor; (h) the change in or the imposition of any law, decree, regulation
or other governmental act which does or might impair, delay or in any way affect
the validity, enforceability or the payment when due of the Guaranteed
Obligations; (i) the failure of the Company or any Obligor to maintain in full
force, validity or effect or to obtain or renew when required all governmental
and other approvals, licenses or consents required in connection with the
Guaranteed Obligations or this guaranty, or to take any other action required in
connection with the performance of all obligations pursuant to the Guaranteed
Obligations or this guaranty; (j) the existence of any claim, setoff or other
rights which the Company may have at any time against any Obligor, or any other
Person in connection herewith or an unrelated transaction; or (k) any other
circumstances, whether or not similar to any of the foregoing, which could
constitute a defense to a guarantor; all whether or not the Company shall have
had notice or knowledge of any act or omission referred to in the foregoing
clauses (a) through (k) of this paragraph. It is agreed that the Company's
liability hereunder is several and independent of any other guaranties or other
obligations at any time in effect with respect to the Guaranteed Obligations or
any part thereof and that the Company's liability hereunder may be enforced
regardless of the existence, validity, enforcement or non-enforcement of any
such other guaranties or other obligations or any provision of any applicable
law or regulation purporting to prohibit payment by any Obligor of the
Guaranteed Obligations in the manner agreed upon between the Obligor and the
Administrative Agent and the Lenders.
10.4. Acceleration. The Company agrees that, as between the Company on the
one hand, and the Lenders and the Administrative Agent, on the other hand, the
obligations of each Obligor guaranteed under this Article X may be declared to
be forthwith due and payable, or may be deemed automatically to have been
accelerated, as provided in Section 9.1 hereof for purposes of this Article X,
notwithstanding any stay, injunction or other prohibition (whether in a
bankruptcy proceeding affecting such Obligor or otherwise) preventing such
declaration as against such Obligor and that, in the event of such declaration
or automatic acceleration, such obligations (whether or not due and payable by
such Obligor) shall forthwith become due and payable by the Company for purposes
of this Article X.
10.5. Marshaling; Reinstatement. None of the Lenders nor the
Administrative Agent nor any Person acting for or on behalf of the Lenders or
the Administrative Agent shall have any
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obligation to marshall any assets in favor of the Company or against or in
payment of any or all of the Guaranteed Obligations. If the Company, any
Borrower or any other guarantor of all or any part of the Guaranteed Obligations
makes a payment or payments to any Lender or the Administrative Agent, 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 such
Borrower, the Company, such other guarantor or any other Person, or their
respective estates, trustees, receivers or any other party, including, without
limitation, the Company, under any bankruptcy law, state or federal law, common
law or equitable cause, then, to the extent of such payment or repayment, the
part of the Guaranteed Obligations which has been paid, reduced or satisfied by
such amount shall be reinstated and continued in full force and effect as of the
time immediately preceding such initial payment, reduction or satisfaction.
10.6. Termination Date. This guaranty shall continue in effect until the
earlier of (a) the Facility Termination Date, and (b) the date on which this
Agreement has otherwise expired or been terminated in accordance with its terms
and all of the Guaranteed Obligations have been paid in full in cash.
ARTICLE XI: GENERAL PROVISIONS
11.1 Survival of Representations. All representations and warranties of
the Company contained in this Agreement shall survive delivery of this Agreement
and the making of the Loans herein contemplated so long as any principal,
accrued interest, fees, or any other amount due and payable under any Loan
Document is outstanding and unpaid (other than contingent reimbursement and
indemnification obligations) and so long as the Revolving Loan Commitments have
not been terminated.
11.2 Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Company or any other Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
11.3 Performance of Obligations. The Borrowers agree that the
Administrative Agent may, but shall have no obligation to (i) at any time, pay
or discharge taxes, liens, security interests or other encumbrances levied or
placed on or threatened against any property of any Borrower to the extent any
such Borrower is required by the terms hereof to pay any such amount, but has
not done so and (ii), after the occurrence and during the continuance of a
Default, to make any other payment or perform any act required of the Company or
any other Borrower under any Loan Document or take any other action which the
Administrative Agent in its discretion deems necessary or desirable to protect
or preserve such property of the Borrowers. The Administrative Agent shall use
its reasonable efforts to give the applicable Borrower notice of any action
taken under this Section 11.3 prior to the taking of such action or promptly
thereafter provided the failure to give such notice shall not affect the
applicable Borrower's obligations in respect thereof. The Borrowers agree to pay
the Administrative Agent, upon demand, the principal amount of all funds
advanced by the Administrative Agent under this Section 11.3, together with
interest thereon at the
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rate from time to time applicable to Floating Rate Loans from the date of such
advance until the outstanding principal balance thereof is paid in full. If any
Borrower fails to make payment in respect of any such advance under this Section
11.3 within one (1) Business Day after the date the applicable Borrower receives
written demand therefor from the Administrative Agent, the Administrative Agent
shall promptly notify each Lender and each Lender agrees that it shall thereupon
make available to the Administrative Agent, in Dollars in immediately available
funds, the amount equal to such Lender's Pro Rata Share of such advance. If such
funds are not made available to the Administrative Agent by such Lender within
one (1) Business Day after the Administrative Agent's demand therefor, the
Administrative Agent will be entitled to recover any such amount from such
Lender together with interest thereon at the Federal Funds Effective Rate for
each day during the period commencing on the date of such demand and ending on
the date such amount is received. The failure of any Lender to make available to
the Administrative Agent its Pro Rata Share of any such unreimbursed advance
under this Section 11.3 shall neither relieve any other Lender of its obligation
hereunder to make available to the Administrative Agent such other Lender's Pro
Rata Share of such advance on the date such payment is to be made nor increase
the obligation of any other Lender to make such payment to the Administrative
Agent.
11.4 Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
11.5 Entire Agreement. The Loan Documents embody the entire agreement and
understanding among the Borrowers, the Agents and the Lenders and supersede all
prior agreements and understandings among the Borrowers, the Agents and the
Lenders relating to the subject matter thereof.
11.6 Several Obligations; Benefits of this Agreement. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other Lender (except to the extent to which
the Administrative Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns.
11.7 Expenses; Indemnification.
(A) Expenses. The Borrowers shall reimburse the Agents, each Lead Arranger
and each Arranger for any reasonable costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' and paralegals' fees and time charges
of attorneys and paralegals for the Administrative Agent, which attorneys and
paralegals may be employees of the Administrative Agent) paid or incurred by the
Agents, such Lead Arranger or such Arranger in connection with the preparation,
negotiation, execution, delivery, syndication, review, amendment, modification,
and administration of the Loan Documents. The Borrowers also agree to reimburse
the Agents, each Lead Arranger and each Arranger and each Lender for any costs,
internal charges and out-of-pocket expenses (including reasonable attorneys' and
paralegals' fees and time charges of attorneys and paralegals for the Agents,
each Lead Arranger, each Arranger and the Lenders, which attorneys
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and paralegals may be employees of such Agent, such Lead Arranger, such Arranger
or the Lenders) paid or incurred by the Agents, the Lead Arrangers or the
Arrangers or any Lender in connection with the collection of the Obligations and
enforcement of the Loan Documents. In addition to expenses set forth above, the
Borrowers agree to reimburse the Administrative Agent, promptly after the
Administrative Agent's request therefor, for each audit, or other business
analysis performed by or for the benefit of the Lenders in connection with this
Agreement or the other Loan Documents in an amount equal to the Administrative
Agent's then customary charges for each person employed to perform such audit or
analysis, plus all reasonable costs and expenses (including without limitation,
travel expenses) incurred by the Administrative Agent in the performance of such
audit or analysis. Administrative Agent shall provide the Borrowers with a
detailed statement of all reimbursements requested under this Section 11.7(A).
(B) Indemnity. The Borrowers further agree to defend, protect, indemnify,
and hold harmless the Agents, the Lead Arrangers, the Arrangers and each and all
of the Lenders and each of their respective Affiliates, and each of such
Agent's, Lead Arranger's, Arranger's, Lender's, or Affiliate's respective
officers, directors, trustees, investment advisors, employees, attorneys and
agents (including, without limitation, those retained in connection with the
satisfaction or attempted satisfaction of any of the conditions set forth in
Article V) (collectively, the "INDEMNITEES") from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, expenses of any kind or nature whatsoever (including, without
limitation, the fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding,
whether or not any of such Indemnitees shall be designated a party thereto),
imposed on, incurred by, or asserted against such Indemnitees in any manner
relating to or arising out of:
(i) this Agreement or any of the other Loan Documents, or any act,
event or transaction related or attendant thereto or to the making of the
Loans, the management of such Loans, the use or intended use of the
proceeds of the Loans hereunder, or any of the other transactions
contemplated by the Loan Documents; or
(ii) any liabilities, obligations, responsibilities, losses, damages,
personal injury, death, punitive damages, economic damages, consequential
damages, treble damages, intentional, willful or wanton injury, damage or
threat to the environment, natural resources or public health or welfare,
costs and expenses (including, without limitation, attorney, expert and
consulting fees and costs of investigation, feasibility or remedial action
studies), fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or future
relating to violation of any Environmental, Health or Safety Requirements
of Law arising from or in connection with the past, present or future
operations of the Company, its Subsidiaries or any of their respective
predecessors in interest, or, the past, present or future environmental,
health or safety condition of any respective property of the Company or its
Subsidiaries, the presence of asbestos-containing materials at any
respective property of the Company or its Subsidiaries or the Release or
threatened Release of any Contaminant into the environment (collectively,
the "INDEMNIFIED MATTERS");
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provided, however, no Borrower shall have any obligation to an Indemnitee
hereunder with respect to Indemnified Matters caused by or resulting from the
willful misconduct or Gross Negligence of such Indemnitee with respect to the
Loan Documents, as determined by the final non-appealed judgment of a court of
competent jurisdiction. If the undertaking to indemnify, pay and hold harmless
set forth in the preceding sentence may be unenforceable because it is violative
of any law or public policy, the applicable Borrower shall contribute the
maximum portion which it is permitted to pay and satisfy under applicable law,
to the payment and satisfaction of all Indemnified Matters incurred by the
Indemnitees.
(C) Waiver of Certain Claims. The Borrowers further agree to assert no
claim against any of the Indemnitees on any theory of liability seeking
consequential, special, indirect, exemplary or punitive damages.
(D) Survival of Agreements. The obligations and agreements of the
Borrowers under this Section 11.7 shall survive the termination of this
Agreement.
11.8 Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
11.9 Accounting. Except with respect to the pricing grid calculations in
Section 2.15 and the financial covenant calculations in Section 7.4 both of
which shall be made in accordance with Agreement Accounting Principles, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with generally accepted
accounting principles as in effect from time to time, consistently applied.
11.10 Severability of Provisions. Any provision in any Loan Document that
is held to be inoperative, unenforceable, or invalid in any jurisdiction shall,
as to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.
11.11 Nonliability of Lenders. The relationship between the Borrowers and
the Lenders and the Administrative Agent shall be solely that of borrower and
lender. Neither the Administrative Agent nor any Lender shall have any fiduciary
responsibilities to the Borrowers. Neither the Administrative Agent nor any
Lender undertakes any responsibility to any Borrower to review or inform any
Borrower of any matter in connection with any phase of the Borrowers' business
or operations.
11.12 GOVERNING LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS AGREEMENT, ON
BEHALF OF ITSELF AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND
AGREEING TO IT THERE. ANY DISPUTE BETWEEN ANY BORROWER AND THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
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BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET
SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS.
11.13 CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF
THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY
BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE PARTIES HERETO
ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL
DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. EACH BORROWER AGREES THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO
PROCEED AGAINST EACH BORROWER OR ITS RESPECTIVE PROPERTY IN A COURT IN ANY
LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER ANY
BORROWER OR (2) IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN
FAVOR OF SUCH PERSON. EACH BORROWER AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE UNRELATED COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO
REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF SUCH PERSON. EACH BORROWER WAIVES ANY OBJECTION THAT IT
MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A
PROCEEDING DESCRIBED IN THIS SUBSECTION (B).
(C) VENUE. EACH BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
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IRREVOCABLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF,
CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES
HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
(E) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS OF
SECTION 11.7 AND THIS SECTION 11.13, WITH ITS COUNSEL.
11.14 Other Transactions. Each of the Agents, the Lead Arrangers, the
Arrangers, the Lenders, the Swing Line Bank and the Borrowers acknowledge that
the Lenders (or Affiliates of the Lenders) may, from time to time, effect
transactions for their own accounts or the accounts of customers, and hold
positions in loans or options on loans of the Company, the Company's
Subsidiaries and other companies that may be the subject of this credit
arrangement and nothing in this Agreement shall impair the right of any such
Person to enter into any such transaction (to the extent it is not expressly
prohibited by the terms of this Agreement) or give any other Person any claim or
right of action hereunder as a result of the existence of the credit
arrangements hereunder, all of which are hereby waived. In addition, certain
Affiliates of one or more of the Lenders are or may be securities firms and as
such may effect, from time to time, transactions for their own accounts or for
the accounts of customers and hold positions in securities or options on
securities of the Company, the Company's Subsidiaries and other companies that
may be the subject of this credit arrangement and nothing in this Agreement
shall impair the right of any such Person to enter into any such transaction (to
the extent it is not expressly prohibited by the terms of this Agreement) or
give any other Person any claim or right of action hereunder as a result of the
existence of the credit arrangements hereunder, all of which are hereby waived.
Other business units affiliated with each of the Agents are providing other
financial services and products to the Company and its Subsidiaries in
connection with initial public offering of the Capital Stock of the Company and
the other transactions contemplated by this Agreement. Each of the Agents, the
Lead Arrangers, the Arrangers, the Lenders, the Swing Line Bank and the
Borrowers acknowledges and consents to these multiple roles, and further
acknowledges that the fact that any such unit or Affiliate is providing another
service or product or proposal therefor to the Company or any of its
Subsidiaries does not mean that such service, product, or proposal is or will be
acceptable to any of the Agents, the Lead Arrangers, the Arrangers, the Lenders
or the Swing Line Bank.
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ARTICLE XII: THE ADMINISTRATIVE AGENT
12.1 Appointment; Nature of Relationship. First Chicago is appointed by
the Lenders as the Administrative Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon the
express conditions contained in this Article XII. Notwithstanding the use of the
defined term "Administrative Agent," it is expressly understood and agreed that
the Administrative Agent shall not have any fiduciary responsibilities to any
Holder of Obligations by reason of this Agreement and that the Administrative
Agent is merely acting as the representative of the Lenders with only those
duties as are expressly set forth in this Agreement and the other Loan
Documents. In its capacity as the Lenders' contractual representative, the
Administrative Agent (i) does not assume any fiduciary duties to any of the
Holders of Obligations, (ii) is a "representative" of the Holders of Obligations
within the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is
acting as an independent contractor, the rights and duties of which are limited
to those expressly set forth in this Agreement and the other Loan Documents.
Each of the Lenders, for itself and on behalf of its affiliates as Holders of
Obligations, agrees to assert no claim against the Administrative Agent on any
agency theory or any other theory of liability for breach of fiduciary duty, all
of which claims each Holder of Obligations waives.
12.2 Powers. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action hereunder or under any of the other Loan Documents
except any action specifically provided by the Loan Documents required to be
taken by the Administrative Agent.
12.3 General Immunity. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to the Company, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is found in a final
judgment by a court of competent jurisdiction to have arisen solely from the
Gross Negligence or willful misconduct of such Person.
12.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(i) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (ii) the performance or observance of any
of the covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of any condition specified in Article V, except receipt of items
required to be delivered solely to the Administrative Agent; (iv) the existence
or possible existence of any Default or (v) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith. The Administrative Agent shall not be responsible to any
Lender for any recitals, statements, representations or warranties herein or in
any of the other
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Loan Documents, or for the execution, effectiveness, genuineness, validity,
legality, enforceability, collectibility, or sufficiency of this Agreement or
any of the other Loan Documents or the transactions contemplated thereby, or for
the financial condition of any guarantor of any or all of the Obligations, the
Company or any of its Subsidiaries.
12.5 Action on Instructions of Lenders. The Administrative Agent shall in
all cases be fully protected in acting, or in refraining from acting, hereunder
and under any other Loan Document in accordance with written instructions signed
by the Required Lenders (or all of the Lenders in the event that and to the
extent that this Agreement expressly requires such), and such instructions and
any action taken or failure to act pursuant thereto shall be binding on all of
the Lenders and on all owners of Loans and on all Holders of Obligations. The
Administrative Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action. Subject to the preceding, the Administrative Agent will
act as directed by the Required Lenders.
12.6 Employment of Agents and Counsel. The Administrative Agent may
execute any of its duties as the Administrative Agent hereunder and under any
other Loan Document by or through employees, agents, and attorney-in-fact and
shall not be answerable to the Lenders, except as to money or securities
received by it or its authorized agents, for the default or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care. The
Administrative Agent shall be entitled to advice of counsel concerning the
contractual arrangement between the Administrative Agent and the Lenders and all
matters pertaining to the Administrative Agent's duties hereunder and under any
other Loan Document.
12.7 Reliance on Documents; Counsel. The Administrative Agent shall be
entitled to rely upon any notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
12.8 The Administrative Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Pro Rata Shares (i) for any amounts not
reimbursed by any Borrower for which the Administrative Agent are entitled to
reimbursement by any Borrower under the Loan Documents, (ii) for any other
expenses incurred by the Administrative Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents, provided
that no Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent
jurisdiction to have
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arisen from the Gross Negligence or willful misconduct of the Administrative
Agent.
12.9 Rights as a Lender. With respect to its Revolving Loan Commitment,
Loans made by it, the Administrative Agent shall have the same rights and powers
hereunder and under any other Loan Document as any Lender and may exercise the
same as though it were not the Administrative Agent, and the term "Lender" or
"Lenders" shall, unless the context otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent may
accept deposits from, lend money to, and generally engage in any kind of trust,
debt, equity or other transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with the Company or any of its
Subsidiaries in which such Person is not prohibited hereby from engaging with
any other Person.
12.10 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Arranger
or any other Lender and based on the financial statements prepared by the
Company and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arranger or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
12.11 Successor Administrative Agent. The Administrative Agent may resign
at any time by giving written notice thereof to the Lenders and the Company.
Upon any such resignation, the Required Lenders shall have the right to appoint,
on behalf of the Borrowers and the Lenders, a successor Administrative Agent. If
no successor Administrative Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty days after the
retiring Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may appoint, on behalf of the Borrowers and the Lenders, a
successor Administrative Agent. Notwithstanding anything herein to the contrary,
so long as no Default has occurred and is continuing, each such successor
Administrative Agent shall be subject to approval by the Company, which approval
shall not be unreasonably withheld. Such successor Administrative Agent shall be
a commercial bank having capital and retained earnings of at least $500,000,000.
Upon the acceptance of any appointment as the Administrative Agent hereunder by
a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article XII shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent hereunder and
under the other Loan Documents.
12.12. No Duties Imposed Upon Syndication Agent, Co-Documentation Agents,
Lead Arrangers or Arrangers. None of the Persons identified on the cover page
to this Agreement, the signature pages to this Agreement or otherwise in this
Agreement as a "Syndication Agent" or "Co-Documentation Agent" or "Lead
Arranger" or "Arranger" shall have any right, power, obligation,
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liability, responsibility or duty under this Agreement other than, if such
Person is a Lender, those applicable to all Lenders as such. Without limiting
the foregoing, none of the Persons identified on the cover page to this
Agreement, the signature pages to this Agreement or otherwise in this Agreements
as a "Syndication Agent" or "Co-Documentation Agent" or "Lead Arranger" or
"Arranger" shall have or be deemed to have any fiduciary duty to or fiduciary
relationship with any Lender. In addition to the agreements set forth in Section
12.10, each of the Lenders acknowledges that it has not relied, and will not
rely, on any of the Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE XIII: SETOFF; RATABLE PAYMENTS
13.1 Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if any Default occurs and is continuing and after
the affirmative consent of the Administrative Agent or the Required Lenders, any
Indebtedness from any Lender to the Company or any other Borrower (including all
account balances, whether provisional or final and whether or not collected or
available) may be offset and applied toward the payment of the Obligations owing
to such Lender, whether or not the Obligations, or any part hereof, shall then
be due.
13.2 Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Loans (other than payments received pursuant to
Sections 4.1, 4.2 or 4.4) in a greater proportion than that received by any
other Lender, such Lender agrees, promptly upon demand, to purchase a portion of
the Loans held by the other Lenders so that after such purchase each Lender will
hold its ratable proportion of Loans. If any Lender, whether in connection with
setoff or amounts which might be subject to setoff or otherwise, receives
collateral or other protection for its Obligation or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to the obligations owing to them. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
13.3 Application of Payments. Subject to the provisions of Section 9.2, the
Administrative Agent shall, unless otherwise specified at the direction of the
Required Lenders which direction shall be consistent with the last sentence of
this Section 13.3, apply all payments and prepayments in respect of any
Obligations in the following order:
(A) first, to pay interest on and then principal of any portion of the
Loans which the Administrative Agent may have advanced on behalf of any
Lender for which the Administrative Agent has not then been reimbursed by
such Lender or the applicable Borrower;
(B) second, to pay interest on and then principal of any advance made
under Section 11.3 for which the Administrative Agent has not then been
paid by the applicable Borrower or reimbursed by the Lenders;
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(C) third, to the ratable payment of the Obligations in respect of any
fees, expenses, reimbursements or indemnities then due to the
Administrative Agent, each Lead Arranger and each Arranger;
(D) fourth, to pay Obligations in respect of any fees, expenses,
reimbursements or indemnities then due to the Lenders;
(E) fifth, to pay interest due in respect of Swing Line Loans;
(F) sixth, to pay interest due in respect of Loans (other than Swing
Line Loans);
(G) seventh, to the ratable payment or prepayment of principal
outstanding on Swing Line Loans;
(H) eighth, to the ratable payment or prepayment of principal
outstanding on Loans (other than Swing Line Loans) in such order as the
Administrative Agent may determine in its sole discretion;
(I) ninth, to provide required cash collateral, if required pursuant
to Section 3.11 and
(J) tenth, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable prior to
the occurrence of a Default) by the Company, all principal payments in respect
of Loans (other than Swing Line Loans) shall be applied first, to repay
outstanding Floating Rate Loans, and then to repay outstanding Eurocurrency Rate
Loans with those Eurocurrency Rate Loans which have earlier expiring Interest
Periods being repaid prior to those which have later expiring Interest Periods.
The order of priority set forth in this Section 13.3 and the related provisions
of this Agreement are set forth solely to determine the rights and priorities of
the Administrative Agent, the Lead Arrangers, the Arrangers, the Lenders and the
Swing Line Bank as among themselves. The order of priority set forth in clauses
(D) through (J) of this Section 13.3 may at any time and from time to time be
changed by the Required Lenders without necessity of notice to or consent of or
approval by the Company or any other Person; provided, that the order of
priority of payments in respect of Swing Line Loans may be changed only with the
prior written consent of the Swing Line Bank. The order of priority set forth in
clauses (A) through (C) of this Section 13.3 may be changed only with the prior
written consent of the Administrative Agent, and, in the case of clause (C),
with the prior written consent of the Lead Arrangers and the Arrangers affected
thereby.
13.4 Relations Among Lenders. The Lenders are not partners or co-venturers,
and no Lender shall be liable for the acts or omissions of, or (except as
otherwise set forth herein in case of the Administrative Agent) authorized to
act for, any other Lender.
ARTICLE XIV: BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
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14.1 Successors and Assigns. The terms and provisions of the Loan Documents
shall be binding upon and inure to the benefit of the Borrowers and the Lenders
and their respective successors and assigns, except that (A) no Borrower shall
have any right to assign its rights or obligations under the Loan Documents
without the consent of all of the Lenders, and any such assignment in violation
of this Section 14.1(A) shall be null and void, and (B) any assignment by any
Lender must be made in compliance with Section 14.3 hereof. Notwithstanding
clause (B) of this Section 14.1 or Section 14.3, (i) any Lender may at any time,
without the consent of any Borrower or the Administrative Agent, assign all or
any portion of its rights under this Agreement to a Federal Reserve Bank and
(ii) any Lender which is a fund or commingled investment vehicle that invests in
commercial loans in the ordinary course of its business may at any time, without
the consent of any Borrower or the Administrative Agent, pledge or assign all or
any part of its rights under this Agreement to a trustee or other representative
of holders of obligations owed or securities issued by such Lender as collateral
to secure such obligations or securities; provided, however, that no such
assignment or pledge shall release the transferor Lender from its obligations
hereunder. The Administrative Agent may treat each Lender as the owner of the
Loans made by such Lender hereunder for all purposes hereof unless and until
such Lender complies with Section 14.3 hereof in the case of an assignment
thereof or, in the case of any other transfer, a written notice of the transfer
is filed with the Administrative Agent. Any assignee or transferee of a Loan,
Revolving Loan Commitment or any other interest of a lender under the Loan
Documents agrees by acceptance thereof to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of any Loan, shall be conclusive and binding on any
subsequent owner, transferee or assignee of such Loan.
14.2 Participations.
(A) Permitted Participants; Effect. Subject to the terms set forth in this
Section 14.2, any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in any Loan owing to such
Lender, any Revolving Loan Commitment of such Lender or any other interest of
such Lender under the Loan Documents on a pro rata or non-pro rata basis. Notice
of such participation to the Company and the Administrative Agent shall be
required prior to any participation becoming effective with respect to a
Participant which is not a Lender or an Affiliate thereof. Upon receiving said
notice, the Administrative Agent shall record the participation in the Register
it maintains. Moreover, notwithstanding such recordation, such participation
shall not be considered an assignment under Section 14.3 of this Agreement and
such Participant shall not be considered a Lender. In the event of any such sale
by a Lender of participating interests to a Participant, such Lender's
obligations under the Loan Documents shall remain unchanged, such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, such Lender shall remain the owner of all Loans made by it for
all purposes under the Loan Documents, all amounts payable by the applicable
Borrower under this Agreement shall be determined as if such Lender had not sold
such participating interests, and the applicable Borrower and the Administrative
Agent shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under the Loan Documents except that,
for purposes of Article IV hereof, the Participants shall be entitled to the
same rights as if they were
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Lenders.
(B) Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan or Revolving Loan Commitment in which such
Participant has an interest which forgives principal, interest or fees or
reduces the interest rate or fees payable pursuant to the terms of this
Agreement with respect to any such Loan or Revolving Loan Commitment, or
postpones any date fixed for any regularly-scheduled payment of principal of, or
interest or fees on, any such Loan or Revolving Loan Commitment.
14.3 Assignments.
(A) Permitted Assignments. (i) Any Lender (each such assigning Lender under
this Section 14.3 being a "SELLER") may, in accordance with applicable law, at
any time assign to one or more banks or other entities (other than the Company
or any of its Affiliates) ("PURCHASERS") all or a portion of its rights and
obligations under this Agreement (including, without limitation, its Revolving
Loan Commitment, all Loans owing to it, all of its participation interests in
existing Swing Line Loans and its obligation to participate in additional Swing
Line Loans hereunder) in accordance with the provisions of this Section 14.3.
Each assignment shall be of a constant, and not a varying, ratable percentage of
all of the Seller's rights and obligations under this Agreement. Such assignment
shall be substantially in the form of Exhibit D hereto and shall not be
permitted hereunder unless such assignment is either for all of such Seller's
rights and obligations under the Loan Documents or, without the prior written
consent of the Administrative Agent, involves loans and commitments in an
aggregate amount of at least $5,000,000 (which minimum amount (i) shall not
apply to any assignment between Lenders, or to an Affiliate or Approved Fund of
any Lender, and (ii) in any event may be waived by the Administrative Agent).
The written consent of the Administrative Agent, and, prior to the occurrence of
a Default, the Company (which consent, in each such case, shall not be
unreasonably withheld), shall be required prior to an assignment becoming
effective with respect to a Purchaser which is not a Lender or an Affiliate or
Approved Fund of such Lender.
(ii) Notwithstanding anything to the contrary contained herein, any
Lender (each such Lender, a "GRANTING BANK") may grant to a special
purpose funding vehicle (each such special purpose funding vehicle, a
"SPC"), identified as such in writing from time to time by the
applicable Granting Bank to the Administrative Agent and the Company,
the option to provide to the Company and the other Borrowers all or any
part of any Advance that such Granting Bank would otherwise be
obligated to make to the applicable Borrower pursuant to this
Agreement; provided, that (i) nothing herein shall constitute a
commitment by any SPC to make any Advance, (ii) if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of
such Advance, the applicable Granting Bank shall be obligated to make
such Advance pursuant to the terms hereof. The making of an Advance by
any SPC hereunder shall utilize the Revolving Loan Commitment of the
applicable Granting Bank to the same extent, and as if, such Advance
were made by such
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Granting Bank. Each party hereto hereby agrees that no SPC shall be
liable for any indemnity or other similar payment obligation under
this Agreement (all liability for which shall remain with the
applicable Granting Bank). All notices hereunder to any Granting Bank
or the related SPC, and all payments in respect of the Obligations due
to such Granting Bank or the related SPC, shall be made to such
Granting Bank. In addition, each Granting Bank shall vote as a Lender
hereunder without giving effect to any assignment under this Section
14.3(A)(ii), and no SPC shall have any vote as a Lender under this
Agreement for any purpose. In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day
after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join
any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section
14.3, any SPC may (i) with notice to, but without the prior written
consent of, the Company and the Administrative Agent and without
paying any processing or administrative fee therefor, assign all or a
portion of its interests in any Advances to the Granting Bank or to
any financial institutions (consented to by the Company and the
Administrative Agent in accordance with the terms of Section
14.3(A)(i)) providing liquidity and/or credit support to or for the
account of such SPC to support the funding or maintenance of Advances
and (ii) disclose on a confidential basis any non-public information
relating to its Advances to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC. This Section 14.3(A)(ii) may not be amended
without the written consent of each SPC affected thereby.
(B) Effect; Effective Date. Upon (i) delivery to the Administrative
Agent of a notice of assignment, substantially in the form attached as Appendix
I to Exhibit D hereto (a "NOTICE OF ASSIGNMENT"), together with any consent
required by Section 14.3(A) hereof, (ii) payment of a $3,500 fee by the assignee
or the assignor (as agreed) to the Administrative Agent for processing such
assignment (other than an assignment by a Lender to an affiliate of such Lender
or an Approved Fund of such Lender), and (iii) the completion of the recording
requirements in Section 14.3(C), such assignment shall become effective on the
later of such date when the requirements in clauses (i), (ii), and (iii) are met
or the effective date specified in such Notice of Assignment. The Notice of
Assignment shall contain a representation by the Purchaser to the effect that
none of the consideration used to make the purchase of the Revolving Loan
Commitment and Loans under the applicable assignment agreement are "plan assets"
as defined under ERISA and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser, if not already a Lender,
shall for all purposes be a Lender party to this Agreement and any other Loan
Documents executed by the Lenders and shall have all the rights and obligations
of a Lender under the Loan Documents, to the same extent as if it were an
original party hereto, and no further consent or action by any Borrower, the
Lenders or the Administrative Agent shall be required to release the Seller with
respect to the percentage of the Aggregate Revolving Loan Commitment, Loans and
Swing Line Loan participations assigned to such Purchaser. Upon the consummation
of any assignment to a Purchaser pursuant to this Section 14.3(B), the Seller,
the Administrative Agent and the Borrowers
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shall make appropriate arrangements so that, to the extent notes have been
issued to evidence any of the transferred Loans, replacement notes are issued to
such Seller and new notes or, as appropriate, replacement notes, are issued to
such Purchaser, in each case in principal amounts reflecting their Revolving
Loan Commitment, as adjusted pursuant to such assignment. Notwithstanding
anything to the contrary herein, no Borrower shall, at any time, be obligated to
pay under Section 2.15(E) to any Lender that is a Purchaser, assignee or
transferee any sum in excess of the sum which such Borrower would have been
obligated to pay to the Lender that was the Seller, assignor or transferor had
such assignment or transfer not been effected.
(C) The Register. Notwithstanding anything to the contrary in this
Agreement, each Borrower hereby designates the Administrative Agent, and the
Administrative Agent, hereby accepts such designation, to serve as such
Borrower's contractual representative solely for purposes of this Section
14.3(C). In this connection, the Administrative Agent shall maintain at its
address referred to in Section 15.1 a copy of each Commitment and Acceptance
delivered pursuant to Section 2.6(b) and each assignment delivered to and
accepted by it pursuant to this Section 14.3 and a register (the "REGISTER") for
the recordation of the names and addresses of the Lenders and the Revolving Loan
Commitment of, principal amount of and interest on the Loans owing to, each
Lender from time to time and whether such Lender is an original Lender, became a
Lender pursuant to Section 2.6(b) or the assignee of another Lender pursuant to
an assignment under this Section 14.3. The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the Company
and each of its Subsidiaries, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
any Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
14.4 Confidentiality. Subject to Section 14.5, the Administrative Agent
and the Lenders and their respective representatives shall hold all nonpublic
information obtained pursuant to the requirements of this Agreement and
identified as such by the Company or any other Borrower in accordance with such
Person's customary procedures for handling confidential information of this
nature and in accordance with safe and sound commercial lending or investment
practices and in any event may make disclosure reasonably required by a
prospective Transferee in connection with the contemplated participation or
assignment or as required or requested by any Governmental Authority or any
securities exchange or similar self-regulatory organization or representative
thereof or pursuant to a regulatory examination or legal process, or to any
direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor, and shall require any such
Transferee to agree (and require any of its Transferees to agree) to comply with
this Section 14.4. In no event shall the Administrative Agent or any Lender be
obligated or required to return any materials furnished by the Company;
provided, however, each prospective Transferee shall be required to agree that
if it does not become a participant or assignee it shall return all materials
furnished to it by or on behalf of the Company in connection with this
Agreement.
14.5 Dissemination of Information. Each Borrower authorizes each Lender to
disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in
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such Lender's possession concerning the Company and its Subsidiaries; provided
that prior to any such disclosure, such prospective Transferee shall agree to
preserve in accordance with Section 14.4 the confidentiality of any confidential
information described therein.
ARTICLE XV: NOTICES
15.1 Giving Notice. Except as otherwise permitted by Section 2.14 with
respect to Borrowing/Conversion/Continuation Notices, all notices and other
communications provided to any party hereto under this Agreement or any other
Loan Documents shall be in writing or by telex or by facsimile and addressed or
delivered to such party at its address set forth below its signature hereto or
at such other address as may be designated by such party in a notice to the
other parties. Any notice, if mailed and properly addressed with postage
prepaid, shall be deemed given when received; any notice, if transmitted by
telex or facsimile, shall be deemed given when transmitted (answerback confirmed
in the case of telexes).
15.2 Change of Address. The Borrowers, the Administrative Agent and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XVI: COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by the Company, the Administrative Agent and
the Lenders and each party has notified the Administrative Agent by telex or
telephone, that it has taken such action.
[Remainder of This Page Intentionally Blank]
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IN WITNESS WHEREOF, the Company, the Lenders and the Administrative Agent
have executed this Agreement as of the date first above written.
AMERICAN NATIONAL CAN GROUP, INC.,
as the Company
By: Dennis M. Byrd
Name: Dennis M. Byrd
Title: Vice President and Treasurer
Address: 8770 West Bryn Mawr Avenue
Chicago, IL 60631
Attention: Vice-President -- Treasurer
Telephone No.: (773) 399-3170
Facsimile No.: (773) 399-3115
with a copy to:
Attention: General Counsel
Telephone No.: (773) 399-3522
Facsimile No.: (773) 399-3527
Address: 8770 West Bryn Mawr Avenue
Chicago, IL 60631
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THE FIRST NATIONAL BANK OF
CHICAGO, as Administrative Agent, as Swing Line
Lender and as a Lender
By: Susan L. Comstock
Name: Susan L. Comstock
Title: First Vice President
Address:
One First National Plaza
Chicago, Illinois 60670
Attention: Susan L. Comstock
Telephone No.: (312) 732-4244
Facsimile No.: (312) 732-1916
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THE CHASE MANHATTAN BANK, as
Syndication Agent and as a Lender
By: Peter M. Hayes
Name: Peter M. Hayes
Title: Vice President
Address: 270 Park Avenue
30th Floor
New York, NY 10017
Telephone No.: (212) 270-6698
Facsimile No.: (212) 270-1629
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ABN AMRO BANK N.V., as Co-Documentation
Agent, as Arranger, as CLO Administrative
Agent and as a Lender
By: Thomas A. Kramer
Name: Thomas A. Kramer
Title: Group Vice President
By: Mary L. Honda
Name: Mary L. Honda
Title: Vice President
Address: 135 South LaSalle St.
Suite 625
Chicago, IL 60603
Attention: Mary Honda
Telephone No.: (312) 904-5220
Facsimile No.: (312) 606-8425
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ROYAL BANK OF CANADA, as Co-
Documentation Agent, as Arranger and as a
Lender
By: John Crawford
Name: John Crawford
Title: Senior Manager
Address: Credit Issues:
One Liberty Plaza, 5th Floor
New York, NY 10006
Attention: John Crawford
Telephone No.: (212) 428-6261
Facsimile No.: (212) 428-6459
E-Mail: [email protected]
Address: Administrative:
One Liberty Plaza, 4th Floor
New York, NY 10006
Attention: Danielle Giles
Telephone No.: (212) 428-6332
Facsimile No.: (212) 428-2372
E-Mail:
Signature Page to 364-Day Credit Agreement
dated as of July, 1999
S-5
<PAGE> 126
BANQUE NATIONALE DE PARIS, as Arranger
By: Simon Allocca
Name: Simon Allocca
Title: Vice President
Address: 8-13 King Williams Street
London, UK EC4P 4HS
Attention: Simon Allocca
Telephone No.: +44 171 772 9886
Facsimile No.: +44 171 548 9499
Signature Page to 364-Day Credit Agreement
dated as of July, 1999
S-6
<PAGE> 127
THE BANK OF TOKYO - MITSUBISHI, LTD.,
as a Lender
By: Hisashi Miyashiro
Name: Hisashi Miyashiro
Title: Deputy General Manager
Address: 227 West Monroe, Suite 2300
Chicago, IL 60606
Telephone No.: (312) 696-4662
Facsimile No.: (312) 696-4535
E-Mail: [email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-7
<PAGE> 128
FIRST UNION NATIONAL BANK, as a Lender
By: John E. Reid
Name: John E. Reid
Title: Vice President
Address: 301 South College St. TW-10
Charlotte, NC 28288-0745
Telephone No.: (704) 383-1385
Facsimile No.: (704) 383-7236
E-Mail: [email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-8
<PAGE> 129
CREDIT AGRICOLE INDOSUEZ, as a Lender
By: Craig Welch
Name: Craig Welch
Title: First Vice President
By: Michael G. Haggarty
Name: Michael G. Haggarty
Title: Vice President
Address: 520 Madison Ave. 8th Floor
New York, NY 10022
Telephone No.: (212) 418-7042
Facsimile No.: (212) 418-2228
E-Mail:
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-9
<PAGE> 130
BANK BOSTON N.A., as a Lender
By: Ravi Kacker
Name: Ravi Kacker
Title:Vice President
Address: 100 Federal Street
Mail Stop: MA BOS 01-10-01
Boston, MA 02110
Telephone No.: (617) 434-4708
Facsimile No.: (617) 434-0601
E-Mail: [email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-10
<PAGE> 131
CREDIT SUISSE - FIRST BOSTON, as a Lender
By: Bill O'Daly
Name: Bill O'Daly
Title: Vice President
By: Robert Hetu
Name: Robert Hetu
Title: Vice President
Address: Eleven Madison Avenue
New York, NY 10010-3629
Telephone No.: (212) 325-1986 (O'Daly)
Facsimile No.: (212) 325-8314
E-Mail: [email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-11
<PAGE> 132
FORTIS (USA) FINANCE, LLC, as a Lender
By: David Snyder
Name: David Snyder
Title:Senior Vice President
By: E. Matthews
Name: A. Edwin Matthews
Title: Senior Vice President
Address: 520 Madison Avenue
3rd Floor
New York, NY 10022
Attention: Loan Administration
Telephone No.: (212) 418-8700
Facsimile No.: (212) 750-9503
E-Mail: [email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-12
<PAGE> 133
FLEET NATIONAL BANK, as a Lender
By: Steve Kalin
Name: G. Steven Kalin
Title: Vice President
Address: One Federal Street
Boston, MA 02110
Telephone No.: (617) 346-0877
Facsimile No.: (617) 346-0145
E-Mail: [email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-13
<PAGE> 134
THE SUMITOMO BANK, LTD., as a Lender
By: John H. Kemper
Name: John H. Kemper
Title: Senior Vice President
Address: Lisette Villamueva-Ruiz
The Sumitomo Bank - New York Branch
227 Park Avenue
New York, NY 10172
Telephone No.: (212) 224-4185
Facsimile No.: (212) 224-5197
E-Mail:lisette_villanueva-ruiz@sumitomobank.
com
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-14
<PAGE> 135
WACHOVIA BANK, N.A., as a Lender
By: Deborah L. Coheley
Name: Deborah L. Coheley
Title:Senior Vice President
Address: 191 Peachtree St. N.E.
Atlanta, GA 30303
Telephone No.: (404) 332-1291
Facsimile No.: (404) 332-6898
E-Mail:
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-15
<PAGE> 136
HARRIS TRUST AND SAVINGS BANK, as a Lender
By: Robert H. Wolohan
Name: Robert H. Wolohan
Title:Vice President
Address: 111 W. Monroe St., 18W
Chicago, IL 60603
Telephone No.: (312) 461-6049
Facsimile No.: (312) 765-8095
E-Mail: [email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-16
<PAGE> 137
BANK HAPOALIM B.M., as a Lender
By: Michael J. Byrne
Name: Michael J. Byrne
Title: Vice President - Senior
Lending Officer
By: Phillip E. Gansch
Name: Phillip E. Gansch
Title: Vice President
Address: Bank Hapoalim B.M.
225 N. Michigan Ave., Suite 900
Chicago, IL 60601
Attention: Michael Kearney
Telephone No.: (312) 228-6425
Facsimile No.: (312) 228-6490
E-Mail:
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-17
<PAGE> 138
BANCA DI ROMA - CHICAGO BRANCH, as a Lender
By: Aurora Pensa
Name: Aurora Pensa (97974)
Title: Vice President
By: Luca Balestra
Name: Luca Balestra (25050)
Title: Vice President and Deputy Manager
Address: Banca Di Roma
225 W. Washington St., Suite 1200
Chicago, IL 60606
Telephone No.: (312) 704-2629
Facsimile No.: (312) 726-3058
E-Mail:
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-18
<PAGE> 139
BANCA NAZIONALE DEL LAVORO S. P. A. -
NEW YORK BRANCH, as a Lender
By: Giulio Giovine
Name: Giulio Giovine
Title: Vice President
By: Leonardo Valentini
Name: Leonardo Valentini
Title: First Vice President
Address: 25 West 51st Street
New York, NY 10019
Telephone No.: (212) 314-0239
Facsimile No.: (212) 765-2978
E-Mail: [email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-19
<PAGE> 140
BANCO BILBAO VIZCAYA S.A., as a Lender
By: John Martini Carreras
Name: John Martini Carreras
Title: Vice President
By: Alejandro Lorca
Name: Alejandro Lorca
Title: Vice President
Address: 1345 Avenue of the Americas
45th Floor
New York, NY 10122
Telephone No.: (212) 728-1653
Facsimile No.: (212) 333-2904
E-Mail: [email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-20
<PAGE> 141
THE BANK OF NEW YORK, as a Lender
By: John Lokay
Name: John M. Lokay, Jr.
Title: Vice President
Address: One Wall Street
New York, NY 10286
Telephone No.: (212) 635-1172
Facsimile No.: (212) 635-1208
E-Mail: [email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-21
<PAGE> 142
BANKERS TRUST COMPANY, as a Lender
By: Robert R. Telesca
Name: Robert R. Telesca
Title: Assistant Vice President
Address:
Telephone No.:
Facsimile No.:
E-Mail:
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-22
<PAGE> 143
BARCLAYS BANK PLC, as a Lender
By: T. Bullock
Name: Terance Bullock
Title: Vice President
Address: 222 Broadway
New York, NY 10038
Telephone No.: (212) 412-2554
Facsimile No.: (212) 412-7590
E-Mail: [email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-23
<PAGE> 144
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE, as a Lender
By: Eric Longuet
Name: Eric Longuet
Title:Vice President
By: Martha Skidmore
Name: Martha Skidmore
Title:Vice President
Address: 520 Madison Avenue
New York, NY 10022
Telephone No.: (212) 715-4456
Facsimile No.: (212) 715-4535
E-Mail: [email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-24
<PAGE> 145
THE DAI-ICHI KANGYO BANK, LTD., as a Lender
By: N. Fukatsu
Name: Nobuyasu Fukatsu
Title:Vice President
Address: 10 South Wacker Drive
26th Floor
Chicago, IL 60606
Telephone No.: (312) 715-6362
Facsimile No.: (312) 876-2011
E-Mail: [email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-25
<PAGE> 146
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Lender
By: John R. Morrison
Name: John R. Morrison
Title: Vice President
By: Christopher E. Sarisky
Name: Christopher E. Sarisky
Title: Assistant Vice President
Address: Dresdner Bank AG - Chicago Branch
190 S. LaSalle Street, Suite 2700
Chicago, IL 60603
Attention: Jim Jerz and Craig Payne
Telephone No.:(312) 444-1851 or(312) 444-1314
Facsimile No.(312) 444-1305 or (312) 444-1301
E-Mail: [email protected] or
[email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-26
<PAGE> 147
THE INDUSTRIAL BANK OF JAPAN,
LIMITED., as a Lender
By: Walter Wolff
Name: Walter R. Wolff
Title: Joint General Manager
Address: 227 W. Monroe , Suite 2600
Chicago, IL 60606
Telephone No.: (312) 855-1111
Facsimile No.: (312) 855-8200
E-Mail:
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-27
<PAGE> 148
KBC BANK N.V., as a Lender
By: John E. Thierfelder
Name: John E. Thierfelder
Title: Vice President
By: R. Snauffer
Name: Robert Snauffer
Title:First Vice President
Address: 125 West 55th Street
New York, NY 10019
Telephone No.: (212) 541-0600
Facsimile No.: (212) 541-0793
E-Mail:
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-28
<PAGE> 149
MERCANTILE BANK NATIONAL
ASSOCIATION, as a Lender
By: Gerald S. Kirk
Name: Gerald S. Kirk
Title: Vice President
Address: One Mercantile Center
12th Floor
St. Louis, MO 63101
Telephone No.: (314) 418-8247
Facsimile No.: (314) 418-2203
E-Mail: [email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-29
<PAGE> 150
THE SANWA BANK, LTD., as a Lender
By: Kenneth C. Eichwald
Name: Kenneth C. Eichwald
Title: First Vice President and
Assistant General Manager
Address: 10 S. Wacker Drive, 31st Floor
Chicago, IL 60606
Telephone No.: (312) 228-6410
Facsimile No.: (312) 228-6490
E-Mail:
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-30
<PAGE> 151
SUNTRUST BANK, ATLANTA, as a Lender
By: Shelley Browne
Name: Shelley Browne
Title: Managing Director
Address: 303 Peachtree Street
Mailcode 1928 3rd Floor
Atlanta, GA 30308
Telephone No.: (404) 588-7915
Facsimile No.: (404) 658-4905
E-Mail:
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-31
<PAGE> 152
UNICREDITO ITALIANO (NEW YORK), as a
Lender
By: Nicola Longo Dente
Name: Nicola Longo Dente
Title: First Vice President
By: Charles Michael
Name: Charles Michael
Title: Vice President
Address: 375 Park Avenue, 2nd Floor
New York, NY 10152
Telephone No.: (212) 546-9611
Facsimile No.: (212) 546-9665
E-Mail:
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-32
<PAGE> 153
COMERICA BANK, as a Lender
By: Herbert H. Schluderberg
Name: Herbert H. Schluderberg
Title: Vice President
Address: 203 N. LaSalle, Suite 2240
Chicago, IL 60606
Telephone No.: (312) 223-7670
Facsimile No.: (312) 223-7657
E-Mail: [email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-33
<PAGE> 154
NATIONAL CITY BANK, as a Lender
By: Matthew R. Klinger
Name: Matthew R. Klinger
Title:Assistant Vice President
Address: National City Bank
20 North Wacker Drive
Suite 3012
Chicago, IL 60606
Telephone No.: (312) 739-0953
Facsimile No.: (312) 240-0301
E-Mail: [email protected]
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-34
<PAGE> 155
THE NORTHERN TRUST COMPANY, as a
Lender
By: Nicole Boehm
Name: Nicole Boehm
Title:Commercial Credit Officer
Address: 50 S. LaSalle St.
Chicago, IL 60675
Telephone No.: (312) 444-3640
Facsimile No.: (312) 630-6062
E-Mail:
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-35
<PAGE> 156
BANQUE NATIONALE DE PARIS, as a Lender
By: Arnaud Collin du Bocage
Name: Arnaud Collin du Bocage
Title: Executive Vice President &
General Manager
Address: 209 South LaSalle Street
5th Floor
Chicago, IL 60604
Telephone No.:
Facsimile No.:
Signature Page to 364-Day Revolving Credit Agreement
dated as of July, 1999
S-36
<PAGE> 157
EXHIBIT A-1
EUROCURRENCY PAYMENT OFFICES
- --------------------------------------------------------------------------------
AGREED CURRENCY THE FIRST NATIONAL BANK OF CHICAGO, AS
ADMINISTRATIVE AGENT AND SWING LOAN LENDER
- --------------------------------------------------------------------------------
DOLLARS The First National Bank of Chicago
Attn: Funding Desk / Operations
One First National Plaza
Chicago, Illinois 60670
- --------------------------------------------------------------------------------
S-37
<PAGE> 158
EXHIBIT A
TO
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
COMMITMENTS
REVOLVING LOAN COMMITMENTS
Lender Amount of Revolving Loan % of Aggregate Revolving
- ------ ------------------------ ------------------------
Commitment Loan Commitment
---------- ---------------
The First National Bank of
Chicago $44,375,000 7.395%
The Chase Manhattan Bank $44,375,000 7.395%
ABN AMRO Bank N.V. $0 0.000%
Royal Bank of Canada $44,375,000 7.395%
Banque Nationale de Paris $44,375,000 7.395%
The Bank of
Tokyo - Mitsubishi, Ltd. $30,000,000 5.000%
First Union National Bank $30,000,000 5.000%
Credit Agricole Indosuez $17,500,000 2.916%
Bank Boston N.A. $17,500,000 2.916%
Credit Suisse - First Boston $17,500,000 2.916%
Fortis (USA) Finance LLC $17,500,000 2.916%
Fleet National Bank $17,500,000 2.916%
The Sumitomo Bank, Ltd. $17,500,000 2.916%
Wachovia Bank, N.A. $17,500,000 2.916%
<PAGE> 159
Harris Trust and Savings Bank $17,500,000 2.916%
Bank Hapoalim B.M. $12,500,000 2.083%
Banca di Roma - Chicago Branch $12,500,000 2.083%
Banca Nazionale del Lavoro
S. p. A. - New York Branch $12,500,000 2.083%
Banco Bilbao Vizcaya S.A. $12,500,000 2.083%
The Bank of New York $12,500,000 2.083%
Bankers Trust Company $12,500,000 2.083%
Barclays Bank PLC $12,500,000 2.083%
Compagnie Financiere de
CIC et de L'Union Europeenne $12,500,000 2.083%
The Dai-Ichi Kangyo Bank, Ltd. $12,500,000 2.083%
Drescher Bank AG, New York
and Grand Cayman Branches $12,500,000 2.083%
The Industrial Bank
of Japan, Limited. $12,500,000 2.083%
KBC Bank N.V. $12,500,000 2.083%
Mercantile Bank
National Association $12,500,000 2.083%
The Sanwa Bank, Limited $12,500,000 2.083%
SunTrust Bank, Atlanta $12,500,000 2.083%
UniCredito Italiano (New York) $12,500,000 2.083%
Comerica Bank $7,500,000 1.250%
National City Bank $7,500,000 1.250%
The Northern Trust Company $7,500,000 1.250%
TOTAL: $600,000,000 100%
2
<PAGE> 160
EXHIBIT B
TO
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF BORROWING/CONVERSION/CONTINUATION NOTICE
TO: The First National Bank of Chicago, as contractual representative for
itself and the other Lenders (the "Administrative Agent") under that
certain 364-Day Credit Agreement dated as of July 22, 1999 among American
National Can Group, Inc. (the "Company"), the Subsidiary Borrowers from
time to time party thereto, the financial institutions parties thereto (the
"Lenders"), The Chase Manhattan Bank, individually and as syndication agent
(the "Syndication Agent") on behalf of the Lenders, ABN AMRO Bank N.V.,
individually and as co-documentation agent and arranger (the
"Co-Documentation Agent and Arranger") on behalf of the Lenders, Royal Bank
of Canada, individually and as co-documentation agent and arranger (the
"Co-Documentation Agent and Arranger") on behalf of the Lenders, Banque
Nationale De Paris, individually and as arranger (the "Arranger") on behalf
of the Lenders, Chase Securities, Inc., individually and as lead arranger
and joint book manager (the "Lead Arranger and Joint Book Manager") on
behalf of the Lenders, and Banc One Capital Markets, Inc., individually and
as lead arranger and joint book manager (the "Lead Arranger and Joint Book
Manager") on behalf of the Lenders (such 364-Day Credit Agreement, as the
same may be amended, restated, supplemented or otherwise modified from time
to time, the "Credit Agreement").
The [Company][undersigned Subsidiary Borrower] hereby gives to the
Administrative Agent a [Borrowing/Conversion/Continuation Notice pursuant to
Section 2.8] [a Borrowing/Conversion/Continuation Notice pursuant to Section
2.10] of the Credit Agreement, and the [Company][undersigned Subsidiary
Borrower] hereby requests to [borrow] [convert] [continue] on _____ , _____ (the
"Borrowing Date") from the Swing Line Lender under clause (b) below and
otherwise from the Lenders on a pro rata basis an aggregate principal amount of:
(a) [US $ ][______________] in the Agreed Currency described below] in
Revolving Loans as a
UA?
AAUFloating Rate Advance
UA?
AAUEurocurrency Rate Advance
- Applicable Interest Period of ____________ month(s).
- Agreed Currency: _________.
3
<PAGE> 161
(b) $__________ in Swing Line Loans bearing interest at a
UA?
AAUFloating Rate
UA?
AAUfixed rate (with an interest period of ______ days (not to exceed
5 Business Days)
The undersigned hereby certifies to the Agents and the Lenders that (i) the
representations and warranties of the undersigned contained in Article VI
of the Credit Agreement are and shall be true and correct in all material
respects on and as of the date hereof and on and as of the Borrowing Date
(unless such representation and warranty is made as of a specified date, in
which case, such representation and warranty shall be true and correct in
all material respects as of such date) except for changes in the Schedules
to the Credit Agreement affecting transactions permitted by or not in
violation of the Credit Agreement; (ii) no Default or Unmatured Default has
occurred and is continuing on the date hereof or on the Borrowing Date or
will result from the making of the proposed Advance; and (iii) the
conditions set forth in Section 5.3 of the Credit Agreement have been
satisfied.
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meanings in this Borrowing/Conversion/Continuation Notice.
Dated July 22, 1999
[AMERICAN NATIONAL CAN GROUP, INC.]
[SUBSIDIARY BORROWER]
By:
----------------------------
Name:
Title:
4
<PAGE> 162
EXHIBIT C
TO
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
[RESERVED]
5
<PAGE> 163
EXHIBIT D
TO
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
FORM OF ASSIGNMENT AGREEMENT
This Assignment Agreement (this "ASSIGNMENT AGREEMENT") between (the
ASSIGNOR) and ____ (the "ASSIGNEE") is dated as of _____ , _____. The parties
hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a 364-Day Credit
Agreement (which, as it may be amended, restated, supplemented, modified,
renewed or extended from time to time is herein called the "CREDIT AGREEMENT")
described in Item 1 of Schedule 1 attached hereto ("SCHEDULE 1"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement such that after giving effect to such assignment the Assignee shall
have purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and obligations
under the Credit Agreement relating to the facilities listed in Item 3 of
Schedule 1 and the other Loan Documents. The aggregate Commitment (or Loans, if
the applicable Commitment has been terminated) purchased by the Assignee
hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"EFFECTIVE DATE") shall be the later of the date specified in Section 14.3(B) of
the Credit Agreement and the date specified in Item 5 of Schedule 1 or two
Business Days (or such shorter period agreed to by the Administrative Agent)
after a Notice of Assignment substantially in the form of Appendix I (attached
hereto) has been delivered to the Administrative Agent. Such Notice of
Assignment must include the consents, if any, required to be delivered to the
Administrative Agent by Section 14.3(A) of the Credit Agreement. In no event
will the Effective Date occur if the payments required to be made by the
Assignee to the Assignor on the Effective Date under Sections 4 and 5 hereof are
not made on the proposed Effective Date. The Assignor will notify the Assignee
of the proposed Effective Date no later than the Business Day prior to the
proposed Effective Date. As of the Effective Date, (i) the Assignee shall have
the rights and obligations of a Lender under the Loan Documents with respect to
the rights and obligations assigned to the Assignee hereunder and (ii) the
Assignor shall relinquish its rights
6
<PAGE> 164
and be released from its corresponding obligations under the Loan Documents with
respect to the rights and obligations assigned to the Assignee hereunder.
4. PAYMENTS OBLIGATIONS. On and after the Effective Date, the Assignee
shall be entitled to receive from the Administrative Agent all payments of
principal, interest and fees with respect to the interest assigned hereby. The
Assignee shall advance funds directly to the Administrative Agent with respect
to all Loans and reimbursement payments made on or after the Effective Date with
respect to the interest assigned hereby. [In consideration for the sale and
assignment of Loans hereunder, (i) the Assignee shall pay the Assignor, on the
Effective Date, an amount equal to the principal amount of the portion of all
Floating Rate Loans assigned to the Assignee hereunder and (ii) with respect to
each Eurocurrency Rate Loan made by the Assignor and assigned to the Assignee
hereunder which is outstanding on the Effective Date, (a) on the last day of the
Interest Period therefor or (b) on such earlier date agreed to by the Assignor
and the Assignee or (c) on the date on which any such Eurocurrency Rate Loan
either becomes due (by acceleration or otherwise) or is prepaid (the date as
described in the foregoing clauses (a), (b) or (c) being hereinafter referred to
as the "PAYMENT DATE"), the Assignee shall pay the Assignor an amount equal to
the principal amount of the portion of such Eurocurrency Rate Loan assigned to
the Assignee which is outstanding on the Payment Date. If the Assignor and the
Assignee agree that the Payment Date for such Eurocurrency Rate Loan shall be
the Effective Date, they shall agree to the interest rate applicable to the
portion of such Loan assigned hereunder for the period from the Effective Date
to the end of the existing Interest Period applicable to such Eurocurrency Rate
Loan (the "AGREED INTEREST RATE") and any interest received by the Assignee in
excess of the Agreed Interest Rate shall be remitted to the Assignor. In the
event interest for the period from the Effective Date to but not including the
Payment Date is not paid by the applicable Borrower with respect to any
Eurocurrency Rate Loan sold by the Assignor to the Assignee hereunder, the
Assignee shall pay to the Assignor interest for such period on the portion of
such Eurocurrency Rate Loan sold by the Assignor to the Assignee hereunder at
the applicable rate provided by the Credit Agreement. In the event a prepayment
of any Eurocurrency Rate Loan which is existing on the Payment Date and assigned
by the Assignor to the Assignee hereunder occurs after the Payment Date but
before the end of the Interest Period applicable to such Eurocurrency Rate Loan,
the Assignee shall remit to the Assignor the excess of the prepayment penalty
paid with respect to the portion of such Eurocurrency Rate Loan assigned to the
Assignee hereunder over the amount which would have been paid if such prepayment
penalty was calculated based on the Agreed Interest Rate. The Assignee will also
promptly remit to the Assignor (i) any principal payments received from the
Administrative Agent with respect to Eurocurrency Rate Loans prior to the
Payment Date and (ii) any amounts of interest on Loans and fees received from
the Administrative Agent which relate to the portion of the Loans assigned to
the Assignee hereunder for periods prior to the Effective Date, in the case of
Floating Rate Loans or fees, or the Payment Date, in the case of Eurocurrency
Rate Loans, and not previously paid by the Assignee to the Assignor.](1) In the
event that either party hereto receives any payment to which the other party
hereto is entitled under this Assignment Agreement, then the party receiving
such amount shall promptly remit it to the other party hereto.
- ----------------
(1) Each Assignor may insert its standard payment provisions in lieu of the
payment terms included in this Exhibit.
7
<PAGE> 165
5. FEES PAYABLE BY THE ASSIGNEE. The [Assignee shall pay to the Assignor a
fee on each day on which a payment of interest or commitment fees is made under
the Credit Agreement with respect to the amounts assigned to the Assignee
hereunder (other than a payment of interest or commitment fees for the period
prior to the Effective Date or, in the case of Eurocurrency Rate Loans, the
Payment Date, which the Assignee is obligated to deliver to the Assignor
pursuant to Section 4 hereof). The amount of such fee shall be the difference
between (i) the interest or fee, as applicable, paid with respect to the amounts
assigned to the Assignee hereunder and (ii) the interest or fee, as applicable,
which would have been paid with respect to the amounts assigned to the Assignee
hereunder if each interest rate was _____ of 1% less than the interest rate paid
by the applicable Borrower or if the commitment fee was ___ of 1% less than the
commitment fee paid by the applicable Borrower, as applicable. In addition, the]
[Assignee][Assignor] agrees to pay a $3,500 processing fee required to be paid
to the Administrative Agent in connection with this Assignment Agreement.(2)
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. The
Assignor represents and warrants that it has the power and authority and legal
right to execute and deliver this Assignment Agreement and to perform its
obligations hereunder. The execution and delivery by the Assignor of this
Assignment Agreement and the performance by it of its obligations hereunder have
been duly authorized by proper proceedings. It is understood and agreed that the
assignment and assumption hereunder are made without recourse to the Assignor
and that the Assignor makes no other representation or warranty of any kind to
the Assignee. Neither the Assignor, the Administrative Agent, nor any other
Lender, nor any of its officers, directors, employees, Agents or attorneys shall
be responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrowers or any guarantor, (iv) the performance of or compliance with any of
the terms or provisions of any of the Loan Documents, (v) inspecting any of the
property, books or records of the Borrowers, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee represents and warrants
that it has the power and authority and legal right to execute and deliver this
Assignment Agreement and to perform its obligations hereunder. The execution and
delivery by the Assignee of this Assignment Agreement and the performance by it
of its obligations hereunder have been duly authorized by proper proceedings.
The Assignee (i) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements requested by the Assignee and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into this Assignment Agreement, (ii)
agrees that it will, independently and without reliance upon the Administrative
Agent, the Assignor or any other Lender and based on such documents and
information at it shall
- ----------------
(2) Assignor and Assignee to insert applicable payment terms.
8
<PAGE> 166
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, (iii) appoints and
authorizes the Administrative Agent to take such action as contractual
representative on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are reasonably incidental thereto, (iv) agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Loan Documents are required to be performed by it as a Lender,
(v) agrees that its payment instructions and notice instructions are as set
forth in the attachment to Schedule 1, (vi) confirms that none of the funds,
monies, assets or other consideration being used to make the purchase and
assumption hereunder are "plan assets" as defined under ERISA and that its
rights, benefits and interests in and under the Loan Documents will not be "plan
assets" under ERISA, [and (vii) attaches the forms prescribed by the Internal
Revenue Service of the United States certifying that the Assignee is entitled to
receive payments under the Loan Documents without deduction or withholding of
any United States federal income taxes].(3)
8. INDEMNITY. The Assignee agrees to indemnify and hold the Assignor
harmless against any and all losses, costs and expenses (including, without
limitation, reasonable attorneys' fees) and liabilities incurred by the Assignor
in connection with or arising in any manner from the Assignee's non-performance
of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee shall
have the right pursuant to Section 14.3(A) of the Credit Agreement to assign the
rights which are assigned to the Assignee hereunder to any entity or person,
provided that (i) any such subsequent assignment does not violate any of the
terms and conditions of the Loan Documents or any law, rule, regulation, order,
writ, judgment, injunction or decree and that any consent required under the
terms of the Loan Documents has been obtained and (ii) unless the prior written
consent of the Assignor is obtained, the Assignee is not thereby released from
its obligations to the Assignor hereunder, if any remain unsatisfied, including,
without limitation, its obligations under [Sections 4, 5 and 8] hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the Aggregate
Revolving Loan Commitment occurs between the date of this Assignment Agreement
and the Effective Date, the percentage interest specified in Item 3 of Schedule
1 shall remain the same, but the dollar amount purchased shall be recalculated
based on such reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached Notice of
Assignment embody the entire agreement and understanding between the parties
hereto and supersede all prior agreements and understandings between the parties
hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by and
interpreted and enforced in accordance with the internal laws of the State of
Illinois.
- ----------------
(3) To be inserted if the Assignee is not incorporated under the laws of the
United States, or a state thereof.
9
<PAGE> 167
13. NOTICES. Notices shall be given under this Assignment Agreement in the
manner set forth in the Credit Agreement. For the purpose hereof, the addresses
of the parties hereto (until notice of a change is delivered) shall be the
address set forth in the attachment to Schedule 1.
10
<PAGE> 168
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By:
-------------------------
Name:
Title
[NAME OF ASSIGNEE]
By:
-------------------------
Name:
Title
11
<PAGE> 169
SCHEDULE 1
to ASSIGNMENT AGREEMENT
1. Description and Date of Credit Agreement:
364-DAY CREDIT AGREEMENT DATED AS OF JULY 22, 1999 AMONG AMERICAN NATIONAL
CAN GROUP, INC. (THE "COMPANY"), THE SUBSIDIARY BORROWERS FROM TIME TO TIME
PARTY THERETO, THE FINANCIAL INSTITUTIONS PARTIES THERETO (THE "LENDERS"),
THE FIRST NATIONAL BANK OF CHICAGO, INDIVIDUALLY AND AS ADMINISTRATIVE
AGENT ON BEHALF OF THE LENDERS, THE CHASE MANHATTAN BANK, INDIVIDUALLY AND
AS SYNDICATION AGENT (THE "SYNDICATION AGENT") ON BEHALF OF THE LENDERS,
ABN AMRO BANK N.V., INDIVIDUALLY AND AS CO-DOCUMENTATION AGENT AND ARRANGER
(THE "CO-DOCUMENTATION AGENT AND ARRANGER") ON BEHALF OF THE LENDERS, ROYAL
BANK OF CANADA, INDIVIDUALLY AND AS CO-DOCUMENTATION AGENT AND ARRANGER
(THE "CO-DOCUMENTATION AGENT AND ARRANGER") ON BEHALF OF THE LENDERS,
BANQUE NATIONALE DE PARIS, INDIVIDUALLY AND AS ARRANGER (THE "ARRANGER") ON
BEHALF OF THE LENDERS, CHASE SECURITIES, INC., INDIVIDUALLY AND AS LEAD
ARRANGER AND JOINT BOOK MANAGER (THE "LEAD ARRANGER AND JOINT BOOK
MANAGER") ON BEHALF OF THE LENDERS, AND BANC ONE CAPITAL MARKETS, INC.,
INDIVIDUALLY AND AS LEAD ARRANGER AND JOINT BOOK MANAGER (THE "LEAD
ARRANGER AND JOINT BOOK MANAGER") ON BEHALF OF THE LENDERS.
2. Date of Assignment Agreement: _______________,
3. Amounts to be Assigned(4)(As of Date of Item 2 above):
REVOLVING
LOAN
FACILITY
TOTAL OF
COMMITMENTS (LOANS) $_____
UNDER THE CREDIT
AGREEMENT
ASSIGNEES PERCENTAGE
OF EACH FACILITY _____%
PURCHASED UNDER THE
ASSIGNMENT
AGREEMENT
AMOUNT OF ASSIGNED
SHARE OF EACH FACILITY $_____
UNDER THE ASSIGNMENT
AGREEMENT
4. Assignee's Aggregate (Loan
- ----------------
(4) Amounts to be described in Dollars or Agreed Currency, as applicable.
12
<PAGE> 170
Amount)** Commitment Amount
Purchased Hereunder: $_____
5. Proposed Effective Date: _________ __, ____
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
--------------------------- --------------------------
Name: Name:
Title: Title:
13
<PAGE> 171
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
Attach Assignor's Administrative Information Sheet, which must
include notice address for the Assignor and the Assignee
14
<PAGE> 172
APPENDIX I
to Assignment Agreement
NOTICE
OF ASSIGNMENT
__________,
To: The First National Bank of Chicago, as Administrative Agent
One First National Plaza
Chicago, Illinois 60670
Attention: Susan L. Comstock
Telephone No.: (312) 732-4244
Facsimile No.: (312) 732-1916
AMERICAN NATIONAL CAN GROUP, INC.
8770 West Bryn Mawr Avenue
Chicago, IL 60631
Attention: Vice-President-- Treasurer
Telephone No.: 773/399-3170
Facsimile No.: 773/399-3115
From:[NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that 364-Day Credit Agreement (the "Credit Agreement")
described in Item 1 of Schedule 1 attached hereto ("Schedule 1"). Capitalized
terms used herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given and delivered to
the Administrative Agent pursuant to Section 14.3(B) of the Credit Agreement.
3. The Assignor and the Assignee have entered into an Assignment
Agreement, dated as of _____ , _____ (the "Assignment"), pursuant to which,
among other things, the Assignor has sold, assigned, delegated and transferred
to the Assignee, and the Assignee has purchased, accepted and assumed from the
Assignor the percentage interest specified in Item 3 of Schedule 1 of all
outstanding rights and obligations under the Credit Agreement relating to the
facilities listed in Item 3 of Schedule 1. The Effective Date of the Assignment
shall be the later of the date specified in Section 14.3(B) of the Credit
Agreement and the date specified in Item 5 of Schedule 1 or two Business Days
(or such shorter period as agreed to by the Administrative Agent) after this
Notice of Assignment and any consents and fees required by Sections 14.3(A) and
14.3(B) of the Credit Agreement have been delivered to the Administrative Agent,
provided that the Effective Date shall not occur if any condition precedent
agreed to by the Assignor and the Assignee has not been satisfied.
15
<PAGE> 173
4. The Assignor and the Assignee hereby give to the Company and the
Administrative Agent notice of the assignment and delegation referred to herein.
The Assignor will confer with the Administrative Agent before the date specified
in Item 5 of Schedule 1 to determine if the Assignment Agreement will become
effective on such date pursuant to Section 3 hereof, and will confer with the
Administrative Agent to determine the Effective Date pursuant to Section 3
hereof if it occurs thereafter. The Assignor shall notify the Administrative
Agent if the Assignment Agreement does not become effective on any proposed
Effective Date as a result of the failure to satisfy the conditions precedent
agreed to by the Assignor and the Assignee. At the request of the Administrative
Agent, the Assignor will give the Administrative Agent written confirmation of
the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Administrative Agent on
or before the Effective Date the processing fee of $3,500 required by Section
14.3(B) of the Credit Agreement.
6. If notes are outstanding on the Effective Date, the Assignor and the
Assignee may request and direct that the Administrative Agent prepare and cause
the Borrowers to execute and deliver new notes or, as appropriate, replacements
notes, to the Assignor and the Assignee. The Assignor and the Assignee, as
applicable, each agree to deliver to the Administrative Agent the original note
received by it from the Borrowers upon its receipt of a new note in the
appropriate amount.
7. The Assignee advises the Administrative Agent that notice and payment
instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none of the funds,
monies, assets or other consideration being used to make the purchase pursuant
to the Assignment are "plan assets" as defined under ERISA and that its rights,
benefits, and interests in and under the Loan Documents will not be "plan
assets" under ERISA.
16
<PAGE> 174
9. The Assignee authorizes the Administrative Agent to act as its
contractual representative under the Loan Documents in accordance with the terms
thereof. The Assignee acknowledges that the Administrative Agent has no duty to
supply information with respect to the Borrowers or the Loan Documents to the
Assignee until the Assignee becomes a party to the Credit Agreement.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
--------------------- -----------------------
Name: Name:
Title: Title:
17
<PAGE> 175
ACKNOWLEDGED AND CONSENTED TO:
THE FIRST NATIONAL BANK [AMERICAN NATIONAL CAN
OF CHICAGO, as Administrative Agent GROUP, INC. as the Company
By: By:
Name: Name:
Title: Title:](5)
[Attach photocopy of Schedule 1 to Assignment]
- ----------------
(5) To be included, if applicable.
18
<PAGE> 176
EXHIBIT E
TO
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF THE COMPANY'S US COUNSEL'S OPINION
Attached.
19
<PAGE> 177
EXHIBIT F
TO
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
LIST OF CLOSING DOCUMENTS
[Attached]
20
<PAGE> 178
EXHIBIT G
TO
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF OFFICER'S CERTIFICATE
OFFICER'S CERTIFICATE
I, the undersigned, hereby certify that I am the _____ of American National
Can Group, Inc., a corporation duly organized and existing under the laws of the
State of Delaware (the "Company"). Capitalized terms used herein and not
otherwise defined herein are as defined in that certain 364-Day Credit Agreement
dated as of July 22, 1999 among the Company, the Subsidiary Borrowers from time
to time party thereto, the financial institutions parties thereto (the
"Lenders"), The First National Bank of Chicago, individually and as
Administrative Agent on behalf of the Lenders, The Chase Manhattan Bank,
individually and as syndication agent (the "Syndication Agent") on behalf of the
Lenders, ABN AMRO Bank N.V., individually and as co-documentation agent and
arranger (the "Co-Documentation Agent and Arranger") on behalf of the Lenders,
Royal Bank of Canada, individually and as co-documentation agent and arranger
(the "Co-Documentation Agent and Arranger") on behalf of the Lenders, Banque
Nationale De Paris, individually and as arranger (the "Arranger") on behalf of
the Lenders, Chase Securities, Inc., individually and as lead arranger and joint
book manager (the "Lead Arranger and Joint Book Manager") on behalf of the
Lenders, and Banc One Capital Markets, Inc., individually and as lead arranger
and joint book manager (the "Lead Arranger and Joint Book Manager") on behalf of
the Lenders (as amended, restated, supplemented or modified from time to time,
the "Credit Agreement").
I further certify on behalf of the Company, that as of the date hereof, to
the best of my knowledge, after diligent inquiry of all relevant persons at the
Company and its Subsidiaries, as of the date of this Officer's Certificate no
Default or Unmatured Default exists [other than the following (describe the
nature of the Default or Unmatured Default and the status thereof)].
IN WITNESS WHEREOF, I hereby subscribe my name on behalf of the Company on
this ____ day of ___________, ____.
----------------------------
[Insert Name of Officer]
21
<PAGE> 179
EXHIBIT H
TO
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF COMPLIANCE CERTIFICATE
Pursuant to [Section 5.3] [Section 7.1(A)(iii)] of the 364-Day Credit
Agreement (as amended, modified, restated or supplemented from time to time, the
"Credit Agreement"), dated as of July 22, 1999 among American National Can
Group, Inc. (the "Company"), the Subsidiary Borrowers from time to time party
thereto, the financial institutions parties thereto (the "Lenders"), The First
National Bank of Chicago, individually and as Administrative Agent on behalf of
the Lenders, The Chase Manhattan Bank, individually and as syndication agent
(the "Syndication Agent") on behalf of the Lenders, ABN AMRO Bank N.V.,
individually and as co-documentation agent and arranger (the "Co-Documentation
Agent and Arranger") on behalf of the Lenders, Royal Bank of Canada,
individually and as co-documentation agent and arranger (the "Co-Documentation
Agent and Arranger") on behalf of the Lenders, Banque Nationale De Paris,
individually and as arranger (the "Arranger") on behalf of the Lenders, Chase
Securities, Inc., individually and as lead arranger and joint book manager (the
"Lead Arranger and Joint Book Manager") on behalf of the Lenders, and Banc One
Capital Markets, Inc., individually and as lead arranger and joint book manager
(the "Lead Arranger and Joint Book Manager") on behalf of the Lenders, the
Company, through its ___________________________, hereby delivers to the
Administrative Agent[, together with the financial statements being delivered to
the Administrative Agent pursuant to Section 7.1(A) of the Credit Agreement,]
this Compliance Certificate (the "Certificate") [for the accounting period from
____________, 19__ to ___________, 19__]. Capitalized terms used herein shall
have the meanings set forth in the Credit Agreement. Subsection references
herein relate to subsections of the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _____ of the Company;
2. I have reviewed the terms of the Credit Agreement and I have made, or have
caused to be made under my supervision, a detailed review of the transactions
and conditions of the Company and its Subsidiaries during the accounting period
covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and I have no
knowledge of, the existence of any condition or event which constitutes a
Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate [except as set forth below]; and
4. Schedule I attached hereto sets forth financial data and computations
evidencing the Company's compliance with certain covenants of the Credit
Agreement, all of which data and computations are true, complete and correct.
22
<PAGE> 180
The foregoing certifications, together with the computations set forth in
Schedule I hereto and the financial statements delivered with this Certificate
in support hereof, are made and delivered this _____ day of _____ , 19/20__.
23
<PAGE> 181
SCHEDULE I
to COMPLIANCE CERTIFICATE
I. SECTION 2.15: PRICING CALCULATIONS
NOTE: All calculations of "Average Total Net Indebtedness" under Section 2.15(D)
of the Credit Agreement shall be made exclusive of any impact on the financial
statements arising from Supported Contingent Obligations, unless (i) the Company
shall not receive cash reimbursement for any and all cash payments made under
any Supported Contingent Obligations promptly, and in any event within ninety
(90) days, following the Company making any such payment, in which event
"Average Total Net Indebtedness" shall thereafter be calculated by including the
total outstanding amount of such Supported Contingent Obligation (to the extent
unreimbursed or otherwise unsupported to the satisfaction of the Administrative
Agent) in "Average Total Net Indebtedness", or (ii) any judgment is entered
under Viskase Corporation v. American National Can Company, Civ. 93-C-7651,
before the U.S. District Court of the Northern District of Illinois, Eastern
Division or any related proceedings holding that the aggregate liability of the
Company and its Subsidiaries thereunder shall be in an amount in excess of
$106,000,000, and such judgment shall remain (x) undischarged, unvacated or
unstayed or (y) unbonded by Pechiney or any bonding agent in reliance upon a
letter of credit or other reimbursement obligation of Pechiney or any other
Person other than the Company or its Subsidiaries in the amount of such
aggregate liability, in the case of either clause (x) or (y), for a period of
thirty (30) days or such other period permitted by court order, in which event
"Average Total Net Indebtedness" shall thereafter be calculated by giving effect
to the amount of such judgment which is undischarged, unvacated, unstayed or
unbonded on the financial condition of the Company and its Subsidiaries.
AVERAGE TOTAL NET INDEBTEDNESS TO CAPITAL RATIO (Section 2.15(D))
1. Average Total Net Indebtedness (as defined)
of Company and its Subsidiaries $___________
2. Consolidated Net Worth of Company
and its Subsidiaries $___________
3. "Average Total Net Indebtedness to Capital Ratio"
(Ratio of (1) to the sum of (1) plus (2)) ____ TO 1.0
II. SECTION 7.4: FINANCIAL COVENANTS
NOTE: All calculations of the financial covenants under Section 7.4 of the
Credit Agreement shall be made exclusive of any impact on the financial
statements arising from Supported Contingent Obligations, unless (i) the Company
shall not receive cash reimbursement for any and all cash payments made under
any Supported Contingent Obligations promptly, and in any event within ninety
(90) days, following the Company making any such payment, in which event the
financial covenants in Section 7.4 of the Credit Agreement shall be calculated
by giving effect to any payment in respect of such Supported Contingent
Obligation and shall include the total outstanding amount of such Supported
Contingent Obligation (to the extent unreimbursed or otherwise unsupported to
the satisfaction of the Administrative Agent) in such calculations, or (ii) any
judgment is entered under Viskase Corporation v. American National Can Company,
Civ. 93-C-7651, before the U.S. District
24
<PAGE> 182
Court of the Northern District of Illinois, Eastern Division or any related
proceedings holding that the aggregate liability of the Company and its
Subsidiaries thereunder shall be in an amount in excess of $106,000,000, and
such judgment shall remain (x) undischarged, unvacated or unstayed or (y)
unbonded by Pechiney or any bonding agent in reliance upon a letter of credit or
other reimbursement obligation of Pechiney or any other Person other than the
Company or its Subsidiaries in the amount of such aggregate liability, in the
case of either clause (x) or (y), for a period of thirty (30) days or such other
period permitted by court order, in which event the financial covenants in
Section 7.4 of the Credit Agreement shall be calculated by giving effect to the
amount of such judgment which is undischarged, unvacated, unstayed or unbonded
on the financial condition of the Company and its Subsidiaries.
A. MINIMUM INTEREST COVERAGE RATIO (Section 7.4(A))
1. EBITDA (Net Income + accrued interest expense
+ taxes + depreciation + amortization + other
non-cash charges classified as long-term
deferrals + other extraordinary non-cash
charges - other extraordinary non-cash credits
+ other extraordinary non-cash credits to the
extent added in computing Net Income +(-)
nonrecurring after-tax losses (gains), in each
case calculated without giving effect to any
restructuring charges related to the three plant
closings described in the Registration
Statement)
for the period from_______ to ________ $___________
2. Interest Expense for the period from
_______ to ________ $___________
3. "Interest Coverage Ratio" (Ratio of (1) to (2)) ___ TO 1.0
(Minimum Ratio: 3.50 to 1.00 for the first three
fiscal quarters following the Closing Date, and
4.00 to 1.00 for each fiscal quarter thereafter)
B. MAXIMUM TOTAL NET INDEBTEDNESS TO CAPITAL RATIO (Section 7.4(B))
1. Total Net Indebtedness (as defined)
of Company and its Subsidiaries $___________
2. Consolidated Net Worth of Company
and its Subsidiaries $___________
3. "Total Net Indebtedness to Capital Ratio"
(Ratio of (1) to the sum of (1) plus (2)) ___ TO 1.0
(Maximum Ratio: 0.55 to 1.00 at all times)
25
<PAGE> 183
C. MINIMUM CONSOLIDATED NET WORTH
Section 7.4(C)).
1. Consolidated Net Worth of Company
and its Subsidiaries as of the last day of the fiscal
quarter ending on __________, ____ $___________
2. $950,000,000 plus fifty percent (50%) of Net Income (if
positive) calculated separately (x) on December 31,
1999 for the two fiscal quarter period ending on
December 31, 1999 and (y) for each fiscal year thereafter
commencing with the fiscal year ending
on December 31, 2000 $___________
3. State whether (1) is less than (2) Yes/No
The Company hereby certifies, through its _________________, that the
information set forth above is accurate as of _______________, ____, to the best
of such officer's knowledge, after diligent inquiry, and that the financial
statements delivered herewith present fairly the financial position of the
Company and its Subsidiaries at the dates indicated and the results of their
operations and changes in their financial position for the periods indicated in
conformity with Agreement Accounting Principles, consistently applied.
Dated: __________,
AMERICAN NATIONAL CAN GROUP, INC.
By:__________________________
Name:
Title:
26
<PAGE> 184
EXHIBIT I
TO
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF GUARANTY
[Attached].
27
<PAGE> 185
EXHIBIT J
TO
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
[RESERVED]
28
<PAGE> 186
EXHIBIT K-1
TO
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF REVOLVING LOAN NOTE (IF REQUESTED)
Attached
29
<PAGE> 187
REVOLVING LOAN NOTE
U.S. $[________________] Chicago, Illinois
[DATE]
FOR VALUE RECEIVED, the undersigned, [AMERICAN NATIONAL CAN GROUP, INC., a
Delaware corporation (the "Company")][_____ ,_____ a corporation (the
"Subsidiary Borrower")], HEREBY UNCONDITIONALLY PROMISES TO PAY to the order of
[________________] (the "Lender") the principal sum of [________________] AND
NO/100 DOLLARS ($[________________] ), or, if less, the aggregate unpaid amount
of all "Revolving Loans" (as defined in the Credit Agreement referred to below)
made by the Lender to such [Company][Subsidiary Borrower] pursuant to the
"Credit Agreement" (as defined below), on the earlier of (i) the date that is
364 days after the "Conversion Date" and (ii) the "Facility Termination Date"
(as such terms are defined in the Credit Agreement) or on such earlier date as
may be required by the terms of the Credit Agreement. Capitalized terms used
herein and not otherwise defined herein are as defined in the Credit Agreement.
The [Company][Subsidiary Borrower] promises to pay interest on the
unpaid principal amount of each Revolving Loan made to it from the date of such
Revolving Loan until such principal amount is paid in full at a rate or rates
per annum determined in accordance with the terms of the Credit Agreement.
Interest hereunder is due and payable at such times and on such dates as set
forth in the Credit Agreement.
Both principal and interest are payable in Dollars to the
Administrative Agent (as defined below), to such account as the Administrative
Agent may designate, in same day funds. At the time of each Revolving Loan, and
upon each payment or prepayment of principal of each Revolving Loan, the Lender
shall make a notation either on the schedule attached hereto and made a part
hereof, or in such Lender's own books and records, in each case specifying the
amount of such Revolving Loan, the respective Interest Period thereof (in the
case of Eurocurrency Rate Loans) or the amount of principal paid or prepaid with
respect to such Revolving Loan, as applicable; provided that the failure of the
Lender to make any such recordation or notation shall not affect the Obligations
of the [Company][Subsidiary Borrower] hereunder or under the Credit Agreement.
This Revolving Loan Note is one of the promissory notes referred to
in, and is entitled to the benefits of, that certain 364-Day Credit Agreement
dated as of July 22, 1999 among American National Can Group, Inc. (the
"Company"), the Subsidiary Borrowers from time to time party thereto, the
financial institutions parties thereto (the "Lenders"), The First National Bank
of Chicago, individually and as Administrative Agent on behalf of the Lenders,
The Chase Manhattan Bank, individually and as syndication agent (the
"Syndication Agent") on behalf of the Lenders, ABN AMRO Bank N.V., individually
and as co-documentation agent and arranger (the "Co-Documentation Agent and
Arranger") on behalf of the Lenders, Royal Bank of Canada, individually and as
co-documentation agent and arranger (the "Co-Documentation Agent and Arranger")
on behalf of the Lenders, Banque Nationale De Paris, individually and as
arranger (the "Arranger") on behalf of the Lenders, Chase Securities, Inc.,
individually and as lead arranger and joint book manager (the "Lead Arranger and
Joint Book Manager") on behalf of the Lenders, and Banc One Capital Markets,
Inc., individually and as lead arranger and joint book manager (the "Lead
Arranger and Joint Book Manager") on behalf
30
<PAGE> 188
of the Lenders (as amended, restated, supplemented or modified from time to
time, the "Credit Agreement"). The Credit Agreement, among other things, (i)
provides for the making of Revolving Loans by the Lender to the
[Company][Subsidiary Borrower] under the Credit Agreement from time to time in
an aggregate amount not to exceed at any time outstanding the Dollar Amount
first above mentioned, the indebtedness of the [Company][Subsidiary Borrower]
resulting from each such Revolving Loan to it being evidenced by this Revolving
Loan Note, and (ii) contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events and also for prepayments of the
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
Demand, presentment, protest and notice of nonpayment and protest are
hereby waived by the [Company][Subsidiary Borrower].
Whenever in this Revolving Loan Note reference is made to the
Administrative Agent, the Lender or the [Company][Subsidiary Borrower], such
reference shall be deemed to include, as applicable, a reference to their
respective successors and assigns. The provisions of this Revolving Loan Note
shall be binding upon and shall inure to the benefit of said successors and
assigns. The [Company's][Subsidiary Borrower's] successors and assigns shall
include, without limitation, a receiver, trustee or debtor in possession of or
for the [Company][Subsidiary Borrower].
This Revolving Loan Note shall be interpreted, and the rights and
liabilities of the parties hereto determined, in accordance with the laws of the
State of Illinois.
[AMERICAN NATIONAL CAN GROUP, INC.]
[SUBSIDIARY BORROWER]
By:
-------------------------------
Name:
Title:
31
<PAGE> 189
SCHEDULE OF REVOLVING LOANS AND PAYMENTS OR PREPAYMENTS
<TABLE>
<CAPTION>
Date Amount of Type of Interest Period/ Amount of Unpaid Notation
<S> <C> <C> <C> <C> <C> <C>
Loan Loan Rate Principal Paid Principal Made By
or Prepaid Balance
---------- ---------
</TABLE>
32
<PAGE> 190
EXHIBIT K-2
TO
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF NOTE
(Competitive Bid Loans)
BID NOTE
$ [DATE]
American National Can Group, Inc., a Delaware corporation (the "Company"),
promises to pay to the order of _____ (the "Lender") the aggregate unpaid
principal amount of all Competitive Bid Loans made by the Lender to the Company
pursuant to Section 2.1 of the 364-Day Credit Agreement hereinafter referred to
(as the same may be amended or modified, herein called the "Credit Agreement"),
in lawful money of the United States in immediately available funds at the main
office of The First National Bank of Chicago, as administrative agent (the
"Administrative Agent"), in Chicago, Illinois, together with interest, in like
money and funds, on the unpaid principal amount hereof at the rates and on the
dates determined in accordance with the Credit Agreement. The Company shall pay
each Competitive Bid Loan in full on the last day of such Competitive Bid Loan's
applicable Interest Period, or, if earlier, on the Facility Termination Date (as
defined in the Credit Agreement), or, if earlier, when due under Section 9.1 of
the Credit Agreement.
The Lender shall, and is hereby authorized to, record on the schedule attached
hereto, or otherwise record in accordance with its usual practice, the date and
amount of each Competitive Bid Loan and the date and amount of each principal
payment hereunder; provided, however, that the failure to so record shall not
affect the Company's obligations hereunder or under the Credit Agreement.
This Note (Competitive Bid Loans) is one of the Notes issued pursuant to, and
is entitled to the benefits of, the 364-DAY Credit Agreement dated as of July
22, 1999 among American National Can Group, Inc. (the "Company"), the Subsidiary
Borrowers from time to time party thereto, the financial institutions parties
thereto (the "Lenders"), The First National Bank of Chicago,
33
<PAGE> 191
individually and as Administrative Agent on behalf of the Lenders, The Chase
Manhattan Bank, individually and as syndication agent (the "Syndication Agent")
on behalf of the Lenders, ABN AMRO Bank N.V., individually and as
co-documentation agent and arranger (the "Co-Documentation Agent and Arranger")
on behalf of the Lenders, Royal Bank of Canada, individually and as
co-documentation agent and arranger (the "Co-Documentation Agent and Arranger")
on behalf of the Lenders, Banque Nationale De Paris, individually and as
arranger (the "Arranger") on behalf of the Lenders, Chase Securities, Inc.,
individually and as lead arranger and joint book manager (the "Lead Arranger and
Joint Book Manager") on behalf of the Lenders, and Banc One Capital Markets,
Inc., individually and as lead arranger and joint book manager (the "Lead
Arranger and Joint Book Manager") on behalf of the Lenders, to which Credit
Agreement reference is hereby made for a statement of the terms and conditions
under which this Note may be prepaid or its maturity date accelerated.
Capitalized terms used herein and not otherwise defined herein are used with the
meanings attributed to them in the Credit Agreement.
AMERICAN NATIONAL CAN GROUP, INC.
By:
---------------------------
Name:
Title:
34
<PAGE> 192
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
PROMISSORY NOTE (COMPETITIVE BID LOANS)
OF AMERICAN NATIONAL CAN GROUP, INC.
[DATE]
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
- ---- ---- ------ ---- -------
35
<PAGE> 193
EXHIBIT L
TO
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF COMPETITIVE BID QUOTE REQUEST
(Section 2.1(B))
COMPETITIVE BID QUOTE REQUEST
___________ , 19
To: The First National Bank of Chicago, as administrative agent (the
"Administrative Agent")
From: American National Can Group, Inc. (the "Company")
Re: 364-Day Credit Agreement (the "Credit Agreement") dated as of July 22,
1999 among the Company, the financial institutions parties thereto
(the "Lenders"), The First National Bank of Chicago, individually and
as Administrative Agent on behalf of the Lenders, The Chase Manhattan
Bank, individually and as syndication agent (the "Syndication Agent")
on behalf of the Lenders, ABN AMRO Bank N.V., individually and as
co-documentation agent and arranger (the "Co-Documentation Agent and
Arranger") on behalf of the Lenders, Royal Bank of Canada,
individually and as co-documentation agent and arranger (the
"Co-Documentation Agent and Arranger") on behalf of the Lenders,
Banque Nationale De Paris, individually and as arranger (the
"Arranger") on behalf of the Lenders, Chase Securities, Inc.,
individually and as lead arranger and joint book manager (the "Lead
Arranger and Joint Book Manager") on behalf of the Lenders, and Banc
One Capital Markets, Inc., individually and as lead arranger and joint
book manager (the "Lead Arranger and Joint Book Manager") on behalf of
the Lenders.
We hereby give notice pursuant to Section 2.1(B) of the Credit Agreement
that we request Competitive Bid Quotes for the following proposed Competitive
Bid Advance(s):
Borrowing Date: __________ , 19
36
<PAGE> 194
Principal Amount(1) Interest Period(2)
- ---------------- ---------------
$
Such Competitive Bid Quotes should offer a [Competitive Bid Margin]
[Absolute Rate].
Upon acceptance by the undersigned of any or all of the Competitive Bid
Advances offered by Lenders in response to this request, the undersigned shall
be deemed to affirm as of such date the representations and warranties made in
the Credit Agreement to the extent specified in Article V thereof. Capitalized
terms used herein have the meanings assigned to them in the Credit Agreement.
AMERICAN NATIONAL CAN GROUP, INC.
By:
-------------------------
Name:
Title:
- -----------------
(1) Amount must be at least $5,000,000 and in integral multiples of $1,000,000
if in excess thereof.
(2) Seven days, or one, two, three or six months (Eurocurrency Auction) or at
least 7 and up to 180 days (Absolute Rate Auction), subject to the
provisions of the definitions of Eurocurrency Interest Period and Absolute
Rate Interest Period.
37
<PAGE> 195
EXHIBIT M
TO
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF INVITATION FOR COMPETITIVE BID QUOTES
(Section 2.1(C))
INVITATION FOR COMPETITIVE BID QUOTES
____________ , 19
To: [Name of Bank]
Re: Invitation for Competitive Bid Quotes to
American National Can Group, Inc. (the "Company") Pursuant to Section
2.1(C) of the 364-Day Credit Agreement dated as of July 22, 1999 (the "Credit
Agreement") among the Company, the Subsidiary Borrowers from time to time party
thereto, the financial institutions parties thereto (the "Lenders"), The First
National Bank of Chicago, individually and as Administrative Agent on behalf of
the Lenders, The Chase Manhattan Bank, individually and as syndication agent
(the "Syndication Agent") on behalf of the Lenders, ABN AMRO Bank N.V.,
individually and as co-documentation agent and arranger (the "Co-Documentation
Agent and Arranger") on behalf of the Lenders, Royal Bank of Canada,
individually and as co-documentation agent and arranger (the "Co-Documentation
Agent and Arranger") on behalf of the Lenders, Banque Nationale De Paris,
individually and as arranger (the "Arranger") on behalf of the Lenders, Chase
Securities, Inc., individually and as lead arranger and joint book manager (the
"Lead Arranger and Joint Book Manager") on behalf of the Lenders, and Banc One
Capital Markets, Inc., individually and as lead arranger and joint book manager
(the "Lead Arranger and Joint Book Manager") on behalf of the Lenders, we are
pleased on behalf of the Company to invite you to submit Competitive Bid Quotes
to the Company for the following proposed Competitive Bid Advance(s):
Borrowing Date: ___________ , 19
Principal Amount Interest Period
- ---------------- ---------------
$
38
<PAGE> 196
Such Competitive Bid Quotes should offer a [Competitive Bid Margin]
[Absolute Rate]. Your Competitive Bid Quote must comply with Section 2.1(D) of
the Credit Agreement and the foregoing terms in which the Competitive Bid Quote
Request was made. Capitalized terms used herein have the meanings assigned to
them in the Credit Agreement.
Please respond to this invitation by no later than [1:00 p.m.] [9:00 a.m.]
Chicago time on ________, 19__.
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent
By:
-----------------------------
Authorized Officer
39
<PAGE> 197
EXHIBIT N
TO
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF COMPETITIVE BID QUOTE
(Section 2.1(D))
COMPETITIVE BID QUOTE
_____________ , 19
To: The First National Bank of Chicago,
as administrative agent (the "Administrative Agent")
Attn: ______________
Re: Competitive Bid Quote to American National Can Group, Inc.
(the "Company")
In response to your invitation on behalf of the Company dated , 19 , we hereby
make the following Competitive Bid Quote pursuant to Section 2.1(D) of the
Credit Agreement hereinafter referred to and on the following terms:
1. Quoting Bank: ____________________
2. Person to contact at Quoting Bank: _______________
3. Borrowing Date: _______, 19__(1)
4. We hereby offer to make Competitive Bid Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest [Competitive [Absolute Minimum
Amount(2) Period(3) Bid Margin(4)] Rate(5)] Amount
- ------ ------ ---------- ---- ------
$
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the 364-Day Credit
Agreement dated as of July 22, 1999 among the Company, the Subsidiary Borrowers
from time to time party thereto, the financial institutions parties thereto (the
"Lenders"), The Chase Manhattan Bank, individually and as
40
<PAGE> 198
syndication agent (the "Syndication Agent") on behalf of the Lenders, ABN AMRO
Bank N.V., individually and as co-documentation agent and arranger (the
"Co-Documentation Agent and Arranger") on behalf of the Lenders, Royal Bank of
Canada, individually and as co-documentation agent and arranger (the
"Co-Documentation Agent and Arranger") on behalf of the Lenders, Banque
Nationale De Paris, individually and as arranger (the "Arranger") on behalf of
the Lenders, Chase Securities, Inc., individually and as lead arranger and joint
book manager (the "Lead Arranger and Joint Book Manager") on behalf of the
Lenders, and Banc One Capital Markets, Inc., individually and as lead arranger
and joint book manager (the "Lead Arranger and Joint Book Manager") on behalf of
the Lenders, and yourselves, as Administrative Agent on behalf of the Lenders,
irrevocably obligates us to make the Competitive Bid Loan(s) for which any
offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF LENDER]
Dated: , 19 By:
Authorized Officer
- ----------------
(1) As specified in the related Invitation for Competitive Bid Quotes.
(2) Principal amount bid for each Interest Period may not exceed principal
amount requested. Bids must be made for $5,000,000 and in integral
multiples of $1,000,000 if in excess thereof.
(3) Seven days, or one, two, three or six months (Eurocurrency Auction) or at
least 7 and up to 180 days (Absolute Rate Auction), as specified in the
related Invitation for Competitive Bid Quotes.
(4) Competitive Bid Margin over or under the Eurocurrency Base Rate determined
for the applicable Interest Period. Specify percentage (rounded to the
nearest 1/100 of 1%) and specify whether "PLUS" or "MINUS".
(5) Specify rate of interest per annum (rounded to the nearest 1/100 of 1%).
(6) Specify minimum amount which the Company may accept (see Section
2.1(D)(ii)(d)).
41
<PAGE> 199
EXHIBIT O
TO
364-DAY CREDIT AGREEMENT
Dated as of July 22, 1999
FORM OF ASSUMPTION LETTER
__________ , 19__
To the Lenders party to the
Credit Agreement referred
to below
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as of July 22, 1999
initially among American National Can Group, Inc., the Subsidiary Borrowers from
time to time parties thereto, the Lenders parties thereto, The First National
Bank of Chicago, individually and as Administrative Agent on behalf of the
Lenders, The Chase Manhattan Bank, individually and as syndication agent (the
"Syndication Agent") on behalf of the Lenders, ABN AMRO Bank N.V., individually
and as co-documentation agent and arranger (the "Co-Documentation Agent and
Arranger") on behalf of the Lenders, Royal Bank of Canada, individually and as
co-documentation agent and arranger (the "Co-Documentation Agent and Arranger")
on behalf of the Lenders, Banque Nationale De Paris, individually and as
arranger (the "Arranger") on behalf of the Lenders, Chase Securities, Inc.,
individually and as lead arranger and joint book manager (the "Lead Arranger and
Joint Book Manager") on behalf of the Lenders, and Banc One Capital Markets,
Inc., individually and as lead arranger and joint book manager (the "Lead
Arranger and Joint Book Manager") on behalf of the Lenders (as amended and in
effect from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement and used herein are used herein as defined therein.
The undersigned, _____ (the "Subsidiary"), a _____ [corporation], wishes to
become a "Subsidiary Borrower" under the Credit Agreement, and accordingly
hereby agrees that from the date hereof it shall become a "Subsidiary Borrower"
under the Credit Agreement and agrees that from the date hereof and until the
payment in full of the principal of and interest on all Advances made to it
under the Credit Agreement and performance of all of its other obligations
thereunder, and termination hereunder of its status as a "Subsidiary Borrower"
as provided below, it shall perform, comply with and be bound by each of the
provisions of the Credit Agreement which are stated to apply to a "Borrower" or
a "Subsidiary Borrower." Without limiting the generality of the foregoing, the
Subsidiary hereby represents and warrants that: (i) each of the representations
and warranties set forth in Sections 6.1, 6.2, 6.3, and 6.22 of the Credit
Agreement is hereby made by such Subsidiary on and as of the date hereof as if
made on and as of the date hereof and as if such Subsidiary is the
42
<PAGE> 200
"Company" and this Assumption Letter is the "Agreement" referenced therein, and
(ii) it has heretofore received a true and correct copy of the Credit Agreement
(including any modifications thereof or supplements or waivers thereto) as in
effect on the date hereof. In addition, the Subsidiary hereby authorizes the
Company to act on its behalf as and to the extent provided for in Article II of
the Credit Agreement in connection with the selection of Types and Interest
Periods for Advances and the conversion and continuation of Advances.
So long as the principal of and interest on all Advances made to the
Subsidiary under the Credit Agreement shall have been paid in full and all other
obligations of the Subsidiary under the Credit Agreement shall have been fully
performed, the Company may by not less than five Business Days' prior notice to
the Lenders terminate its status as a "Subsidiary Borrower."
CHOICE OF LAW. THIS ASSUMPTION LETTER SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT
REGARD TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
43
<PAGE> 201
IN WITNESS WHEREOF, the Subsidiary has duly executed and delivered this
Assumption Letter as of the date and year first above written.
[Name of Subsidiary Borrower]
By
------------------------------
Title:
--------------------------
Address for Notices under
the Credit Agreement:
Consented to:
AMERICAN NATIONAL CAN GROUP, INC.
By:
Title:
44
<PAGE> 1
EXHIBIT 10.35
5-YEAR FINANCE FACILITY AGREEMENT
July 22, 1999
American National Can Group, Inc.
8770 West Bryn Mawr Avenue
Chicago, IL 60631-3542
Gentlemen:
Windmill Funding Corporation ("WINDMILL") is pleased to make available to
American National Can Group, Inc., a Delaware corporation (the "BORROWER") an
uncommitted credit facility, and ABN AMRO Bank N.V. (together with its assigns,
"ABN AMRO") is pleased to make available to the Borrower a committed credit
facility, each for general corporate purposes, on the terms and conditions set
forth in this 5-Year Finance Facility Agreement ("AGREEMENT"). Windmill and ABN
AMRO are collectively referred to herein as "LENDERS" and each individually is
referred to as a "LENDER". Each Lender hereby irrevocably designates and
appoints ABN AMRO Bank N.V. as its agent (the "AGENT") hereunder and authorizes
the Agent to take such action hereunder and under the Note, exercise such powers
and perform such duties as are expressly delegated to the Agent hereby and to
exercise such other powers as are reasonably incidental thereto. Various
capitalized terms used herein and not otherwise defined herein are defined in
Section 22 below.
1. LOAN FACILITIES. Subject to Section 13, the aggregate principal amount
of Advances made to the Borrower hereunder shall not exceed $49,000,000 (the
"MAXIMUM PRINCIPAL AMOUNT"). The commitment of ABN AMRO to make Advances
hereunder (the "COMMITMENT") (i) shall equal an initial amount equal to the
lesser of (x) the Maximum Principal Amount minus the sum of the aggregate
principal amount of all Advances then outstanding hereunder and (y) $50,000,0000
(the "MAXIMUM MATURED VALUE") minus the sum of (a) the Matured Values of all
outstanding Advances then held by Windmill plus (b) the aggregate principal
amount of all outstanding Advances then held by the Lenders other than Windmill;
(ii) shall be subject to Section 7 and the other terms and conditions of this
Agreement; and (iii) shall be subject to reduction in accordance with the terms
of Section 6. At no time will Windmill have any obligation to make an Advance
hereunder, and Windmill shall not make an Advance if that would cause either
limitation on ABN AMRO's Commitment described in clause (i) of the preceding
sentence (as adjusted from time to time) to be exceeded. ABN AMRO shall not be
required to make an Advance hereunder to the Borrower unless
<PAGE> 2
the Borrower first shall have requested that Advance from Windmill and Windmill
shall have declined or is unable to make the Advance. Each Advance made by
Windmill or made or held by ABN AMRO shall be evidenced by a single promissory
note of the Borrower in the form attached hereto as Exhibit A (the "NOTE")
payable to the order of the Agent for the benefit of the Lenders. During the
period from the date hereof to the Revolving Credit Termination Date, the
Borrower may use the Commitment by borrowing, repaying and reborrowing Advances
in whole or in part, all in accordance with the terms and conditions of this
Agreement.
2. MANNER OF BORROWING. (a) Notices of Borrowing. In order to request an
Advance hereunder, the Borrower must provide to the Agent an irrevocable request
by telephone (promptly confirmed in a writing substantially in the form of
Exhibit B) or by telecopier or other facsimile communication substantially in
the form of Exhibit B, by 9:00 a.m. (Chicago time) three Business Days before
(or, in the case of a requested Floating Rate Advance, on) the requested date
(the "BORROWING DATE") of such Advance, specifying whether the Advance is
requested from Windmill or from ABN AMRO, the requested Borrowing Date (which
must be a Business Day), the requested amount (the "BORROWING AMOUNT") of such
Advance, which must be in a minimum amount of $1,000,000 and multiples thereof
(or, if less, an amount that reduces the unused Commitment to zero), any
requested Interest Period for such Advance, and (if such Advance is requested
from ABN AMRO) whether a Floating Rate Advance or Eurodollar Advance is
requested. If an Advance is requested from Windmill and Windmill determines, in
its sole discretion, to make the requested Advance, Windmill shall transfer to
the Agent on the requested Borrowing Date the amount of such Advance it is
willing to make. If an Advance is requested from ABN AMRO, subject to Section 7
and the other terms and conditions hereof, ABN AMRO shall transfer the amount of
the requested Advance to the Agent by no later than 12:00 noon (Chicago time) on
the Borrowing Date. The Agent shall transfer to the Borrower Account the
proceeds of any Advance delivered by any Lender as described above. Following
each such funding of an Advance, the Agent shall deliver to the Borrower a
confirmation of the principal amount, interest rate and Interest Period of such
Advance.
(b) Agent Reliance. The Borrower hereby authorizes the Agent to rely upon
any telephone, telecopier or other facsimile requests or instructions of any
person the Agent in good faith believes is an Authorized Officer, and in all
cases the Borrower shall be bound thereby in the same manner as if such person
were authorized or such signature were genuine and, if any such requests or
instructions conflict with their written confirmation, such requests or
instructions shall govern if the Agent has acted in reliance thereon.
3. INTEREST RATES AND PAYMENTS. (a) Windmill Advances. Each Advance from
Windmill shall accrue interest at the CP Rate applicable to the Interest Period
for such Advance. In its request for an Advance from Windmill the Borrower may
request the duration of the Interest Period for such Advance, but the Agent
shall establish each Interest Period for an Advance from Windmill to correspond
to the maturity of the commercial paper issued by Windmill to fund such Advance.
(b) ABN AMRO Advances. Each Floating Rate Advance held or made by ABN
AMRO shall
-2-
<PAGE> 3
bear interest each day it is outstanding at the Floating Rate in
effect for such day. Subject to Section 3(d), each Eurodollar Advance held or
made by ABN AMRO to the Borrower shall bear interest at the Eurodollar Rate
applicable to the Interest Period for such Advance. In its request for a
Eurodollar Rate Advance, the Borrower may request the Interest Period for such
Eurodollar Advance, but in the absence of such a request the Interest Period for
each Eurodollar Advance shall be one (1) month.
(c) Promise to Pay; Payment of Interest. All Advances shall be paid in full
by the Borrower on the earlier of (a) the Maturity Date applicable thereto or
(b) the Revolving Credit Termination Date. The Borrower unconditionally promises
to pay when due the principal amount of each Advance and all other Facility
Obligations incurred by it hereunder, and to pay all unpaid interest accrued
thereon, in accordance with the terms of this Agreement and the other Facility
Loan Documents. The Borrower shall pay interest on each Advance on each Interest
Payment Date for such Advance to the Agent for the account of the applicable
Lenders.
(d) Interest and Fee Basis; Applicable Floating Rate Margin, Applicable
Eurodollar Margin and Applicable Facility Fee Percentage; Post-Default Interest.
(i) Interest on all Eurodollar Advances and all CP Advances and all
fees shall be calculated for actual days elapsed on the basis of a 360-day
year. Interest on all Floating Rate Advances shall be calculated for actual
days elapsed on the basis of a 365-, or when appropriate 366-, day year.
Interest shall be payable for the day an Advance or other Facility
Obligation is incurred but not for the day of any payment on the amount
paid if payment is received prior to 2:00 p.m. (Chicago time) at the place
of payment. If any payment of principal of or interest on an Advance or any
payment of any other Facility Obligations shall become due on a day which
is not a Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a principal payment, such extension of
time shall be included in computing interest, fees and commissions in
connection with such payment.
(ii) The Applicable Floating Rate Margin, Applicable Eurodollar Margin
and Applicable Facility Fee Percentage shall be determined on the basis of
the then applicable Average Total Net Indebtedness to Capital Ratio (as
defined in and as calculated in the 5-Year Revolving Credit Agreement),
from time to time by reference to the following table:
-3-
<PAGE> 4
<TABLE>
<CAPTION>
=======================================================================================================================
AVERAGE
TOTAL NET APPLICABLE FLOATING APPLICABLE EURODOLLAR APPLICABLE
INDEBTEDNESS RATE MARGIN MARGIN FACILITY
TO CAPITAL FEE
RATIO PERCENTAGE
=======================================================================================================================
<S> <C> <C> <C> <C> <C>
FLOATING RATE FLOATING RATE EURODOLLAR EURODOLLAR
ADVANCES (90%) ADVANCES (10%) ADVANCES (90%) ADVANCES (10%)
HELD BY LIQUIDITY HELD BY ENHANCER HELD BY HELD BY ENHANCER
PROVIDER LIQUIDITY
PROVIDER
- -----------------------------------------------------------------------------------------------------------------------
S0.50 TO 1.0
0.25% 0.75% 1.20% 1.70% 0.30%
- -----------------------------------------------------------------------------------------------------------------------
S0.45 TO 1.0 AND--
0.50 TO 1.0 0.0% 0.50% 1.00% 1.50% 0.25%
- -----------------------------------------------------------------------------------------------------------------------
S0.40 TO 1.0 AND
--0.45 TO 1.0 0.0% 0.50% 0.90% 1.40% 0.225%
- -----------------------------------------------------------------------------------------------------------------------
-- 0.40 TO 1.0 0.0% 0.50% 0.80% 1.30% 0.20%
=======================================================================================================================
</TABLE>
Upon receipt of the financial statements delivered pursuant to Sections
15(a)(i) and (ii), as applicable, the Applicable Floating Rate Margin,
Applicable Eurodollar Margin and Applicable Facility Fee Percentage shall
be adjusted, such adjustment being effective five (5) Business Days
following the Agent's receipt of such financial statements and the
compliance certificate required to be delivered in connection therewith
pursuant to Section 15(a)(iii); provided, that if the Borrower shall not
have timely delivered its financial statements in accordance with Section
15(a)(i) or (ii), as applicable, then commencing on the date upon which
such financial statements should have been delivered and continuing until
such financial statements are actually delivered, it shall be assumed for
purposes of determining the Applicable Floating Rate Margin, Applicable
Eurodollar Margin and Applicable Facility Fee Percentage that the Average
Total Net Indebtedness to Capital Ratio was greater than 0.50 to 1.0;
provided, further that all calculations of "Average Total Net Indebtedness"
under this Section 2.15(D) shall be made exclusive of any impact on the
financial statements arising from Supported Contingent Obligations, unless
(i) the Borrower shall not receive cash reimbursement for any and all cash
payments made under any Supported Contingent Obligations promptly, and in
any event within ninety (90) days, following the Borrower making any such
payment, in which event "Average Total Net Indebtedness" shall thereafter
be calculated by including the total outstanding amount of such Supported
Contingent Obligation (to the extent unreimbursed or otherwise unsupported
to
-4-
<PAGE> 5
the satisfaction of the Agent) in "Average Total Net Indebtedness", or (ii)
any judgment is entered under Viskase Corporation v. American National Can
Company, Civ. 93-C-7651 ("VISKASE MATTER"), before the U.S. District Court
of the Northern District of Illinois, Eastern Division or any related
proceedings holding that the aggregate liability of the Borrower and its
Subsidiaries thereunder shall be in an amount in excess of $106,000,000,
and such judgment shall remain (x) undischarged, unvacated or unstayed or
(y) unbonded by Pechiney, S.A. or any bonding agent in reliance upon a
letter of credit or other reimbursement obligation of Pechiney, S.A. or any
other Person other than the Borrower or its Subsidiaries in the amount of
such aggregate liability, in the case of either clause (x) or (y), for a
period of thirty (30) days or such other period permitted by court order,
in which event "Average Total Net Indebtedness" shall thereafter be
calculated by giving effect to the amount of such judgment which is
undischarged, unvacated, unstayed or unbonded on the financial condition of
the Borrower and its Subsidiaries.
(iii) Notwithstanding anything herein to the contrary, from the date
of this Agreement to but not including the fifth (5th) Business Day
following receipt of the Borrower's financial statements delivered pursuant
to Section 15(a)(i) for the fiscal quarter ending March 31, 2000, the
Applicable Floating Rate Margin, Applicable Eurodollar Margin and
Applicable Facility Fee Percentage shall be determined based upon an
Average Total Net Indebtedness to Capital Ratio greater than or equal to
0.45 to 1.0 and less than or equal to 0.50 to 1.0, or, if higher, the
Average Total Net Indebtedness to Capital Ratio calculated as of the end of
each of the three fiscal quarters immediately following the Closing Date;
provided, that for purposes of calculating Average Total Net Indebtedness
for the three fiscal quarters immediately following the Closing Date,
Average Total Net Indebtedness shall be calculated (x) for the fiscal
quarter ending on September 30, 1999, for such fiscal quarter, (y) for the
fiscal quarter ending on December 31, 1999, for the two fiscal quarter
period then ending, and (z) for the fiscal quarter ending on March 31,
2000, for the three fiscal quarter period then ending.
(iv) Notwithstanding anything herein to the contrary, in the event
that there is any amendment to the terms of Section 2.15(D) of the 5-Year
Revolving Credit Agreement and the effect of such an amendment is to
increase the Applicable Eurocurrency Rate Margins, Applicable Floating Rate
Margins and/or Applicable Facility Fee Percentages (each as defined
therein), then there shall automatically be effective a corresponding
amendment to the terms of this Section 3(d)(iv) with respect to the
Applicable Eurodollar Rate Margins, Applicable Floating Rate Margins and/or
Applicable Facility Fee Percentages (with the margins with respect to the
Enhancer's portion of the Advances always maintained at 0.50% higher than
the margins with respect to the Liquidity Provider's portion of the
Advances).
(v) After the occurrence and during the continuance of an Event of
Default, the interest rate applicable to all of the Advances shall be equal
to (a) the Prime Rate plus 2.25% for an amount equal to 90% of the Advances
and (b) the Prime Rate plus 3.75% for an
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<PAGE> 6
amount equal to 10% of the Advances.
(e) Availability of Eurodollar Advances. If ABN AMRO determines that (i)
maintenance of Eurodollar Advances would violate any applicable law, rule,
regulation or directive, whether or not having the force of law, (ii) that
deposits of a type or maturity appropriate to match fund such Eurodollar Advance
are not available to ABN AMRO or (iii) the interest rate applicable to a
Eurodollar Advance does not accurately reflect the cost of making or maintaining
such a Eurodollar Advance, then the Agent shall suspend the availability of the
Eurodollar Rate for each affected Eurodollar Advance and, in the case of any
occurrence set forth in clause (i), require any Eurodollar Advances to be repaid
or converted into Floating Rate Advances.
4. MATURITY DATES; SELECTION OF TYPES OF ADVANCES; PREPAYMENTS.
(a) (i) Windmill Advances. Each Advance made by Windmill hereunder
before the Revolving Credit Termination Date shall be due and payable on
the Maturity Date of such Advance. In no event will an Advance from
Windmill be considered repaid unless and until Windmill has been paid all
interest scheduled to accrue on such Advance to its Maturity Date.
(ii) ABN AMRO Advances. Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow Advances from ABN AMRO at any time
prior to the Revolving Credit Termination Date. Advances, if any, made by
ABN AMRO on the date of this Agreement (the "CLOSING DATE") or on or before
the third (3rd) Business Day thereafter shall initially be Floating Rate
Advances and thereafter may be continued as Floating Rate Advances or
converted into Eurodollar Advances in the manner provided in clause (iii)
and subject to the other conditions and limitations therein set forth and
set forth in this Agreement. Advances made by ABN AMRO after the third
(3rd) Business Day after the Closing Date shall be, at the option of the
Borrower, selected in accordance with clause (iii), either Floating Rate
Advances or Eurodollar Advances. On the Revolving Credit Termination Date,
the Borrower shall repay in full the outstanding principal balance of the
Advances held by ABN AMRO.
(iii) Method of Selecting Types and Interest Periods for Conversion
and Continuation of Advances from ABN AMRO.
(A) Right to Convert. The Borrower may elect from time to time,
subject to the provisions of this Section 4(a)(iii), to convert all or
any part of an Advance of any Type held by ABN AMRO into any other
Type of Advance held by ABN AMRO; provided that any conversion of any
Eurodollar Advance shall be made on, and only on, the Maturity Date
for such Eurodollar Advance.
(B) Automatic Conversion and Continuation. Floating Rate Advances
shall
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<PAGE> 7
continue as Floating Rate Advances unless and until such Floating Rate
Advances are converted into Eurodollar Advances. Eurodollar Advances
shall continue as Eurodollar Advances until the applicable Maturity
Date therefor, at which time such Eurodollar Advances shall be
automatically converted into Floating Rate Advances unless the
Borrower shall have given the Agent notice in accordance with Section
4(a)(iii)(D) requesting that, at the end of the applicable Interest
Period, such Eurodollar Advance continue as a Eurodollar Advance.
(C) No Conversion Post-Event of Default or Unmatured Event of
Default. Notwithstanding anything to the contrary contained in this
Agreement, no Advance may be converted into or continued as a
Eurodollar Advance (except with the consent of ABN AMRO) when any
Event of Default or Unmatured Event of Default has occurred and is
continuing.
(D) Conversion/Continuation Notice. The Borrower shall give the
Agent irrevocable notice (a "CONVERSION/CONTINUATION NOTICE") of each
conversion of a Floating Rate Advance into a Eurodollar Advance or
continuation of a Eurodollar Advance not later than 9:00 a.m. (Chicago
time) three (3) Business Days prior to the date of the requested
conversion or continuation, with respect to any Advance held by ABN
AMRO to be converted or continued as a Eurodollar Advance specifying:
(1) the requested date (which shall be a Business Day) of such
conversion or continuation; (2) the amount and Type of the Advance to
be converted or continued; and (3) the amount of Eurodollar Advance(s)
into which such Advance is to be converted or continued and the
duration of the Interest Period applicable thereto.
(b) Prepayments; Repayments. No CP Advance made hereunder may be
prepaid. No Eurodollar Advance made hereunder may be prepaid unless (i)
such prepayment is made on not less than three Business Days' prior notice
to the Agent and (ii) such prepayment is accompanied by the Early Payment
Fee as required pursuant to Section 14(c). A Floating Rate Advance may be
repaid on any Business Day following notice to the Agent delivered not
later than 9:00 a.m. (Chicago time) on the date of such repayment.
5. FEES. (a) Facility Fee. The Borrower shall pay to the Agent, for the
ratable account of the Lenders, from and after the Closing Date until the
Facility Termination Date, a facility fee accruing at the rate of the then
Applicable Facility Fee Percentage, on (i) the Maximum Matured Value (whether
used or unused) or (ii) if the Commitment is terminated pursuant to the terms of
this Agreement, on the (a) the Matured Values of all outstanding Advances then
held by Windmill plus (b) the aggregate principal amount of all outstanding
Advances then held by the Lenders other than Windmill. The facility fee shall be
payable in arrears on each Payment Date hereafter (with the first such payment
being calculated for the period from the date of this Agreement and ending on
September 1, 1999), and, in addition, on any date on which the Commitment shall
be terminated in whole (whether as a result of a termination of this Agreement,
the occurrence of an Event of Default
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<PAGE> 8
or Unmatured Event of Default or the implementation of the terms of Section 2.6
of the 5-Year Revolving Credit Agreement) or, with respect to such terminated
amount, in part.
(b) Fees under Fee Letter. The Borrower shall pay to the Agent for the
benefit of the Lenders such fees and in such amounts as agreed to with the Agent
in the letter agreement dated as of June 7, 1999, as amended as of the date
hereof, between the Borrower and the Agent, to be allocated among the Lenders as
agreed to among them.
6. REDUCTIONS IN MAXIMUM PRINCIPAL AMOUNT AND IN MAXIMUM MATURED VALUE.
(a) Optional Reductions. The Borrower may, upon three (3) Business Days'
notice to the Agent, reduce the Maximum Matured Value and correspondingly
reduce, in increments of $1,000,000, the Maximum Principal Amount, so long as
(x) the Maximum Matured Value still equals at least 102% of the Maximum
Principal Amount, (y) the aggregate outstanding principal amount of Advances
would not thereby exceed the Maximum Principal Amount, and (z) the sum of the
Matured Values of all Advances then held by Windmill plus the aggregate
outstanding principal amount of all Advances then held by ABN AMRO would not
thereby exceed the Maximum Matured Value.
(b) Mandatory Facility Reductions and Prepayments.
(i) Sale and Leaseback Mandatory Prepayment. If at any time after the date
hereof and for any reason the Borrower shall, or it shall permit any Subsidiary
to, consummate any "Sale and Leaseback Transaction" (as defined in the 5-Year
Revolving Credit Agreement) the "Net Cash Proceeds" (as defined in the 5-Year
Revolving Credit Agreement) of which, together with the Net Cash Proceeds of all
other Sale and Leaseback Transactions since the Closing Date would exceed in the
aggregate $50,000,000, the Borrower shall immediately notify the Agent and the
Lenders and, unless the Borrower is notified by the Agent that the Lenders have
declined such prepayment, make a mandatory prepayment of the Facility
Obligations in an amount equal to such excess multiplied by the ratio the
Maximum Matured Value bears to the sum of (a) the "Aggregate Revolving Loan
Commitment" (as defined in the 5-Year Revolving Credit Agreement) and (b) the
Maximum Matured Value.
(ii) Asset Sale Mandatory Prepayment and Facility Reduction. If at any time
and for any reason the Borrower shall, or it shall permit any Subsidiary to,
consummate any "Asset Sale" (as defined in the 5-Year Revolving Credit
Agreement) (other than Asset Sales permitted under Sections 7.3(B)(i) and (ii)
of the 5-Year Revolving Credit Agreement) or Sale and Leaseback Transaction
which represents the disposition, together with all other Asset Sales and Sale
and Leaseback Transactions since the Closing Date (each such Asset Sale and each
such Sale and Leaseback Transaction being valued at book value), in the
aggregate of greater than fifteen percent (15%) of the "Consolidated Net Assets"
(as defined in the 5-Year Revolving Credit Agreement) of the Borrower as of the
date of such Asset Sale or Sale and Leaseback Transaction (calculated without
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<PAGE> 9
giving effect to such Asset Sale or Sale and Leaseback Transaction, as
applicable) (the amount in excess of such 15% amount being herein the "EXCESS
PROCEEDS"), the Borrower shall immediately notify the Lenders and, unless the
Borrower is notified by the Agent that the Lenders have declined such prepayment
and reduction, then:
(a) the Maximum Matured Value shall be reduced by an amount equal to
such Excess Proceeds multiplied by the ratio the Maximum Matured Value
bears to the sum of (a) the "Aggregate Revolving Loan Commitment" (as
defined in the 5-Year Revolving Credit Agreement) and (b) the Maximum
Matured Value and there shall be a corresponding reduction in the Maximum
Principal Amount, provided the Maximum Matured Value shall still equal at
least 102% of the Maximum Principal Amount; and
(b) the Borrower shall immediately make a mandatory prepayment of the
Facility Obligations in an amount equal to such portion of such Excess
Proceeds.
(iii) Private Placement Indebtedness Mandatory Prepayment and Facility
Reduction. If all or any portion of the private placement indebtedness of the
Borrower and its Subsidiaries described on Schedules 1.1.2 and 6.22 of the
5-Year Revolving Credit Agreement shall remain outstanding on or after the 60th
day after the Closing Date, the Borrower shall immediately notify the Lenders
and, unless the Borrower is notified by the Agent that the Lenders have declined
such prepayment and reduction, then:
(a) the Maximum Matured Value shall be reduced by an amount equal to
the principal amount of such indebtedness multiplied by the ratio the
Maximum Matured Value bears to the sum of (a) the "Aggregate Revolving Loan
Commitment" (as defined in the 5-Year Revolving Credit Agreement) and (b)
the Maximum Matured Value and there shall be a corresponding reduction in
the Maximum Principal Amount, provided the Maximum Matured Value shall
still equal at least 102% of the Maximum Principal Amount; and
(b) the Borrower shall immediately make a mandatory prepayment of the
Facility Obligations in an amount equal to such portion of such
indebtedness.
(iv) Mandatory Prepayment and Facility Reduction upon Optional Reduction of
5-Year Revolving Credit Facility. Upon and simultaneously with any optional
reduction of the "Aggregate Revolving Loan Commitment" under and as defined in
the 5-Year Revolving Credit Agreement, the Borrower shall immediately notify the
Lenders and, unless the Borrower is notified by the Agent that the Lenders have
declined such prepayment and reduction, then:
(a) the Maximum Matured Value shall be reduced by an amount such that
the relative size that the Maximum Matured Value bears to the Aggregate
Revolving Loan Commitment remains constant and there shall be a
corresponding reduction in the Maximum Principal Amount, provided the
Maximum Matured Value shall still equal at least 102% of the
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<PAGE> 10
Maximum Principal Amount; and
(b) the Borrower shall immediately make a mandatory prepayment of the
Facility Obligations in an amount necessary such that (1) the aggregate
outstanding principal amount of Advances would not thereby exceed the
Maximum Principal Amount as so reduced, and (2) the sum of the Matured
Values of all Advances then held by Windmill plus the aggregate outstanding
principal amount of all Advances then held by ABN AMRO would not thereby
exceed the Maximum Matured Value as so reduced.
7. CONDITIONS TO ABN AMRO COMMITMENT. (a) ABN AMRO's Commitment shall not
become effective, and no Advance shall be made, until:
(i) (a) the initial public offering of the capital stock of the
Borrower shall have been completed and the capital structure and corporate
structure of the Borrower and its "Subsidiaries" (as defined in the 364-Day
Credit Agreement) is consistent in all material respects with the
Borrower's S-1 Registration Statement filed with the Securities and
Exchange Commission as of June 4, 1999, as amended as of the Closing Date;
(b) there exists no injunction or temporary restraining order which, in the
reasonable judgment of the Agent, would prohibit the making of the Advances
and the other transactions contemplated by the Facility Loan Documents or
any litigation seeking such an injunction or restraining order and (c) the
Borrower (1) shall have delivered to the Agent an executed copy of the
Guarantee from Pechiney, S.A. with respect to the Viskase Matter and the
"Assumed OPEB Obligations" (as defined therein) in substantially the form
of the draft faxed from counsel to the Borrower to counsel to the Agent on
July 12, 1999, (2) shall have delivered to the Agent an executed copy the
Indemnification Agreement between American National Can Company and
Pechiney, S.A. with respect to certain environmental liabilities in
substantially the form of the June 22, 1999 draft faxed from counsel to the
Borrower to counsel to the Agent on July 12, 1999 and (3) shall have
delivered to the Agent, in form and substance reasonably acceptable to the
Agent, an indemnification agreement from Pechiney, S.A. with respect to the
European Commission investigation matters disclosed by the Borrower to the
Agent by facsimile on July 21, 1999; and
(ii) all conditions precedent to the initial borrowing under and
contained in Section 5.1 of the 5-Year Revolving Credit Agreement shall
have been met and the lenders thereunder shall have made their initial
advance thereunder (or shall be making such advances contemporaneously with
the initial Advance hereunder); and
(iii) the Agent has received (a) counterparts of this Agreement
duly executed by each party hereto, (b) the Note duly executed by
the Borrower, (c) the Guaranty duly executed by the Guarantors, (d) the
Subordination Agreement duly executed by the Borrower and each Material
Subsidiary as of the Closing Date, (e) certificates of the
Borrower's and Guarantors' Secretaries or other appropriate representatives
certifying the incumbency, authority and
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<PAGE> 11
signature of each person executing a Facility Loan Document on behalf of
the Borrower or Guarantors, and (f) the written opinions of the Borrower's
and the Guarantors' counsel, addressed to the Agent and the Lenders, in
substantially the form attached as Exhibit E to the 5-Year Revolving Credit
Agreement;
(b) In addition to the limitations in Section 1 and the conditions set
forth in clause (a) above, ABN AMRO shall not have any obligation to make any
Advance to the Borrower unless at the time such Advance is requested and on the
Borrowing Date with respect thereto the conditions contained in Sections 5.3(A)
and 5.3(B) of the 5-Year Revolving Credit Agreement have been satisfied with
respect to such Advance as though such Advance was made thereunder.
8. REPRESENTATIONS. As of the date of the initial funding hereunder and at
all times thereafter, the Borrower represents that (a) the execution, delivery
and performance of this Agreement and the Note have been duly authorized by all
necessary corporate action of the Borrower and do not contravene any law, or any
contractual or legal restriction, applicable to the Borrower, (b) no
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or other Person (other than internal corporate
approvals of the Borrower that have been obtained), is required for such
execution, delivery and performance or for the making of any Advance, (c) this
Agreement and the Note constitute the legal, valid and binding obligations of
the Borrower enforceable in accordance with their respective terms. In addition,
each request by the Borrower for an Advance shall constitute a representation
and warranty by the Borrower, as of the making of such Advance and after giving
effect to the application of the proceeds thereof, that (i)<-1- 32>the Borrower
is in compliance with all of the conditions to a borrowing from ABN AMRO
described in Section 7 above (regardless whether such Advance is requested from
Windmill or ABN AMRO), (ii) such Advance when made will constitute the
Borrower's legal, valid and binding obligation, (iii) such Advance is being
incurred, and will be repaid, in the ordinary course of the Borrower's business
and (iv) as of the making of such Advance and after giving effect to the
application of the proceeds thereof, no event has occurred and no circumstance
exists as a result of which information provided by the Borrower, the Guarantors
or any affiliate of any of them to the Agent or any Lender in connection
herewith includes an untrue statement of a material fact or omits to state any
material fact necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading.
9. PAYMENTS. The Borrower shall make each payment hereunder and under the
Note on or before 2:00 p.m.(Chicago time) on the day when due in Dollars at
Account No. 451118894850 at ABN AMRO Bank N.V., Chicago, Illinois, or at such
other account as the Agent may advise to the Borrower from time to time (the
"AGENT'S ACCOUNT"), in same day funds without setoff or counterclaim and without
reduction or deduction for any and all present or future taxes, levies, duties,
charges, deductions or withholdings of any kind or for any other restrictions or
conditions of any nature, with the Borrower separately paying any such
withholdings or deductions to the Person entitled thereto so that the net sum
actually received by the Agent in all cases equals what is payable hereunder.
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<PAGE> 12
10. SUBSIDIARY GUARANTEES; SUBORDINATION AGREEMENT. The Borrower will (i)
cause (A) each Material Domestic Subsidiary not otherwise a party to the
Guaranty and (B) each other person or entity which at any time executes a
guaranty of the indebtedness evidenced by the 5-Year Revolving Credit Agreement
to execute and deliver to the Agent, on the earlier of (1) the date on which any
such guaranty or guaranty supplement is executed for the benefit of the lenders
under the 5-Year Revolving Credit Agreement and (2) the date that is twenty (20)
days after it becomes a Material Domestic Subsidiary of the Borrower, an
assumption agreement or guaranty supplement pursuant to which it agrees to be
bound by the terms and provisions of the Guaranty (whereupon such Subsidiary or
other person or entity shall become a "Guarantor" under this Agreement); (ii)
cause each Material Subsidiary, before it makes a loan to the Borrower or any
Guarantor, to execute the Subordination Agreement (and from and after the
Closing Date cause each other Material Subsidiary to execute and deliver to the
Agent, within twenty (20) days after becoming a Material Subsidiary, as
applicable, an assumption agreement pursuant to which it agrees to be bound by
the terms and provisions of the Subordination Agreement); and (iii) deliver and
cause such Subsidiaries or other guarantor to deliver corporate resolutions,
opinions of counsel, and such other corporate documentation as the Agent may
reasonably request, all in form and substance reasonably satisfactory to the
Agent.
11. NOTICES. All written communications hereunder to the Agent or Borrower
shall be mailed, telexed, telecopied or delivered to the address specified below
(or, for any party, to such other address as shall be designated by such party
by written notice to the other party):
The address for communications to the Borrower is:
American National Can Group, Inc.
8770 West Bryn Mawr Avenue
Chicago, IL 60631
Attention: Vice-President -- Treasurer
Telephone No.: (773) 399-3170
Facsimile No.: (773) 399-3115
with a copy to:
American National Can Group, Inc.
8770 West Bryn Mawr Avenue
Chicago, IL 60631
Attention: General Counsel
Telephone No.: (773) 399-3522
Facsimile No.: (773) 399-3115
The address for communications to the Agent is:
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<PAGE> 13
ABN AMRO Bank N.V.
Suite 725
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Chrissi Boryk
Telecopy No. (312) 904-6376
Telephone No. (312) 904-9086
All communications for a Lender shall be directed to the Agent.
12. ASSIGNMENTS AND PARTICIPATIONS. (a) Permitted Assignments. Any Lender
(each such assigning Lender under this Section 12 being a "SELLER") may, in the
ordinary course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("PURCHASERS") all or a
portion of its rights and obligations under this Agreement (including, without
limitation, its Commitment, if any, and all or any portion of the Advances or
rights under the Note owing to it) in accordance with the provisions of this
Section 12. Each assignment shall be of a constant, and not a varying, ratable
percentage of all of the Seller's rights and obligations under this Agreement
and the Note and, in the case of an assignment by ABN AMRO, of its rights and
obligations under the 5-Year Revolving Credit Agreement to become a "New Lender"
(as defined in the 5-Year Revolving Credit Agreement) on the terms set forth in
Section 2.6(b) thereof. The written consent of the Agent, and, prior to the
occurrence of an Event of Default, the Borrower (which consent, in each such
case, shall not be unreasonably withheld), shall be required prior to an
assignment becoming effective with respect to a Purchaser which is not a Lender
under this Agreement, a lender under the 5-Year Revolving Credit Agreement or an
affiliate of such a Lender or lender. In addition, (a) the written consent of
the Administrative Agent under the 5-Year Revolving Credit Agreement shall be
required (which consent shall not be unreasonably withheld or delayed) prior to
any assignment becoming effective with respect to a Purchaser which is either
not a lender under the 5-Year Revolving Credit Agreement or an affiliate thereof
or a financial institution with a short-term commercial paper rating of at least
A+/P-1 or A-1/P-1 and (b) without the prior written consent of Windmill, no
assignment of any obligation of the Liquidity Provider or
Enhancer to purchase loans from Windmill shall be permitted hereunder. The
applicable assignment agreement shall contain a representation by the Purchaser
to the effect that none of the consideration used to make the purchase of the
Commitment, Advances and other rights and obligations under the Facility Loan
Documents and the Note under the applicable assignment agreement are "plan
assets" as defined under ERISA and that the rights and interests of the
Purchaser in and under the Facility Loan Documents will not be "plan assets"
under ERISA. On and after the effective date of such assignment, such Purchaser,
if not already a Lender, shall for all purposes be a Lender party to this
Agreement and any other Facility Loan Documents executed by the Lenders and
shall have all the rights and obligations of a Lender under the Facility Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by the Borrower, the Lenders or the Agent shall be
required to release the Seller with respect to the percentage of the Commitment
and Advances assigned to such Purchaser. Upon the consummation of any assignment
to a Purchaser
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<PAGE> 14
pursuant to this Section 12, the Agent shall give notice to the Agent under the
5-Year Revolving Credit Agreement of such assignment and the applicable
commitment and notice information with respect to the Purchaser. Upon any
permitted assignment of any Lender's rights or obligations hereunder or under
the Note, references herein and in all other Facility Loan Documents to "Lender"
or "Lenders" (or to any specific Lender) shall be references to the specific
Lender or Lenders and any permitted assignee of such Lender or Lenders, as the
applicable Lender's and its assignee's respective interests may appear.
(b) Assignments under the CLO Program Documents; Incorporation of Advances
into 5-Year Revolving Credit Agreement. If any Advance held by Windmill (or
portion thereof) is transferred to ABN AMRO or any other Lender under the terms
of the CLO Program Documents, such Advance (or portion thereof) acquired from
Windmill shall be transferred at a purchase price equal to the Matured Value of
such Advance (or portion thereof so transferred). Such Matured Value of any
Advance (or portion thereof) acquired by ABN AMRO or any such Lender from
Windmill shall be the principal amount of a Floating Rate Advance held by ABN
AMRO evidenced by the Note and the Borrower agrees that, from and after the date
of any such transfer, it shall pay interest on the Matured Value of such Advance
(or portion thereof) transferred at the Floating Rate until such Advance is
repaid in full. If, however, the Advance (or portion thereof) so acquired by ABN
AMRO or any other Lender from Windmill is due from the Borrower on the day it is
acquired from Windmill, the Matured Value of such Advance (or portion thereof)
so acquired shall only bear interest if not paid in full on the day it is
acquired by ABN AMRO or such other Lender. The proceeds from each Advance
received by Windmill from ABN AMRO under this Section shall be transferred into
a special transaction subaccount and used solely to pay that portion of the
outstanding commercial paper of Windmill issued to fund or maintain the Advance
of Windmill so transferred. Until used to pay such commercial paper, all
proceeds from each Advance received by Windmill from ABN AMRO pursuant to this
Section shall be invested in Permitted Investments and all earnings on such
Permitted Investments shall be promptly remitted to the Borrower following the
Maturity Date of the applicable commercial paper (unless amounts are then due
and owing by the Borrower to Windmill and/or the other Lenders hereunder, in
which event such amounts shall be credited to the amounts then due and owing).
Under the CLO Program Documents, the Lenders appoint ABN AMRO to act as their
agent hereunder and under the other Facility Loan Documents. The Agent shall
maintain records showing the interests held by Windmill, ABN AMRO, and any other
Person in each Advance outstanding under the Note, which records shall be
presumptively correct for all purposes in determining the interests held in each
Advance. If any Advance or portion thereof owing to Windmill is acquired by ABN
AMRO or any other Lender and such Advance is not repaid in full on the day it is
so acquired, the Agent shall notify the Borrower of the amount of such
outstanding Advance owed to ABN AMRO or any other Lender. Any Advance (or
portion thereof) acquired by ABN AMRO or any other Lender from Windmill,
together with any interest that accrues thereon, is owed solely to ABN AMRO or
such Lender, and Windmill's interest in such Advance (or portion thereof) so
transferred to ABN AMRO or such Lender is fully discharged through such
transfer. The Borrower recognizes Windmill has the unrestricted right at all
times, and in certain circumstances the obligation, to transfer all or any part
of any Advance to ABN AMRO under the
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<PAGE> 15
CLO Program Documents. In all events, Windmill is obligated to make such
transfer if, among other matters:
(i) the Agent deems the credit rating of the Borrower below investment
grade (i.e., below P-2 from Moody's or A-2 from S&P, for short term debt,
or below Baa3 from Moody's or BBB- from S&P, for long term debt);
(ii) the "Interest Coverage Ratio" (as defined in the 5-Year Revolving
Credit Agreement and calculated in accordance with the terms of Section 7.4
thereof) of the Borrower and its consolidated Subsidiaries is less than (A)
3.75 to 1.00 as of the end of the first three fiscal quarters following the
Closing Date (calculated (a) for the fiscal quarter ending on September 30,
1999, for such fiscal quarter, (b) for the fiscal quarter ending on
December 31, 1999, for the two fiscal quarter period then ending and (c)
for the fiscal quarter ending on March 31, 2000, for the three fiscal
quarter period then ending); and (B) 4.25 to 1.00 for each four (4) fiscal
quarter period thereafter beginning with the four (4) fiscal quarter period
ending on June 30, 2000, calculated in each case in accordance with the
terms of the 5-Year Revolving Credit Agreement;
(iii) the "Total Net Indebtedness to Capital Ratio" (as defined in the
5-Year Revolving Credit Agreement and calculated in accordance with the
terms of Section 7.4 thereof) of the Borrower and its consolidated
Subsidiaries is at any time greater than 0.53 to 1.00; or
(iv) a "Default" or "Unmatured Default" (each as defined in the 5-Year
Revolving Credit Agreement) exists and has not been waived or cured within
the applicable period under the 5-Year Revolving Credit Agreement.
Any Advance (or portion thereof) transferred to ABN AMRO or any other Lender
under the CLO Program Documents, and any Advance made by ABN AMRO (and any of
its assignees) to the Borrower, is held 90% by ABN AMRO (and such assignees) in
its capacity as Liquidity Provider and 10% by ABN AMRO (and such assignees) in
its capacity as Enhancer. Under and as provided in Section 2.6(b) of the 5-Year
Revolving Credit Agreement, outstanding Advances acquired from Windmill by the
Lenders hereunder (whether as Liquidity Provider or Enhancer) may, under the
circumstances set forth therein, be required to be incorporated into the terms
and conditions of the 5-Year Revolving Credit Agreement and, upon the
effectiveness of such provisions shall thereafter constitute a "Loan" thereunder
and shall be governed by the terms of such 5-Year Revolving Credit Agreement and
shall no longer be governed by the terms of this Agreement. Effective upon the
effective date of any Lender hereunder becoming a "New Lender" pursuant to the
terms of Section 2.6(b) of the 5-Year Revolving Credit Agreement and/or
effective upon the effective date of the increase of the Revolving Loan
Commitments thereunder, the Commitment hereunder, the Maximum Matured Amount and
the Maximum Principal Amount shall all be reduced by the amount of any such
increase.
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(c) Permitted Participants; Effect. Subject to the terms set forth in this
Section 12(c), any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("PARTICIPANTS") participating interests in any Advance owing to such
Lender, any Commitment of such Lender, if any, or any other interest of such
Lender under the Facility Loan Documents on a pro rata or non-pro rata basis.
Notice of such participation to the Borrower and the Agent shall be required
prior to any participation becoming effective with respect to a Participant
which is not a Lender under this Agreement, a lender under the 5-Year Revolving
Credit Agreement or an affiliate of such Lender or lender. Upon receiving said
notice, the Agent shall record the participation in the register it maintains.
Moreover, notwithstanding such recordation, such participation shall not be
considered an assignment under Section 12(a) of this Agreement and such
Participant shall not be considered a Lender. In the event of any such sale by a
Lender of participating interests to a Participant, such Lender's obligations
under the Facility Loan Documents shall remain unchanged, such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, such Lender shall remain the owner of all Advances made by it
for all purposes under the Facility Loan Documents, all amounts payable by the
Borrower under this Agreement shall be determined as if such Lender had not sold
such participating interests, and the Borrower and the Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under the Facility Loan Documents except that, for
purposes of Section 14 hereof, the Participants shall be entitled to the same
rights as if they were Lenders. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Facility Loan Documents and the 5-Year Revolving
Credit Agreement other than any amendment, modification or waiver with respect
to any Advance or Commitment in which such Participant has an interest which
forgives principal, interest or fees or reduces the interest rate or fees
payable pursuant to the terms of this Agreement with respect to any such Advance
or Commitment, postpones any date fixed for any regularly- scheduled payment of
principal of (but not prepayments of), or interest or fees on, any such Advance
or Commitment.
(d) The Register. Notwithstanding anything to the contrary in this
Agreement, the Borrower hereby designates the Agent, and the Agent, hereby
accepts such designation, to serve as the Borrower's contractual representative
solely for purposes of this Section 12(d). In this connection, the Agent shall
maintain at its address referred to in Section 11 a register for the recordation
of the names and addresses of the Lenders and the Commitment of, principal
amount of and interest on the Advances owing to, each Lender from time to time.
The entries in such register shall be presumptively correct and binding for all
purposes, absent manifest error, and the Borrower, the Agent and the Lenders may
treat each entity whose name is recorded in such register as a Lender hereunder
for all purposes of this Agreement. The register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) No Assignments by the Borrower. The Borrower may not assign its rights
or obligations under this Agreement, the Note or the other Facility Loan
Documents or any interest herein without each Lender's prior written consent,
and any such assignment without consent of the Lenders shall
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be null and void.
13. EXPENSES AND INDEMNIFICATION.
(a) Expenses. The Borrower shall reimburse the Agent for any reasonable
costs, internal charges and out-of-pocket expenses (including reasonable
attorneys' and paralegals' fees and time charges of attorneys and paralegals for
the Agent, which attorneys and paralegals may be employees of the Agent) paid or
incurred by the Agent in connection with the preparation, negotiation,
execution, delivery, syndication, review, amendment, modification, and
administration of this Agreement, the other Facility Loan Documents, the 5-Year
Revolving Credit Agreement and the other documents, instruments and agreements
executed in connection therewith (collectively, the "TRANSACTION DOCUMENTS").
The Borrower also agrees to reimburse the Agent and the Lenders for any costs,
internal charges and out-of-pocket expenses (including reasonable attorneys' and
paralegals' fees and time charges of attorneys and paralegals for the Agent and
the Lenders, which attorneys and paralegals may be employees of the Agent or the
Lenders) paid or incurred by the Agent or any Lender in connection with the
collection of the Advances and enforcement of the Transaction Documents. The
Agent shall provide the Borrower with a detailed statement of all reimbursements
requested under this Section 13 (a).
(b) Indemnity. The Borrower further agrees to defend, protect, indemnify,
and hold harmless the Agent and each and all of the Lenders and each of their
respective Affiliates, and each of such Agent's, Lender's or Affiliate's
respective officers, directors, trustees, investment advisors, employees,
attorneys and agents (collectively, the "INDEMNITEES") from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs, expenses of any kind or nature whatsoever (including,
without limitation, the fees and disbursements of counsel for such Indemnitees
in connection with any investigative, administrative or judicial proceeding,
whether or not any of such Indemnitees shall be designated a party thereto),
imposed on, incurred by, or asserted against such Indemnitees in any manner
relating to or arising out of:
(i) this Agreement or any of the other Transaction Documents, or any
act, event or transaction related or attendant thereto or to the making of
the Advances hereunder, the management of such Advances, the use or
intended use of the proceeds of the Advances hereunder, or any of the other
transactions contemplated by the Transaction Documents; or
(ii) any liabilities, obligations, responsibilities, losses, damages,
personal injury, death, punitive damages, economic damages, consequential
damages, treble damages, intentional, willful or wanton injury, damage or
threat to the environment, natural resources or public health or welfare,
costs and expenses (including, without limitation, attorney, expert and
consulting fees and costs of investigation, feasibility or remedial action
studies), fines, penalties and monetary sanctions, interest, direct or
indirect, known or unknown, absolute or contingent, past, present or future
relating to violation of any Environmental, Health or Safety Requirements
of Law arising from or in connection with the past, present
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or future operations of the Borrower, its Subsidiaries or any of their
respective predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective property of the
Borrower or its Subsidiaries, the presence of asbestos-containing materials
at any respective property of the Borrower or its Subsidiaries or the
Release or threatened Release of any Contaminant into the environment
(collectively, the "INDEMNIFIED MATTERS");
provided, however, the Borrower shall have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters caused by or resulting from the
willful misconduct or Gross Negligence of such Indemnitee with respect to the
Transaction Documents, as determined by the final non-appealed judgment of a
court of competent jurisdiction. If the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, the Borrower shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all Indemnified Matters incurred by the Indemnitees.
(c) Waiver of Certain Claims. The Borrower further agrees to assert no
claim against any of the Indemnitees on any theory of liability seeking
consequential, special, indirect, exemplary or punitive damages.
(d) Survival of Agreements. The obligations and agreements of the Borrower
under this Section 13 shall survive the termination of this Agreement.
14. CHANGE OF CIRCUMSTANCES; TAXES.
(a) Yield Protection. If any law or any governmental or quasi-governmental
rule, regulation, policy, guideline or directive (whether or not having the
force of law) adopted after the date of this Agreement and having general
applicability to all banks within the jurisdiction in which a Lender operates
(excluding, for the avoidance of doubt, the effect of and phasing in of capital
requirements or other regulations or guidelines passed prior to the date of this
Agreement), or any interpretation or application thereof by any Governmental
Authority charged with the interpretation or application thereof, or the
compliance of any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation to any
tax, duty, charge or withholding on or from payments due from the Borrower
(excluding taxation of the overall net income of any Lender or taxation of
a similar basis, which are governed by Section 14(d) below), or changes the
basis of taxation of payments to any Lender in respect of its Commitment,
Advances or other amounts due it hereunder, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Lender or
any applicable Lending Installation (other
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than reserves and assessments taken into account in determining the
interest rate applicable to Eurodollar Advances) with respect to its
Advances or Commitment, or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation of making,
funding or maintaining the Advances or the Commitment or reduces any amount
received by any Lender or any applicable Lending Installation in connection
with Advances or the Commitment, or requires any Lender or any applicable
Lending Installation to make any payment calculated by reference to the
amount of Advances or Commitment held or interest received by it, by an
amount deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Advances or Commitment or to reduce any
amount received under this Agreement, then, within fifteen (15) days after
receipt by the Borrower of written demand by such Lender pursuant to Section
14(e), the Borrower shall pay such Lender that portion of such increased expense
incurred or reduction in an amount received which such Lender determines is
attributable to making, funding and maintaining its Advances and its Commitment.
(b) Changes in Capital Adequacy Regulations. If a Lender determines (i) the
amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a "Change" (as defined below), and (ii) such
increase in capital will result in an increase in the cost to such Lender of
maintaining its Advances or its Commitment to make Advance hereunder, then,
within fifteen (15) days after receipt by the Borrower of written demand by such
Lender pursuant to Section 14(e), the Borrower shall pay such Lender the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender reasonably determines is
attributable to this Agreement, its Advances or its Commitment to make Advances
hereunder (after taking into account such Lender's policies as to capital
adequacy). "CHANGE" means (i) any change after the date of this Agreement in the
"Risk-Based Capital Guidelines" (as defined below) excluding, for the avoidance
of doubt, the effect of any phasing in of such Risk-Based Capital Guidelines or
any other capital requirements passed prior to the date hereof, or (ii) any
adoption of or change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement and having general
applicability to all banks and financial institutions within the jurisdiction in
which such Lender operates which affects the amount of capital required or
expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i)
the risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
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(c) Funding Indemnification. If any payment of a Eurodollar Advance occurs
on a date which is not the applicable Maturity Date for such Eurodollar Advance,
whether because of acceleration, prepayment, conversion of such Advance to a
Loan under the 5-Year Revolving Credit Agreement or otherwise, or a Eurodollar
Advance is not made on the date specified by the Borrower for any reason other
than default by the Lenders, the Borrower shall pay ABN AMRO (or if applicable
any assignee) the applicable Early Payment Fee.
(d) Taxes.
(i) Any and all payments by the Borrower hereunder (whether in respect
of principal, interest, fees or otherwise) shall be made free and clear of
and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings interest, penalties or any
liabilities with respect thereto including those arising after the date
hereof as a result of the adoption of or any change in any law, treaty,
rule, regulation, guideline or determination of a Governmental Authority or
any change in the interpretation or application thereof by a Governmental
Authority but excluding, in the case of each Lender and the Agent, such
taxes (including income taxes, franchise taxes and branch profit taxes) as
are imposed on or measured by such Lender's or the Agent's, as the case may
be, net income by the United States of America or any Governmental
Authority of the jurisdiction under the laws of which such Lender or the
Agent, as the case may be, is organized (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings, and liabilities which
the Agent or a Lender determines to be applicable to this Agreement, the
other Facility Loan Documents, the Commitment or the Advances being
hereinafter referred to as "TAXES"). If the Borrower shall be required by
law to deduct or withhold any Taxes from or in respect of any sum payable
hereunder or under the other Facility Loan Documents to any Lender or the
Agent, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions or withholdings (including deductions
applicable to additional sums payable under this Section 14(d)) such Lender
or Agent (as the case may be) receives an amount equal to the sum it would
have received had no such deductions or withholdings been made, (ii) the
Borrower shall make such deductions or withholdings, and (iii) the Borrower
shall pay the full amount deducted or withheld to the relevant taxation
authority or other authority in accordance with applicable law. If a
withholding tax of the United States of America or any other Governmental
Authority shall be or become applicable (y) after the date of this
Agreement, to such payments by the Borrower made to the Lending
Installation or any other office that a Lender may claim as its Lending
Installation, or (z) after such Lender's selection and designation of any
other Lending Installation, to such payments made to such other Lending
Installation, such Lender shall use reasonable efforts to make, fund and
maintain the affected Advances through another Lending Installation of such
Lender in another jurisdiction so as to reduce the Borrower's liability
hereunder, if the making, funding or maintenance of such Advances through
such other Lending Installation of such Lender does not, in the judgment of
such Lender, otherwise adversely affect such Advances, or obligations under
the Commitment of such Lender.
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(ii) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges,
or similar levies which arise from any payment made hereunder or under the
Note or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement, the other Facility Loan Documents, the
Commitments or the Advances (hereinafter referred to as "OTHER TAXES").
(iii) The Borrower indemnifies each Lender and the Agent for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed by any Governmental Authority on amounts payable
under this Section 14(d)) paid by such Lender or the Agent (as the case may
be) and any liability (including penalties, interest, and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes
were correctly or legally asserted. This indemnification shall be made
within thirty (30) days after the date such Lender or the Agent (as the
case may be) makes written demand therefor. If the Taxes or Other Taxes
with respect to which the Borrower has made either a direct payment to the
taxation or other authority or an indemnification payment hereunder are
subsequently refunded to any Lender, such Lender will return to the
Borrower an amount equal to the lesser of the indemnification payment or
the refunded amount. A certificate as to any additional amount payable to
any Lender or the Agent under this Section 14(d) submitted to the Borrower
and the Agent (if a Lender is so submitting) by such Lender or the Agent
shall show in reasonable detail the amount payable and the calculations
used to determine such amount and shall, absent manifest error, be deemed
presumptively correct. With respect to such deduction or withholding for or
on account of any Taxes and to confirm that all such Taxes have been paid
to the appropriate Governmental Authorities, the Borrower shall promptly
(and in any event not later than thirty (30) days after receipt) furnish to
each Lender and the Agent such certificates, receipts and other documents
as may be required (in the reasonable judgment of such Lender or the Agent)
to establish any tax credit to which such Lender or the Agent may be
entitled.
(iv) Within thirty (30) days after the date of any payment of Taxes or
Other Taxes by the Borrower, the Borrower shall furnish to the Agent the
original or a certified copy of a receipt evidencing payment thereof.
(v) Each Lender (including any Purchaser) that is not created or
organized under the laws of the United States of America or a political
subdivision thereof (each a "NON-U.S. LENDER") shall deliver to the
Borrower and the Agent on or before the Closing Date, or, if later, the
date on which such Lender becomes a Lender pursuant to Section 12(a) hereof
(and from time to time thereafter upon the request of the Borrower or the
Agent, but only for so long as such Non-U.S. Lender is legally entitled to
do so), either (1)(x) two (2) duly completed copies of either (A) IRS Form
W-8BEN (or, if delivered on or before December 31, 1999, IRS Form 1001), or
(B) IRS Form W-8ECI (or, if delivered on or before December 31, 1999, IRS
Form 4224), or in either case an applicable successor form, and (y) for
periods prior to January 1, 2000, a duly completed copy of IRS Form W-8 or
W-9 or applicable
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successor form; or (2) in the case of a Non-U.S. Lender that is not legally
entitled to deliver either form listed in clause (v)(1)(x), (x) a
certificate of a duly authorized officer of such Non-U.S. Lender to the
effect that such Non-U.S. Lender is not (A) a "bank" within the meaning of
Section 881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of the
Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a
controlled foreign corporation receiving interest from a related person
within the meaning of Section 881(c)(3)(C) of the Code (such certificate,
an "EXEMPTION CERTIFICATE") and (y) two (2) duly completed copies of IRS
Form W-8BEN or applicable successor form. Each such Lender further agrees
to deliver to the Borrower and the Agent from time to time a true and
accurate certificate executed in duplicate by a duly authorized officer of
such Lender in a form satisfactory to the Borrower and the Agent, before or
promptly upon the occurrence of any event requiring a change in the most
recent certificate previously delivered by it to the Borrower and the Agent
pursuant to this Section 14(d)(v). Further, each Lender which delivers a
form or certificate pursuant to this clause (v) covenants and agrees to
deliver to the Borrower and the Agent within fifteen (15) days prior to the
expiration of such form, for so long as this Agreement is still in effect,
another such certificate and/or two (2) accurate and complete original
newly-signed copies of the applicable form (or any successor form or forms
required under the Code or the applicable regulations promulgated
thereunder).
Each Lender shall promptly furnish to the Borrower and the Agent such
additional documents as may be reasonably required by the Borrower or the
Agent to establish any exemption from or reduction of any Taxes or Other
Taxes required to be deducted or withheld and which may be obtained without
undue expense to such Lender. Notwithstanding any other provision of this
Section 14(d), the Borrower shall not be obligated to gross up any payments
to any Lender pursuant to Section 14(d), or to indemnify any Lender
pursuant to Section 14(d)(iii), in respect of United States federal
withholding taxes to the extent imposed as a result of (x) the failure of
such Lender to deliver to the Borrower the form or forms and/or an
Exemption Certificate, as applicable to such Lender, pursuant to Section
14(d)(v), (y) such form or forms and/or Exemption Certificate not
establishing a complete exemption from U.S. federal withholding tax or the
information or certifications made therein by the Lender being untrue or
inaccurate on the date delivered in any material respect, or (z) the Lender
designating a successor Lending Installation at which it maintains its
Advances which has the effect of causing such Lender to become obligated
for tax payments in excess of those in effect immediately prior to such
designation; provided, however, that the Borrower shall be obligated to
gross up any payments to any such Lender pursuant to Section 14(d)(i), and
to indemnify any such Lender pursuant to Section 14(d)(iii), in respect of
United States federal withholding taxes if (x) any such failure to deliver
a form or forms or an Exemption Certificate or the failure of such form or
forms or exemption certificate to establish a complete exemption from U.S.
federal withholding tax or inaccuracy or untruth contained therein resulted
from a change in any applicable statute, treaty, regulation or other
applicable law or any interpretation of any of the foregoing occurring
after the date hereof, which change rendered such Lender no longer legally
entitled to deliver such
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<PAGE> 23
form or forms or Exemption Certificate or otherwise ineligible for a
complete exemption from U.S. federal withholding tax, or rendered the
information or the certifications made in such form or forms or Exemption
Certificate untrue or inaccurate in any material respect, (ii) the
redesignation of the Lender's Lending Installation was made at the request
of the Borrower or (iii) the obligation to gross up payments to any such
Lender pursuant to Section 14(d)(i), or to indemnify any such Lender
pursuant to Section 14(d)(iii), is with respect to a Purchaser that becomes
a Purchaser as a result of an assignment made at the request of the
Borrower.
(vi) Upon the request, and at the expense of the Borrower, each Lender
to which the Borrower is required to pay any additional amount pursuant to
this Section 14(d), shall reasonably afford the Borrower the opportunity to
contest, and shall reasonably cooperate with the Borrower in contesting,
the imposition of any Tax giving rise to such payment; provided, that (i)
such Lender shall not be required to afford the Borrower the opportunity to
so contest unless the Borrower shall have confirmed in writing to such
Lender its obligation to pay such amounts pursuant to this Agreement; and
(ii) the Borrower shall reimburse such Lender for its reasonable attorneys'
and accountants' fees and disbursements incurred in so cooperating with the
Borrower in contesting the imposition of such Tax; provided, however, that
notwithstanding the foregoing, no Lender shall be required to afford the
Borrower the opportunity to contest, or cooperate with the Borrower in
contesting, the imposition of any Taxes, if such Lender in good faith
determines that to do so would have an adverse effect on it.
(e) Lender Statements; Survival of Indemnity. If reasonably possible, each
Lender shall designate an alternate Lending Installation with respect to its
Eurodollar Advances to reduce any liability of the Borrower to such Lender under
Sections 14(a) and 14(b) or to avoid the unavailability of Eurodollar Advances
under Section 3(d), so long as such designation is not disadvantageous to such
Lender. Each Lender requiring compensation pursuant to this Section 14 shall use
its reasonable efforts to notify the Borrower and the Agent in writing of any
Change, law, policy, rule, guideline or directive giving rise to such demand for
compensation not later than ninety (90) days following the date upon which the
responsible account officer of such Lender knows or should have known of such
Change, law, policy, rule, guideline or directive. Any demand for compensation
pursuant to this Section 14 shall be in writing and shall state the amount due,
if any, under Section 14(a), 14(b), 14(c) or 14(d) and shall set forth in
reasonable detail the calculations upon which such Lender determined such
amount. Such written demand shall be rebuttably presumed correct for all
purposes. Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 14 shall survive payment of the Advances and termination of this
Agreement.
15. FINANCIAL INFORMATION; OTHER REPORTING REQUIREMENTS. The Borrower
shall:
(a) Financial Reporting. Furnish to the Agent and the Lenders:
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(i) Quarterly Reports. As soon as practicable and in any event within
forty-five (45) days after the end of the first three quarterly periods of
each of its fiscal years, for itself and the Subsidiaries, a consolidated
unaudited balance sheet as at the end of each such period and a
consolidated statement of income and consolidated statement of changes in
owners' equity, and a statement of cash flows for the period from the
beginning of such fiscal year to the end of such quarter, presented on the
same basis as described in Section 15(a)(ii) and on a comparative basis
with the statements for such period in the prior fiscal year of the
Borrower.
(ii) Annual Reports. As soon as practicable, and in any event within
ninety (90) days after the end of each of its fiscal years, an audit
report, certified by internationally recognized independent certified
public accountants, prepared in accordance with generally accepted
accounting principles, on a consolidated basis for itself and its
Subsidiaries, including a balance sheet as of the end of such period,
related statement of income and consolidated statement of changes in
owners' equity, and a statement of cash flows, which audit report shall be
unqualified and shall state that such financial statements fairly present
the consolidated financial position of the Borrower and its Subsidiaries as
at the dates indicated and the results of operations and cash flows for the
periods indicated in conformity with generally accepted accounting
principles and that the examination by such accountants in connection with
such consolidated financial statements has been made in accordance with
generally accepted auditing standards.
(iii) Officer's Certificate. Together with each delivery of any
financial statement (a) pursuant to clauses (i) and (ii) of this Section
15(a), an Officer's Certificate of the Borrower, substantially in the form
of Exhibit G attached to the 5-Year Revolving Credit Agreement, stating
that as of the date of such Officer's Certificate no Default or "Unmatured
Default" (as defined in the 5-Year Revolving Credit Agreement) under the
5-Year Revolving Credit Agreement and no Event of Default or Unmatured
Event of Default under this Agreement and the other Facility Loan Documents
exists, or if any such Default, Event of Default, Unmatured Default or
Unmatured Event of Default exists, stating the nature and status thereof
and (b) pursuant to clauses (i) and (ii) of this Section 15(a), a
compliance certificate, substantially in the form of Exhibit H attached to
the 5-Year Revolving Credit Agreement, signed by the Borrower's chief
financial officer, chief accounting officer or treasurer, setting forth
calculations for the period then as required pursuant to the terms of the
5-Year Revolving Credit Agreement, and which calculate the Average Total
Net Indebtedness to Capital Ratio for purposes of determining the then
Applicable Floating Rate Margin, Applicable Eurodollar Margin and
Applicable Facility Fee Percentage.
(b) Notice of Default. Promptly upon any of the chief executive officer,
chief operating officer, chief financial officer, treasurer or controller of the
Borrower obtaining actual knowledge (i) of any condition or event which
constitutes a Default or Unmatured Default under the 5-
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Year Revolving Credit Agreement or an Event of Default or Unmatured Event of
Default hereunder, or becoming aware that any Lender or Agent under this
Agreement or any of the parties under the 5- Year Revolving Credit Agreement has
given any written notice to any Authorized Officer with respect to a claimed
Default or Unmatured Default under this Agreement or under the 5-Year Revolving
Credit Agreement, or (ii) that any Person has given any written notice to any
Authorized Officer or any Subsidiary of the Borrower or taken any other action
with respect to a claimed default or event or condition of the type referred to
in Section 8.1(E) of the 5-Year Revolving Credit Agreement, the Borrower shall
deliver to the Agent and the Lenders an Officer's Certificate specifying (a) the
nature and period of existence of any such claimed default, Default, Event of
Default, Unmatured Default, Unmatured Event of Default, condition or event, (b)
the notice given or action taken by such Person in connection therewith, and (c)
what action the Borrower has taken, is taking and proposes to take with respect
thereto.
(c) Other Indebtedness. Deliver to the Agent: (i) a copy of each notice,
report or communication (including any accompanying officer's certificate)
delivered by or required to be delivered by or on behalf of the Borrower or any
of its Subsidiaries to the agent or any of the lenders under or in connection
with the 5-Year Revolving Credit Agreement, including, without limitation,
notices and reports delivered pursuant to clauses (C), (D), (E) and (H) of
Section 7.1 of the 5-Year Revolving Credit Agreement, such delivery to be made
at the same time and by the same means as such notice, report or communication
is delivered to such agent or lenders; (ii) a copy of each regular report,
notice or communication regarding potential or actual defaults (including any
accompanying officer's certificate) delivered by or on behalf of the Borrower to
the holders of funded Indebtedness with an aggregate outstanding principal
amount in excess of $15,000,000 pursuant to the terms of the agreements
governing such Indebtedness, such delivery to be made at the same time and by
the same means as such notice of default is delivered to such holders; and (iii)
a copy of each notice or other communication received by the Borrower or any of
its Subsidiaries from the holders of funded Indebtedness with an aggregate
outstanding principal amount in excess of $10,000,000 regarding potential or
actual defaults pursuant to the terms of such Indebtedness, such delivery to be
made promptly after such notice or other communication is received by the
Borrower or its Subsidiaries.
(d) Other Reports. Deliver or cause to be delivered to the Agent and the
Lenders copies of (i) all financial statements, reports and non-routine notices,
if any, sent or made available generally by the Borrower to its securities
holders or filed with the Securities and Exchange Commission by the Borrower,
and (ii) all notifications received from the Securities and Exchange Commission
by the Borrower or its Subsidiaries pursuant to the Securities Exchange Act of
1934 and the rules promulgated thereunder other than routine reminders or
notices that do not relate to specific violations of rules promulgated by the
Securities and Exchange Commission. Borrower shall include the Agent and the
Lenders on its standard distribution lists for all press releases made available
generally by the Borrower or any of the Borrower's Subsidiaries to the public
concerning material developments in the business of the Borrower or any such
Subsidiary.
(e) Other Information. Promptly upon receiving a request therefor from the
Agent, prepare and deliver to the Agent and the Lenders such other information
with respect to the Borrower or any of its Subsidiaries as from time to time may
be reasonably requested by the Agent, except for such
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information as is customarily and reasonably regarded by the Borrower as
confidential.
16. GOVERNING LAW. THE AGENT ACCEPTS THIS AGREEMENT, ON BEHALF OF ITSELF
AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND AGREEING TO IT THERE.
ANY DISPUTE BETWEEN THE BORROWER AND THE AGENT, ANY LENDER OR ANY OTHER HOLDER
OF OBLIGATIONS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY
OF THE OTHER FACILITY LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT,
EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS
(INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO
THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
17. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(a) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (b), EACH OF
THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER FACILITY LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (a) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(b) OTHER JURISDICTIONS. THE BORROWER AGREES THAT THE AGENT OR ANY LENDER
SHALL HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT
IN ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION OVER
THE BORROWER OR (2) IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED
IN FAVOR OF SUCH PERSON. THE BORROWER AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE UNRELATED COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO
REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF SUCH PERSON. THE BORROWER WAIVES ANY OBJECTION THAT IT
MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A
PROCEEDING DESCRIBED IN THIS SUBSECTION (b).
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<PAGE> 27
(C) VENUE. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
IN ANY JURISDICTION SET FORTH ABOVE.
(d) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
18. ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE PROVISIONS OF
SECTION 13 AND SECTION 17, WITH ITS COUNSEL.
19. COMPLIANCE WITH AFFIRMATIVE, NEGATIVE AND FINANCIAL COVENANTS. Without
in any way affecting or impairing any of the other provisions of this Agreement
or the other Facility Loan Documents, the Borrower covenants and agrees that so
long as any Commitment is outstanding and thereafter until payment in full of
all the outstanding principal amount of the Advances, all accrued interest
thereon and, in the case of Windmill, all interest scheduled to accrue to the
last day of the Interest Period for each outstanding Advance held by Windmill,
and all other amounts payable hereunder and under the other Facility Loan
Documents (other than contingent indemnity obligations) and termination of this
Agreement and all other Facility Loan Documents, the Borrower shall comply with
the affirmative covenants contained in Section 7.2 of the 5-Year Revolving
Credit Agreement, shall not violate any of the negative covenants contained in
Section 7.3 of the 5-Year Revolving Credit Agreement and shall comply with the
financial covenants contained in Section 7.4 of the 5-Year Revolving Credit
Agreement, all as if such provisions were set forth in full herein (with the
applicable references to the "Administrative Agent" and "Lenders" thereunder
being references to the "Agent" and "Lenders" hereunder, with the applicable
references to various Sections thereunder being references to the applicable
Sections hereunder, if any such corollary sections
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hereunder exist, and with the references to the various financing agreements
being appropriately modified).
20. AGREEMENT NOT TO PETITION. Each party hereto and each Guarantor
(pursuant to the Guaranty) agrees, for the benefit of the holders of Windmill's
privately or publicly placed indebtedness for borrowed money, not, before the
date one year and one day after the payment in full of all such indebtedness, to
acquiesce, petition or otherwise, directly or indirectly, invoke, or cause
Windmill to invoke, the process of any court or other authority for the purpose
of (a) commencing or sustaining a case against Windmill under any federal or
state bankruptcy, insolvency or similar law (including the United States
Bankruptcy Code), (b) appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official for Windmill, or any
substantial part of its property, or (c) ordering the winding up or liquidation
of Windmill's affairs.
21. EXCESS FUNDS. Windmill shall be required to make payment of any amounts
under or in connection with this Agreement only with Excess Funds (as defined
below). If Windmill does not have Excess Funds, the excess of any amount due
hereunder over the amount paid shall not constitute a "claim" (as defined in
Section 101(5) of the United States Bankruptcy Code) against Windmill until such
time as Windmill has Excess Funds. If Windmill does not have sufficient Excess
Funds to make any payment due hereunder, then Windmill may pay a lesser amount
and make additional payments that in the aggregate equal the amount of such
deficiency as soon as possible thereafter. The term "EXCESS FUNDS" means the
excess of (a) the aggregate projected value of Windmill's assets and other
property (including cash and cash equivalents), over (b) the sum of (i) all
scheduled payments of principal, interest and any other scheduled amounts
payable on Windmill's publicly or privately placed indebtedness for borrowed
money, plus (ii) the sum of all Windmill's other liabilities, indebtedness and
other obligations for borrowed money or owed to any credit or liquidity
provider, together with all unpaid interest then accrued thereon, plus (iii) all
taxes payable by Windmill to the United States Internal Revenue Service, plus
(iv) all Windmill's other indebtedness, liabilities and obligations then due and
payable; provided, however, that the amount of any liability, indebtedness or
obligation of Windmill shall not exceed the projected value of the assets to
which recourse for such liability, indebtedness or obligation is limited. The
Excess Funds determination will be made by Windmill or on Windmill's behalf once
each Business Day. Nothing in Section 20 or this Section 21, or elsewhere in
this Agreement, is intended to create or imply any obligation from Windmill to
any Person, and Windmill shall have no obligation in any circumstance to make
any Advance requested hereunder.
22. DEFINITIONS. Capitalized terms used and not otherwise defined here have
the meanings ascribed to them in the 5-Year Revolving Credit Agreement. In
addition to terms defined in the 5- Year Revolving Credit Agreement or elsewhere
in this Agreement, the following terms when used herein shall have the following
meanings:
"ADVANCE" means, for any Lender, (a) the amount of funds it advances to a
Borrower on a Borrowing Date and, if a CP Advance or a Eurodollar Advance, for
an Interest Period, or (b) for
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ABN AMRO, the purchase price it pays to Windmill pursuant to Section 12 to
acquire an Advance or Advances from Windmill. An Advance is a "CP Advance" if it
is held by Windmill. An Advance held by ABN AMRO is a "Floating Rate Advance" if
it bears interest based on the Prime Rate and a "Eurodollar Advance" if it bears
interest based on a Eurodollar Rate.
"APPLICABLE EURODOLLAR MARGIN" means, as at any date of determination, the
rate per annum then applicable to Eurodollar Advances determined in accordance
with the provisions of Section 3(d)(ii) hereof.
"APPLICABLE FACILITY FEE PERCENTAGE" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under Section 5(a) hereof determined in accordance with the
provisions of Section 3(d)(ii) hereof.
"APPLICABLE FLOATING RATE MARGIN" means, as at any date of determination,
the rate per annum then applicable to Floating Rate Advances determined in
accordance with the provisions of Section 3(d)(ii) hereof.
"AUTHORIZED OFFICER" means any of the President, any Vice President or
Chief Financial Officer of the Borrower, acting singly and each other person
notified to the Agent in a writing from an Authorized Officer.
"BORROWER ACCOUNT" means the Borrower's account at The First National Bank
of Chicago, ABA No. 071000013, Account Number 1005883 (Reference: 5-Year CLO
Loan) or such other account at a bank in the USA as an Authorized Officer
notifies to the Agent in writing for the receipt of proceeds from Advances.
"BUSINESS DAY" means any day other than (a) a Saturday, Sunday or other day
on which banks in New York City or Chicago, Illinois are authorized or required
to close, (b) a holiday on the Federal Reserve calendar and, (c) in addition,
solely for matters relating to a Eurodollar Advance, a day on which dealings in
Dollars are not carried on in the London interbank market.
"CLO PROGRAM DOCUMENTS" means the documentation between ABN AMRO and
Windmill providing for unsecured loans by Windmill to certain borrowers and
approved by Moody's and S&P as not affecting their respective ratings of
Windmill commercial paper, as such documentation may from time to time be in
effect.
"CONVERSION AMOUNT" means, at any time for any Lender with a Commitment
hereunder, the amount obtained by multiplying (A) the Maximum Matured Value on
the Facility Conversion Date by (B) the percentage obtained by dividing such
Lender's Commitment hereunder on the Facility Conversion Date by the aggregate
amount of such Commitments on such date.
"CP DEALER" means, at any time, each Person that Windmill then engages as a
placement
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agent or commercial paper dealer.
"CP RATE" means, for any Interest Period for a CP Advance, a rate per annum
for such CP Advance equal to the weighted average of the rates at which
commercial paper notes having a term equal to such Interest Period may be sold
by any CP Dealer selected by Windmill, as agreed between each such CP Dealer and
Windmill, provided after the occurrence and during the continuance of an Event
of Default, the provisions of Section 3(d)(v) shall govern the rate. If such
rate is a discount rate, the CP Rate shall be the rate resulting from Windmill's
converting such discount rate to an interest-bearing equivalent rate. If
Windmill determines that it is not able, or that it is impractical, to issue
commercial paper notes for any period of time, then the CP Rate for an Interest
Period shall be the Floating Rate, changing as and when such Floating Rate
changes. The CP Rate shall include all costs and expenses to Windmill of issuing
the related commercial paper notes, including all dealer commissions and note
issuance costs in connection therewith.
"DOLLAR" and "$" means lawful currency of the United States of America.
"EARLY PAYMENT FEE" means, if (i) any Eurodollar Advance is not made by ABN
AMRO (or any of its assignees) after the Borrower so requests pursuant to
Section 2, other than because of a default by ABN AMRO (or such assignees), or
(ii) any Eurodollar Advance, or portion thereof, is repaid before its Maturity
Date (the amount so repaid being referred to as the "PREPAID AMOUNT"), the cost
to ABN AMRO (or such assignee) of such reduction in the Eurodollar Advance it
holds (or was scheduled to hold, in the case of clause (i) above), determined
based on the difference between the LIBOR applicable (or, in the case of clause
(i) above that would have been applicable) to such Borrowing and the LIBOR that
would be applicable for a period equal to the remaining scheduled maturity of
the Advance on the date the requested Eurodollar Advance is not made or the
Prepaid Amount is received.
"ENHANCER" means ABN AMRO in such capacity under the CLO Program Documents.
"EURODOLLAR RATE" means, for any Interest Period for a Eurodollar Advance,
the sum of (a) LIBOR for such Interest Period divided by 1 minus the "Reserve
Requirement" (as defined below) and (b) the Applicable Eurodollar Margin for the
portion (i.e., 90%) of such Advance held by ABN AMRO in its capacity as
Liquidity Provider and for the portion of such Advance held by ABN AMRO in its
capacity as Enhancer, changing as and when the Applicable Eurodollar Margin
changes; where "RESERVE REQUIREMENT" means, for any Interest Period, the daily
average of the maximum reserve requirement imposed during such Interest Period
on "eurocurrency liabilities" or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on Eurodollar
Advances is determined or category of extensions of credit or other assets which
includes loans by a non-United States office of any Lender to United States
residents, as currently defined in Regulation D of the Board of Governors of the
Federal Reserve System.
"EVENT OF DEFAULT" is defined in the Note.
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"FACE AMOUNT" means the face amount of any Windmill commercial paper note
issued on a discount basis or, if not issued on a discount basis, the principal
amount of such note and interest scheduled to accrue thereon to its stated
maturity.
"FACILITY CONVERSION DATE" has the meaning given to that term in Section
2.6(b) of the 5-Year Revolving Credit Agreement.
"FACILITY LOAN DOCUMENTS" means this Agreement, the Note, the Guaranty, the
Subordination Agreement and each other document or instrument delivered by the
Borrower or any Guarantor or any other Person in connection herewith; provided
such term shall not include the 5-Year Revolving Credit Agreement or any of the
documents, instruments or agreements executed in connection therewith.
"FACILITY OBLIGATIONS" means all Advances, advances, debts, liabilities,
obligations, covenants and duties owing by the Borrower or any of its to the
Agent, any Lender or any Indemnitee, of any kind or nature, present or future,
arising under this Agreement or any other Facility Loan Document, whether or not
evidenced by any note, guaranty or other instrument, whether or not for the
payment of money, whether arising by reason of an extension of credit, loan,
guaranty, indemnification, or in any other manner, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising and however acquired. The term
includes, without limitation, all interest, charges, expenses, fees, reasonable
attorneys' fees and disbursements, reasonable paralegals' fees (in each case
whether or not allowed), and any other sum chargeable to the Borrower or any of
its Subsidiaries under this Agreement or any other Facility Loan Document.
"FACILITY TERMINATION DATE" means the earlier of (i) the date on which (A)
all of the Facility Obligations (other than contingent indemnity obligations)
shall have been fully and indefeasibly paid and satisfied in cash and (B) all
financing arrangements between the Borrower and the Lenders shall have been
terminated; and (ii) the Facility Conversion Date.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate per
annum equal, for each day during such period, to the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the immediately preceding Business Day)
by the Federal Reserve Bank of New York or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for such
transactions received by ABN AMRO as of approximately 10:00 a.m. (Chicago time)
on such day from three federal funds brokers of recognized standing selected by
it.
"5-YEAR REVOLVING CREDIT AGREEMENT" means that certain 5-Year Revolving
Credit Agreement dated as of the date hereof entered into by and among the
Borrower, one or more Subsidiaries of the Borrower, the institutions from time
to time parties thereto as lenders, The First
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National Bank of Chicago, as Administrative Agent for itself and the other
Lenders, The Chase Manhattan Bank, as Syndication Agent, ABN AMRO Bank N.V., as
Co-Documentation Agent and Arranger, Royal Bank of Canada, as Co-Documentation
Agent and Arranger, Banque Nationale de Paris, as Arranger, Chase Securities
Inc., as Lead Arranger and Joint Book Manager, and Banc One Capital Markets,
Inc., as Lead Arranger and Joint Book Manager, without giving effect to any
amendments thereto, or waivers or consents granted thereunder, unless such
amendments, waivers and/or consents have been entered into in accordance with
the terms of Section 23(b) hereof.
"FLOATING RATE" means, for any day for any Advance, a rate per annum equal
to the Prime Rate for such day plus the then Applicable Floating Rate Margin for
the portion (i.e., 90%) of such Advance held by ABN AMRO in its capacity as
Liquidity Provider and for the portion of such Advance held by ABN AMRO in its
capacity as Enhancer, changing when and as the Prime Rate changes and when and
as the Applicable Floating Rate Margin changes.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative authority or
functions of or pertaining to government, including any authority or other
quasi-governmental entity established to perform any of such functions.
"GUARANTY" means that certain Guaranty dated as of the date hereof,
executed by the Guarantors in favor of the Agent, for the ratable benefit of the
Lenders, as it may be amended, modified, supplemented and/or restated (including
to add additional "Material Domestic Subsidiaries" or "Subsidiary Borrowers"
which are "Domestic Incorporated Subsidiaries" (in each case as defined in the
5-Year Revolving Credit Agreement) as new Guarantors), and as in effect from
time to time.
"GUARANTORS" means (a) all of the Borrower's Material Domestic Subsidiaries
as of the Closing Date and all Subsidiary Borrowers that are Domestic
Incorporated Subsidiaries as of the Closing Date and (b) any other person which
becomes a party to the Guaranty as required pursuant to the terms hereof.
"INTEGRATION BLOCKAGE DEFAULT" has the meaning given that term in Section
2.6(b) of the 5-Year Revolving Credit Agreement.
"INTEREST PAYMENT DATE" means, (i) for each Floating Rate Advance, (a) each
Payment Date, commencing with the first such date to occur after the date
hereof, (b) the date of any prepayment of a Floating Rate Advance, whether by
acceleration or otherwise, with respect to the amount so prepaid, and (c) at
maturity (whether by acceleration or otherwise); and (ii) for each other
Advance, (a) the last day of the applicable Interest Period, (b) the date of any
prepayment, whether by acceleration or otherwise, with respect to the amount so
prepaid and (c) for any Eurodollar Advance with an interest period longer than
three months, on the last day of each three-month interval during such Interest
Period.
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"INTEREST PERIOD" means the period commencing on the date an Advance is
made or purchased pursuant to Section 12 and ending: (a) in the case of
Eurodollar Advances 1, 2, 3, or 6 months thereafter, as the Borrower may select;
and (b) in the case of CP Advances, 1-270 days thereafter; provided, however,
that:
(1) an Interest Period for a Eurodollar or CP Advance that would
extend beyond the Revolving Credit Termination Date may not be selected;
(2) whenever the last day of any Interest Period would otherwise be a
day that is not a Business Day, the last day of such Interest Period shall
be extended to the next succeeding Business Day, but, if such extension
would cause the last day of an Interest Period for a Eurodollar Advance to
occur in the following calendar month, the last day of such Interest Period
shall be the immediately preceding Business Day; and
(3) for purposes of determining an Interest Period for a Eurodollar
Advance, a month means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month;
provided, however, that if there is no numerically corresponding day in the
month in which such an Interest Period is to end or, if such an Interest
Period begins on the last Business Day of a calendar month, then such
Interest Period shall end on the last Business Day of the calendar month in
which such Interest Period is to end.
"LENDING INSTALLATION" means, with respect to a Lender or the Agent, any
office, branch, subsidiary or affiliate of such Lender or the Agent.
"LIQUIDITY PROVIDER" means ABN AMRO in such capacity under the CLO Program
Documents.
"LIBOR" means, for any Interest Period for a Eurodollar Advance or other
period, the rate per annum (rounded upwards, if necessary, to the next higher
one hundred-thousandth of a percentage point) for deposits in Dollars for a
period equal to such Interest Period or other period, which appears on Page 3750
of the Telerate Service (or any successor page or successor service that
displays the British Bankers' Association Interest Settlement Rates for Dollar
deposits) as of 11:00 a.m. (London, England time) two Business Days before the
commencement of such Interest Period or other period. If for any Interest Period
or other period no such displayed rate is available (or, for any such other
period, if such displayed rate is not available or the need to calculate LIBOR
is not notified to the Agent at least 3 Business Days before the commencement of
the period for which it is to be determined), the Agent shall determine such
rate based on the rates ABN AMRO is offered Dollar deposits of such duration in
the London interbank market. Any LIBOR determined on the basis of the rate
displayed on Telerate Page 3750 in accordance with the foregoing provisions
shall be subject to corrections, if any, made in such rate and displayed by the
Associated Press-Dow Jones Telerate Service within one hour of the time when
such rate is first displayed by such service.
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"MATURED VALUE" means, for any Advance, the sum of the principal amount of
such Advance plus all interest scheduled to become due (whether or not then due)
on such Advance during its current Interest Period.
"MATURITY DATE" means, for any Advance made by Windmill or any Eurodollar
Advance made by ABN AMRO, the last day of the Interest Period applicable to such
Advance.
"MOODY'S" means Moody's Investors Service, Inc.
"PAYMENT DATE" means the first day of each March, June, September and
December, the Revolving Credit Termination Date (or such earlier date on which
the Commitment shall terminate or be canceled) and the Facility Termination
Date.
"PERMITTED INVESTMENTS" means (a) evidences of indebtedness, maturing not
more than thirty (30) days after the purchase thereof, issued by, or the full
and timely payment of which is guaranteed by, the full faith and credit of, the
federal government of the United States of America, (b) repurchase agreements
with banking institutions or broker-dealers that are registered under the
Securities Exchange Act of 1934 fully secured by obligations of the kind
specified in clause (a) above, (c) money market funds denominated in U.S.
dollars at the time of investment therein rated not lower than A-1 (and without
the "r" symbol attached to any such rating) by S&P and P-1 by Moody's or
otherwise acceptable to the Rating Agencies or (d) commercial paper denominated
in U.S. dollars issued by any corporation incorporated under the laws of the
United States or any political subdivision thereof, provided that at the time of
the investment therein such commercial paper is rated at least A-1 (and without
the "r" symbol attached to any such rating) by S&P and Prime-1 by Moody's.
"PRIME RATE" means, for any day, a fluctuating rate of interest per annum
equal to the greater of (a) the floating commercial loan rate per annum of ABN
AMRO (which rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer by ABN AMRO) announced from
time to time as its prime rate or equivalent for Dollar loans in the USA, and
(b) the Federal Funds Rate plus 0.50% per annum, in each case , changing as and
when said rate changes.
"RATING AGENCY" means Moody's, S&P and any other rating agency Windmill
chooses to rate its commercial paper notes.
"REVOLVING CREDIT TERMINATION DATE" means the earliest of (i) the Facility
Conversion Date; (ii) July 21, 2004; and (iii) the date of termination in whole
of the Commitment.
"S&P" means Standard & Poor's Ratings Group.
"SUBORDINATION AGREEMENT" means that certain Subordination Agreement (and
any and all
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<PAGE> 35
supplements thereto) dated as of the date hereof executed from time to time by
the Borrower and each "Material Subsidiary" (as defined in the 5-Year Revolving
Credit Agreement) of the Borrower listed on Schedule 6.8 to the 5-Year Revolving
Credit Agreement and each other Material Subsidiary of the Borrower as required
pursuant to Section 10 in favor of the Agent for the benefit of itself and the
other holders of Facility Obligations, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"TYPE" means, with respect to any Advance, its nature as a Floating Rate
Advance or a Eurodollar Advance.
"UNMATURED EVENT OF DEFAULT" means an event which, but for the lapse of
time or the giving of notice, or both, would constitute an Event of Default.
"USA" means the United States of America (including all states and
political subdivisions thereof).
23. MODIFICATIONS. (a) Modifications to the Facility Loan Documents. This
Agreement and the other Facility Loan Documents may not be amended, or any
provision hereof waived, except pursuant to a writing signed by each party
hereto and each other party thereto.
(b) Modifications to the 5-Year Revolving Credit Agreement. The Borrower
agrees that no amendment, modification, supplement, waiver or restatement of the
5-Year Revolving Credit Agreement shall be effective (i) to modify any
provisions to the 5-Year Revolving Credit Agreement or the other documents,
instruments and agreements entered into in connection therewith prior to an
Integration Blockage Default except pursuant to a writing signed by the
Borrower, the Subsidiaries parties thereto (if required thereby), and the
"Required Lenders" (as such term is defined in the 5-Year Revolving Credit
Agreement as in effect as of the date hereof); and (ii) solely for purposes of
incorporation herein and only insofar as such provisions are incorporated herein
by reference or the definitions of which are utilized in the operative
provisions hereof, to modify any provisions to the 5-Year Revolving Credit
Agreement or the other documents, instruments and agreements entered into in
connection therewith after an Integration Blockage Default except pursuant to a
writing signed by the Borrower, the Subsidiaries parties thereto (if required
thereby), the Agent and the Lenders hereunder; provided, however, that in each
such case no such supplemental agreement shall, without the consent of each of
the Lenders hereunder affected thereby (or which in the future may be affected
thereby if the provisions of Section 2.6(b) of the 5-Year Revolving Credit
Agreement are invoked and the Lenders hereunder with Commitments become
"Lenders" under the 5-Year Revolving Credit Agreement) (with all terms in
clauses (i) through (viii) below being as defined in the 5-Year Revolving Credit
Agreement):
(i) Postpone or extend the Revolving Loan Termination Date or any
other date fixed for any payment of principal of, or interest on, the
Loans, the Reimbursement Obligations or any fees or other amounts payable
to such Lender (except with respect to (a) any
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<PAGE> 36
modifications of the provisions relating to prepayments of Loans and other
Obligations and (b) a waiver of the application of the default rate of
interest pursuant to Section 2.11 thereof);
(ii) Reduce the principal amount of any Loans or L/C Obligations, or
reduce the rate or extend the time of payment of interest or fees thereon;
(iii) Reduce the percentage specified in the definition of Required
Lenders or any other percentage of Lenders hereunder and 5-Year CLO Lenders
specified to be the applicable percentage in the 5-Year Revolving Credit
Agreement to act on specified matters or amend the definitions of
"Aggregate Pro Rata Share", "Required Lenders" or "Pro Rata Share";
(iv) Increase the amount of the Revolving Loan Commitment of any
Lender under the 5-Year Revolving Credit Agreement or increase any Lender's
Aggregate Pro Rata Share or Pro Rata Share;
(v) Permit the Borrower to assign its rights under the 5-Year
Revolving Credit Agreement;
(vi) Other than pursuant to a transaction permitted by the terms of
the 5-Year Revolving Credit Agreement, release any guarantor from its
obligations under the Guaranty;
(vii) Amend Section 9.3 of the 5-Year Revolving Credit Agreement; or
(viii) Amend the provisions of Section 2.6(a)(ii), Section
2.6(a)(iii), Section 2.6(b), Section 7.2(N) or Section 13.2 of the 5-Year
Revolving Credit Agreement.
24. GENERAL PROVISIONS.
(a) Confidentiality.
(i) Subject to clause (ii) below, the Agent and the Lenders and their
respective representatives shall hold all nonpublic information obtained
pursuant to the requirements of this Agreement and identified as such by
the Borrower in accordance with such Person's customary procedures for
handling confidential information of this nature and in accordance with
safe and sound commercial lending or investment practices and in any event
may make disclosure reasonably required by a prospective Purchaser or
Participant in connection with the contemplated participation or assignment
or as required or requested by any Governmental Authority or any securities
exchange or similar self-regulatory organization or representative thereof
or any Rating Agency or pursuant to a regulatory examination or legal
process, or to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor, and
shall require any such prospective
-36-
<PAGE> 37
Purchaser or Participant to agree (and require any of its transferees to
agree) to comply with this Section 24. In no event shall the Agent or any
Lender be obligated or required to return any materials furnished by the
Borrower; provided, however, each prospective Purchaser or Participant
shall be required to agree that if it does not become a Participant or
assignee it shall return all materials furnished to it by or on behalf of
the Borrower in connection with this Agreement.
(ii) The Borrower authorizes each Lender to disclose to any
Participant or Purchaser or any other Person acquiring an interest in the
Facility Loan Documents by operation of law (each a "TRANSFEREE") and any
prospective Transferee any and all information in such Lender's possession
concerning the Borrower and its Subsidiaries; provided that prior to any
such disclosure, such prospective Transferee shall agree to preserve in
accordance with Section 24(a)(i) the confidentiality of any confidential
information described therein.
(b) Preservation of Rights. No delay or omission of the Lenders or the
Agent to exercise any right under the Facility Loan Documents shall impair such
right or be construed to be a waiver of any Event of Default or an acquiescence
therein, and the making of an Advance notwithstanding the existence of an Event
of Default or the inability of the Borrower to satisfy the conditions precedent
to such Advance shall not constitute any waiver or acquiescence. Any single or
partial exercise of any such right shall not preclude other or further exercise
thereof or the exercise of any other right, and no waiver, amendment or other
variation of the terms, conditions or provisions of the Facility Loan Documents
or the 5-Year Revolving Credit Agreement shall be valid unless in writing signed
by the requisite parties required pursuant to Section 23, and then only to the
extent in such writing specifically set forth. All remedies contained in the
Facility Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agent and the Lenders until the Advances and all interest, fees
and other amounts payable hereunder have been paid in full.
(c) Severability of Provisions. Any provision in any Facility Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Facility Loan Documents are
declared to be severable.
(d) Nonliability of Lenders. The relationship between the Borrower and the
Lenders and the Agent shall be solely that of borrower and lender. Neither the
Agent nor any Lender shall have any fiduciary responsibilities to the Borrower.
Neither the Agent nor any Lender undertakes any responsibility to the Borrower
to review or inform the Borrower of any matter in connection with any phase of
the Borrower's business or operations.
(e) Other Transactions. Each of the Agent, the Lenders and the Borrower
acknowledges that the Lenders (or Affiliates of the Lenders) may, from time to
time, effect transactions for their own accounts or the accounts of customers,
and hold positions in loans or options on loans of the
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<PAGE> 38
Borrower, the Borrower's Subsidiaries and other companies that may be the
subject of this credit arrangement and nothing in this Agreement shall impair
the right of any such Person to enter into any such transaction (to the extent
it is not expressly prohibited by the terms of this Agreement) or give any other
Person any claim or right of action hereunder as a result of the existence of
the credit arrangements hereunder, all of which are hereby waived. In addition,
certain Affiliates of one or more of the Lenders are or may be securities firms
and as such may effect, from time to time, transactions for their own accounts
or for the accounts of customers and hold positions in securities or options on
securities of the Borrower, the Borrower's Subsidiaries and other companies that
may be the subject of this credit arrangement and nothing in this Agreement
shall impair the right of any such Person to enter into any such transaction (to
the extent it is not expressly prohibited by the terms of this Agreement) or
give any other Person any claim or right of action hereunder as a result of the
existence of the credit arrangements hereunder, all of which are hereby waived.
Other business units affiliated with the Agent are or may be providing other
financial services and products to the Borrower in connection with initial
public offering of the Capital Stock of the Borrower and the other transactions
contemplated by this Agreement. Each of the Agent, the Lenders and the Borrower
acknowledges and consents to these multiple roles, and further acknowledges that
the fact that any such unit or Affiliate is providing another service or product
or proposal therefor to the Borrower does not mean that such service, product,
or proposal is or will be acceptable to any of the Agents or the Lenders.
(f) Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if any Event of Default occurs and is continuing
and after the affirmative consent of the Agent, any Indebtedness from any Lender
to the Borrower (including all account balances, whether provisional or final
and whether or not collected or available) may be offset and applied toward the
payment of the outstanding principal amount of the Advances, all accrued
interest thereon and, in the case of Windmill, all interest scheduled to accrue
to the last day of the Interest Period for each outstanding Advance held by
Windmill, and all other amounts payable hereunder and under the other Facility
Loan Documents owing to such Lender, whether or not such amounts, or any part
thereof, shall then be due.
[Remainder of this page intentionally blank]
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<PAGE> 39
If the terms of this Agreement are satisfactory to you as Borrower,
please indicate your agreement and acceptance thereof by signing a counterpart
of this Agreement and returning it to us.
Very truly yours,
ABN AMRO Bank N.V., as Agent and as a Lender
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
WINDMILL FUNDING CORPORATION
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Agreed and Accepted as of the date first above written:
AMERICAN NATIONAL CAN GROUP, INC.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
<PAGE> 40
EXHIBIT A
TO
5-YEAR FINANCE FACILITY AGREEMENT
PROMISSORY NOTE
U.S. $50,000,000.00 Dated: July 22, 1999
For Value Received, the undersigned, AMERICAN NATIONAL CAN GROUP, INC., a
corporation organized and existing under the laws of the State of Delaware (the
"Borrower"), HEREBY PROMISES TO PAY to the order of ABN AMRO Bank N.V., as agent
(the "Agent") for ABN AMRO Bank N.V. ("ABN AMRO") and Windmill Funding
Corporation ("Windmill") or any assignee (including ABN AMRO) that acquires an
interest herein pursuant to an assignment under Section 12 of the "Finance
Facility" referred to below, as their respective interests may appear in the
Agent's records as Lenders under such Finance Facility, the principal amount of
each Advance on the Maturity Date for such Advance established under the Finance
Facility, together with interest (computed on the basis set forth in the Finance
Facility) on the principal amount of each such Advance outstanding from time to
time from and including the date on which such Advance is made to, but
excluding, the Maturity Date of such Advance, at the rates set forth in the
Finance Facility payable on each Interest Payment Date for such Advance.
Capitalized terms used and not otherwise defined herein have the meanings
ascribed to them in the 5-Year Finance Facility Agreement dated as of July 22,
1999 among the Borrower, the Agent, ABN AMRO, and Windmill, as amended,
modified, supplemented and/or restated from time to time (the "Finance
Facility").
The Borrower may not prepay any principal amount of any CP Advance before
its Maturity Date. Prepayments of Floating Rate Advances and Eurodollar Advances
are subject to the terms of Section 4 and Section 14(c) of the Finance Facility.
It shall be an "Event of Default" hereunder if, under the 5-Year Revolving
Credit Agreement a "Default" (as defined in the 5-Year Revolving Credit
Agreement) shall occur or any other event or condition shall occur which permits
or results in the acceleration (through mandatory prepayment or otherwise) of
the obligations of the Borrower under the 5-Year Revolving Credit Agreement,
and/or, if applicable, the termination of any commitment to extend credit
thereunder (other than as a result of optional and/or mandatory commitment
reductions as set forth therein), whether or not the 5-Year Revolving Credit
Agreement remains in effect, without giving effect to any requirement contained
in the 5-Year Revolving Credit Agreement that notice of the relevant
circumstance be provided by any party, but only requiring that any such notice
be provided by ABN AMRO.
If any Default described in Section 8.1(F) or 8.1(G) of the 5-Year
Revolving Credit Agreement occurs with respect to the Borrower, the obligations
of the Lenders to make Advances
A-1
<PAGE> 41
under the Finance Facility shall automatically terminate and the outstanding
principal amount of this Promissory Note, all accrued interest thereon and, in
the case of Windmill, all interest scheduled to accrue to the last day of the
Interest Period for each outstanding Advance held by Windmill, and all other
amounts payable hereunder and under the other Facility Loan Documents shall
immediately become due and payable without any election or action on the part of
the Agent or any Lender. If (1) any other Event of Default occurs and (a) if the
"Required Lenders" (as defined in the 5-Year Revolving Credit Agreement)
terminate or suspend the obligations of the lenders thereunder to make Loans,
then the obligations of the Lenders to make Advances under the Finance Facility
shall automatically terminate without any further election or action on the part
of the Agent or any Lender hereunder or under the Finance Facility and/or (b) if
the "Required Lenders" (as defined in the 5- Year Revolving Credit Agreement)
declare the Obligations thereunder to be due and payable, then the outstanding
principal amount of this Promissory Note, all accrued interest thereon and, in
the case of Windmill, all interest scheduled to accrue to the last day of the
Interest Period for each outstanding Advance held by Windmill, and all other
amounts payable hereunder and under the other Facility Loan Documents shall
become immediately due and payable, without any further election or action on
the part of the Agent or any Lender hereunder or under the Finance Facility, in
each case without presentment, demand, protest or notice of any kind, all of
which the Borrower expressly waives; or (2) any Integration Blockage Default
occurs, the Lenders may terminate or suspend the obligations of the Lenders to
make Advances under the Finance Facility, or declare the Facility Obligations to
be due and payable, or both, whereupon the outstanding principal amount of this
Promissory Note, all accrued interest thereon and, in the case of Windmill, all
interest scheduled to accrue to the last day of the Interest Period for each
outstanding Advance held by Windmill, and all other amounts payable hereunder
and under the other Facility Loan Documents shall become immediately due and
payable, without any further election or action on the part of the Agent or any
Lender hereunder or under the Finance Facility, in each case without
presentment, demand, protest or notice of any kind, all of which the Borrower
expressly waives.
The Borrower hereby authorizes the Agent to endorse on a schedule hereto,
or on its books and records, the date and amount of each Advance made or
purchased by a Lender, the Maturity Date thereof, all payments made on account
of principal thereof or interest thereon and the interest rate applicable
thereto or interest amount payable thereon, provided that the failure to do so
shall not affect the obligations of the Borrower to the Lenders.
The Borrower also agrees to pay on demand all reasonable costs and expenses
incurred by the Agent or a Lender in enforcing this Promissory Note.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE
WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
This Promissory Note is the "Note" referred to in, and is entitled to the
benefits of, the Finance Facility, which Finance Facility, among other things,
set forth procedures to be used in
A-2
<PAGE> 42
connection with the Borrower's requests that the Lenders make Advances to it
from time to time. As provided in Section 12 of such Finance Facility, any
Advance transferred to ABN AMRO under the CLO Program Documents shall be
evidenced by this Promissory Note as an Advance in a principal amount equal to
the Matured Value of such Advance originally made by Windmill.
The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
AMERICAN NATIONAL CAN GROUP, INC.
By:
-----------------------------
Name:
---------------------------
Title:
---------------------------
A-3
<PAGE> 43
EXHIBIT B
TO
FINANCE FACILITY
BORROWING REQUEST
ABN AMRO Bank N.V.
Structured Finance
135 South LaSalle Street
Suite 725
Chicago, Illinois 60674
Attention: Chrissi Boryk
RE: 5-YEAR FINANCE FACILITY AGREEMENT DATED AS OF JULY 22, 1999
("FINANCE FACILITY")
Gentlemen:
The undersigned, American National Can Group, Inc., hereby requests an
Advance in the amount of $ with a Maturity Date of
under the terms of the above-referenced Finance Facility.
The undersigned confirms that all representations and warranties in Section
8 of the Finance Facility are true and correct and that no condition described
in Section 7(b) of the Finance Facility exists.
After giving effect to this requested Advance, the aggregate principal
amount of all Advances outstanding to the Borrower under the Finance Facility
would be $ .
AMERICAN NATIONAL CAN GROUP, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
B-1
<PAGE> 44
PROMISSORY NOTE
(5-YEAR FINANCE FACILITY AGREEMENT)
U.S. $50,000,000.00 Dated: July 22, 1999
For Value Received, the undersigned, AMERICAN NATIONAL CAN GROUP, INC., a
corporation organized and existing under the laws of the State of Delaware (the
"Borrower"), HEREBY PROMISES TO PAY to the order of ABN AMRO Bank N.V., as agent
(the "Agent") for ABN AMRO Bank N.V. ("ABN AMRO") and Windmill Funding
Corporation ("Windmill") or any assignee (including ABN AMRO) that acquires an
interest herein pursuant to an assignment under Section 12 of the "Finance
Facility" referred to below, as their respective interests may appear in the
Agent's records as Lenders under such Finance Facility, the principal amount of
each Advance on the Maturity Date for such Advance established under the Finance
Facility, together with interest (computed on the basis set forth in the Finance
Facility) on the principal amount of each such Advance outstanding from time to
time from and including the date on which such Advance is made to, but
excluding, the Maturity Date of such Advance, at the rates set forth in the
Finance Facility payable on each Interest Payment Date for such Advance.
Capitalized terms used and not otherwise defined herein have the meanings
ascribed to them in the 5-Year Finance Facility Agreement dated as of July 22,
1999 among the Borrower, the Agent, ABN AMRO, and Windmill, as amended,
modified, supplemented and/or restated from time to time (the "Finance
Facility").
The Borrower may not prepay any principal amount of any CP Advance before
its Maturity Date. Prepayments of Floating Rate Advances and Eurodollar Advances
are subject to the terms of Section 4 and Section 14(c) of the Finance Facility.
It shall be an "Event of Default" hereunder if, under the 5-Year Revolving
Credit Agreement a "Default" (as defined in the 5-Year Revolving Credit
Agreement) shall occur or any other event or condition shall occur which permits
or results in the acceleration (through mandatory prepayment or otherwise) of
the obligations of the Borrower under the 5-Year Revolving Credit Agreement,
and/or, if applicable, the termination of any commitment to extend credit
thereunder (other than as a result of optional and/or mandatory commitment
reductions as set forth therein), whether or not the 5-Year Revolving Credit
Agreement remains in effect, without giving effect to any requirement contained
in the 5-Year Revolving Credit Agreement that notice of the relevant
circumstance be provided by any party, but only requiring that any such notice
be provided by ABN AMRO.
If any Default described in Section 8.1(F) or 8.1(G) of the 5-Year
Revolving Credit Agreement occurs with respect to the Borrower, the obligations
of the Lenders to make Advances under the Finance Facility shall automatically
terminate and the outstanding principal amount of this Promissory Note, all
accrued interest thereon and, in the case of Windmill, all interest scheduled to
accrue to the last day of the Interest Period for each outstanding Advance held
by Windmill, and all other amounts payable hereunder and under the other
Facility Loan Documents shall immediately become due and payable without any
election or action on the part of the Agent or any Lender. If
<PAGE> 45
(1) any other Event of Default occurs and (a) if the "Required Lenders" (as
defined in the 5-Year Revolving Credit Agreement) terminate or suspend the
obligations of the lenders thereunder to make Loans, then the obligations of the
Lenders to make Advances under the Finance Facility shall automatically
terminate without any further election or action on the part of the Agent or any
Lender hereunder or under the Finance Facility and/or (b) if the "Required
Lenders" (as defined in the 5-Year Revolving Credit Agreement) declare the
Obligations thereunder to be due and payable, then the outstanding principal
amount of this Promissory Note, all accrued interest thereon and, in the case of
Windmill, all interest scheduled to accrue to the last day of the Interest
Period for each outstanding Advance held by Windmill, and all other amounts
payable hereunder and under the other Facility Loan Documents shall become
immediately due and payable, without any further election or action on the part
of the Agent or any Lender hereunder or under the Finance Facility, in each case
without presentment, demand, protest or notice of any kind, all of which the
Borrower expressly waives; or (2) any Integration Blockage Default occurs, the
Lenders may terminate or suspend the obligations of the Lenders to make Advances
under the Finance Facility, or declare the Facility Obligations to be due and
payable, or both, whereupon the outstanding principal amount of this Promissory
Note, all accrued interest thereon and, in the case of Windmill, all interest
scheduled to accrue to the last day of the Interest Period for each outstanding
Advance held by Windmill, and all other amounts payable hereunder and under the
other Facility Loan Documents shall become immediately due and payable, without
any further election or action on the part of the Agent or any Lender hereunder
or under the Finance Facility, in each case without presentment, demand, protest
or notice of any kind, all of which the Borrower expressly waives.
The Borrower hereby authorizes the Agent to endorse on a schedule hereto,
or on its books and records, the date and amount of each Advance made or
purchased by a Lender, the Maturity Date thereof, all payments made on account
of principal thereof or interest thereon and the interest rate applicable
thereto or interest amount payable thereon, provided that the failure to do so
shall not affect the obligations of the Borrower to the Lenders.
The Borrower also agrees to pay on demand all reasonable costs and expenses
incurred by the Agent or a Lender in enforcing this Promissory Note.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE
WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
This Promissory Note is the "Note" referred to in, and is entitled to the
benefits of, the Finance Facility, which Finance Facility, among other things,
set forth procedures to be used in connection with the Borrower's requests that
the Lenders make Advances to it from time to time. As provided in Section 12 of
such Finance Facility, any Advance transferred to ABN AMRO under the CLO Program
Documents shall be evidenced by this Promissory Note as an Advance in a
principal amount equal to the Matured Value of such Advance originally made by
Windmill.
2
<PAGE> 46
The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
AMERICAN NATIONAL CAN GROUP, INC.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
3
<PAGE> 1
EXHIBIT 10.36
364-DAY FINANCE FACILITY AGREEMENT
July 22, 1999
American National Can Group, Inc.
8770 West Bryn Mawr Avenue
Chicago, IL 60631-3542
Gentlemen:
Windmill Funding Corporation ("WINDMILL") is pleased to make available
to American National Can Group, Inc., a Delaware corporation (the "BORROWER") an
uncommitted credit facility, and ABN AMRO Bank N.V. (together with its assigns,
"ABN AMRO") is pleased to make available to the Borrower a committed credit
facility, each for general corporate purposes, on the terms and conditions set
forth in this 364-Day Finance Facility Agreement ("AGREEMENT"). Windmill and ABN
AMRO are collectively referred to herein as "LENDERS" and each individually is
referred to as a "LENDER". Each Lender hereby irrevocably designates and
appoints ABN AMRO Bank N.V. as its agent (the "AGENT") hereunder and authorizes
the Agent to take such action hereunder and under the Note, exercise such powers
and perform such duties as are expressly delegated to the Agent hereby and to
exercise such other powers as are reasonably incidental thereto. Various
capitalized terms used herein and not otherwise defined herein are defined in
Section 22 below.
1. LOAN FACILITIES. Subject to Section 13, the aggregate
principal amount of Advances made to the Borrower hereunder shall not exceed
$49,000,000 (the "MAXIMUM PRINCIPAL AMOUNT"). The commitment of ABN AMRO to make
Advances hereunder (the "COMMITMENT") (i) shall equal an initial amount equal to
the lesser of (x) the Maximum Principal Amount minus the sum of the aggregate
principal amount of all Advances then outstanding hereunder and (y) $50,000,0000
(the "MAXIMUM MATURED VALUE") minus the sum of (a) the Matured Values of all
outstanding Advances then held by Windmill plus (b) the aggregate principal
amount of all outstanding Advances then held by the Lenders other than Windmill;
(ii) shall be subject to Section 7 and the other terms and conditions of
this Agreement; and (iii) shall be subject to reduction in accordance with the
terms of Sections 5 and 6. At no time will Windmill have any obligation to make
an Advance hereunder, and Windmill shall not make an Advance if that would cause
either limitation on ABN AMRO's Commitment described in clause (i) of the
preceding sentence (as adjusted from time to time) to be exceeded. ABN AMRO
shall not be required to make an Advance hereunder to the Borrower unless
the Borrower first shall have requested that Advance from Windmill and Windmill
shall have
<PAGE> 2
declined or is unable to make the Advance. Each Advance made by Windmill or
made or held by ABN AMRO shall be evidenced by a single promissory note of the
Borrower in the form attached hereto as Exhibit A (the "NOTE") payable to the
order of the Agent for the benefit of the Lenders. During the period from the
date hereof to the earlier of the Revolving Credit Termination Date and the
Conversion Date, the Borrower may use the Commitment by borrowing, repaying and
reborrowing Advances in whole or in part, all in accordance with the terms and
conditions of this Agreement.
2. MANNER OF BORROWING. (a) Notices of Borrowing. In order to request an
Advance hereunder, the Borrower must provide to the Agent an irrevocable request
by telephone (promptly confirmed in a writing substantially in the form of
Exhibit B) or by telecopier or other facsimile communication substantially in
the form of Exhibit B, by 9:00 a.m. (Chicago time) three Business Days before
(or, in the case of a requested Floating Rate Advance, on) the requested date
(the "BORROWING DATE") of such Advance, specifying whether the Advance is
requested from Windmill or from ABN AMRO, the requested Borrowing Date (which
must be a Business Day), the requested amount (the "BORROWING AMOUNT") of such
Advance, which must be in a minimum amount of $1,000,000 and multiples thereof
(or, if less, an amount that reduces the unused Commitment to zero), any
requested Interest Period for such Advance, and (if such Advance is requested
from ABN AMRO) whether a Floating Rate Advance or Eurodollar Advance is
requested. If an Advance is requested from Windmill and Windmill determines, in
its sole discretion, to make the requested Advance, Windmill shall transfer to
the Agent on the requested Borrowing Date the amount of such Advance it is
willing to make. If an Advance is requested from ABN AMRO, subject to Section 7
and the other terms and conditions hereof, ABN AMRO shall transfer the amount of
the requested Advance to the Agent by no later than 12:00 noon (Chicago time) on
the Borrowing Date. The Agent shall transfer to the Borrower Account the
proceeds of any Advance delivered by any Lender as described above. Following
each such funding of an Advance, the Agent shall deliver to the Borrower a
confirmation of the principal amount, interest rate and Interest Period of such
Advance.
(b) Agent Reliance. The Borrower hereby authorizes the Agent to rely upon
any telephone, telecopier or other facsimile requests or instructions of any
person the Agent in good faith believes is an Authorized Officer, and in all
cases the Borrower shall be bound thereby in the same manner as if such person
were authorized or such signature were genuine and, if any such requests or
instructions conflict with their written confirmation, such requests or
instructions shall govern if the Agent has acted in reliance thereon.
3. INTEREST RATES AND PAYMENTS; FEES. (a) Windmill Advances. Each Advance
from Windmill shall accrue interest at the CP Rate applicable to the Interest
Period for such Advance. In its request for an Advance from Windmill the
Borrower may request the duration of the Interest Period for such Advance, but
the Agent shall establish each Interest Period for an Advance from Windmill to
correspond to the maturity of the commercial paper issued by Windmill to fund
such Advance.
-2-
<PAGE> 3
(b) ABN AMRO Advances. Each Floating Rate Advance held or made by ABN AMRO
shall bear interest each day it is outstanding at the Floating Rate in effect
for such day. Subject to Section 3(d), each Eurodollar Advance held or made by
ABN AMRO to the Borrower shall bear interest at the Eurodollar Rate applicable
to the Interest Period for such Advance. In its request for a Eurodollar Rate
Advance, the Borrower may request the Interest Period for such Eurodollar
Advance, but in the absence of such a request the Interest Period for each
Eurodollar Advance shall be one (1) month.
(c) Promise to Pay; Payment of Interest. All Advances shall be paid in full
by the Borrower on the earliest of (a) the Maturity Date applicable thereto, (b)
if the Conversion Date has not occurred, the Revolving Credit Termination Date
and (c) if the Conversion Date has occurred, the "Conversion Maturity Date" (as
defined in Section 5(b) below). The Borrower unconditionally promises to pay
when due the principal amount of each Advance and all other Facility Obligations
incurred by it hereunder, and to pay all unpaid interest accrued thereon, in
accordance with the terms of this Agreement and the other Facility Loan
Documents. The Borrower shall pay interest on each Advance on each Interest
Payment Date for such Advance to the Agent for the account of the applicable
Lenders.
(d) Interest and Fee Basis; Applicable Floating Rate Margin, Applicable
Eurodollar Margin and Applicable Facility Fee Percentage; Post-Default Interest.
(i) Interest on all Eurodollar Advances and all CP Advances and all
fees shall be calculated for actual days elapsed on the basis of a 360-day
year. Interest on all Floating Rate Advances shall be calculated for actual
days elapsed on the basis of a 365-, or when appropriate 366-, day year.
Interest shall be payable for the day an Advance or other Facility
Obligation is incurred but not for the day of any payment on the amount
paid if payment is received prior to 2:00 p.m. (Chicago time) at the place
of payment. If any payment of principal of or interest on an Advance or any
payment of any other Facility Obligations shall become due on a day which
is not a Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a principal payment, such extension of
time shall be included in computing interest, fees and commissions in
connection with such payment.
(ii) The Applicable Floating Rate Margin, Applicable Eurodollar Margin
and Applicable Facility Fee Percentage shall be determined on the basis of
the then applicable Average Total Net Indebtedness to Capital Ratio (as
defined in and as calculated in the 364- Day Credit Agreement), from time
to time by reference to the following table:
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<PAGE> 4
<TABLE>
<CAPTION>
===========================================================================================================================
AVERAGE
TOTAL NET APPLICABLE
INDEBTEDNESS APPLICABLE FACILITY
TO CAPITAL APPLICABLE FLOATING EURODOLLAR FEE
RATIO RATE MARGIN MARGIN PERCENTAGE
===========================================================================================================================
Floating Rate Floating Rate Eurodollar Eurodollar
Advances Advances Advances Advances
(90%) Held by (10%) Held by (90%) Held (10%) Held by
Liquidity Enhancer by Liquidity Enhancer
Provider Provider
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
>= 0.50 to 1.0
0.25% 0.75% 1.25% 1.75% 0.25%
- ---------------------------------------------------------------------------------------------------------------------------
>= 0.45 to 1.0
and < 0.50 to 0.0% 0.50% 1.05% 1.55% 0.20%
1.0
- ---------------------------------------------------------------------------------------------------------------------------
>= 0.40 to 1.0
and < 0.45 to 0.0% 0.50% 0.95% 1.45% 0.175%
1.0
- ---------------------------------------------------------------------------------------------------------------------------
< 0.40 to 1.0 0.0% 0.50% 0.85% 1.35% 0.15%
===========================================================================================================================
</TABLE>
Upon receipt of the financial statements delivered pursuant to Sections
15(a)(i) and (ii), as applicable, the Applicable Floating Rate Margin,
Applicable Eurodollar Margin and Applicable Facility Fee Percentage shall
be adjusted, such adjustment being effective five (5) Business Days
following the Agent's receipt of such financial statements and the
compliance certificate required to be delivered in connection therewith
pursuant to Section 15(a)(iii); provided, that if the Borrower shall not
have timely delivered its financial statements in accordance with Section
15(a)(i) or (ii), as applicable, then commencing on the date upon which
such financial statements should have been delivered and continuing until
such financial statements are actually delivered, it shall be assumed for
purposes of determining the Applicable Floating Rate Margin, Applicable
Eurodollar Margin and Applicable Facility Fee Percentage that the Average
Total Net Indebtedness to Capital Ratio was greater than 0.50 to 1.0;
provided, further that all calculations of "Average Total Net Indebtedness"
under this Section 2.15(D) shall be made exclusive of any impact on the
financial statements arising from Supported Contingent Obligations, unless
(i) the Borrower shall not receive cash reimbursement for any and all cash
payments made under any Supported Contingent Obligations promptly, and in
any event within ninety (90) days, following the Borrower making any such
payment, in which event "Average Total Net Indebtedness" shall thereafter
be calculated by including the total outstanding amount of such Supported
Contingent Obligation (to the extent unreimbursed or otherwise unsupported
to
-4-
<PAGE> 5
the satisfaction of the Agent) in "Average Total Net Indebtedness", or
(ii) any judgment is entered under Viskase Corporation v. American
National Can Company, Civ. 93-C-7651 ("VISKASE MATTER"), before the
U.S. District Court of the Northern District of Illinois, Eastern
Division or any related proceedings holding that the aggregate
liability of the Borrower and its Subsidiaries thereunder shall be in
an amount in excess of $106,000,000, and such judgment shall remain (x)
undischarged, unvacated or unstayed or (y) unbonded by Pechiney, S.A.
or any bonding agent in reliance upon a letter of credit or other
reimbursement obligation of Pechiney, S.A. or any other Person other
than the Borrower or its Subsidiaries in the amount of such aggregate
liability, in the case of either clause (x) or (y), for a period of
thirty (30) days or such other period permitted by court order, in
which event "Average Total Net Indebtedness" shall thereafter be
calculated by giving effect to the amount of such judgment which is
undischarged, unvacated, unstayed or unbonded on the financial
condition of the Borrower and its Subsidiaries.
(iii) Notwithstanding anything herein to the contrary, from
the date of this Agreement to but not including the fifth (5th)
Business Day following receipt of the Borrower's financial statements
delivered pursuant to Section 15(a)(i) for the fiscal quarter ending
March 31, 2000, the Applicable Floating Rate Margin, Applicable
Eurodollar Margin and Applicable Facility Fee Percentage shall be
determined based upon an Average Total Net Indebtedness to Capital
Ratio greater than or equal to 0.45 to 1.0 and less than or equal to
0.50 to 1.0, or, if higher, the Average Total Net Indebtedness to
Capital Ratio calculated as of the end of each of the three fiscal
quarters immediately following the Closing Date; provided, that for
purposes of calculating Average Total Net Indebtedness for the three
fiscal quarters immediately following the Closing Date, Average Total
Net Indebtedness shall be calculated (x) for the fiscal quarter ending
on September 30, 1999, for such fiscal quarter, (y) for the fiscal
quarter ending on December 31, 1999, for the two fiscal quarter period
then ending, and (z) for the fiscal quarter ending on March 31, 2000,
for the three fiscal quarter period then ending.
(iv) Notwithstanding anything herein to the contrary, in the
event that there is any amendment to the terms of Section 2.15(D) of
the 364-Day Credit Agreement and the effect of such an amendment is to
increase the Applicable Eurocurrency Rate Margins, Applicable Floating
Rate Margins and/or Applicable Facility Fee Percentages (each as
defined therein), then there shall automatically be effective a
corresponding amendment to the terms of this Section 3(d)(iv) with
respect to the Applicable Eurodollar Rate Margins, Applicable Floating
Rate Margins and/or Applicable Facility Fee Percentages (with the
margins with respect to the Enhancer's portion of the Advances always
maintained at 0.50% higher than the margins with respect to the
Liquidity Provider's portion of the Advances).
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<PAGE> 6
(v) After the occurrence and during the continuance of an Event of
Default, the interest rate applicable to all of the Advances shall be equal
to (a) the Prime Rate plus 2.25% for an amount equal to 90% of the Advances
and (b) the Prime Rate plus 3.75% for an amount equal to 10% of the
Advances.
(e) Availability of Eurodollar Advances. If ABN AMRO determines that (i)
maintenance of Eurodollar Advances would violate any applicable law, rule,
regulation or directive, whether or not having the force of law, (ii) that
deposits of a type or maturity appropriate to match fund such Eurodollar Advance
are not available to ABN AMRO or (iii) the interest rate applicable to a
Eurodollar Advance does not accurately reflect the cost of making or maintaining
such a Eurodollar Advance, then the Agent shall suspend the availability of the
Eurodollar Rate for each affected Eurodollar Advance and, in the case of any
occurrence set forth in clause (i), require any Eurodollar Advances to be repaid
or converted into Floating Rate Advances.
(f) Fees.
(i) Facility Fee. The Borrower shall pay to the Agent, for the ratable
account of the Lenders, from and after the Closing Date until the Facility
Termination Date, a facility fee accruing at the rate of the then
Applicable Facility Fee Percentage, on (i) the Maximum Matured Value
(whether used or unused) or (ii) if the Commitment is terminated pursuant
to the terms of this Agreement, on the (a) the Matured Values of all
outstanding Advances then held by Windmill plus (b) the aggregate principal
amount of all outstanding Advances then held by the Lenders other than
Windmill. The facility fee shall be payable in arrears on each Payment Date
hereafter (with the first such payment being calculated for the period from
the date of this Agreement and ending on September 1, 1999), and, in
addition, on any date on which the Commitment shall be terminated in whole
(whether as a result of a termination of this Agreement, the occurrence of
an Event of Default or Unmatured Event of Default or the implementation of
the terms of Section 2.6 of the 364-Day Credit Agreement) or, with respect
to such terminated amount, in part (including on the Conversion Date).
(ii) Fees under Fee Letter. The Borrower shall pay to the Agent for
the benefit of the Lenders such fees and in such amounts as agreed to with
the Agent in the letter agreement dated as of June 7, 1999, as amended as
of the date hereof, between the Borrower and the Agent, to be allocated
among the Lenders as agreed to among them.
4. MATURITY DATES; SELECTION OF TYPES OF ADVANCES; PREPAYMENTS.
(a) (i) Windmill Advances. Each Advance made by Windmill hereunder
before the Revolving Credit Termination Date (or, if applicable, after the
Conversion Date pursuant to the terms of Section 5(c)) shall be due and
payable on the Maturity Date of such Advance. In no event will an Advance
from Windmill be considered repaid unless and until Windmill
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<PAGE> 7
has been paid all interest scheduled to accrue on such Advance to its
Maturity Date.
(ii) ABN AMRO Advances. Subject to the terms of this Agreement, the
Borrower may borrow, repay and reborrow Advances from ABN AMRO at any time
prior to the earlier of the Revolving Credit Termination Date and the
Conversion Date. Advances, if any, made by ABN AMRO on the date of this
Agreement (the "Closing Date") or on or before the third (3rd) Business Day
thereafter shall initially be Floating Rate Advances and thereafter may be
continued as Floating Rate Advances or converted into Eurodollar Advances
in the manner provided in clause (iii) and subject to the other conditions
and limitations therein set forth and set forth in this Agreement. Advances
made by ABN AMRO after the third (3rd) Business Day after the Closing Date
shall be, at the option of the Borrower, selected in accordance with clause
(iii), either Floating Rate Advances or Eurodollar Advances. On the
Revolving Credit Termination Date, the Borrower shall repay in full the
outstanding principal balance of the Advances held by ABN AMRO unless the
Conversion Date shall have occurred, in which event the Borrower shall
repay in full the outstanding principal balance of the Advances held by ABN
AMRO on the Conversion Maturity Date.
(iii) Method of Selecting Types and Interest Periods for Conversion
and Continuation of Advances from ABN AMRO.
(A) Right to Convert. The Borrower may elect from time to time,
subject to the provisions of this Section 4(a)(iii), to convert all or
any part of an Advance of any Type held by ABN AMRO into any other
Type of Advance held by ABN AMRO; provided that any conversion of any
Eurodollar Advance shall be made on, and only on, the Maturity Date
for such Eurodollar Advance.
(B) Automatic Conversion and Continuation. Floating Rate Advances
shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into Eurodollar Advances.
Eurodollar Advances shall continue as Eurodollar Advances until the
applicable Maturity Date therefor, at which time such Eurodollar
Advances shall be automatically converted into Floating Rate Advances
unless the Borrower shall have given the Agent notice in accordance
with Section 4(a)(iii)(D) requesting that, at the end of the
applicable Interest Period, such Eurodollar Advance continue as a
Eurodollar Advance.
(C) No Conversion Post-Event of Default or Unmatured Event of
Default. Notwithstanding anything to the contrary contained in this
Agreement, no Advance may be converted into or continued as a
Eurodollar Advance (except with the consent of ABN AMRO) when any
Event of Default or Unmatured Event of Default has occurred and is
continuing.
(D) Conversion/Continuation Notice. The Borrower shall give the
Agent
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<PAGE> 8
irrevocable notice (a "CONVERSION/CONTINUATION NOTICE") of each
conversion of a Floating Rate Advance into a Eurodollar Advance or
continuation of a Eurodollar Advance not later than 9:00 a.m. (Chicago
time) three (3) Business Days prior to the date of the requested
conversion or continuation, with respect to any Advance held by ABN
AMRO to be converted or continued as a Eurodollar Advance specifying:
(1) the requested date (which shall be a Business Day) of such
conversion or continuation; (2) the amount and Type of the Advance to
be converted or continued; and (3) the amount of Eurodollar Advance(s)
into which such Advance is to be converted or continued and the
duration of the Interest Period applicable thereto.
(b) Prepayments; Repayments. No CP Advance made hereunder may
be prepaid. No Eurodollar Advance made hereunder may be prepaid unless
(i) such prepayment is made on not less than three Business Days' prior
notice to the Agent and (ii) such prepayment is accompanied by the
Early Payment Fee as required pursuant to Section 14(c). A Floating
Rate Advance may be repaid on any Business Day following notice to the
Agent delivered not later than 9:00 a.m. (Chicago time) on the date of
such repayment.
5. EXTENSION OF REVOLVING CREDIT TERMINATION DATE; CONVERSION. (a)
Extension of Revolving Credit Termination Date. The Commitment shall expire on
the earlier of the Conversion Date or the Revolving Credit Termination Date.
Within the period beginning 59 days and ending 30 days before the then effective
Revolving Credit Termination Date, the Borrower may request in writing that the
Revolving Credit Termination Date be extended for an additional period of 364
days, including the then effective Revolving Credit Termination Date as one of
the days in the calculation of days elapsed. Within 30 days after such request
(such 30th day being the "CONSENT DATE"), each Lender may, in its sole
discretion, agree to such extension to a new Revolving Credit Termination Date
not more than 364 days following such Consent Date by giving written notice of
such agreement to the Borrower and the Agent (and the failure to provide such
notice shall be deemed to be a decision not to extend). All of the Lenders must
agree to any extension with respect to the Revolving Credit Termination Date for
any such extension to become effective. Notwithstanding anything herein to the
contrary, the Revolving Credit Termination Date may not be extended hereunder
unless the "Termination Date" under and as defined in the 364-Day Credit
Agreement shall have been extended for at least the same length of time and
unless at the time of such extension no Integration Blockage Default has
occurred.
(b) Conversion to Term Loan. (1) At the Borrower's option upon written
notice (a "NOTICE TO CONVERT") to the Agent (who shall promptly notify each of
the Lenders), the Borrower may and (2) on the effective date of any conversion
to term loans of the "Loans" under and pursuant to the terms of Section 2.19(C)
of the 364-Day Credit Agreement, the Borrower automatically shall, convert the
then outstanding aggregate principal amount of the Advances hereunder to a term
loan hereunder. The Notice to Convert shall expressly state the date on which
such conversion shall occur (the date of such requested conversion or the date
of conversion of the "Loans" under and pursuant to the 364-Day Credit Agreement
being the "CONVERSION DATE") and shall be irrevocable
-8-
<PAGE> 9
once given and shall constitute a representation and warranty by the Borrower
that the conditions contained in Section 7 have been satisfied as of the date of
such Notice to Convert and as of the Conversion Date. Upon delivery of such
Notice to Convert (or automatically with the conversion of the "Loans" under and
pursuant to the 364-Day Credit Agreement), (i) the Borrowers' option to request
extensions of the Revolving Credit Termination Date under clause (a) above and,
except as provided in clause (c) below with respect to the rollover of Advances
held by Windmill, to borrow and reborrow Advances hereunder, shall terminate and
(ii) except as provided in clause (c) below, the outstanding principal balance
of all Advances hereunder shall be due and payable on the earliest of (A) the
date that is 364 days after the Conversion Date (or, if such date of payment is
not a Business Day, on the immediately preceding Business Day) (the "CONVERSION
MATURITY DATE") and (B) the Facility Termination Date. All references in this
Agreement to Advances shall include such Advances as converted hereunder. The
Borrower hereby agrees to provide to the Agent a copy of any "Notice to Convert"
delivered to the Administrative Agent under and as defined in the 364-Day Credit
Agreement simultaneously with such delivery.
(c) Rollover of Converted Advances Held by Windmill. Effective as of
the Conversion Date and notwithstanding anything herein to the contrary:
(i) The Maximum Principal Amount shall be reduced to an amount
equal to the sum of (A) the Matured Values of all Advances held by
Windmill on the Conversion Date plus (B) the aggregate outstanding
principal amount of all Advances then held by ABN AMRO.
(ii) The Maximum Matured Amount shall be reduced to an amount
equal to 102% of the Maximum Principal Amount.
(iii) CP Advances held by Windmill shall continue,
notwithstanding the Conversion Date, as CP Advances until the
applicable Maturity Date therefor, at which time such CP Advances shall
be automatically due and payable. Notwithstanding the terms of clause
(b) above, solely for purposes of reborrowing CP Advances which mature
after the Conversion Date, the Borrower shall be permitted to reborrow
on the applicable Maturity Date the principal amount which is maturing
(a "REFUNDING BORROWING") subject to the other terms and conditions
contained in this Agreement; provided the Borrower shall have given the
Agent a Notice of Borrowing in accordance with this clause (iii)
requesting that, at the end of the applicable Interest Period, such
maturing CP Advances are remade by Windmill or, in the event that
Windmill is unable or unwilling to make such refunding Advance but the
conditions for borrowing hereunder have otherwise been met in
connection therewith, by ABN AMRO. The Borrower shall give the Agent an
irrevocable Notice of Borrowing with respect to any such Refunding
Borrowing in accordance with the terms of Section 2 above. No repayment
of a CP Advance made in connection with which there is a Refunding
Borrowing, shall be considered a prepayment or repayment of the
Advances for purposes of the terms of the 364-Day Credit Agreement.
Other than in connection with a Refunding Borrowing, after the
Conversion Date, no Advance once repaid may be reborrowed and the
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<PAGE> 10
Maximum Principal Amount and Maximum Matured Amounts shall accordingly
be permanently reduced with any repayment or prepayment of an Advance
which is not the subject of a Refunding Borrowing on the Maturity Date
applicable thereto.
6. REDUCTIONS IN MAXIMUM PRINCIPAL AMOUNT AND IN MAXIMUM MATURED VALUE.
(a) Optional Reductions. The Borrower may, upon three (3) Business
Days' notice to the Agent, reduce the Maximum Matured Value and correspondingly
reduce, in increments of $1,000,000, the Maximum Principal Amount, so long as
(x) the Maximum Matured Value still equals at least 102% of the Maximum
Principal Amount, (y) the aggregate outstanding principal amount of Advances
would not thereby exceed the Maximum Principal Amount, and (z) the sum of the
Matured Values of all Advances then held by Windmill plus the aggregate
outstanding principal amount of all Advances then held by ABN AMRO would not
thereby exceed the Maximum Matured Value.
(b) Mandatory Facility Reductions and Prepayments.
(i) Mandatory Prepayment and Facility Reduction upon Optional Reduction
of 364-Day Credit Facility. Upon and simultaneously with any optional reduction
of the "Aggregate Revolving Loan Commitment" under and as defined in the 364-Day
Credit Agreement, the Borrower shall immediately notify the Agent and the
Lenders and, unless the Borrower is notified by the Agent that the Lenders have
declined such prepayment and reduction, then:
(a) the Maximum Matured Value shall be reduced by an amount
such that the relative size that the Maximum Matured Value bears to the
Aggregate Revolving Loan Commitment remains constant and there shall be
a corresponding reduction in the Maximum Principal Amount, provided the
Maximum Matured Value shall still equal at least 102% of the Maximum
Principal Amount; and
(b) the Borrower shall immediately make a mandatory prepayment
of the Facility Obligations in an amount necessary such that (1) the
aggregate outstanding principal amount of Advances would not thereby
exceed the Maximum Principal Amount as so reduced, and (2) the sum of
the Matured Values of all Advances then held by Windmill plus the
aggregate outstanding principal amount of all Advances then held by ABN
AMRO would not thereby exceed the Maximum Matured Value as so reduced.
(ii) Mandatory Prepayment upon Optional Prepayment of Loans under the
364-Day Credit Facility following the Conversion Date. Upon and simultaneously
with any optional repayment or prepayment of the "Loans" under and as defined in
the 364-Day Credit Agreement following the Conversion Date, the Borrower shall
immediately notify the Agent and the Lenders and, unless the Borrower is
notified by the Agent that the Lenders have declined such prepayment and
reduction, then:
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<PAGE> 11
(a) the Maximum Matured Value shall be reduced by an amount
such that the relative size that the Maximum Matured Value bears to the
outstanding principal balance of such Loans remains constant and there
shall be a corresponding reduction in the Maximum Principal Amount,
provided the Maximum Matured Value shall still equal at least 102% of
the Maximum Principal Amount; and
(b) the Borrower shall immediately make a mandatory prepayment
of the Facility Obligations in an amount necessary such that (1) the
aggregate outstanding principal amount of Advances would not thereby
exceed the Maximum Principal Amount as so reduced, and (2) the sum of
the Matured Values of all Advances then held by Windmill plus the
aggregate outstanding principal amount of all Advances then held by ABN
AMRO would not thereby exceed the Maximum Matured Value as so reduced.
(c) After each of (i) that certain 5-Year Credit Agreement
dated as of the date hereof entered into by and among the Borrower, one
or more Subsidiaries of the Borrower, the institutions from time to
time parties thereto as lenders, The First National Bank of Chicago, as
Administrative Agent for itself and the other Lenders, The Chase
Manhattan Bank, as Syndication Agent, ABN AMRO Bank N.V., as
Co-Documentation Agent and Arranger, Royal Bank of Canada, as
Co-Documentation Agent and Arranger, Banque Nationale de Paris, as
Arranger, Chase Securities Inc., as Lead Arranger and Joint Book
Manager, and Banc One Capital Markets, Inc., as Lead Arranger and Joint
Book Manager and (ii) that certain the 5-Year Finance Facility
Agreement dated as of the date hereof entered into by and among the
Borrower, Windmill and the Agent have been terminated and all
obligations thereunder (other than contingent indemnification
obligations) have been paid in full, if at any time and for any reason,
the Borrower shall, or it shall permit any Subsidiary to, consummate
any "Asset Sale" (as defined in the 364-Day Credit Agreement) (other
than Asset Sales permitted under Sections 7.3(B)(i) and (ii) thereof)
or "Sale and Leaseback Transaction" (as defined in the 364-Day Credit
Agreement) which represents the disposition, together with all other
Asset Sales and Sale and Leaseback Transactions since the Closing Date
(each such Asset Sale and each such Sale and Leaseback Transaction
being valued at book value), in the aggregate of greater than fifteen
percent (15%) of the "Consolidated Net Assets" (as defined in the
364-Day Credit Agreement) of the Borrower as of the date of such Asset
Sale or Sale and Leaseback Transaction (calculated without giving
effect to such Asset Sale or Sale and Leaseback Transaction, as
applicable) (the amount in excess of such 15% amount being herein the
"EXCESS PROCEEDS"), the Borrower shall immediately notify the Agent and
the Lenders and, unless the Borrower is notified by the Agent that the
Lenders have declined such prepayment and reduction, then:
(a) the Maximum Matured Value shall be reduced by an amount
equal to such Excess Proceeds multiplied by the ratio the Maximum
Matured Value bears to the sum of (a) the "Aggregate Revolving Loan
Commitment" (as defined in the 364-Day Credit Agreement) and (b) the
Maximum Matured Value and there shall be a corresponding reduction in
the
-11-
<PAGE> 12
Maximum Principal Amount, provided the Maximum Matured Value shall
still equal at least 102% of the Maximum Principal Amount; and
(b) the Borrower shall immediately make a mandatory prepayment
of the Facility Obligations in an amount equal to such portion of such
Excess Proceeds.
7. CONDITIONS TO ABN AMRO COMMITMENT. (a) ABN AMRO's Commitment shall
not become effective, and no Advance shall be made, until:
(i) (a) the initial public offering of the capital stock of
the Borrower shall have been completed and the capital structure and
corporate structure of the Borrower and its "Subsidiaries" (as defined
in the 364-Day Credit Agreement) is consistent in all material respects
with the Borrower's S-1 Registration Statement filed with the
Securities and Exchange Commission as of June 4, 1999, as amended as of
the Closing Date; (b) there exists no injunction or temporary
restraining order which, in the reasonable judgment of the Agent, would
prohibit the making of the Advances and the other transactions
contemplated by the Facility Loan Documents or any litigation seeking
such an injunction or restraining order and (c) the Borrower (1) shall
have delivered to the Agent an executed copy of the Guarantee from
Pechiney, S.A. with respect to the Viskase Matter and the "Assumed OPEB
Obligations" (as defined therein) in substantially the form of the
draft faxed from counsel to the Borrower to counsel to the Agent on
July 12, 1999, (2) shall have delivered to the Agent an executed copy
the Indemnification Agreement between American National Can Company and
Pechiney, S.A. with respect to certain environmental liabilities in
substantially the form of the June 22, 1999 draft faxed from counsel to
the Borrower to counsel to the Agent on July 12, 1999 and (3) shall
have delivered to the Agent, in form and substance reasonably
acceptable to the Agent, an indemnification agreement from Pechiney,
S.A. with respect to the European Commission investigation matters
disclosed by the Borrower to the Agent by facsimile on July 21, 1999;
and
(ii) all conditions precedent to the initial borrowing under
and contained in Section 5.1 of the 364-Day Credit Agreement shall have
been met and the lenders thereunder shall have made their initial
advance thereunder (or shall be making such advances contemporaneously
with the initial Advance hereunder); and
(iii) the Agent has received (a) counterparts of this
Agreement duly executed by each party hereto, (b) the Note duly
executed by the Borrower, (c) the Guaranty duly executed by the
Guarantors, (d) the Subordination Agreement duly executed by the
Borrower and each Material Subsidiary as of the Closing Date, (e)
certificates of the Borrower's and Guarantors' Secretaries or other
appropriate representatives certifying the incumbency, authority and
signature of each person executing a Facility Loan Document on behalf
of the Borrower or Guarantors, and (f) the written opinions of the
Borrower's and the Guarantors' counsel,
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addressed to the Agent and the Lenders, in substantially the form
attached as Exhibit E to the 364-Day Credit Agreement;
(b) In addition to the limitations in Section 1 and the
conditions set forth in clause (a) above, ABN AMRO shall not have any obligation
to make any Advance to the Borrower unless at the time such Advance is requested
and on the Borrowing Date with respect thereto the conditions contained in
Sections 5.3(A) and 5.3(B) of the 364-Day Credit Agreement have been satisfied
with respect to such Advance as though such Advance was made thereunder.
8. REPRESENTATIONS. As of the date of the initial funding hereunder and
at all times thereafter, the Borrower represents that (a) the execution,
delivery and performance of this Agreement and the Note have been duly
authorized by all necessary corporate action of the Borrower and do not
contravene any law, or any contractual or legal restriction, applicable to the
Borrower, (b) no authorization or approval or other action by, and no
notice to or filing with, any governmental authority or other Person (other than
internal corporate approvals of the Borrower that have been obtained), is
required for such execution, delivery and performance or for the making of any
Advance, (c) this Agreement and the Note constitute the legal, valid and binding
obligations of the Borrower enforceable in accordance with their respective
terms. In addition, each request by the Borrower for an Advance (and any Notice
to Convert or deemed Notice to Convert) shall constitute a representation and
warranty by the Borrower, as of the making of such Advance (or conversion
thereof on the Conversion Date) and after giving effect to the application of
the proceeds thereof, that (i) the Borrower is in compliance with all of
the conditions to a borrowing from ABN AMRO described in Section 7 above
(regardless whether such Advance is requested from Windmill or ABN AMRO),
(ii) such Advance when made will constitute the Borrower's legal, valid
and binding obligation, (iii) such Advance is being incurred, and will be
repaid, in the ordinary course of the Borrower's business and (iv) as of the
making of such Advance and after giving effect to the application of the
proceeds thereof, no event has occurred and no circumstance exists as a result
of which information provided by the Borrower, the Guarantors or any affiliate
of any of them to the Agent or any Lender in connection herewith includes an
untrue statement of a material fact or omits to state any material fact
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
9. PAYMENTS. The Borrower shall make each payment hereunder and under
the Note on or before 2:00 p.m.(Chicago time) on the day when due in Dollars at
Account No. 451118894850 at ABN AMRO Bank N.V., Chicago, Illinois, or at such
other account as the Agent may advise to the Borrower from time to time (the
"AGENT'S ACCOUNT"), in same day funds without setoff or counterclaim and without
reduction or deduction for any and all present or future taxes, levies, duties,
charges, deductions or withholdings of any kind or for any other restrictions or
conditions of any nature, with the Borrower separately paying any such
withholdings or deductions to the Person entitled thereto so that the net sum
actually received by the Agent in all cases equals what is payable hereunder.
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<PAGE> 14
10. SUBSIDIARY GUARANTEES; SUBORDINATION AGREEMENT. The Borrower will
(i) cause (A) each Material Domestic Subsidiary not otherwise a party to the
Guaranty and (B) each other person or entity which at any time executes a
guaranty of the indebtedness evidenced by the 364-Day Credit Agreement to
execute and deliver to the Agent, on the earlier of (1) the date on which any
such guaranty or guaranty supplement is executed for the benefit of the lenders
under the 364-Day Credit Agreement and (2) the date that is twenty (20) days
after it becomes a Material Domestic Subsidiary of the Borrower, an assumption
agreement or guaranty supplement pursuant to which it agrees to be bound by the
terms and provisions of the Guaranty (whereupon such Subsidiary or other person
or entity shall become a "Guarantor" under this Agreement); (ii) cause each
Material Subsidiary, before it makes a loan to the Borrower or any Guarantor, to
execute the Subordination Agreement (and from and after the Closing Date cause
each other Material Subsidiary to execute and deliver to the Agent, within
twenty (20) days after becoming a Material Subsidiary, as applicable, an
assumption agreement pursuant to which it agrees to be bound by the terms and
provisions of the Subordination Agreement); and (iii) deliver and cause such
Subsidiaries or other Guarantor to deliver corporate resolutions, opinions of
counsel, and such other corporate documentation as the Agent may reasonably
request, all in form and substance reasonably satisfactory to the Agent.
11. NOTICES. All written communications hereunder to the Agent or
Borrower shall be mailed, telexed, telecopied or delivered to the address
specified below (or, for any party, to such other address as shall be designated
by such party by written notice to the other party):
The address for communications to the Borrower is:
American National Can Group, Inc.
8770 West Bryn Mawr Avenue
Chicago, IL 60631
Attention: Vice-President -- Treasurer
Telephone No.: (773) 399-3170
Facsimile No.: (773) 399-3115
with a copy to:
American National Can Group, Inc.
8770 West Bryn Mawr Avenue
Chicago, IL 60631
Attention: General Counsel
Telephone No.: (773) 399-3522
Facsimile No.: (773) 399-3115
The address for communications to the Agent is:
ABN AMRO Bank N.V.
Suite 725
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Chrissi Boryk
Telecopy No. (312) 904-6376
Telephone No. (312) 904-9086
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All communications for a Lender shall be directed to the Agent.
12. ASSIGNMENTS AND PARTICIPATIONS. (a) Permitted Assignments. Any
Lender (each such assigning Lender under this Section 12 being a "SELLER") may,
in the ordinary course of its business and in accordance with applicable law, at
any time assign to one or more banks or other entities ("PURCHASERS") all or a
portion of its rights and obligations under this Agreement (including, without
limitation, its Commitment, if any, and all or any portion of the Advances or
rights under the Note owing to it) in accordance with the provisions of this
Section 12. Each assignment shall be of a constant, and not a varying, ratable
percentage of all of the Seller's rights and obligations under this Agreement
and the Note and, in the case of an assignment by ABN AMRO, of its rights and
obligations under the 364-Day Credit Agreement to become a "New Lender" (as
defined in the 364-Day Credit Agreement) on the terms set forth in Section
2.6(b) thereof. The written consent of the Agent, and, prior to the occurrence
of an Event of Default, the Borrower (which consent, in each such case, shall
not be unreasonably withheld), shall be required prior to an assignment becoming
effective with respect to a Purchaser which is not a Lender under this
Agreement, a lender under the 364-Day Credit Agreement or an affiliate of such a
Lender or lender. In addition, (a) the written consent of the Administrative
Agent under the 364-Day Credit Agreement shall be required (which consent shall
not be unreasonably withheld or delayed) prior to any assignment becoming
effective with respect to a Purchaser which is either not a lender under the
364-Day Credit Agreement or an affiliate thereof or a financial institution with
a short-term commercial paper rating of at least A+/P-1 or A-1/P-1 and (b)
without the prior written consent of Windmill, no assignment of any obligation
of the Liquidity Provider or Enhancer to purchase loans from Windmill shall be
permitted hereunder. The applicable assignment agreement shall contain a
representation by the Purchaser to the effect that none of the consideration
used to make the purchase of the Commitment, Advances and other rights and
obligations under the Facility Loan Documents and the Note under the applicable
assignment agreement are "plan assets" as defined under ERISA and that the
rights and interests of the Purchaser in and under the Facility Loan Documents
will not be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser, if not already a Lender, shall for all purposes be a
Lender party to this Agreement and any other Facility Loan Documents executed by
the Lenders and shall have all the rights and obligations of a Lender under the
Facility Loan Documents, to the same extent as if it were an original party
hereto, and no further consent or action by the Borrower, the Lenders or the
Agent shall be required to release the Seller with respect to the percentage of
the Commitment and Advances assigned to such Purchaser. Upon the consummation of
any assignment to a Purchaser pursuant to this Section 12, the Agent shall give
notice to the Agent under the 364-Day Credit Agreement of such assignment and
the applicable commitment and notice
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<PAGE> 16
information with respect to the Purchaser. Upon any permitted assignment of any
Lender's rights or obligations hereunder or under the Note, references herein
and in all other Facility Loan Documents to "Lender" or "Lenders" (or to any
specific Lender) shall be references to the specific Lender or Lenders and any
permitted assignee of such Lender or Lenders, as the applicable Lender's and its
assignee's respective interests may appear.
(b) Assignments under the CLO Program Documents; Incorporation of Advances
into 364-Day Credit Agreement. If any Advance held by Windmill (or portion
thereof) is transferred to ABN AMRO or any other Lender under the terms of the
CLO Program Documents, such Advance (or portion thereof) acquired from Windmill
shall be transferred at a purchase price equal to the Matured Value of such
Advance (or portion thereof so transferred). Such Matured Value of any Advance
(or portion thereof) acquired by ABN AMRO or any such Lender from Windmill shall
be the principal amount of a Floating Rate Advance held by ABN AMRO evidenced by
the Note and the Borrower agrees that, from and after the date of any such
transfer, it shall pay interest on the Matured Value of such Advance (or portion
thereof) transferred at the Floating Rate until such Advance is repaid in full.
If, however, the Advance (or portion thereof) so acquired by ABN AMRO or any
other Lender from Windmill is due from the Borrower on the day it is acquired
from Windmill, the Matured Value of such Advance (or portion thereof) so
acquired shall only bear interest if not paid in full on the day it is acquired
by ABN AMRO or such other Lender. The proceeds from each Advance received by
Windmill from ABN AMRO under this Section shall be transferred into a special
transaction subaccount and used solely to pay that portion of the outstanding
commercial paper of Windmill issued to fund or maintain the Advance of Windmill
so transferred. Until used to pay such commercial paper, all proceeds from each
Advance received by Windmill from ABN AMRO pursuant to this Section shall be
invested in Permitted Investments and all earnings on such Permitted Investments
shall be promptly remitted to the Borrower following the Maturity Date of the
applicable commercial paper (unless amounts are then due and owing by the
Borrower to Windmill and/or the other Lenders hereunder, in which event such
amounts shall be credited to the amounts then due and owing). Under the CLO
Program Documents, the Lenders appoint ABN AMRO to act as their agent hereunder
and under the other Facility Loan Documents. The Agent shall maintain records
showing the interests held by Windmill, ABN AMRO, and any other Person in each
Advance outstanding under the Note, which records shall be presumptively correct
for all purposes in determining the interests held in each Advance. If any
Advance or portion thereof owing to Windmill is acquired by ABN AMRO or any
other Lender and such Advance is not repaid in full on the day it is so
acquired, the Agent shall notify the Borrower of the amount of such outstanding
Advance owed to ABN AMRO or any other Lender. Any Advance (or portion thereof)
acquired by ABN AMRO or any other Lender from Windmill, together with any
interest that accrues thereon, is owed solely to ABN AMRO or such Lender, and
Windmill's interest in such Advance (or portion thereof) so transferred to ABN
AMRO or such Lender is fully discharged through such transfer. The Borrower
recognizes Windmill has the unrestricted right at all times, and in certain
circumstances the obligation, to transfer all or any part of any Advance to ABN
AMRO under the CLO Program Documents. In all events, Windmill is obligated to
make such transfer if, among other matters:
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<PAGE> 17
(i) the Agent deems the credit rating of the Borrower below
investment grade (i.e., below P-2 from Moody's or A-2 from S&P, for
short term debt, or below Baa3 from Moody's or BBB-from S&P, for long
term debt);
(ii) the "Interest Coverage Ratio" (as defined in the 364-Day
Credit Agreement and calculated in accordance with the terms of Section
7.4 thereof) of the Borrower and its consolidated Subsidiaries is less
than (A) 3.75 to 1.00 as of the end of the first three fiscal quarters
following the Closing Date (calculated (a) for the fiscal quarter
ending on September 30, 1999, for such fiscal quarter, (b) for the
fiscal quarter ending on December 31, 1999, for the two fiscal quarter
period then ending and (c) for the fiscal quarter ending on March 31,
2000, for the three fiscal quarter period then ending); and (B) 4.25 to
1.00 for each four (4) fiscal quarter period thereafter beginning with
the four (4) fiscal quarter period ending on June 30, 2000, calculated
in each case in accordance with the terms of the 364-Day Credit
Agreement;
(iii) the "Total Net Indebtedness to Capital Ratio" (as
defined in the 364-Day Credit Agreement and calculated in accordance
with the terms of Section 7.4 thereof) of the Borrower and its
consolidated Subsidiaries is at any time greater than 0.53 to 1.00; or
(iv) a "Default" or "Unmatured Default" (each as defined in
the 364-Day Credit Agreement) exists and has not been waived or cured
within the applicable period under the 364-Day Credit Agreement.
Any Advance (or portion thereof) transferred to ABN AMRO or any other Lender
under the CLO Program Documents, and any Advance made by ABN AMRO (and any of
its assignees) to the Borrower, is held 90% by ABN AMRO (and such assignees) in
its capacity as Liquidity Provider and 10% by ABN AMRO (and such assignees) in
its capacity as Enhancer. Under and as provided in Section 2.6(b) of the 364-Day
Credit Agreement, outstanding Advances acquired from Windmill by the Lenders
hereunder (whether as Liquidity Provider or Enhancer) may, under the
circumstances set forth therein, be required to be incorporated into the terms
and conditions of the 364-Day Credit Agreement and, upon the effectiveness of
such provisions shall thereafter constitute a "Loan" thereunder and shall be
governed by the terms of such 364-Day Credit Agreement and shall no longer be
governed by the terms of this Agreement. Effective upon the effective date of
any Lender hereunder becoming a "New Lender" pursuant to the terms of Section
2.6(b) of the 364-Day Credit Agreement and/or effective upon the effective date
of the increase of the Revolving Loan Commitments thereunder, the Commitment
hereunder, the Maximum Matured Amount and the Maximum Principal Amount shall all
be reduced by the amount of any such increase.
(c) Permitted Participants; Effect. Subject to the terms set forth in
this Section 12(c), any Lender may, in the ordinary course of its business and
in accordance with applicable law, at any time sell to one or more banks or
other entities ("PARTICIPANTS") participating interests in any Advance owing to
such Lender, any Commitment of such Lender, if any, or any other interest of
such Lender
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<PAGE> 18
under the Facility Loan Documents on a pro rata or non-pro rata basis. Notice of
such participation to the Borrower and the Agent shall be required prior to any
participation becoming effective with respect to a Participant which is not a
Lender under this Agreement, a lender under the 364-Day Credit Agreement or an
affiliate of such Lender or lender. Upon receiving said notice, the Agent shall
record the participation in the register it maintains. Moreover, notwithstanding
such recordation, such participation shall not be considered an assignment under
Section 12(a) of this Agreement and such Participant shall not be considered a
Lender. In the event of any such sale by a Lender of participating interests to
a Participant, such Lender's obligations under the Facility Loan Documents shall
remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of all Advances made by it for all purposes under the Facility Loan
Documents, all amounts payable by the Borrower under this Agreement shall be
determined as if such Lender had not sold such participating interests, and the
Borrower and the Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under the
Facility Loan Documents except that, for purposes of Section 14 hereof, the
Participants shall be entitled to the same rights as if they were Lenders. Each
Lender shall retain the sole right to approve, without the consent of any
Participant, any amendment, modification or waiver of any provision of the
Facility Loan Documents and the 364-Day Credit Agreement other than any
amendment, modification or waiver with respect to any Advance or Commitment in
which such Participant has an interest which forgives principal, interest or
fees or reduces the interest rate or fees payable pursuant to the terms of this
Agreement with respect to any such Advance or Commitment, postpones any date
fixed for any regularly-scheduled payment of principal of (but not prepayments
of), or interest or fees on, any such Advance or Commitment.
(d) The Register. Notwithstanding anything to the contrary in this
Agreement, the Borrower hereby designates the Agent, and the Agent, hereby
accepts such designation, to serve as the Borrower's contractual representative
solely for purposes of this Section 12(d). In this connection, the Agent shall
maintain at its address referred to in Section 11 a register for the recordation
of the names and addresses of the Lenders and the Commitment of, principal
amount of and interest on the Advances owing to, each Lender from time to time.
The entries in such register shall be presumptively correct and binding for all
purposes, absent manifest error, and the Borrower, the Agent and the Lenders may
treat each entity whose name is recorded in such register as a Lender hereunder
for all purposes of this Agreement. The register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) No Assignments by the Borrower. The Borrower may not assign its rights
or obligations under this Agreement, the Note or the other Facility Loan
Documents or any interest herein without each Lender's prior written consent,
and any such assignment without consent of the Lenders shall be null and void.
13. EXPENSES AND INDEMNIFICATION.
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(a) Expenses. The Borrower shall reimburse the Agent for any reasonable
costs, internal charges and out-of-pocket expenses (including reasonable
attorneys' and paralegals' fees and time charges of attorneys and paralegals for
the Agent, which attorneys and paralegals may be employees of the Agent) paid or
incurred by the Agent in connection with the preparation, negotiation,
execution, delivery, syndication, review, amendment, modification, and
administration of this Agreement, the other Facility Loan Documents, the 364-Day
Credit Agreement and the other documents, instruments and agreements executed in
connection therewith (collectively, the "TRANSACTION DOCUMENTS"). The Borrower
also agrees to reimburse the Agent and the Lenders for any costs, internal
charges and out-of-pocket expenses (including reasonable attorneys' and
paralegals' fees and time charges of attorneys and paralegals for the Agent and
the Lenders, which attorneys and paralegals may be employees of the Agent or the
Lenders) paid or incurred by the Agent or any Lender in connection with the
collection of the Advances and enforcement of the Transaction Documents. The
Agent shall provide the Borrower with a detailed statement of all reimbursements
requested under this Section 13 (a).
(b) Indemnity. The Borrower further agrees to defend, protect,
indemnify, and hold harmless the Agent and each and all of the Lenders and each
of their respective Affiliates, and each of such Agent's, Lender's or
Affiliate's respective officers, directors, trustees, investment advisors,
employees, attorneys and agents (collectively, the "INDEMNITEES") from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses of any kind or nature
whatsoever (including, without limitation, the fees and disbursements of counsel
for such Indemnitees in connection with any investigative, administrative or
judicial proceeding, whether or not any of such Indemnitees shall be designated
a party thereto), imposed on, incurred by, or asserted against such Indemnitees
in any manner relating to or arising out of:
(i) this Agreement or any of the other Transaction Documents,
or any act, event or transaction related or attendant thereto or to the
making of the Advances hereunder, the management of such Advances, the
use or intended use of the proceeds of the Advances hereunder, or any
of the other transactions contemplated by the Transaction Documents; or
(ii) any liabilities, obligations, responsibilities, losses,
damages, personal injury, death, punitive damages, economic damages,
consequential damages, treble damages, intentional, willful or wanton
injury, damage or threat to the environment, natural resources or
public health or welfare, costs and expenses (including, without
limitation, attorney, expert and consulting fees and costs of
investigation, feasibility or remedial action studies), fines,
penalties and monetary sanctions, interest, direct or indirect, known
or unknown, absolute or contingent, past, present or future relating to
violation of any Environmental, Health or Safety Requirements of Law
arising from or in connection with the past, present or future
operations of the Borrower, its Subsidiaries or any of their respective
predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective property of
the Borrower or its Subsidiaries, the presence of asbestos-containing
materials at any respective property of the Borrower or its
Subsidiaries or the Release or
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threatened Release of any Contaminant into the environment
(collectively, the "INDEMNIFIED MATTERS");
provided, however, the Borrower shall have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters caused by or resulting from the
willful misconduct or Gross Negligence of such Indemnitee with respect to the
Transaction Documents, as determined by the final non-appealed judgment of a
court of competent jurisdiction. If the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, the Borrower shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all Indemnified Matters incurred by the Indemnitees.
(c) Waiver of Certain Claims. The Borrower further agrees to assert no
claim against any of the Indemnitees on any theory of liability seeking
consequential, special, indirect, exemplary or punitive damages.
(d) Survival of Agreements. The obligations and agreements of the
Borrower under this Section 13 shall survive the termination of this Agreement.
14. CHANGE OF CIRCUMSTANCES; TAXES.
(a) Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) adopted after the date of this Agreement and having
general applicability to all banks within the jurisdiction in which a Lender
operates (excluding, for the avoidance of doubt, the effect of and phasing in of
capital requirements or other regulations or guidelines passed prior to the date
of this Agreement), or any interpretation or application thereof by any
Governmental Authority charged with the interpretation or application thereof,
or the compliance of any Lender therewith,
(i) subjects any Lender or any applicable Lending Installation
to any tax, duty, charge or withholding on or from payments due from
the Borrower (excluding taxation of the overall net income of any
Lender or taxation of a similar basis, which are governed by Section
14(d) below), or changes the basis of taxation of payments to any
Lender in respect of its Commitment, Advances or other amounts due it
hereunder, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation (other
than reserves and assessments taken into account in determining the
interest rate applicable to Eurodollar Advances) with respect to its
Advances or Commitment, or
(iii) imposes any other condition the result of which is to
increase the cost to any
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<PAGE> 21
Lender or any applicable Lending Installation of making, funding or
maintaining the Advances or the Commitment or reduces any amount
received by any Lender or any applicable Lending Installation in
connection with Advances or the Commitment, or requires any Lender or
any applicable Lending Installation to make any payment calculated by
reference to the amount of Advances or Commitment held or interest
received by it, by an amount deemed material by such Lender;
and the result of any of the foregoing is to increase the cost to that Lender of
making, renewing or maintaining its Advances or Commitment or to reduce any
amount received under this Agreement, then, within fifteen (15) days after
receipt by the Borrower of written demand by such Lender pursuant to Section
14(e), the Borrower shall pay such Lender that portion of such increased expense
incurred or reduction in an amount received which such Lender determines is
attributable to making, funding and maintaining its Advances and its Commitment.
(b) Changes in Capital Adequacy Regulations. If a Lender determines (i)
the amount of capital required or expected to be maintained by such Lender, any
Lending Installation of such Lender or any corporation controlling such Lender
is increased as a result of a "Change" (as defined below), and (ii) such
increase in capital will result in an increase in the cost to such Lender of
maintaining its Advances or its Commitment to make Advance hereunder, then,
within fifteen (15) days after receipt by the Borrower of written demand by such
Lender pursuant to Section 14(e), the Borrower shall pay such Lender the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender reasonably determines is
attributable to this Agreement, its Advances or its Commitment to make Advances
hereunder (after taking into account such Lender's policies as to capital
adequacy). "CHANGE" means (i) any change after the date of this Agreement in the
"Risk-Based Capital Guidelines" (as defined below) excluding, for the avoidance
of doubt, the effect of any phasing in of such Risk-Based Capital Guidelines or
any other capital requirements passed prior to the date hereof, or (ii) any
adoption of or change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive (whether or not
having the force of law) after the date of this Agreement and having general
applicability to all banks and financial institutions within the jurisdiction in
which such Lender operates which affects the amount of capital required or
expected to be maintained by any Lender or any Lending Installation or any
corporation controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means (i)
the risk-based capital guidelines in effect in the United States on the date of
this Agreement, including transition rules, and (ii) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement.
(c) Funding Indemnification. If any payment of a Eurodollar Advance
occurs on a date which is not the applicable Maturity Date for such Eurodollar
Advance, whether because of acceleration, prepayment, conversion of such Advance
to a Loan under the 364-Day Credit Agreement or
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otherwise, or a Eurodollar Advance is not made on the date specified by the
Borrower for any reason other than default by the Lenders, the Borrower shall
pay ABN AMRO (or if applicable any assignee) the applicable Early Payment Fee.
(d) Taxes.
(i) Any and all payments by the Borrower hereunder (whether in
respect of principal, interest, fees or otherwise) shall be made free
and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, interest,
penalties or any liabilities with respect thereto including those
arising after the date hereof as a result of the adoption of or any
change in any law, treaty, rule, regulation, guideline or determination
of a Governmental Authority or any change in the interpretation or
application thereof by a Governmental Authority but excluding, in the
case of each Lender and the Agent, such taxes (including income taxes,
franchise taxes and branch profit taxes) as are imposed on or measured
by such Lender's or the Agent's, as the case may be, net income by the
United States of America or any Governmental Authority of the
jurisdiction under the laws of which such Lender or the Agent, as the
case may be, is organized (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings, and liabilities which the
Agent or a Lender determines to be applicable to this Agreement, the
other Facility Loan Documents, the Commitment or the Advances being
hereinafter referred to as "TAXES"). If the Borrower shall be required
by law to deduct or withhold any Taxes from or in respect of any sum
payable hereunder or under the other Facility Loan Documents to any
Lender or the Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions or withholdings
(including deductions applicable to additional sums payable under this
Section 14(d)) such Lender or Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions
or withholdings been made, (ii) the Borrower shall make such deductions
or withholdings, and (iii) the Borrower shall pay the full amount
deducted or withheld to the relevant taxation authority or other
authority in accordance with applicable law. If a withholding tax of
the United States of America or any other Governmental Authority shall
be or become applicable (y) after the date of this Agreement, to such
payments by the Borrower made to the Lending Installation or any other
office that a Lender may claim as its Lending Installation, or (z)
after such Lender's selection and designation of any other Lending
Installation, to such payments made to such other Lending Installation,
such Lender shall use reasonable efforts to make, fund and maintain the
affected Advances through another Lending Installation of such Lender
in another jurisdiction so as to reduce the Borrower's liability
hereunder, if the making, funding or maintenance of such Advances
through such other Lending Installation of such Lender does not, in the
judgment of such Lender, otherwise adversely affect such Advances, or
obligations under the Commitment of such Lender.
(ii) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges, or similar levies which
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arise from any payment made hereunder or under the Note or from the
execution, delivery or registration of, or otherwise with respect to,
this Agreement, the other Facility Loan Documents, the Commitments or
the Advances (hereinafter referred to as "OTHER TAXES").
(iii) The Borrower indemnifies each Lender and the Agent for
the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any Governmental
Authority on amounts payable under this Section 14(d)) paid by such
Lender or the Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within thirty (30)
days after the date such Lender or the Agent (as the case may be) makes
written demand therefor. If the Taxes or Other Taxes with respect to
which the Borrower has made either a direct payment to the taxation or
other authority or an indemnification payment hereunder are
subsequently refunded to any Lender, such Lender will return to the
Borrower an amount equal to the lesser of the indemnification payment
or the refunded amount. A certificate as to any additional amount
payable to any Lender or the Agent under this Section 14(d) submitted
to the Borrower and the Agent (if a Lender is so submitting) by such
Lender or the Agent shall show in reasonable detail the amount payable
and the calculations used to determine such amount and shall, absent
manifest error, be deemed presumptively correct. With respect to such
deduction or withholding for or on account of any Taxes and to confirm
that all such Taxes have been paid to the appropriate Governmental
Authorities, the Borrower shall promptly (and in any event not later
than thirty (30) days after receipt) furnish to each Lender and the
Agent such certificates, receipts and other documents as may be
required (in the reasonable judgment of such Lender or the Agent) to
establish any tax credit to which such Lender or the Agent may be
entitled.
(iv) Within thirty (30) days after the date of any payment of
Taxes or Other Taxes by the Borrower, the Borrower shall furnish to the
Agent the original or a certified copy of a receipt evidencing payment
thereof.
(v) Each Lender (including any Purchaser) that is not created
or organized under the laws of the United States of America or a
political subdivision thereof (each a "NON-U.S. LENDER") shall deliver
to the Borrower and the Agent on or before the Closing Date, or, if
later, the date on which such Lender becomes a Lender pursuant to
Section 12(a) hereof (and from time to time thereafter upon the request
of the Borrower or the Agent, but only for so long as such Non-U.S.
Lender is legally entitled to do so), either (1)(x) two (2) duly
completed copies of either (A) IRS Form W-8BEN (or, if delivered on or
before December 31, 1999, IRS Form 1001), or (B) IRS Form W-8ECI (or,
if delivered on or before December 31, 1999, IRS Form 4224), or in
either case an applicable successor form, and (y) for periods prior to
January 1, 2000, a duly completed copy of IRS Form W-8 or W-9 or
applicable successor form; or (2) in the case of a Non-U.S. Lender that
is not legally entitled to deliver either form listed in clause
(v)(1)(x), (x) a certificate of a duly authorized officer of such
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<PAGE> 24
Non-U.S. Lender to the effect that such Non-U.S. Lender is not (A) a
"bank" within the meaning of Section 881(c)(3)(A) of the Code, (B) a
"10 percent shareholder" of the Borrower within the meaning of Section
881(c)(3)(B) of the Code, or (C) a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code (such certificate, an "EXEMPTION CERTIFICATE")
and (y) two (2) duly completed copies of IRS Form W-8BEN or applicable
successor form. Each such Lender further agrees to deliver to the
Borrower and the Agent from time to time a true and accurate
certificate executed in duplicate by a duly authorized officer of such
Lender in a form satisfactory to the Borrower and the Agent, before or
promptly upon the occurrence of any event requiring a change in the
most recent certificate previously delivered by it to the Borrower and
the Agent pursuant to this Section 14(d)(v). Further, each Lender which
delivers a form or certificate pursuant to this clause (v) covenants
and agrees to deliver to the Borrower and the Agent within fifteen (15)
days prior to the expiration of such form, for so long as this
Agreement is still in effect, another such certificate and/or two (2)
accurate and complete original newly-signed copies of the applicable
form (or any successor form or forms required under the Code or the
applicable regulations promulgated thereunder).
Each Lender shall promptly furnish to the Borrower and the
Agent such additional documents as may be reasonably required by the
Borrower or the Agent to establish any exemption from or reduction of
any Taxes or Other Taxes required to be deducted or withheld and which
may be obtained without undue expense to such Lender. Notwithstanding
any other provision of this Section 14(d), the Borrower shall not be
obligated to gross up any payments to any Lender pursuant to Section
14(d), or to indemnify any Lender pursuant to Section 14(d)(iii), in
respect of United States federal withholding taxes to the extent
imposed as a result of (x) the failure of such Lender to deliver to the
Borrower the form or forms and/or an Exemption Certificate, as
applicable to such Lender, pursuant to Section 14(d)(v), (y) such form
or forms and/or Exemption Certificate not establishing a complete
exemption from U.S. federal withholding tax or the information or
certifications made therein by the Lender being untrue or inaccurate on
the date delivered in any material respect, or (z) the Lender
designating a successor Lending Installation at which it maintains its
Advances which has the effect of causing such Lender to become
obligated for tax payments in excess of those in effect immediately
prior to such designation; provided, however, that the Borrower shall
be obligated to gross up any payments to any such Lender pursuant to
Section 14(d)(i), and to indemnify any such Lender pursuant to Section
14(d)(iii), in respect of United States federal withholding taxes if
(x) any such failure to deliver a form or forms or an Exemption
Certificate or the failure of such form or forms or exemption
certificate to establish a complete exemption from U.S. federal
withholding tax or inaccuracy or untruth contained therein resulted
from a change in any applicable statute, treaty, regulation or other
applicable law or any interpretation of any of the foregoing occurring
after the date hereof, which change rendered such Lender no longer
legally entitled to deliver such form or forms or Exemption Certificate
or otherwise ineligible for a complete exemption from U.S. federal
withholding tax, or rendered the information or the certifications made
in
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<PAGE> 25
such form or forms or Exemption Certificate untrue or inaccurate in any
material respect, (ii) the redesignation of the Lender's Lending
Installation was made at the request of the Borrower or (iii) the
obligation to gross up payments to any such Lender pursuant to Section
14(d)(i), or to indemnify any such Lender pursuant to Section
14(d)(iii), is with respect to a Purchaser that becomes a Purchaser as
a result of an assignment made at the request of the Borrower.
(vi) Upon the request, and at the expense of the Borrower,
each Lender to which the Borrower is required to pay any additional
amount pursuant to this Section 14(d), shall reasonably afford the
Borrower the opportunity to contest, and shall reasonably cooperate
with the Borrower in contesting, the imposition of any Tax giving rise
to such payment; provided, that (i) such Lender shall not be required
to afford the Borrower the opportunity to so contest unless the
Borrower shall have confirmed in writing to such Lender its obligation
to pay such amounts pursuant to this Agreement; and (ii) the Borrower
shall reimburse such Lender for its reasonable attorneys' and
accountants' fees and disbursements incurred in so cooperating with the
Borrower in contesting the imposition of such Tax; provided, however,
that notwithstanding the foregoing, no Lender shall be required to
afford the Borrower the opportunity to contest, or cooperate with the
Borrower in contesting, the imposition of any Taxes, if such Lender in
good faith determines that to do so would have an adverse effect on it.
(e) Lender Statements; Survival of Indemnity. If reasonably possible,
each Lender shall designate an alternate Lending Installation with respect to
its Eurodollar Advances to reduce any liability of the Borrower to such Lender
under Sections 14(a) and 14(b) or to avoid the unavailability of Eurodollar
Advances under Section 3(d), so long as such designation is not disadvantageous
to such Lender. Each Lender requiring compensation pursuant to this Section 14
shall use its reasonable efforts to notify the Borrower and the Agent in writing
of any Change, law, policy, rule, guideline or directive giving rise to such
demand for compensation not later than ninety (90) days following the date upon
which the responsible account officer of such Lender knows or should have known
of such Change, law, policy, rule, guideline or directive. Any demand for
compensation pursuant to this Section 14 shall be in writing and shall state the
amount due, if any, under Section 14(a), 14(b), 14(c) or 14(d) and shall set
forth in reasonable detail the calculations upon which such Lender determined
such amount. Such written demand shall be rebuttably presumed correct for all
purposes. Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 14 shall survive payment of the Advances and termination of this
Agreement.
15. FINANCIAL INFORMATION; OTHER REPORTING REQUIREMENTS. The Borrower
shall:
(a) Financial Reporting. Furnish to the Agent and the Lenders:
(i) Quarterly Reports. As soon as practicable and in any event
within forty-five (45)
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days after the end of the first three quarterly periods of each of its
fiscal years, for itself and the Subsidiaries, a consolidated unaudited
balance sheet as at the end of each such period and a consolidated
statement of income and consolidated statement of changes in owners'
equity, and a statement of cash flows for the period from the beginning
of such fiscal year to the end of such quarter, presented on the same
basis as described in Section 15(a)(ii) and on a comparative basis with
the statements for such period in the prior fiscal year of the
Borrower.
(ii) Annual Reports. As soon as practicable, and in any event
within ninety (90) days after the end of each of its fiscal years, an
audit report, certified by internationally recognized independent
certified public accountants, prepared in accordance with generally
accepted accounting principles, on a consolidated basis for itself and
its Subsidiaries, including a balance sheet as of the end of such
period, related statement of income and consolidated statement of
changes in owners' equity, and a statement of cash flows, which audit
report shall be unqualified and shall state that such financial
statements fairly present the consolidated financial position of the
Borrower and its Subsidiaries as at the dates indicated and the results
of operations and cash flows for the periods indicated in conformity
with generally accepted accounting principles and that the examination
by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing
standards.
(iii) Officer's Certificate. Together with each delivery of
any financial statement (a) pursuant to clauses (i) and (ii) of this
Section 15(a), an Officer's Certificate of the Borrower, substantially
in the form of Exhibit G attached to the 364-Day Credit Agreement,
stating that as of the date of such Officer's Certificate no Default or
"Unmatured Default" (as defined in the 364-Day Credit Agreement) under
the 364-Day Credit Agreement and no Event of Default or Unmatured Event
of Default under this Agreement and the other Facility Loan Documents
exists, or if any such Default, Event of Default, Unmatured Default or
Unmatured Event of Default exists, stating the nature and status
thereof and (b) pursuant to clauses (i) and (ii) of this Section 15(a),
a compliance certificate, substantially in the form of Exhibit H
attached to the 364-Day Credit Agreement, signed by the Borrower's
chief financial officer, chief accounting officer or treasurer, setting
forth calculations for the period then as required pursuant to the
terms of the 364-Day Credit Agreement, and which calculate the Average
Total Net Indebtedness to Capital Ratio for purposes of determining the
then Applicable Floating Rate Margin, Applicable Eurodollar Margin and
Applicable Facility Fee Percentage.
(b) Notice of Default. Promptly upon any of the chief executive
officer, chief operating officer, chief financial officer, treasurer or
controller of the Borrower obtaining actual knowledge (i) of any condition or
event which constitutes a Default or Unmatured Default under the 364-Day Credit
Agreement or an Event of Default or Unmatured Event of Default hereunder, or
becoming aware that any Lender or Agent under this Agreement or any of the
parties under the 364-Day Credit Agreement has given any written notice to any
Authorized Officer with respect to a claimed Default
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or Unmatured Default under this Agreement or under the 364-Day Credit Agreement,
or (ii) that any Person has given any written notice to any Authorized Officer
or any Subsidiary of the Borrower or taken any other action with respect to a
claimed default or event or condition of the type referred to in Section 8.1(E)
of the 364-Day Credit Agreement, the Borrower shall deliver to the Agent and the
Lenders an Officer's Certificate specifying (a) the nature and period of
existence of any such claimed default, Default, Event of Default, Unmatured
Default, Unmatured Event of Default, condition or event, (b) the notice given or
action taken by such Person in connection therewith, and (c) what action the
Borrower has taken, is taking and proposes to take with respect thereto.
(c) Other Indebtedness. Deliver to the Agent: (i) a copy of each
notice, report or communication (including any accompanying officer's
certificate) delivered by or required to be delivered by or on behalf of the
Borrower or any of its Subsidiaries to the agent or any of the lenders under or
in connection with the 364-Day Credit Agreement, including, without limitation,
notices and reports delivered pursuant to clauses (C), (D), (E) and (H) of
Section 7.1 of the 364-Day Credit Agreement, such delivery to be made at the
same time and by the same means as such notice, report or communication is
delivered to such agent or lenders; (ii) a copy of each regular report, notice
or communication regarding potential or actual defaults (including any
accompanying officer's certificate) delivered by or on behalf of the Borrower to
the holders of funded Indebtedness with an aggregate outstanding principal
amount in excess of $15,000,000 pursuant to the terms of the agreements
governing such Indebtedness, such delivery to be made at the same time and by
the same means as such notice of default is delivered to such holders; and (iii)
a copy of each notice or other communication received by the Borrower or any of
its Subsidiaries from the holders of funded Indebtedness with an aggregate
outstanding principal amount in excess of $10,000,000 regarding potential or
actual defaults pursuant to the terms of such Indebtedness, such delivery to be
made promptly after such notice or other communication is received by the
Borrower or its Subsidiaries.
(d) Other Reports. Deliver or cause to be delivered to the Agent and
the Lenders copies of (i) all financial statements, reports and non-routine
notices, if any, sent or made available generally by the Borrower to its
securities holders or filed with the Securities and Exchange Commission by the
Borrower, and (ii) all notifications received from the Securities and Exchange
Commission by the Borrower or its Subsidiaries pursuant to the Securities
Exchange Act of 1934 and the rules promulgated thereunder other than routine
reminders or notices that do not relate to specific violations of rules
promulgated by the Securities and Exchange Commission. Borrower shall include
the Agent and the Lenders on its standard distribution lists for all press
releases made available generally by the Borrower or any of the Borrower's
Subsidiaries to the public concerning material developments in the business of
the Borrower or any such Subsidiary.
(e) Other Information. Promptly upon receiving a request therefor from
the Agent, prepare and deliver to the Agent and the Lenders such other
information with respect to the Borrower or any of its Subsidiaries as from time
to time may be reasonably requested by the Agent, except for such information as
is customarily and reasonably regarded by the Borrower as confidential.
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16. GOVERNING LAW. THE AGENT ACCEPTS THIS AGREEMENT, ON BEHALF OF
ITSELF AND THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND AGREEING TO IT
THERE. ANY DISPUTE BETWEEN THE BORROWER AND THE AGENT, ANY LENDER OR ANY OTHER
HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL
TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT
OR ANY OF THE OTHER FACILITY LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT,
TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL
LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE WITHOUT REGARD TO THE
CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
17. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(a) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (b), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER FACILITY LOAN
DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS,
BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (a) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(b) OTHER JURISDICTIONS. THE BORROWER AGREES THAT THE AGENT OR ANY
LENDER SHALL HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A
COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL JURISDICTION
OVER THE BORROWER OR (2) IN ORDER TO ENFORCE A JUDGMENT OR OTHER COURT ORDER
ENTERED IN FAVOR OF SUCH PERSON. THE BORROWER AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE UNRELATED COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON TO
REALIZE ON ANY SECURITY FOR THE OBLIGATIONS OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF SUCH PERSON. THE BORROWER WAIVES ANY OBJECTION THAT IT
MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A
PROCEEDING DESCRIBED IN THIS SUBSECTION (b).
(C) VENUE. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR
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BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE
TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
18. ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF SECTION 13 AND SECTION 17, WITH ITS COUNSEL.
19. COMPLIANCE WITH AFFIRMATIVE, NEGATIVE AND FINANCIAL COVENANTS.
Without in any way affecting or impairing any of the other provisions of this
Agreement or the other Facility Loan Documents, the Borrower covenants and
agrees that so long as any Commitment is outstanding and thereafter until
payment in full of all the outstanding principal amount of the Advances, all
accrued interest thereon and, in the case of Windmill, all interest scheduled to
accrue to the last day of the Interest Period for each outstanding Advance held
by Windmill, and all other amounts payable hereunder and under the other
Facility Loan Documents (other than contingent indemnity obligations) and
termination of this Agreement and all other Facility Loan Documents, the
Borrower shall comply with the affirmative covenants contained in Section 7.2 of
the 364-Day Credit Agreement, shall not violate any of the negative covenants
contained in Section 7.3 of the 364-Day Credit Agreement and shall comply with
the financial covenants contained in Section 7.4 of the 364-Day Credit
Agreement, all as if such provisions were set forth in full herein (with the
applicable references to the "Administrative Agent" and "Lenders" thereunder
being references to the "Agent" and "Lenders" hereunder, with the applicable
references to various Sections thereunder being references to the applicable
Sections hereunder, if any such corollary sections hereunder exist, and with the
references to the various financing agreements being appropriately modified).
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20. AGREEMENT NOT TO PETITION. Each party hereto and each Guarantor
(pursuant to the Guaranty) agrees, for the benefit of the holders of Windmill's
privately or publicly placed indebtedness for borrowed money, not, before the
date one year and one day after the payment in full of all such indebtedness, to
acquiesce, petition or otherwise, directly or indirectly, invoke, or cause
Windmill to invoke, the process of any court or other authority for the purpose
of (a) commencing or sustaining a case against Windmill under any federal or
state bankruptcy, insolvency or similar law (including the United States
Bankruptcy Code), (b) appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official for Windmill, or any
substantial part of its property, or (c) ordering the winding up or liquidation
of Windmill's affairs.
21. EXCESS FUNDS. Windmill shall be required to make payment of any
amounts under or in connection with this Agreement only with Excess Funds (as
defined below). If Windmill does not have Excess Funds, the excess of any amount
due hereunder over the amount paid shall not constitute a "claim" (as defined in
Section 101(5) of the United States Bankruptcy Code) against Windmill until such
time as Windmill has Excess Funds. If Windmill does not have sufficient Excess
Funds to make any payment due hereunder, then Windmill may pay a lesser amount
and make additional payments that in the aggregate equal the amount of such
deficiency as soon as possible thereafter. The term "EXCESS FUNDS" means the
excess of (a) the aggregate projected value of Windmill's assets and other
property (including cash and cash equivalents), over (b) the sum of (i) all
scheduled payments of principal, interest and any other scheduled amounts
payable on Windmill's publicly or privately placed indebtedness for borrowed
money, plus (ii) the sum of all Windmill's other liabilities, indebtedness and
other obligations for borrowed money or owed to any credit or liquidity
provider, together with all unpaid interest then accrued thereon, plus (iii) all
taxes payable by Windmill to the United States Internal Revenue Service, plus
(iv) all Windmill's other indebtedness, liabilities and obligations then due and
payable; provided, however, that the amount of any liability, indebtedness or
obligation of Windmill shall not exceed the projected value of the assets to
which recourse for such liability, indebtedness or obligation is limited. The
Excess Funds determination will be made by Windmill or on Windmill's behalf once
each Business Day. Nothing in Section 20 or this Section 21, or elsewhere in
this Agreement, is intended to create or imply any obligation from Windmill to
any Person, and Windmill shall have no obligation in any circumstance to make
any Advance requested hereunder.
22. DEFINITIONS. Capitalized terms used and not otherwise defined here
have the meanings ascribed to them in the 364-Day Credit Agreement. In addition
to terms defined in the 364-Day Credit Agreement or elsewhere in this Agreement,
the following terms when used herein shall have the following meanings:
"ADVANCE" means, for any Lender, (a) the amount of funds it advances to
a Borrower on a Borrowing Date and, if a CP Advance or a Eurodollar Advance, for
an Interest Period, or (b) for ABN AMRO, the purchase price it pays to Windmill
pursuant to Section 12 to acquire an Advance or Advances from Windmill. An
Advance is a "CP Advance" if it is held by Windmill. An Advance held by ABN AMRO
is a "Floating Rate Advance" if it bears interest based on the Prime Rate and
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a "Eurodollar Advance" if it bears interest based on a Eurodollar Rate.
"APPLICABLE EURODOLLAR MARGIN" means, as at any date of determination,
the rate per annum then applicable to Eurodollar Advances determined in
accordance with the provisions of Section 3(d)(ii) hereof.
"APPLICABLE FACILITY FEE PERCENTAGE" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under Section 3(f)(i) hereof determined in accordance with the
provisions of Section 3(d)(ii) hereof.
"APPLICABLE FLOATING RATE MARGIN" means, as at any date of
determination, the rate per annum then applicable to Floating Rate Advances
determined in accordance with the provisions of Section 3(d)(ii) hereof.
"AUTHORIZED OFFICER" means any of the President, any Vice President or
Chief Financial Officer of the Borrower, acting singly and each other person
notified to the Agent in a writing from an Authorized Officer.
"BORROWER ACCOUNT" means the Borrower's account at The First National
Bank of Chicago, ABA No. 071000013, Account Number 1005883 (Reference: 364-Day
CLO Loan) or such other account at a bank in the USA as an Authorized Officer
notifies to the Agent in writing for the receipt of proceeds from Advances.
"BUSINESS DAY" means any day other than (a) a Saturday, Sunday or other
day on which banks in New York City or Chicago, Illinois are authorized or
required to close, (b) a holiday on the Federal Reserve calendar and, (c) in
addition, solely for matters relating to a Eurodollar Advance, a day on which
dealings in Dollars are not carried on in the London interbank market.
"CLO PROGRAM DOCUMENTS" means the documentation between ABN AMRO and
Windmill providing for unsecured loans by Windmill to certain borrowers and
approved by Moody's and S&P as not affecting their respective ratings of
Windmill commercial paper, as such documentation may from time to time be in
effect.
"CONVERSION AMOUNT" means, at any time for any Lender with a Commitment
hereunder, the amount obtained by multiplying (A) the Maximum Matured Value on
the Facility Conversion Date by (B) the percentage obtained by dividing such
Lender's Commitment hereunder on the Facility Conversion Date by the aggregate
amount of such Commitments on such date.
"CP DEALER" means, at any time, each Person that Windmill then engages
as a placement agent or commercial paper dealer.
"CP RATE" means, for any Interest Period for a CP Advance, a rate per
annum for such CP
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Advance equal to the weighted average of the rates at which commercial paper
notes having a term equal to such Interest Period may be sold by any CP Dealer
selected by Windmill, as agreed between each such CP Dealer and Windmill,
provided after the occurrence and during the continuance of an Event of Default,
the provisions of Section 3(d)(v) shall govern the rate. If such rate is a
discount rate, the CP Rate shall be the rate resulting from Windmill's
converting such discount rate to an interest-bearing equivalent rate. If
Windmill determines that it is not able, or that it is impractical, to issue
commercial paper notes for any period of time, then the CP Rate for an Interest
Period shall be the Floating Rate, changing as and when such Floating Rate
changes. The CP Rate shall include all costs and expenses to Windmill of issuing
the related commercial paper notes, including all dealer commissions and note
issuance costs in connection therewith.
"DOLLAR" and "$" means lawful currency of the United States of America.
"EARLY PAYMENT FEE" means, if (i) any Eurodollar Advance is not made by
ABN AMRO (or any of its assignees) after the Borrower so requests pursuant to
Section 2, other than because of a default by ABN AMRO (or such assignees), or
(ii) any Eurodollar Advance, or portion thereof, is repaid before its Maturity
Date (the amount so repaid being referred to as the "PREPAID AMOUNT"), the cost
to ABN AMRO (or such assignee) of such reduction in the Eurodollar Advance it
holds (or was scheduled to hold, in the case of clause (i) above), determined
based on the difference between the LIBOR applicable (or, in the case of clause
(i) above that would have been applicable) to such Borrowing and the LIBOR that
would be applicable for a period equal to the remaining scheduled maturity of
the Advance on the date the requested Eurodollar Advance is not made or the
Prepaid Amount is received.
"ENHANCER" means ABN AMRO in such capacity under the CLO Program
Documents.
"EURODOLLAR RATE" means, for any Interest Period for a Eurodollar
Advance, the sum of (a) LIBOR for such Interest Period divided by 1 minus the
"Reserve Requirement" (as defined below) and (b) the Applicable Eurodollar
Margin for the portion (i.e., 90%) of such Advance held by ABN AMRO in its
capacity as Liquidity Provider and for the portion of such Advance held by ABN
AMRO in its capacity as Enhancer, changing as and when the Applicable Eurodollar
Margin changes; where "RESERVE REQUIREMENT" means, for any Interest Period, the
daily average of the maximum reserve requirement imposed during such Interest
Period on "eurocurrency liabilities" or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Eurodollar Advances is determined or category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
United States residents, as currently defined in Regulation D of the Board of
Governors of the Federal Reserve System.
"EVENT OF DEFAULT" is defined in the Note.
"FACE AMOUNT" means the face amount of any Windmill commercial paper
note issued on a discount basis or, if not issued on a discount basis, the
principal amount of such note and interest
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scheduled to accrue thereon to its stated maturity.
"FACILITY CONVERSION DATE" has the meaning given to that term in
Section 2.6(b) of the 364-Day Credit Agreement.
"FACILITY LOAN DOCUMENTS" means this Agreement, the Note, the Guaranty,
the Subordination Agreement and each other document or instrument delivered by
the Borrower or any Guarantor or any other Person in connection herewith;
provided such term shall not include the 364-Day Credit Agreement or any of the
documents, instruments or agreements executed in connection therewith.
"FACILITY OBLIGATIONS" means all Advances, advances, debts,
liabilities, obligations, covenants and duties owing by the Borrower or any of
its to the Agent, any Lender or any Indemnitee, of any kind or nature, present
or future, arising under this Agreement or any other Facility Loan Document,
whether or not evidenced by any note, guaranty or other instrument, whether or
not for the payment of money, whether arising by reason of an extension of
credit, loan, guaranty, indemnification, or in any other manner, whether direct
or indirect (including those acquired by assignment), absolute or contingent,
due or to become due, now existing or hereafter arising and however acquired.
The term includes, without limitation, all interest, charges, expenses, fees,
reasonable attorneys' fees and disbursements, reasonable paralegals' fees (in
each case whether or not allowed), and any other sum chargeable to the Borrower
or any of its Subsidiaries under this Agreement or any other Facility Loan
Document.
"FACILITY TERMINATION DATE" means the earlier of (i) the date on which
(A) all of the Facility Obligations (other than contingent indemnity
obligations) shall have been fully and indefeasibly paid and satisfied in cash
and (B) all financing arrangements between the Borrower and the Lenders shall
have been terminated; and (ii) the Facility Conversion Date.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate
per annum equal, for each day during such period, to the weighted average of the
rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the immediately preceding Business Day)
by the Federal Reserve Bank of New York or, if such rate is not so published for
any day that is a Business Day, the average of the quotations for such
transactions received by ABN AMRO as of approximately 10:00 a.m. (Chicago time)
on such day from three federal funds brokers of recognized standing selected by
it.
"364-DAY CREDIT AGREEMENT" means that certain 364-Day Credit Agreement
dated as of the date hereof entered into by and among the Borrower, one or more
Subsidiaries of the Borrower, the institutions from time to time parties thereto
as lenders, The First National Bank of Chicago, as Administrative Agent for
itself and the other Lenders, The Chase Manhattan Bank, as Syndication Agent,
ABN AMRO Bank N.V., as Co-Documentation Agent and Arranger, Royal Bank of
Canada,
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as Co-Documentation Agent and Arranger, Banque Nationale de Paris, as Arranger,
Chase Securities Inc., as Lead Arranger and Joint Book Manager, and Banc One
Capital Markets, Inc., as Lead Arranger and Joint Book Manager, without giving
effect to any amendments thereto, or waivers or consents granted thereunder,
unless such amendments, waivers and/or consents have been entered into in
accordance with the terms of Section 23(b) hereof.
"FLOATING RATE" means, for any day for any Advance, a rate per annum
equal to the Prime Rate for such day plus the then Applicable Floating Rate
Margin for the portion (i.e., 90%) of such Advance held by ABN AMRO in its
capacity as Liquidity Provider and for the portion of such Advance held by ABN
AMRO in its capacity as Enhancer, changing when and as the Prime Rate changes
and when and as the Applicable Floating Rate Margin changes.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative authority or
functions of or pertaining to government, including any authority or other
quasi-governmental entity established to perform any of such functions.
"GUARANTY" means that certain Guaranty dated as of the date hereof,
executed by the Guarantors in favor of the Agent, for the ratable benefit of the
Lenders, as it may be amended, modified, supplemented and/or restated (including
to add additional "Material Domestic Subsidiaries" or "Subsidiary Borrowers"
which are "Domestic Incorporated Subsidiaries" (in each case as defined in the
364-Day Credit Agreement) as new Guarantors), and as in effect from time to
time.
"GUARANTORS" means (a) all of the Borrower's Material Domestic
Subsidiaries as of the Closing Date and all Subsidiary Borrowers that are
Domestic Incorporated Subsidiaries as of the Closing Date and (b) any other
person which becomes a party to the Guaranty as required pursuant to the terms
hereof.
"INTEGRATION BLOCKAGE DEFAULT" has the meaning given that term in
Section 2.6(b) of the 364-Day Credit Agreement.
"INTEREST PAYMENT DATE" means, (i) for each Floating Rate Advance, (a)
each Payment Date, commencing with the first such date to occur after the date
hereof, (b) the date of any prepayment of a Floating Rate Advance, whether by
acceleration or otherwise, with respect to the amount so prepaid, and (c) at
maturity (whether by acceleration or otherwise); and (ii) for each other
Advance, (a) the last day of the applicable Interest Period, (b) the date of any
prepayment, whether by acceleration or otherwise, with respect to the amount so
prepaid and (c) for any Eurodollar Advance with an interest period longer than
three months, on the last day of each three-month interval during such Interest
Period.
"INTEREST PERIOD" means the period commencing on the date an Advance is
made or
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purchased pursuant to Section 12 and ending: (a) in the case of Eurodollar
Advances 1, 2, 3, or 6 months thereafter, as the Borrower may select; and (b) in
the case of CP Advances, 1-270 days thereafter; provided, however, that:
(1) an Interest Period for a Eurodollar or CP Advance that
would extend beyond the Revolving Credit Termination Date may not be
selected;
(2) whenever the last day of any Interest Period would
otherwise be a day that is not a Business Day, the last day of such
Interest Period shall be extended to the next succeeding Business Day,
but, if such extension would cause the last day of an Interest Period
for a Eurodollar Advance to occur in the following calendar month, the
last day of such Interest Period shall be the immediately preceding
Business Day; and
(3) for purposes of determining an Interest Period for a
Eurodollar Advance, a month means a period starting on one day in a
calendar month and ending on the numerically corresponding day in the
next calendar month; provided, however, that if there is no numerically
corresponding day in the month in which such an Interest Period is to
end or, if such an Interest Period begins on the last Business Day of a
calendar month, then such Interest Period shall end on the last
Business Day of the calendar month in which such Interest Period is to
end.
"LENDING INSTALLATION" means, with respect to a Lender or the Agent,
any office, branch, subsidiary or affiliate of such Lender or the Agent.
"LIQUIDITY PROVIDER" means ABN AMRO in such capacity under the CLO
Program Documents.
"LIBOR" means, for any Interest Period for a Eurodollar Advance or
other period, the rate per annum (rounded upwards, if necessary, to the next
higher one hundred-thousandth of a percentage point) for deposits in Dollars for
a period equal to such Interest Period or other period, which appears on Page
3750 of the Telerate Service (or any successor page or successor service that
displays the British Bankers' Association Interest Settlement Rates for Dollar
deposits) as of 11:00 a.m. (London, England time) two Business Days before the
commencement of such Interest Period or other period. If for any Interest Period
or other period no such displayed rate is available (or, for any such other
period, if such displayed rate is not available or the need to calculate LIBOR
is not notified to the Agent at least 3 Business Days before the commencement of
the period for which it is to be determined), the Agent shall determine such
rate based on the rates ABN AMRO is offered Dollar deposits of such duration in
the London interbank market. Any LIBOR determined on the basis of the rate
displayed on Telerate Page 3750 in accordance with the foregoing provisions
shall be subject to corrections, if any, made in such rate and displayed by the
Associated Press-Dow Jones Telerate Service within one hour of the time when
such rate is first displayed by such service.
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<PAGE> 36
"MATURED VALUE" means, for any Advance, the sum of the principal amount
of such Advance plus all interest scheduled to become due (whether or not then
due) on such Advance during its current Interest Period.
"MATURITY DATE" means, for any Advance made by Windmill or any
Eurodollar Advance made by ABN AMRO, the last day of the Interest Period
applicable to such Advance.
"MOODY'S" means Moody's Investors Service, Inc.
"PAYMENT DATE" means the first day of each March, June, September and
December, the Conversion Date, the Revolving Credit Termination Date (or such
earlier date on which the Commitment shall terminate or be canceled) and the
Facility Termination Date.
"PERMITTED INVESTMENTS" means (a) evidences of indebtedness, maturing
not more than thirty (30) days after the purchase thereof, issued by, or the
full and timely payment of which is guaranteed by, the full faith and credit of,
the federal government of the United States of America, (b) repurchase
agreements with banking institutions or broker-dealers that are registered under
the Securities Exchange Act of 1934 fully secured by obligations of the kind
specified in clause (a) above, (c) money market funds denominated in U.S.
dollars at the time of investment therein rated not lower than A-1 (and without
the "r" symbol attached to any such rating) by S&P and P-1 by Moody's or
otherwise acceptable to the Rating Agencies or (d) commercial paper denominated
in U.S. dollars issued by any corporation incorporated under the laws of the
United States or any political subdivision thereof, provided that at the time of
the investment therein such commercial paper is rated at least A-1 (and without
the "r" symbol attached to any such rating) by S&P and Prime-1 by Moody's.
"PRIME RATE" means, for any day, a fluctuating rate of interest per
annum equal to the greater of (a) the floating commercial loan rate per annum of
ABN AMRO (which rate is a reference rate and does not necessarily represent the
lowest or best rate actually charged to any customer by ABN AMRO) announced from
time to time as its prime rate or equivalent for Dollar loans in the USA, and
(b) the Federal Funds Rate plus 0.50% per annum, in each case, changing as and
when said rate changes.
"RATING AGENCY" means Moody's, S&P and any other rating agency Windmill
chooses to rate its commercial paper notes.
"REVOLVING CREDIT TERMINATION DATE" means the earliest of (i) the
Facility Conversion Date; (ii) July 21, 2000 (or any subsequent date to which
the Revolving Credit Termination Date may have been extended pursuant to the
terms of Section 5(a)); and (iii) the date of termination in whole of the
Commitment.
"S&P" means Standard & Poor's Ratings Group.
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<PAGE> 37
"SUBORDINATION AGREEMENT" means that certain Subordination Agreement
(and any and all supplements thereto) dated as of the date hereof executed from
time to time by the Borrower and each "Material Subsidiary" (as defined in the
364-Day Credit Agreement) of the Borrower listed on Schedule 6.8 to the 364-Day
Credit Agreement and each other Material Subsidiary of the Borrower as required
pursuant to Section 10 in favor of the Agent for the benefit of itself and the
other holders of Facility Obligations, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"TYPE" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance.
"UNMATURED EVENT OF DEFAULT" means an event which, but for the lapse of
time or the giving of notice, or both, would constitute an Event of Default.
"USA" means the United States of America (including all states and
political subdivisions thereof).
23. MODIFICATIONS. (a) Modifications to the Facility Loan Documents.
This Agreement and the other Facility Loan Documents may not be amended, or any
provision hereof waived, except pursuant to a writing signed by each party
hereto and each other party thereto.
(b) Modifications to the 364-Day Credit Agreement. The Borrower agrees
that no amendment, modification, supplement, waiver or restatement of the
364-Day Credit Agreement shall be effective (i) to modify any provisions to the
364-Day Credit Agreement or the other documents, instruments and agreements
entered into in connection therewith prior to an Integration Blockage Default
except pursuant to a writing signed by the Borrower, the Subsidiaries parties
thereto (if required thereby), and the "Required Lenders" (as such term is
defined in the 364-Day Credit Agreement as in effect as of the date hereof); and
(ii) solely for purposes of incorporation herein and only insofar as such
provisions are incorporated herein by reference or the definitions of which are
utilized in the operative provisions hereof, to modify any provisions to the
364-Day Credit Agreement or the other documents, instruments and agreements
entered into in connection therewith after an Integration Blockage Default
except pursuant to a writing signed by the Borrower, the Subsidiaries parties
thereto (if required thereby), the Agent and the Lenders hereunder; provided,
however, that in each such case no such supplemental agreement shall, without
the consent of each of the Lenders hereunder affected thereby (or which in the
future may be affected thereby if the provisions of Section 2.6(b) of the
364-Day Credit Agreement are invoked and the Lenders hereunder with Commitments
become "Lenders" under the 364-Day Credit Agreement) (with all terms in clauses
(i) through (viii) below being as defined in the 364-Day Credit Agreement):
(i) Postpone or extend the Revolving Loan Termination Date or
any other date fixed for any payment of principal of, or interest on,
the Loans, the Reimbursement Obligations or any fees or other amounts
payable to such Lender (except with respect to (a) any
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<PAGE> 38
modifications of the provisions relating to prepayments of Loans and
other Obligations and (b) a waiver of the application of the default
rate of interest pursuant to Section 2.11 thereof);
(ii) Reduce the principal amount of any Loans or L/C
Obligations, or reduce the rate or extend the time of payment of
interest or fees thereon;
(iii) Reduce the percentage specified in the definition of
Required Lenders or any other percentage of Lenders hereunder and
364-Day CLO Lenders specified to be the applicable percentage in the
364-Day Credit Agreement to act on specified matters or amend the
definitions of "Aggregate Pro Rata Share", "Required Lenders" or "Pro
Rata Share";
(iv) Increase the amount of the Revolving Loan Commitment of
any Lender under the 364-Day Credit Agreement or increase any Lender's
Aggregate Pro Rata Share or Pro Rata Share;
(v) Permit the Borrower to assign its rights under the
364-Day Credit Agreement;
(vi) Other than pursuant to a transaction permitted by the
terms of the 364-Day Credit Agreement, release any guarantor from its
obligations under the Guaranty;
(vii) Amend Section 9.3 of the 364-Day Credit Agreement; or
(viii) Amend the provisions of Section 2.6(a)(ii), Section
2.6(a)(iii), Section 2.6(b), Section 7.2(N) or Section 13.2 of the
364-Day Credit Agreement.
24. GENERAL PROVISIONS.
(a) Confidentiality.
(i) Subject to clause (ii) below, the Agent and the Lenders
and their respective representatives shall hold all nonpublic
information obtained pursuant to the requirements of this Agreement and
identified as such by the Borrower in accordance with such Person's
customary procedures for handling confidential information of this
nature and in accordance with safe and sound commercial lending or
investment practices and in any event may make disclosure reasonably
required by a prospective Purchaser or Participant in connection with
the contemplated participation or assignment or as required or
requested by any Governmental Authority or any securities exchange or
similar self-regulatory organization or representative thereof or any
Rating Agency or pursuant to a regulatory examination or legal process,
or to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor, and
shall require any such prospective Purchaser or Participant to agree
(and require any of its transferees to agree) to comply with this
Section 24. In no event shall the Agent or any Lender be obligated or
required to return
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<PAGE> 39
any materials furnished by the Borrower; provided, however, each
prospective Purchaser or Participant shall be required to agree that if
it does not become a Participant or assignee it shall return all
materials furnished to it by or on behalf of the Borrower in connection
with this Agreement.
(ii) The Borrower authorizes each Lender to disclose to any
Participant or Purchaser or any other Person acquiring an interest in
the Facility Loan Documents by operation of law (each a "Transferee")
and any prospective Transferee any and all information in such Lender's
possession concerning the Borrower and its Subsidiaries; provided that
prior to any such disclosure, such prospective Transferee shall agree
to preserve in accordance with Section 24(a)(i) the confidentiality of
any confidential information described therein.
(b) Preservation of Rights. No delay or omission of the Lenders or the
Agent to exercise any right under the Facility Loan Documents shall impair such
right or be construed to be a waiver of any Event of Default or an acquiescence
therein, and the making of an Advance notwithstanding the existence of an Event
of Default or the inability of the Borrower to satisfy the conditions precedent
to such Advance shall not constitute any waiver or acquiescence. Any single or
partial exercise of any such right shall not preclude other or further exercise
thereof or the exercise of any other right, and no waiver, amendment or other
variation of the terms, conditions or provisions of the Facility Loan Documents
or the 364-Day Credit Agreement shall be valid unless in writing signed by the
requisite parties required pursuant to Section 23, and then only to the extent
in such writing specifically set forth. All remedies contained in the Facility
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Agent and the Lenders until the Advances and all interest, fees and other
amounts payable hereunder have been paid in full.
(c) Severability of Provisions. Any provision in any Facility Loan
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Facility Loan Documents are
declared to be severable.
(d) Nonliability of Lenders. The relationship between the Borrower and
the Lenders and the Agent shall be solely that of borrower and lender. Neither
the Agent nor any Lender shall have any fiduciary responsibilities to the
Borrower. Neither the Agent nor any Lender undertakes any responsibility to the
Borrower to review or inform the Borrower of any matter in connection with any
phase of the Borrower's business or operations.
(e) Other Transactions. Each of the Agent, the Lenders and the Borrower
acknowledges that the Lenders (or Affiliates of the Lenders) may, from time to
time, effect transactions for their own accounts or the accounts of customers,
and hold positions in loans or options on loans of the Borrower, the Borrower's
Subsidiaries and other companies that may be the subject of this credit
arrangement and nothing in this Agreement shall impair the right of any such
Person to enter into
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any such transaction (to the extent it is not expressly prohibited by the terms
of this Agreement) or give any other Person any claim or right of action
hereunder as a result of the existence of the credit arrangements hereunder, all
of which are hereby waived. In addition, certain Affiliates of one or more of
the Lenders are or may be securities firms and as such may effect, from time to
time, transactions for their own accounts or for the accounts of customers and
hold positions in securities or options on securities of the Borrower, the
Borrower's Subsidiaries and other companies that may be the subject of this
credit arrangement and nothing in this Agreement shall impair the right of any
such Person to enter into any such transaction (to the extent it is not
expressly prohibited by the terms of this Agreement) or give any other Person
any claim or right of action hereunder as a result of the existence of the
credit arrangements hereunder, all of which are hereby waived. Other business
units affiliated with the Agent are or may be providing other financial services
and products to the Borrower in connection with initial public offering of the
Capital Stock of the Borrower and the other transactions contemplated by this
Agreement. Each of the Agent, the Lenders and the Borrower acknowledges and
consents to these multiple roles, and further acknowledges that the fact that
any such unit or Affiliate is providing another service or product or proposal
therefor to the Borrower does not mean that such service, product, or proposal
is or will be acceptable to any of the Agents or the Lenders.
(f) Setoff. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Event of Default occurs and is
continuing and after the affirmative consent of the Agent, any Indebtedness from
any Lender to the Borrower (including all account balances, whether provisional
or final and whether or not collected or available) may be offset and applied
toward the payment of the outstanding principal amount of the Advances, all
accrued interest thereon and, in the case of Windmill, all interest scheduled to
accrue to the last day of the Interest Period for each outstanding Advance held
by Windmill, and all other amounts payable hereunder and under the other
Facility Loan Documents owing to such Lender, whether or not such amounts, or
any part thereof, shall then be due.
[Remainder of this page intentionally blank]
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If the terms of this Agreement are satisfactory to you as Borrower,
please indicate your agreement and acceptance thereof by signing a counterpart
of this Agreement and returning it to us.
Very truly yours,
ABN AMRO Bank N.V., as Agent and as a Lender
By:
------------------------------
Name:
----------------------------
Title:
--------------------------
By:
Name:
----------------------------
Title:
---------------------------
WINDMILL FUNDING CORPORATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Agreed and Accepted as of the date first above written:
AMERICAN NATIONAL CAN GROUP, INC.
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
Signature Page to
364-Day Finance Facility Agreement
<PAGE> 42
EXHIBIT A
TO
364-DAY FINANCE FACILITY AGREEMENT
PROMISSORY NOTE
U.S. $50,000,000.00 Dated: July 22, 1999
For Value Received, the undersigned, AMERICAN NATIONAL CAN GROUP, INC.,
a corporation organized and existing under the laws of the State of Delaware
(the "Borrower"), HEREBY PROMISES TO PAY to the order of ABN AMRO Bank N.V., as
agent (the "Agent") for ABN AMRO Bank N.V. ("ABN AMRO") and Windmill Funding
Corporation ("Windmill") or any assignee (including ABN AMRO) that acquires an
interest herein pursuant to an assignment under Section 12 of the "Finance
Facility" referred to below, as their respective interests may appear in the
Agent's records as Lenders under such Finance Facility, the principal amount of
each Advance on the Maturity Date for such Advance established under the Finance
Facility, together with interest (computed on the basis set forth in the Finance
Facility) on the principal amount of each such Advance outstanding from time to
time from and including the date on which such Advance is made to, but
excluding, the Maturity Date of such Advance, at the rates set forth in the
Finance Facility payable on each Interest Payment Date for such Advance.
Capitalized terms used and not otherwise defined herein have the meanings
ascribed to them in the 364-Day Finance Facility Agreement dated as of July 22,
1999 among the Borrower, the Agent, ABN AMRO, and Windmill, as amended,
modified, supplemented and/or restated from time to time (the "Finance
Facility").
The Borrower may not prepay any principal amount of any CP Advance
before its Maturity Date. Prepayments of Floating Rate Advances and Eurodollar
Advances are subject to the terms of Section 4 and Section 14(c) of the Finance
Facility.
It shall be an "Event of Default" hereunder if, under the 364-Day
Credit Agreement a "Default" (as defined in the 364-Day Credit Agreement) shall
occur or any other event or condition shall occur which permits or results in
the acceleration (through mandatory prepayment or otherwise) of the obligations
of the Borrower under the 364-Day Credit Agreement, and/or, if applicable, the
termination of any commitment to extend credit thereunder (other than as a
result of optional and/or mandatory commitment reductions as set forth therein),
whether or not the 364-Day Credit Agreement remains in effect, without giving
effect to any requirement contained in the 364-Day Credit Agreement that notice
of the relevant circumstance be provided by any party, but only requiring that
any such notice be provided by ABN AMRO.
If any Default described in Section 8.1(F) or 8.1(G) of the 364-Day
Credit Agreement occurs with respect to the Borrower, the obligations of the
Lenders to make Advances under the Finance
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<PAGE> 43
Facility shall automatically terminate and the outstanding principal amount of
this Promissory Note, all accrued interest thereon and, in the case of Windmill,
all interest scheduled to accrue to the last day of the Interest Period for each
outstanding Advance held by Windmill, and all other amounts payable hereunder
and under the other Facility Loan Documents shall immediately become due and
payable without any election or action on the part of the Agent or any Lender.
If (1) any other Event of Default occurs and (a) if the "Required Lenders" (as
defined in the 364-Day Credit Agreement) terminate or suspend the obligations of
the lenders thereunder to make Loans, then the obligations of the Lenders to
make Advances under the Finance Facility shall automatically terminate without
any further election or action on the part of the Agent or any Lender hereunder
or under the Finance Facility and/or (b) if the "Required Lenders" (as defined
in the 364-Day Credit Agreement) declare the Obligations thereunder to be due
and payable, then the outstanding principal amount of this Promissory Note, all
accrued interest thereon and, in the case of Windmill, all interest scheduled to
accrue to the last day of the Interest Period for each outstanding Advance held
by Windmill, and all other amounts payable hereunder and under the other
Facility Loan Documents shall become immediately due and payable, without any
further election or action on the part of the Agent or any Lender hereunder or
under the Finance Facility, in each case without presentment, demand, protest or
notice of any kind, all of which the Borrower expressly waives; or (2) any
Integration Blockage Default occurs, the Lenders may terminate or suspend the
obligations of the Lenders to make Advances under the Finance Facility, or
declare the Facility Obligations to be due and payable, or both, whereupon the
outstanding principal amount of this Promissory Note, all accrued interest
thereon and, in the case of Windmill, all interest scheduled to accrue to the
last day of the Interest Period for each outstanding Advance held by Windmill,
and all other amounts payable hereunder and under the other Facility Loan
Documents shall become immediately due and payable, without any further election
or action on the part of the Agent or any Lender hereunder or under the Finance
Facility, in each case without presentment, demand, protest or notice of any
kind, all of which the Borrower expressly waives.
The Borrower hereby authorizes the Agent to endorse on a schedule
hereto, or on its books and records, the date and amount of each Advance made or
purchased by a Lender, the Maturity Date thereof, all payments made on account
of principal thereof or interest thereon and the interest rate applicable
thereto or interest amount payable thereon, provided that the failure to do so
shall not affect the obligations of the Borrower to the Lenders.
The Borrower also agrees to pay on demand all reasonable costs and
expenses incurred by the Agent or a Lender in enforcing this Promissory Note.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET SEQ. BUT OTHERWISE
WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
This Promissory Note is the "Note" referred to in, and is entitled to
the benefits of, the Finance Facility, which Finance Facility, among other
things, set forth procedures to be used in
A-2
<PAGE> 44
connection with the Borrower's requests that the Lenders make Advances to it
from time to time. As provided in Section 12 of such Finance Facility, any
Advance transferred to ABN AMRO under the CLO Program Documents shall be
evidenced by this Promissory Note as an Advance in a principal amount equal to
the Matured Value of such Advance originally made by Windmill.
The Borrower hereby waives demand, presentment, protest or notice of
any kind hereunder.
AMERICAN NATIONAL CAN GROUP, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
A-3
<PAGE> 45
EXHIBIT B
TO
FINANCE FACILITY
BORROWING REQUEST
ABN AMRO Bank N.V.
Structured Finance
135 South LaSalle Street
Suite 725
Chicago, Illinois 60674
Attention: Chrissi Boryk
RE: 364-DAY FINANCE FACILITY AGREEMENT DATED AS OF JULY 22, 1999
("FINANCE FACILITY")
Gentlemen:
The undersigned, American National Can Group, Inc., hereby requests an
Advance in the amount of $_________ with a Maturity Date of ___________________
under the terms of the above-referenced Finance Facility.
The undersigned confirms that all representations and warranties in
Section 8 of the Finance Facility are true and correct and that no condition
described in Section 7(b) of the Finance Facility exists.
After giving effect to this requested Advance, the aggregate principal
amount of all Advances outstanding to the Borrower under the Finance Facility
would be $__________________.
AMERICAN NATIONAL CAN GROUP, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
B-1
<PAGE> 46
Promissory Note
(364-Day Finance Facility Agreement)
U.S. $50,000,000.00 Dated: July 22, 1999
For Value Received, the undersigned, American National Can Group, Inc.,
a corporation organized and existing under the laws of the State of Delaware
(the "Borrower"), Hereby Promises to Pay to the order of ABN AMRO Bank N.V., as
agent (the "Agent") for ABN AMRO Bank N.V. ("ABN AMRO") and Windmill Funding
Corporation ("Windmill") or any assignee (including ABN AMRO) that acquires an
interest herein pursuant to an assignment under Section 12 of the "Finance
Facility" referred to below, as their respective interests may appear in the
Agent's records as Lenders under such Finance Facility, the principal amount of
each Advance on the Maturity Date for such Advance established under the Finance
Facility, together with interest (computed on the basis set forth in the Finance
Facility) on the principal amount of each such Advance outstanding from time to
time from and including the date on which such Advance is made to, but
excluding, the Maturity Date of such Advance, at the rates set forth in the
Finance Facility payable on each Interest Payment Date for such Advance.
Capitalized terms used and not otherwise defined herein have the meanings
ascribed to them in the 364-Day Finance Facility Agreement dated as of July 22,
1999 among the Borrower, the Agent, ABN AMRO, and Windmill, as amended,
modified, supplemented and/or restated from time to time (the "Finance
Facility").
The Borrower may not prepay any principal amount of any CP Advance
before its Maturity Date. Prepayments of Floating Rate Advances and Eurodollar
Advances are subject to the terms of Section 4 and Section 14(c) of the Finance
Facility.
It shall be an "Event of Default" hereunder if, under the 364-Day
Credit Agreement a "Default" (as defined in the 364-Day Credit Agreement) shall
occur or any other event or condition shall occur which permits or results in
the acceleration (through mandatory prepayment or otherwise) of the obligations
of the Borrower under the 364-Day Credit Agreement, and/or, if applicable, the
termination of any commitment to extend credit thereunder (other than as a
result of optional and/or mandatory commitment reductions as set forth therein),
whether or not the 364-Day Credit Agreement remains in effect, without giving
effect to any requirement contained in the 364-Day Credit Agreement that notice
of the relevant circumstance be provided by any party, but only requiring that
any such notice be provided by ABN AMRO.
If any Default described in Section 8.1(F) or 8.1(G) of the 364-Day
Credit Agreement occurs with respect to the Borrower, the obligations of the
Lenders to make Advances under the Finance Facility shall automatically
terminate and the outstanding principal amount of this Promissory Note, all
accrued interest thereon and, in the case of Windmill, all interest scheduled to
accrue to the last day of the Interest Period for each outstanding Advance held
by Windmill, and all other amounts payable hereunder and under the other
Facility Loan Documents shall immediately become due and payable without any
election or action on the part of the Agent or any Lender. If (1) any other
Event
<PAGE> 47
of Default occurs and (a) if the "Required Lenders" (as defined in the 364-Day
Credit Agreement) terminate or suspend the obligations of the lenders thereunder
to make Loans, then the obligations of the Lenders to make Advances under the
Finance Facility shall automatically terminate without any further election or
action on the part of the Agent or any Lender hereunder or under the Finance
Facility and/or (b) if the "Required Lenders" (as defined in the 364-Day Credit
Agreement) declare the Obligations thereunder to be due and payable, then the
outstanding principal amount of this Promissory Note, all accrued interest
thereon and, in the case of Windmill, all interest scheduled to accrue to the
last day of the Interest Period for each outstanding Advance held by Windmill,
and all other amounts payable hereunder and under the other Facility Loan
Documents shall become immediately due and payable, without any further election
or action on the part of the Agent or any Lender hereunder or under the Finance
Facility, in each case without presentment, demand, protest or notice of any
kind, all of which the Borrower expressly waives; or (2) any Integration
Blockage Default occurs, the Lenders may terminate or suspend the obligations of
the Lenders to make Advances under the Finance Facility, or declare the Facility
Obligations to be due and payable, or both, whereupon the outstanding principal
amount of this Promissory Note, all accrued interest thereon and, in the case of
Windmill, all interest scheduled to accrue to the last day of the Interest
Period for each outstanding Advance held by Windmill, and all other amounts
payable hereunder and under the other Facility Loan Documents shall become
immediately due and payable, without any further election or action on the part
of the Agent or any Lender hereunder or under the Finance Facility, in each case
without presentment, demand, protest or notice of any kind, all of which the
Borrower expressly waives.
The Borrower hereby authorizes the Agent to endorse on a schedule
hereto, or on its books and records, the date and amount of each Advance made or
purchased by a Lender, the Maturity Date thereof, all payments made on account
of principal thereof or interest thereon and the interest rate applicable
thereto or interest amount payable thereon, provided that the failure to do so
shall not affect the obligations of the Borrower to the Lenders.
The Borrower also agrees to pay on demand all reasonable costs and
expenses incurred by the Agent or a Lender in enforcing this Promissory Note.
This Promissory Note shall be governed by, and construed in accordance
with, the internal laws (including 735 ILCS 105/5-1 et seq. but otherwise
without regard to the conflicts of laws provisions) of the State of Illinois.
This Promissory Note is the "Note" referred to in, and is entitled to
the benefits of, the Finance Facility, which Finance Facility, among other
things, set forth procedures to be used in connection with the Borrower's
requests that the Lenders make Advances to it from time to time. As provided in
Section 12 of such Finance Facility, any Advance transferred to ABN AMRO under
the CLO Program Documents shall be evidenced by this Promissory Note as an
Advance in a principal amount equal to the Matured Value of such Advance
originally made by Windmill.
2
<PAGE> 48
The Borrower hereby waives demand, presentment, protest or notice of
any kind hereunder.
AMERICAN NATIONAL CAN GROUP, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
3
<PAGE> 1
EXHIBIT 10.37
EXECUTION COPY
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "SUBORDINATION AGREEMENT") is made
as of the 22nd day of July, 1999, by and among AMERICAN NATIONAL CAN GROUP,
INC., a Delaware corporation (the "Company"), PECHINEY NORTH AMERICA, INC., a
Delaware corporation, and AMERICAN NATIONAL CAN COMPANY, a Delaware corporation
(collectively, the "INITIAL GRANTORS" and along with each other Subsidiary of
the Company which becomes a party to this Subordination Agreement by executing
an Addendum hereto in the form attached as Annex I, the "GRANTORS") in favor of
the Administrative Agent, for the ratable benefit of the Holders of Obligations,
under (and as defined in) the Credit Agreements referred to below;
WITNESSETH:
WHEREAS, the "COMPANY", one or more Subsidiaries of the Company
(whether now existing or hereafter formed, collectively referred to herein as
the "SUBSIDIARY BORROWERS"), the institutions from time to time parties hereto
as Lenders, and THE FIRST NATIONAL BANK OF CHICAGO, in its capacity as
contractual representative (the "ADMINISTRATIVE Agent") for itself and the other
Lenders, THE CHASE MANHATTAN BANK, as Syndication Agent (the "SYNDICATION
AGENT"), and ABN AMRO BANK N.V., as Co-Documentation Agent (the
"CO-DOCUMENTATION AGENT") and Arranger (the "ARRANGER"), and ROYAL BANK OF
CANADA , as Co-Documentation Agent (the "CO-DOCUMENTATION AGENT") and Arranger
(the "ARRANGER"), BANQUE NATIONALE DE PARIS, as Arranger (the "ARRANGER"), CHASE
SECURITIES INC., as Lead Arranger (the "LEAD ARRANGER") and Joint Book Manager
(the "JOINT BOOK MANAGER"), and BANC ONE CAPITAL MARKETS, INC., as Lead Arranger
(the "LEAD ARRANGER") and Joint Book Manager (the "JOINT BOOK MANAGER") have
entered into (i) a certain 5-Year Revolving Credit Agreement dated as of July
22, 1999 (as the same may be amended, modified, supplemented and/or restated,
and as in effect from time to time, the "5-YEAR CREDIT AGREEMENT") and (ii) a
certain 364-Day Credit Agreement dated as of July 22, 1999 (as the same may be
amended, restated, supplemented or otherwise modified, and as in effect from
time to time, the "364-DAY CREDIT Agreement", and, together with the 5-Year
Credit Agreement, the "CREDIT AGREEMENTS"), providing, subject to the terms and
conditions thereof, for extensions of credit and other financial accommodations
to be made by the Lenders to the Company and the Subsidiary Borrowers;
WHEREAS, it is a condition precedent to the initial extensions of
credit by the Lenders under each of the Credit Agreements that each of the
Grantors execute and deliver this Subordination Agreement; and
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
<PAGE> 2
SECTION l. Definitions. Terms defined in the Credit Agreements and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein. For purposes of this Subordination Agreement, "LONG-TERM LENDERS"
shall mean all of the Lenders under the 5-Year Credit Agreement, and "SHORT-TERM
LENDERS" shall mean all of the Lenders under the 364-Day Credit Agreement.
"Lenders" shall mean, collectively, all of the Long-Term Lenders and all of the
Short-Term Lenders.
SECTION 2. Representations, Warranties and Covenants. Each of the
Grantors represents and warrants (which representations and warranties shall be
deemed with respect to each such Grantor to have been renewed at the time of the
making, conversion or continuation of any Loan or issuance of any Letter of
Credit and on the Conversion Date, provided at such time such Grantor is a
creditor of any Borrower or any Guarantor) that:
(a) It is a corporation, limited liability company,
partnership or other commercial entity duly incorporated or formed, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or formation and has all requisite authority to conduct its
business as a foreign Person in each jurisdiction in which its business is
conducted, except where the failure to have such requisite authority would not
have a Material Adverse Effect.
(b) It has the power and authority and legal right to execute
and deliver this Subordination Agreement and to perform its obligations
hereunder. The execution and delivery by it of this Subordination Agreement and
the performance by it of its obligations hereunder have been duly authorized by
proper proceedings, and this Subordination Agreement constitutes a legal, valid
and binding obligation of such Grantor, enforceable against such Grantor in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity (regardless of whether
enforcement is sought in equity or at law).
(c) Neither the execution and delivery by it of this
Subordination Agreement, nor the consummation by it of the transactions herein
contemplated, nor compliance by it with the terms and provisions hereof, will
violate any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on it or its certificate or articles of incorporation or by-laws,
limited liability company or partnership agreement (as applicable) or the
provisions of any indenture, instrument or material agreement to which it is a
party or is subject, or by which it, or its property, is bound, or conflict with
or constitute a default thereunder, or result in the creation or imposition of
any Lien in, of or on its property pursuant to the terms of any such indenture,
instrument or material agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any Governmental Authority that has not been made, obtained or
given, or which, if not made, obtained or given, individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect, is
required to authorize, or is required in connection with the execution, delivery
and performance by it of this Subordination Agreement.
-2-
<PAGE> 3
In addition to the foregoing, each of the Grantors covenants
that, so long as any Lender has any Commitment outstanding under either of the
Credit Agreements or any amount payable under the Credit Agreements or any other
Obligations shall remain unpaid, it will fully comply with those covenants and
agreements of the Company applicable to each of the Grantors set forth in each
of the Credit Agreements.
SECTION 3. Subordination of Intercompany Indebtedness. Each of the
Grantors agrees that any and all claims of such Grantor against either the
Company, any Subsidiary Borrower or any other Grantor hereunder (each an
"Obligor"), any endorser or obligor of all or any part of the Obligations, or
against any of its properties shall be subordinate and subject in right of
payment to the prior payment, in full and in cash, of all Obligations; provided,
that, and not in contravention of the foregoing and notwithstanding any other
provision of this Agreement, so long as no Default or Unmatured Default has
occurred and is continuing such Grantor may make loans to and receive payments
in the ordinary course with respect to any "Intercompany Indebtedness" (as
defined below) to the extent permitted by the terms of the Credit Agreements and
the other Loan Documents. Notwithstanding any right of any Grantor to ask,
demand, sue for, take or receive any payment from any Obligor, all rights, liens
and security interests of such Grantor, whether now or hereafter arising and
howsoever existing, in any assets of any other Obligor shall be and are
subordinated to the rights of the Holders of Obligations and the Administrative
Agent in those assets. No Grantor shall have any right to possession of any such
asset or to foreclose upon any such asset, whether by judicial action or
otherwise, unless and until all of the Obligations (other than contingent
indemnity obligations) shall have been fully paid and satisfied (in cash) and
all financing arrangements pursuant to any Loan Document among the Company or
any Subsidiary Borrower and the Holders of Obligations have been terminated. If
all or any part of the assets of any Obligor, or the proceeds thereof, are
subject to any distribution, division or application to the creditors of such
Obligor, whether partial or complete, voluntary or involuntary, and whether by
reason of liquidation, bankruptcy, arrangement, receivership, assignment for the
benefit of creditors or any other action or proceeding, or if the business of
any such Obligor is dissolved or if substantially all of the assets of any such
Obligor are sold, then, and in any such event, any payment or distribution of
any kind or character, either in cash, securities or other property, which shall
be payable or deliverable upon or with respect to any indebtedness of any
Obligor to any Grantor ("Intercompany Indebtedness") shall be paid or delivered
directly to the Administrative Agent for application on any of the Obligations,
due or to become due, until such Obligations (other than contingent indemnity
obligations) shall have first been fully paid and satisfied (in cash). Each
Grantor irrevocably authorizes and empowers the Administrative Agent to demand,
sue for, collect and receive every such payment or distribution and give
acquittance therefor and to make and present for and on behalf of such Grantor
such proofs of claim and take such other action, in the Administrative Agent's
own name or in the name of such Grantor or otherwise, as the Administrative
Agent may deem necessary or advisable for the enforcement of this Section 3. The
Administrative Agent may vote such proofs of claim in any such proceeding,
receive and collect any and all dividends or other payments or disbursements
made thereon in whatever form the same may be paid or issued and apply the same
on account of any of the Obligations. Should
3
<PAGE> 4
any payment, distribution, security or instrument or proceeds thereof be
received by any Grantor upon or with respect to the Intercompany Indebtedness
prior to the satisfaction of all of the Obligations (other than contingent
indemnity obligations) and the termination of all financing arrangements among
the Company or any Subsidiary Borrower and the Holders of Obligations, such
Grantor shall receive and hold the same in trust, as trustee, for the benefit of
the Holders of Obligations and shall forthwith deliver the same to the
Administrative Agent, for the benefit of the Holders of Obligations, in
precisely the form received (except for the endorsement or assignment of such
Grantor where necessary), for application to any of the Obligations, due or not
due, and, until so delivered, the same shall be held in trust by such Grantor as
the property of the Holders of Obligations. If any such Grantor fails to make
any such endorsement or assignment to the Administrative Agent, the
Administrative Agent or any of its officers or employees are irrevocably
authorized to make the same. Each of the Grantors agrees that until the
Obligations (other than the contingent indemnity obligations) have been paid in
full (in cash) and satisfied and all financing arrangements among the Company
and the Subsidiary Borrowers and the Holders of Obligations have been
terminated, no Grantor will assign or transfer to any Person (other than the
Administrative Agent) any claim any such Grantor has or may have against any
Obligor.
SECTION 4. Successors and Assigns. This Subordination Agreement is for
the benefit of the Administrative Agent and the Holders of Obligations and their
respective successors and permitted assigns and in the event of an assignment of
any amounts payable under the Credit Agreements or the other Loan Documents in
accordance with the respective terms thereof, the rights hereunder, to the
extent applicable to the indebtedness so assigned, may be transferred with such
indebtedness. This Subordination Agreement shall be binding upon each of the
Grantors and their respective successors and assigns.
SECTION 5. Changes in Writing. Other than in connection with the
addition of additional Subsidiaries which become parties hereto by executing an
Addendum hereto in the form attached as Annex I, neither this Subordination
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, but only in writing signed by each of the Grantors and the
Administrative Agent with the consent of the Required Lenders under the 5-Year
Credit Agreement (or all of the Long-Term Lenders if required pursuant to the
terms of Section 10.3 of the 5-Year Credit Agreement) or with the consent of the
Required Lenders under the 364-Day Credit Agreement (or all of the Short-Term
Lenders if required pursuant to the terms of Section 10.3 of the Credit
Agreement).
SECTION 6. GOVERNING LAW. ANY DISPUTE BETWEEN ANY GRANTOR AND ANY AGENT
OR ANY LENDER, OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH, THIS SUBORDINATION AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING,
4
<PAGE> 5
WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT
REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
SECTION 7. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH
OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS SUBORDINATION AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS,
BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. EACH OF THE GRANTORS AGREES THAT ANY AGENT,
ANY LENDER OR ANY HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED AGAINST
SUCH GRANTOR OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO
(1) OBTAIN PERSONAL JURISDICTION OVER SUCH GRANTOR OR (2) ENFORCE A JUDGMENT OR
OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. EACH OF THE GRANTORS AGREES
THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT
BY SUCH PERSON TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH
PERSON. EACH OF THE GRANTORS WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (B).
(C) SERVICE OF PROCESS. EACH OF THE GRANTORS WAIVES PERSONAL SERVICE OF
ANY PROCESS UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
WRITS, PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING
THEREOF BY ANY AGENT OR THE HOLDERS OF OBLIGATIONS BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE GRANTORS IN CARE OF THE COMPANY AT THE ADDRESS
PROVIDED FOR NOTICES TO THE COMPANY UNDER THE CREDIT AGREEMENTS. NOTHING HEREIN
SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY AGENT OR THE HOLDERS OF
OBLIGATIONS TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW. EACH OF THE GRANTORS IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON
5
<PAGE> 6
THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS SUBORDINATION
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
SUBORDINATION AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED
OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SUBORDINATION AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
(E) WAIVER OF BOND. EACH OF THE GRANTORS WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER,
PRELIMINARY OR PERMANENT INJUNCTION, THIS SUBORDINATION AGREEMENT OR ANY OTHER
LOAN DOCUMENT.
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS SUBORDINATION AGREEMENT AND,
SPECIFICALLY, THE PROVISIONS OF THIS SECTION 7, WITH ITS COUNSEL.
SECTION 8. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Subordination Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Subordination Agreement shall be construed as if drafted jointly by the parties
hereto and no presumption or burden of proof shall arise favoring or disfavoring
any party by virtue of the authorship of any provisions of this Subordination
Agreement.
SECTION 9. Severability. Wherever possible, each provision of this
Subordination Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Subordination
Agreement shall be prohibited by or invalid under such
6
<PAGE> 7
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 Subordination Agreement.
SECTION 10. Merger. This Subordination Agreement represents the final
agreement of the Grantors with respect to the matters contained herein and may
not be contradicted by evidence of prior or contemporaneous agreements, or
subsequent oral agreements, between the Grantors and any Holder of Obligations
or the Administrative Agent.
SECTION 11. Headings. Section headings in this Subordination
Agreement are for convenience of reference only and shall not govern the
interpretation of any provision of this Subordination Agreement.
7
<PAGE> 8
IN WITNESS WHEREOF, each of the undersigned Grantors has caused this
Subordination Agreement to be duly executed by its authorized officer as of the
day and year first above written.
AMERICAN NATIONAL CAN GROUP, INC.
By: Dennis M. Byrd
Its: Vice President and Treasurer
PECHINEY NORTH AMERICA, INC.
By: Dennis M. Byrd
Its: Treasurer
AMERICAN NATIONAL CAN COMPANY
By: Dennis M. Byrd
Its: Vice President and Treasurer
S-1
<PAGE> 9
ANNEX I TO SUBORDINATION AGREEMENT
Reference is hereby made to the Subordination Agreement (the
"Subordination Agreement") made as of the 22nd day of July, 1999 by Pechiney
North America, Inc., a Delaware corporation, and American National Can Company,
a Delaware corporation, American National Can Group, Inc., a Delaware
corporation (collectively, the "Initial Grantors" and along with any other
Subsidiaries of the Company which have become parties thereto and together with
the undersigned, the"Grantors") in favor of the Administrative Agent, for the
ratable benefit of the Holders of Obligations, under the Credit Agreements.
Capitalized terms used herein and not defined herein shall have the meanings
given to them in the Subordination Agreement. By its execution below, the
undersigned [NAME OF NEW GRANTOR], a [corporation] [partnership] [limited
liability company], agrees to become, and does hereby become, a Grantor under
the Subordination Agreement and agrees to be bound by such Subordination
Agreement as if originally a party thereto. By its execution below, the
undersigned represents and warrants as to itself that all of the representations
and warranties contained in Section 2 of the Subordination Agreement are true
and correct in all respects as of the date hereof.
IN WITNESS WHEREOF, [NAME OF NEW GRANTOR], a [corporation]
[partnership] [limited liability company] has executed and delivered this Annex
I counterpart to the Subordination Agreement as of this __________ day of
_________, ____.
[NAME OF NEW GRANTOR]
By:_____________________________________
Title:__________________________________
<PAGE> 1
EXHIBIT 10.38
EXECUTION COPY
GUARANTY
THIS GUARANTY (this "GUARANTY") is made as of the 22nd day of July, 1999,
by and among PECHINEY NORTH AMERICA, INC., a Delaware corporation, and AMERICAN
NATIONAL CAN COMPANY, a Delaware corporation (collectively, the "INITIAL
GUARANTORS" and along with any additional Material Domestic Subsidiaries and
Subsidiary Borrowers which are Domestic Incorporated Subsidiaries, in each case,
which become parties to this Guaranty by executing an Addendum hereto in the
form attached as Annex I, the "GUARANTORS") in favor of the Administrative
Agent, for the ratable benefit of the Holders of Obligations, under (and as
defined in) the Credit Agreements referred to below;
WITNESSETH:
WHEREAS, AMERICAN NATIONAL CAN GROUP, INC., a Delaware corporation (the
"COMPANY"), one or more Subsidiaries of the Company (whether now existing or
hereafter formed, collectively referred to herein as the "SUBSIDIARY
BORROWERS"), the institutions from time to time parties hereto as Lenders, and
THE FIRST NATIONAL BANK OF CHICAGO, in its capacity as contractual
representative (the "ADMINISTRATIVE AGENT") for itself and the other Lenders,
THE CHASE MANHATTAN BANK, as Syndication Agent (the "SYNDICATION AGENT"), and
ABN AMRO BANK N.V., as Co-Documentation Agent (the "CO-DOCUMENTATION AGENT") and
Arranger (the "ARRANGER"), and ROYAL BANK OF CANADA , as Co-Documentation Agent
(the "CO-DOCUMENTATION Agent") and Arranger (the "ARRANGER"), BANQUE NATIONALE
DE PARIS, as Arranger (the "ARRANGER"), CHASE SECURITIES INC., as Lead Arranger
(the "LEAD ARRANGER") and Joint Book Manager (the "JOINT BOOK MANAGER"), and
BANC ONE CAPITAL MARKETS, INC., as Lead Arranger (the "LEAD ARRANGER") and Joint
Book Manager (the "JOINT BOOK MANAGER") have entered into (i) a certain 5-Year
Revolving Credit Agreement dated as of July 22, 1999 (as the same may be
amended, modified, supplemented and/or restated, and as in effect from time to
time, the "5-YEAR CREDIT AGREEMENT") and (ii) a certain 364-Day Credit Agreement
dated as of July 22, 1999 (as the same may be amended, restated, supplemented or
otherwise modified, and as in effect from time to time, the "364-DAY CREDIT
AGREEMENT", and, together with the 5-Year Credit Agreement, the "CREDIT
AGREEMENTS"), providing, subject to the terms and conditions thereof, for
extensions of credit and other financial accommodations to be made by the
Lenders to the Company and the Subsidiary Borrowers;
WHEREAS, it is a condition precedent to the initial extensions of credit by
the Lenders under each of the Credit Agreements that each of the Guarantors
(constituting all of the Material Domestic Subsidiaries of the Company and all
of the Subsidiary Borrowers that are Domestic Incorporated Subsidiaries) execute
and deliver this Guaranty, whereby each of the Guarantors shall guarantee the
payment when due of all "Obligations" (as defined in the Credit Agreements),
principal, interest, letter of credit reimbursement obligations and other
amounts that shall be at any time payable by the Company or any Subsidiary
Borrower under the Credit Agreements and the other Loan Documents; and
<PAGE> 2
WHEREAS, in consideration of the direct and indirect financial and other
support that the Company and the Subsidiary Borrowers has provided, and such
direct and indirect financial and other support as the Company and the
Subsidiary Borrowers may in the future provide, to the Guarantors, and in order
to induce the Lenders and the Agents to enter into the Credit Agreements, each
of the Guarantors is willing to guarantee the obligations of the Company and the
Subsidiary Borrowers under the Credit Agreements and the obligations of the
Company or any of its Subsidiaries under any of the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION l. Definitions. Terms defined in the Credit Agreements and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein. For purposes of this Guaranty, "LONG-TERM LENDERS" shall mean all
of the Lenders under the 5-Year Credit Agreement, and "SHORT-TERM LENDERS" shall
mean all of the Lenders under the 364-Day Credit Agreement. "Lenders" shall
mean, collectively, all of the Long-Term Lenders and all of the Short-Term
Lenders.
SECTION 2. Representations, Warranties and Covenants. Each of the
Guarantors represents and warrants (which representations and warranties shall
be deemed to have been renewed at the time of the making, conversion or
continuation of any Loan or issuance of any Letter of Credit) that:
(a) It is a corporation, limited liability company, partnership or
other commercial entity duly incorporated or formed, validly existing and in
good standing under the laws of its jurisdiction of incorporation or formation
and has all requisite authority to conduct its business as a foreign Person in
each jurisdiction in which its business is conducted, except where the failure
to have such requisite authority would not have a Material Adverse Effect.
(b) It has the power and authority and legal right to execute and
deliver this Guaranty and to perform its obligations hereunder. The execution
and delivery by it of this Guaranty and the performance by it of its obligations
hereunder have been duly authorized by proper proceedings, and this Guaranty
constitutes a legal, valid and binding obligation of such Guarantor, enforceable
against such Guarantor in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
(c) Neither the execution and delivery by it of this Guaranty, nor the
consummation by it of the transactions herein contemplated, nor compliance by it
with the terms and provisions hereof, will violate any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on it or its
certificate or articles of incorporation or by-laws, limited liability company
or partnership agreement (as applicable) or the provisions of any indenture,
instrument or material agreement to which it is a party or is subject, or by
which it, or its property, is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any Lien in, of or on its
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<PAGE> 3
property pursuant to the terms of any such indenture, instrument or material
agreement. No order, consent, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, any Governmental
Authority, is required to authorize, or is required in connection with the
execution, delivery and performance by it of, or the legality, validity, binding
effect or enforceability against it of, this Guaranty.
In addition to the foregoing, each of the Guarantors covenants that,
so long as any Lender has any Revolving Loan Commitment outstanding under either
of the Credit Agreements or any amount payable under the Credit Agreements or
any other Obligations shall remain unpaid, it will, and, if necessary, will
enable the Company to, fully comply with those covenants and agreements of the
Company applicable to such Guarantor set forth in each of the Credit Agreements.
SECTION 3. The Guaranty. Each of the Guarantors hereby unconditionally
guarantees, jointly with the other Guarantors and severally, the full and
punctual payment when due (whether at stated maturity, upon acceleration or
otherwise) of the Obligations, including, without limitation, (i) the principal
of and interest on each Advance made to the Company and the Subsidiary Borrowers
pursuant to the Credit Agreements, (ii) any Reimbursement Obligations of the
Company and the Subsidiary Borrowers, and (iii) all other amounts payable by the
Company and the Subsidiary Borrowers or any of their respective Subsidiaries
under the Credit Agreements and the other Loan Documents (all of the foregoing
being referred to collectively as the "GUARANTEED OBLIGATIONS"). Upon failure by
the Company or any Subsidiary Borrower or any of their respective Affiliates, as
applicable, to pay punctually any such amount, each of the Guarantors agrees
that it shall forthwith on demand pay such amount at the place and in the manner
specified in the Credit Agreements or the relevant Loan Document, as the case
may be. Each of the Guarantors hereby agrees that this Guaranty is an absolute,
irrevocable and unconditional guaranty of payment and is not a guaranty of
collection.
SECTION 4. Guaranty Unconditional. The obligations of each of the
Guarantors hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, indulgence, compromise, waiver
or release of or with respect to the Guaranteed Obligations or any part
thereof or any agreement relating thereto, or with respect to any
obligation of any other guarantor of any of the Guaranteed Obligations,
whether (in any such case) by operation of law or otherwise, or any failure
or omission to enforce any right, power or remedy with respect to the
Guaranteed Obligations or any part thereof or any agreement relating
thereto, or with respect to any obligation of any other guarantor of any of
the Guaranteed Obligations;
(ii) any modification or amendment of or supplement to either of the
Credit Agreements or any other Loan Document, including, without
limitation, any such amendment which may increase the amount of the
Obligations guaranteed hereby;
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<PAGE> 4
(iii) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any
collateral securing the Guaranteed Obligations or any part thereof, any
other guaranties with respect to the Guaranteed Obligations or any part
thereof, or any other obligation of any person or entity with respect to
the Guaranteed Obligations or any part thereof, or any nonperfection or
invalidity of any direct or indirect security for the Guaranteed
Obligations;
(iv) any change in the corporate, partnership or other existence,
structure or ownership of the Company or any other guarantor of any of the
Guaranteed Obligations, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting the Company or any other guarantor of
the Guaranteed Obligations, or any of their respective assets or any
resulting release or discharge of any obligation of the Company or any
other guarantor of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which the
Guarantors may have at any time against the Company, any other guarantor of
any of the Guaranteed Obligations, any Agent, any Holder of Obligations or
any other Person, whether in connection herewith or in connection with any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;
(vi) the enforceability or validity of the Guaranteed Obligations or
any part thereof or the genuineness, enforceability or validity of any
agreement relating thereto or with respect to any collateral securing the
Guaranteed Obligations or any part thereof, or any other invalidity or
unenforceability relating to or against the Company or any Subsidiary
Borrower or any other guarantor of any of the Guaranteed Obligations, for
any reason related to either of the Credit Agreements, any other Loan
Document, or any provision of applicable law or regulation purporting to
prohibit the payment by the Company or any Subsidiary Borrower or any other
guarantor of the Guaranteed Obligations, of any of the Guaranteed
Obligations;
(vii) the failure of any Agent to take any steps to perfect and
maintain any security interest in, or to preserve any rights to, any
security or collateral for the Guaranteed Obligations, if any;
(viii) the election by, or on behalf of, any one or more of the
Holders of Obligations, in any proceeding instituted under Chapter 11 of
Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the "Bankruptcy
Code"), of the application of Section 1111(b)(2) of the Bankruptcy Code;
(ix) any borrowing or grant of a security interest by the Company or
any Subsidiary Borrower, as debtor-in-possession, under Section 364 of the
Bankruptcy Code;
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(x) the disallowance, under Section 502 of the Bankruptcy Code, of all
or any portion of the claims of any of the Holders of Obligations or any
Agent for repayment of all or any part of the Guaranteed Obligations;
(xi) the failure of any other Guarantor to sign or become party to
this Guaranty or any amendment, change, or reaffirmation hereof; or
(xii) any other act or omission to act or delay of any kind by the
Company or any Subsidiary Borrower, any other guarantor of the Guaranteed
Obligations, any Agent, any Holder of Obligations or any other Person or
any other circumstance whatsoever which might, but for the provisions of
this Section 4, constitute a legal or equitable discharge of any
Guarantor's obligations hereunder.
SECTION 5. Discharge Only Upon Payment In Full: Reinstatement In Certain
Circumstances. Each of the Guarantors' obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full in cash and the Revolving Loan Commitments and all Letters of Credit issued
under the Credit Agreements shall have terminated or expired. If at any time any
payment of the principal of or interest on any Advance, any Reimbursement
Obligation or any other amount payable by the Company or any Subsidiary Borrower
or any other party under the Credit Agreements or any other Loan Document is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Company or any Subsidiary Borrower or
otherwise, each of the Guarantors' obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but not made at
such time.
SECTION 6. General Waivers. Each of the Guarantors irrevocably waives
acceptance hereof, presentment, demand or action on delinquency, protest, the
benefit of any statutes of limitations and, to the fullest extent permitted by
law, any notice not provided for herein, as well as any requirement that at any
time any action be taken by any Person against the Company or any Subsidiary
Borrower, any other guarantor of the Guaranteed Obligations, or any other
Person. Without in any way limiting the foregoing, each of the Guarantors waives
the benefits of Chapter 34 of the Texas Business and Commerce Code.
SECTION 7. Subordination of Subrogation. Until the Guaranteed Obligations
have been indefeasibly paid in full in cash, the Guarantors (i) shall have no
right of subrogation with respect to such Guaranteed Obligations and (ii) waive
any right to enforce any remedy which the Holders of Obligations, Issuing Banks
or any Agent now have or may hereafter have against the Company or any
Subsidiary Borrower, any endorser or any guarantor of all or any part of the
Guaranteed Obligations or any other Person, and the Guarantors waive any benefit
of, and any right to participate in, any security or collateral given to the
Holders of Obligations, the Issuing Banks and the Agents to secure the payment
or performance of all or any part of the Guaranteed Obligations or any other
liability of the Company or any Subsidiary Borrower to the Holders of
Obligations or Issuing Banks. Should any Guarantor have the right,
notwithstanding the foregoing, to exercise its subrogation
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<PAGE> 6
rights, each Guarantor hereby expressly and irrevocably (A) subordinates any and
all rights at law or in equity to subrogation, reimbursement, exoneration,
contribution, indemnification or set off that the Guarantor may have to the
indefeasible payment in full in cash of the Guaranteed Obligations and (B)
waives any and all defenses available to a surety, guarantor or accommodation
co-obligor until the Guaranteed Obligations are indefeasibly paid in full in
cash. Each Guarantor acknowledges and agrees that this subordination is intended
to benefit the Agents and the Holders of Obligations and shall not limit or
otherwise affect such Guarantor's liability hereunder or the enforceability of
this Guaranty, and that the Agents, the Holders of Obligations and their
respective successors and assigns are intended third party beneficiaries of the
waivers and agreements set forth in this Section 7.
SECTION 8. Contribution with Respect to Guaranteed Obligations.
(a) To the extent that any Guarantor shall make a payment under this
Guaranty (a "Guarantor Payment") which, taking into account all other Guarantor
Payments then previously or concurrently made by any other Guarantor, exceeds
the amount which otherwise would have been paid by or attributable to such
Guarantor if each Guarantor had paid the aggregate Guaranteed Obligations
satisfied by such Guarantor Payment in the same proportion as such Guarantor's
"Allocable Amount" (as defined below) (as determined immediately prior to such
Guarantor Payment) bore to the aggregate Allocable Amounts of each of the
Guarantors as determined immediately prior to the making of such Guarantor
Payment, then, following indefeasible payment in full in cash of the Guaranteed
Obligations and termination of the Credit Agreements, such Guarantor shall be
entitled to receive contribution and indemnification payments from, and be
reimbursed by, each other Guarantor for the amount of such excess, pro rata
based upon their respective Allocable Amounts in effect immediately prior to
such Guarantor Payment.
(b) As of any date of determination, the "Allocable Amount" of any
Guarantor shall be equal to the maximum amount of the claim which could then be
recovered from such Guarantor under this Guaranty without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or
under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
(c) This Section 8 is intended only to define the relative rights of
the Guarantors, and nothing set forth in this Section 8 is intended to or shall
impair the obligations of the Guarantors, jointly and severally, to pay any
amounts as and when the same shall become due and payable in accordance with the
terms of this Guaranty.
(d) The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets of the Guarantor to which such
contribution and indemnification is owing.
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<PAGE> 7
(e) The rights of the indemnifying Guarantors against other Guarantors
under this Section 8 shall be exercisable upon the full and indefeasible payment
of the Guaranteed Obligations in cash and the termination of the Credit
Agreements.
SECTION 9. Stay of Acceleration. If acceleration of the time for payment of
any amount payable by the Company or any Subsidiary Borrower under the Credit
Agreements or any other Loan Document is stayed upon the insolvency, bankruptcy
or reorganization of the Company or any Subsidiary Borrower, all such amounts
otherwise subject to acceleration under the terms of the Credit Agreements or
any other Loan Document shall nonetheless be payable by each of the Guarantors
hereunder forthwith on demand by the Administrative Agent.
SECTION 10. Notices. All notices, requests and other communications to any
party hereunder shall be given in the manner prescribed in Article XV of the
Credit Agreements with respect to the Administrative Agent at its notice address
therein and with respect to any Guarantor at the address set forth below or such
other address or telecopy number as such party may hereafter specify for such
purpose by notice to the Administrative Agent in accordance with the provisions
of such Article XV.
Notice Address for Guarantors:
c/o American National Can Group, Inc.
8770 West Bryn Mawr Avenue
Chicago, IL 60631
Attention: Vice President - Treasurer
Telephone No.: (773) 399-3170
Facsimile No.: (773) 399-3115
with a copy to:
Attention: General Counsel
Telephone No.: (773) 399-3522
Facsimile No.: (773) 399-3527
Address: 8770 West Bryn Mawr Avenue
Chicago, IL 60631
SECTION 11. No Waivers. No failure or delay by any Agent or any Holder of
Obligations in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies provided in this Guaranty, the Credit
Agreements and the other Loan Documents shall be cumulative and not exclusive of
any rights or remedies provided by law.
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<PAGE> 8
SECTION 12. Successors and Assigns. This Guaranty is for the benefit of the
Agents and the Holders of Obligations and their respective successors and
permitted assigns, provided, that no Guarantor shall have any right to assign
its rights or obligations hereunder without the consent of all of the Lenders,
and any such assignment in violation of this Section 12 shall be null and void;
and in the event of an assignment of any amounts payable under the Credit
Agreements or the other Loan Documents in accordance with the respective terms
thereof, the rights hereunder, to the extent applicable to the indebtedness so
assigned, may be transferred with such indebtedness. This Guaranty shall be
binding upon each of the Guarantors and their respective successors and assigns.
SECTION 13. Changes in Writing. Other than in connection with the addition
of additional Material Domestic Subsidiaries and additional Subsidiary Borrowers
which are Domestic Incorporated Subsidiaries, in each case, which become parties
hereto by executing an Addendum hereto in the form attached as Annex I, neither
this Guaranty nor any provision hereof may be changed, waived, discharged or
terminated orally, but only in writing signed by each of the Guarantors and the
Administrative Agent with the consent of the Required Lenders under the 5-Year
Credit Agreement (or all of the Long-Term Lenders if required pursuant to the
terms of Section 10.3 of the 5-Year Credit Agreement) or with the consent of the
Required Lenders under the 364-Day Credit Agreement (or all of the Short-Term
Lenders if required pursuant to the terms of Section 10.3 of the 364-Day Credit
Agreement).
SECTION 14. GOVERNING LAW. ANY DISPUTE BETWEEN ANY GUARANTOR AND ANY AGENT
OR ANY LENDER, OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH, THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE
WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS SECTION 105/5-1
ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF
THE STATE OF ILLINOIS.
SECTION 15. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF
THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH, THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS WHETHER
ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY
BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE PARTIES HERETO
ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES HERETO WAIVES IN ALL
DISPUTES BROUGHT PURSUANT TO THIS
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SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. EACH OF THE GUARANTORS AGREES THAT ANY AGENT, ANY
LENDER OR ANY HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED AGAINST SUCH
GUARANTOR OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO
(1) OBTAIN PERSONAL JURISDICTION OVER SUCH GUARANTOR OR (2) ENFORCE A JUDGMENT
OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. EACH OF THE GUARANTORS
AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING
BROUGHT BY SUCH PERSON TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
SUCH PERSON. EACH OF THE GUARANTORS WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (B).
(C) SERVICE OF PROCESS. EACH OF THE GUARANTORS WAIVES PERSONAL SERVICE OF
ANY PROCESS UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
WRITS, PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING
THEREOF BY ANY AGENT OR THE HOLDERS OF OBLIGATIONS BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE GUARANTORS IN CARE OF THE COMPANY AT THE ADDRESS
PROVIDED FOR NOTICES TO THE COMPANY UNDER THE CREDIT AGREEMENTS. NOTHING HEREIN
SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY AGENT OR THE HOLDERS OF
OBLIGATIONS TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW. EACH OF THE GUARANTORS IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS
GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY
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OF THIS GUARANTY WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) WAIVER OF BOND. EACH OF THE GUARANTORS WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER,
PRELIMINARY OR PERMANENT INJUNCTION, THIS GUARANTY OR ANY OTHER LOAN DOCUMENT.
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS GUARANTY AND, SPECIFICALLY, THE PROVISIONS OF
THIS SECTION 15, WITH ITS COUNSEL.
SECTION 16. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Guaranty. In the event an
ambiguity or question of intent or interpretation arises, this Guaranty shall be
construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Guaranty.
SECTION 17. Taxes, Expenses of Enforcement, etc. (A) (i) Any and all
payments by any of the Guarantors hereunder (whether in respect of principal,
interest, fees or otherwise) shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings or any interest, penalties and liabilities with respect
thereto including those arising after the date hereof as a result of the
adoption of or any change in any law, treaty, rule, regulation, guideline or
determination of a Governmental Authority or any change in the interpretation or
application thereof by a Governmental Authority but excluding, in the case of
each Lender and the Administrative Agent, such taxes (including income taxes,
franchise taxes and branch profit taxes) as are imposed on or measured by such
Lender's or the Administrative Agent's, as the case may be, net income by the
United States of America or any Governmental Authority of the jurisdiction under
the laws of which such Lender or the Administrative Agent, as the case may be,
is organized (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings, and liabilities which the Administrative Agent or a Lender
determines to be applicable to this Guaranty, the other Loan Documents, the
Revolving Loan Commitments, the Loans or the Letters of Credit being hereinafter
referred to as "TAXES"). If any Guarantor shall be required by law to deduct or
withhold any Taxes from or in respect of any sum payable hereunder to any Holder
of Obligations, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions or withholdings (including deductions
applicable to additional sums payable under this Section 17(A)) such Lender or
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions or withholdings been made, (ii) the applicable
Guarantor shall make such deductions or withholdings, and (iii) the applicable
Guarantor shall pay the full amount deducted or withheld to the relevant
taxation authority or other authority in accordance with
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applicable law. If a withholding tax of the United States of America or any
other Governmental Authority shall be or become applicable (y) after the date of
this Guaranty, to such payments by the applicable Guarantor made to the Lending
Installation or any other office that a Lender may claim as its Lending
Installation, or (z) after such Lender's selection and designation of any other
Lending Installation, to such payments made to such other Lending Installation,
such Lender shall use reasonable efforts to make, fund and maintain the affected
Loans through another Lending Installation of such Lender in another
jurisdiction so as to reduce the applicable Guarantor's liability hereunder, if
the making, funding or maintenance of such Loans through such other Lending
Installation of such Lender does not, in the judgment of such Lender, otherwise
adversely affect such Loans, or obligations under the Revolving Loan Commitments
of such Lender.
(ii) In addition, each of the Guarantors agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges, or similar levies which arise from any payment made hereunder, or
from the execution, delivery or registration of, or otherwise with respect
to, this Guaranty, the other Loan Documents, the Revolving Loan
Commitments, the Loans or the Letters of Credit (hereinafter referred to as
"OTHER TAXES").
(iii) Each of the Guarantors indemnifies each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed by any
Governmental Authority on amounts payable under this Section 17(A)) paid by
such Lender or the Administrative Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within
thirty (30) days after the date such Lender or the Administrative Agent (as
the case may be) makes written demand therefor. If the Taxes or Other Taxes
with respect to which any Guarantor has made either a direct payment to the
taxation or other authority or an indemnification payment hereunder are
subsequently refunded to any Lender, such Lender will return to the
applicable Guarantor an amount equal to the lesser of the indemnification
payment or the refunded amount. A certificate as to any additional amount
payable to any Lender or the Administrative Agent under this Section 17(A)
submitted to the applicable Guarantor and the Administrative Agent (if a
Lender is so submitting) by such Lender or the Administrative Agent shall
show in reasonable detail the amount payable and the calculations used to
determine such amount and shall, absent manifest error, be deemed
presumptively correct. With respect to such deduction or withholding for or
on account of any Taxes and to confirm that all such Taxes have been paid
to the appropriate Governmental Authorities, the applicable Guarantor or
Guarantors shall promptly (and in any event not later than thirty (30) days
after receipt) furnish to each Lender and the Administrative Agent such
certificates, receipts and other documents as may be required (in the
reasonable judgment of such Lender or the Administrative Agent) to
establish any tax credit to which such Lender or the Administrative Agent
may be entitled.
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(iv) Within thirty (30) days after the date of any payment of Taxes or
Other Taxes by any Guarantor, the applicable Guarantor shall furnish to the
Administrative Agent the original or a certified copy of a receipt
evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement of the
Guarantors hereunder, the agreements and obligations of the Guarantors
contained in this Section 17(A) shall survive the payment in full of all
Guaranteed Obligations and the termination of this Guaranty.
(vi) Each Lender (including any Replacement Lender or Purchaser) that
is not created or organized under the laws of the United States of America
or a political subdivision thereof (each a "NON-U.S. LENDER") shall deliver
to the Company and the Administrative Agent on or before the Closing Date,
or, if later, the date on which such Lender becomes a Lender pursuant to
Section 14.3 of the applicable Credit Agreement (and from time to time
thereafter upon the request of the Company or the Administrative Agent, but
only for so long as such Non-U.S. Lender is legally entitled to do so),
either (1)(x) two (2) duly completed copies of either (A) IRS Form W-8BEN
(or, if delivered on or before December 31, 1999, IRS Form 1001), or (B)
IRS Form W-8ECI (or, if delivered on or before December 31, 1999, IRS Form
4224), or in either case an applicable successor form, and (y) for periods
prior to January 1, 2000, a duly completed copy of IRS Form W-8 or W-9 or
applicable successor form; or (2) in the case of a Non-U.S. Lender that is
not legally entitled to deliver either form listed in clause (vi)(1)(x),
(x) a certificate of a duly authorized officer of such Non-U.S. Lender to
the effect that such Non-U.S. Lender is not (A) a "bank" within the meaning
of Section 881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of any
Guarantor within the meaning of Section 881(c)(3)(B) of the Code, or (C) a
controlled foreign corporation receiving interest from a related person
within the meaning of Section 881(c)(3)(C) of the Code (such certificate,
an "EXEMPTION CERTIFICATE") and (y) two (2) duly completed copies of IRS
Form W-8BEN or applicable successor form. Each such Lender further agrees
to deliver to the Company and the Administrative Agent from time to time a
true and accurate certificate executed in duplicate by a duly authorized
officer of such Lender in a form satisfactory to the Company and the
Administrative Agent, before or promptly upon the occurrence of any event
requiring a change in the most recent certificate previously delivered by
it to the Company and the Administrative Agent pursuant to this Section
17(A). Further, each Lender which delivers a form or certificate pursuant
to this clause (vi) covenants and agrees to deliver to the Company and the
Administrative Agent within fifteen (15) days prior to the expiration of
such form, for so long as this Guaranty is still in effect, another such
certificate and/or two (2) accurate and complete original newly-signed
copies of the applicable form (or any successor form or forms required
under the Code or the applicable regulations promulgated thereunder).
Each Lender shall promptly furnish to the Company and the
Administrative Agent such additional documents as may be reasonably
required by any Guarantor or the Administrative Agent to establish any
exemption from or reduction of any Taxes or Other
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Taxes required to be deducted or withheld and which may be obtained without
undue expense to such Lender. Notwithstanding any other provision of this
Section 17(A), no Guarantor shall be obligated to gross up any payments to
any Lender pursuant to Section 17(A)(i), or to indemnify any Lender
pursuant to Section 17(A)(iii), in respect of United States federal
withholding taxes to the extent imposed as a result of (x) the failure of
such Lender to deliver to the Company the form or forms and/or an Exemption
Certificate, as applicable to such Lender, pursuant to Section 17(A)(vi),
(y) such form or forms and/or Exemption Certificate not establishing a
complete exemption from U.S. federal withholding tax or the information or
certifications made therein by the Lender being untrue or inaccurate on the
date delivered in any material respect, or (z) the Lender designating a
successor Lending Installation at which it maintains its Loans which has
the effect of causing such Lender to become obligated for tax payments in
excess of those in effect immediately prior to such designation; provided,
however, that the applicable Guarantor shall be obligated to gross up any
payments to any such Lender pursuant to Section 17(A)(i), and to indemnify
any such Lender pursuant to Section 17(A)(iii), in respect of United States
federal withholding taxes if (x) any such failure to deliver a form or
forms or an Exemption Certificate or the failure of such form or forms or
exemption certificate to establish a complete exemption from U.S. federal
withholding tax or inaccuracy or untruth contained therein resulted from a
change in any applicable statute, treaty, regulation or other applicable
law or any interpretation of any of the foregoing occurring after the date
hereof, which change rendered such Lender no longer legally entitled to
deliver such form or forms or Exemption Certificate or otherwise ineligible
for a complete exemption from U.S. federal withholding tax, or rendered the
information or the certifications made in such form or forms or Exemption
Certificate untrue or inaccurate in any material respect, (y) the
redesignation of the Lender's Lending Installation was made at the request
of the Company or (z) the obligation to gross up payments to any such
Lender pursuant to Section 17(A)(i), or to indemnify any such Lender
pursuant to Section 17(A)(iii), is with respect to a Purchaser that becomes
a Purchaser as a result of an assignment made at the request of the
Company.
(vii) Upon the request, and at the expense of the Company, each Lender
to which any Guarantor is required to pay any additional amount pursuant to
this Section 17(A), shall reasonably afford the applicable Guarantor the
opportunity to contest, and shall reasonably cooperate with the applicable
Guarantor in contesting, the imposition of any Tax giving rise to such
payment; provided, that (i) such Lender shall not be required to afford the
applicable Guarantor the opportunity to so contest unless the applicable
Guarantor shall have confirmed in writing to such Lender its obligation to
pay such amounts pursuant to this Guaranty; and (ii) the Company shall
reimburse such Lender for its reasonable attorneys' and accountants' fees
and disbursements incurred in so cooperating with the applicable Guarantor
in contesting the imposition of such Tax; provided, however, that
notwithstanding the foregoing, no Lender shall be required to afford any
Guarantor the opportunity to contest, or cooperate with the applicable
Guarantor in contesting, the imposition of any Taxes, if such Lender in
good faith determines that to do so would have an adverse effect on it.
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(B) Expenses of Enforcement, Etc. After the occurrence of a Default under
the 5-Year Credit Agreement, the Long-Term Lenders shall have the right at any
time, and, after the occurrence of a Default under the 364-Day Credit Agreement,
the Short-Term Lenders shall have the right at any time to direct the
Administrative Agent to commence enforcement proceedings with respect to the
Guaranteed Obligations. The Guarantors agree to reimburse the Agents and the
Holders of Obligations for any reasonable costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and time charges of
attorneys for the Agents and the Holders of Obligations, which attorneys may be
employees of the Agents or the Holders of Obligations) paid or incurred by any
Agent or any Holders of Obligation in connection with the collection and
enforcement of amounts due under the Loan Documents, including without
limitation this Guaranty. The Administrative Agent agrees to distribute payments
received from any of the Guarantors hereunder to the Holders of Obligations on a
pro rata basis for application in accordance with the terms of the respective
Credit Agreements.
SECTION 18. Setoff. At any time after all or any part of the Guaranteed
Obligations have become due and payable (by acceleration or otherwise), each
Holder of Obligations and the Agents may, without notice to any Guarantor and
regardless of the acceptance of any security or collateral for the payment
hereof, appropriate and apply toward the payment of all or any part of the
Guaranteed Obligations then due (i) any indebtedness due or to become due from
such Holder of Obligations or the Agents to any Guarantor, and (ii) any moneys,
credits or other property belonging to any Guarantor, at any time held by or
coming into the possession of such Holder of Obligations or the Agents or any of
their respective affiliates.
SECTION 19. Financial Information. Each Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Company and the Subsidiary Borrowers and any and all endorsers and/or other
Guarantors of all or any part of the Guaranteed Obligations, and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations,
or any part thereof, that diligent inquiry would reveal, and each Guarantor
hereby agrees that none of the Holders of Obligations or the Agents shall have
any duty to advise such Guarantor of information known to any of them regarding
such condition or any such circumstances. In the event any Holder of Obligations
or any Agent, in its sole discretion, undertakes at any time or from time to
time to provide any such information to a Guarantor, such Holder of Obligations
or such Agent shall be under no obligation (i) to undertake any investigation
not a part of its regular business routine, (ii) to disclose any information
which such Holder of Obligations or such Agent, pursuant to accepted or
reasonable commercial finance or banking practices, wishes to maintain
confidential or (iii) to make any other or future disclosures of such
information or any other information to such Guarantor.
SECTION 20. Severability. 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.
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SECTION 21. Merger. This Guaranty represents the final agreement of each of
the Guarantors with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, or subsequent
oral agreements, between the Guarantor and any Holder of Obligations or any
Agent.
SECTION 22. Headings. Section headings in this Guaranty are for convenience
of reference only and shall not govern the interpretation of any provision of
this Guaranty.
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IN WITNESS WHEREOF, each of the Guarantors has caused this Guaranty to be
duly executed by its authorized officer as of the day and year first above
written.
PECHINEY NORTH AMERICA, INC.
By: Dennis M. Byrd
Its: Treasurer
AMERICAN NATIONAL CAN COMPANY
By: Dennis M. Byrd
Its: Vice President and Treasurer
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ANNEX I TO GUARANTY
Reference is hereby made to the Guaranty (the "Guaranty") made as of the
22nd day of July, 1999 by PECHINEY North America, Inc., a Delaware corporation,
and American National Can Company, a Delaware corporation (collectively, the
"Initial Guarantors" and along with any other Material Domestic Subsidiaries and
Subsidiary Borrowers which are Domestic Incorporated Subsidiaries, in each case,
which have become parties thereto and together with the undersigned,
the"Guarantors") in favor of the Administrative Agent, for the ratable benefit
of the Holders of Obligations, under the Credit Agreements. Capitalized terms
used herein and not defined herein shall have the meanings given to them in the
Guaranty. By its execution below, the undersigned [NAME OF NEW GUARANTOR], a
[corporation] [partnership] [limited liability company], agrees to become, and
does hereby become, a Guarantor under the Guaranty and agrees to be bound by
such Guaranty as if originally a party thereto. By its execution below, the
undersigned represents and warrants as to itself that all of the representations
and warranties contained in Section 2 of the Guaranty are true and correct in
all respects as of the date hereof.
IN WITNESS WHEREOF, [NAME OF NEW GUARANTOR], a [corporation] [partnership]
[limited liability company] has executed and delivered this Annex I counterpart
to the Guaranty as of this __________ day of _________, ____.
[NAME OF NEW GUARANTOR]
By:____________________________________
Title:_________________________________
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EXHIBIT 10.39
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "SUBORDINATION AGREEMENT") is made as of
the 22nd day of July, 1999, by and among AMERICAN NATIONAL CAN GROUP, INC., a
Delaware corporation (the "Borrower"), PECHINEY NORTH AMERICA, INC., a Delaware
corporation, and AMERICAN NATIONAL CAN COMPANY, a Delaware corporation
(collectively, the "INITIAL GRANTORS" and along with each other Subsidiary of
the Borrower which become parties to this Subordination Agreement by executing
an Addendum hereto in the form attached as Annex I, the "GRANTORS") in favor of
the Agent, for the ratable benefit of the holders of Facility Obligations from
time to time (each a "HOLDER OF OBLIGATIONS", including (i) each Lender in
respect of its Advances, (ii) the Agent and the Lenders in respect of all other
present and future obligations and liabilities of the Borrower or any of the
Guarantors of every type and description arising under or in connection with the
Facility Agreements or any other Facility Loan Document, (iii) each Indemnitee
in respect of the obligations and liabilities of the Borrower or any of its
Subsidiaries to such Person hereunder or under the other Facility Loan
Documents, and (iv) their respective successors, transferees and assigns);
WITNESSETH:
WHEREAS, AMERICAN NATIONAL CAN GROUP, INC., a Delaware corporation (the
"BORROWER"), Windmill Funding Corporation ("WINDMILL"), and ABN AMRO BANK N.V.,
in its individual capacity as a Lender and in its capacity as agent (the
"AGENT") for itself and the other Lenders have entered into (i) a certain 5-Year
Finance Facility Agreement dated as of July 22, 1999 (as the same may be
amended, modified, supplemented and/or restated, and as in effect from time to
time, the "5-YEAR FACILITY AGREEMENT") and (ii) a certain 364-Day Finance
Facility Agreement dated as of July 22, 1999 (as the same may be amended,
restated, supplemented or otherwise modified, and as in effect from time to
time, the "364-DAY FACILITY AGREEMENT", and, together with the 5-Year Facility
Agreement, the "FACILITY AGREEMENTS"), providing, subject to the terms and
conditions thereof, for extensions of credit and other financial accommodations
to be made by the Lenders to the Borrower;
WHEREAS, it is a condition precedent to the initial extensions of credit by
the Lenders under each of the Facility Agreements that each of the Grantors
execute and deliver this Subordination Agreement; and
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
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SECTION l. Definitions. Terms defined in the Facility Agreements and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein. For purposes of this Subordination Agreement, "5-YEAR CLO LENDERS"
shall mean all of the Lenders under the 5- Year Facility Agreement, and "364-DAY
CLO LENDERS" shall mean all of the Lenders under the 364- Day Facility
Agreement. "LENDERS" shall mean, collectively, all of the 5-Year CLO Lenders and
all of the 364-Day CLO Lenders.
SECTION 2. Representations, Warranties and Covenants. Each of the Grantors
represents and warrants (which representations and warranties shall be deemed
with respect to each such Grantor to have been renewed at the time of the
making, conversion or continuation of any Advance and on the Conversion Date,
provided at such time such Grantor is a creditor of the Borrower or any
Guarantor) that:
(a) It is a corporation, limited liability company, partnership or
other commercial entity duly incorporated or formed, validly existing and in
good standing under the laws of its jurisdiction of incorporation or formation
and has all requisite authority to conduct its business as a foreign Person in
each jurisdiction in which its business is conducted, except where the failure
to have such requisite authority would not have a material adverse effect upon
(a) the business, condition (financial or otherwise), operations, performance,
properties or prospects of American National Can Company, the Borrower, or the
Borrower and its Subsidiaries, taken as a whole, (b) the collective ability of
the Borrower or any of its Subsidiaries to perform their respective obligations
under the Facility Loan Documents in any material respect, or (c) the ability of
the Lenders or the Agent to enforce in any material respect the Facility
Obligations ("MATERIAL ADVERSE EFFECT").
(b) It has the power and authority and legal right to execute and
deliver this Subordination Agreement and to perform its obligations hereunder.
The execution and delivery by it of this Subordination Agreement and the
performance by it of its obligations hereunder have been duly authorized by
proper proceedings, and this Subordination Agreement constitutes a legal, valid
and binding obligation of such Grantor, enforceable against such Grantor in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity (regardless of whether
enforcement is sought in equity or at law).
(c) Neither the execution and delivery by it of this Subordination
Agreement, nor the consummation by it of the transactions herein contemplated,
nor compliance by it with the terms and provisions hereof, will violate any law,
rule, regulation, order, writ, judgment, injunction, decree or award binding on
it or its certificate or articles of incorporation or by-laws, limited liability
company or partnership agreement (as applicable) or the provisions of any
indenture, instrument or material agreement to which it is a party or is
subject, or by which it, or its property, is bound, or conflict with or
constitute a default thereunder, or result in the creation or imposition of any
Lien in, of or on its property pursuant to the terms of any such indenture,
instrument or material agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or
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registration with, or exemption by, any governmental authority that has not been
made, obtained or given, or which, if not made, obtained or given, individually
or in the aggregate could not reasonably be expected to have a Material Adverse
Effect, is required to authorize, or is required in connection with the
execution, delivery and performance by it of this Subordination Agreement.
In addition to the foregoing, each of the Grantors covenants that, so
long as any Lender has any Commitment outstanding under either of the Facility
Agreements or any amount payable under the Facility Agreements or any other
Facility Obligations shall remain unpaid, it will fully comply with those
covenants and agreements of the Borrower applicable to each of the Grantors set
forth in each of the Facility Agreements.
SECTION 3. Subordination of Intercompany Indebtedness. Each of the Grantors
agrees that any and all claims of such Grantor against either the Borrower or
any other Grantor hereunder (each an "OBLIGOR"), any endorser or obligor of all
or any part of the Facility Obligations, or against any of its properties shall
be subordinate and subject in right of payment to the prior payment, in full and
in cash, of all Facility Obligations; provided, that, and not in contravention
of the foregoing and notwithstanding any other provision of this Agreement, so
long as no Event of Default or Unmatured Event of Default has occurred and is
continuing such Grantor may make loans to and receive payments in the ordinary
course with respect to any "Intercompany Indebtedness" (as defined below) to the
extent permitted by the terms of the Facility Agreements and the other Facility
Loan Documents. Notwithstanding any right of any Grantor to ask, demand, sue
for, take or receive any payment from any Obligor, all rights, liens and
security interests of such Grantor, whether now or hereafter arising and
howsoever existing, in any assets of any other Obligor shall be and are
subordinated to the rights of the Holders of Obligations and the Agent in those
assets. No Grantor shall have any right to possession of any such asset or to
foreclose upon any such asset, whether by judicial action or otherwise, unless
and until all of the Facility Obligations (other than contingent indemnity
obligations) shall have been fully paid and satisfied (in cash) and all
financing arrangements pursuant to any Facility Loan Document among the Borrower
and the Holders of Obligations have been terminated. If all or any part of the
assets of any Obligor, or the proceeds thereof, are subject to any distribution,
division or application to the creditors of such Obligor, whether partial or
complete, voluntary or involuntary, and whether by reason of liquidation,
bankruptcy, arrangement, receivership, assignment for the benefit of creditors
or any other action or proceeding, or if the business of any such Obligor is
dissolved or if substantially all of the assets of any such Obligor are sold,
then, and in any such event, any payment or distribution of any kind or
character, either in cash, securities or other property, which shall be payable
or deliverable upon or with respect to any indebtedness of any Obligor to any
Grantor ("INTERCOMPANY INDEBTEDNESS") shall be paid or delivered directly to the
Agent for application on any of the Facility Obligations, due or to become due,
until such Facility Obligations (other than contingent indemnity obligations)
shall have first been fully paid and satisfied (in cash). Each Grantor
irrevocably authorizes and empowers the Agent to demand, sue for, collect and
receive every such payment or distribution and give acquittance therefor and to
make and present for and on behalf of such Grantor such proofs of claim and take
such other action, in the Agent's own name or in the name of such Grantor or
otherwise, as
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the Agent may deem necessary or advisable for the enforcement of this Section 3.
The Agent may vote such proofs of claim in any such proceeding, receive and
collect any and all dividends or other payments or disbursements made thereon in
whatever form the same may be paid or issued and apply the same on account of
any of the Facility Obligations. Should any payment, distribution, security or
instrument or proceeds thereof be received by any Grantor upon or with respect
to the Intercompany Indebtedness prior to the satisfaction of all of the
Facility Obligations (other than contingent indemnity obligations) and the
termination of all financing arrangements among the Borrower and the Holders of
Obligations, such Grantor shall receive and hold the same in trust, as trustee,
for the benefit of the Holders of Obligations and shall forthwith deliver the
same to the Agent, for the benefit of the Holders of Obligations, in precisely
the form received (except for the endorsement or assignment of such Grantor
where necessary), for application to any of the Facility Obligations, due or not
due, and, until so delivered, the same shall be held in trust by such Grantor as
the property of the Holders of Obligations. If any such Grantor fails to make
any such endorsement or assignment to the Agent, the Agent or any of its
officers or employees are irrevocably authorized to make the same. Each of the
Grantors agrees that until the Facility Obligations (other than the contingent
indemnity obligations) have been paid in full (in cash) and satisfied and all
financing arrangements among the Borrower and the Holders of Obligations have
been terminated, no Grantor will assign or transfer to any Person (other than
the Agent) any claim any such Grantor has or may have against any Obligor.
SECTION 4. Successors and Assigns. This Subordination Agreement is for the
benefit of the Agent and the Holders of Obligations and their respective
successors and permitted assigns and in the event of an assignment of any
amounts payable under the Facility Agreements or the other Facility Loan
Documents in accordance with the respective terms thereof, the rights hereunder,
to the extent applicable to the indebtedness so assigned, may be transferred
with such indebtedness. This Subordination Agreement shall be binding upon each
of the Grantors and their respective successors and assigns.
SECTION 5. Changes in Writing. Other than in connection with the addition
of additional Subsidiaries of the Borrower which become parties hereto by
executing an Addendum hereto in the form attached as Annex I, neither this
Subordination Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, but only in writing signed by each of the
Grantors and the Agent.
SECTION 6. GOVERNING LAW. ANY DISPUTE BETWEEN ANY GRANTOR AND ANY AGENT OR
ANY LENDER, OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH, THIS SUBORDINATION AGREEMENT OR ANY OF THE OTHER FACILITY LOAN
DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION,
735 ILCS SECTION 105/5-1 ET SEQ., BUT
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OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF
ILLINOIS.
SECTION 7. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF
THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH, THIS SUBORDINATION AGREEMENT OR ANY OF THE OTHER FACILITY LOAN
DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS,
BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. EACH OF THE GRANTORS AGREES THAT ANY AGENT, ANY
LENDER OR ANY HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED AGAINST SUCH
GRANTOR OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO (1)
OBTAIN PERSONAL JURISDICTION OVER SUCH GRANTOR OR (2) ENFORCE A JUDGMENT OR
OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. EACH OF THE GRANTORS AGREES
THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT
BY SUCH PERSON TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH
PERSON. EACH OF THE GRANTORS WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (B).
(C) SERVICE OF PROCESS. EACH OF THE GRANTORS WAIVES PERSONAL SERVICE OF ANY
PROCESS UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY WRITS,
PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING THEREOF BY
ANY AGENT OR THE HOLDERS OF OBLIGATIONS BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO THE GRANTORS IN CARE OF THE BORROWER AT THE ADDRESS PROVIDED FOR
NOTICES TO THE BORROWER UNDER THE FACILITY AGREEMENTS. NOTHING HEREIN SHALL IN
ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY AGENT OR THE HOLDERS OF
OBLIGATIONS TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW. EACH OF THE GRANTORS IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON
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CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING WITH RESPECT TO THIS SUBORDINATION AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
SUBORDINATION AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED
OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SUBORDINATION AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
(E) WAIVER OF BOND. EACH OF THE GRANTORS WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER,
PRELIMINARY OR PERMANENT INJUNCTION, THIS SUBORDINATION AGREEMENT OR ANY OTHER
FACILITY LOAN DOCUMENT.
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS SUBORDINATION AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 7, WITH ITS COUNSEL.
SECTION 8. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Subordination Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Subordination Agreement shall be construed as if drafted jointly by the parties
hereto and no presumption or burden of proof shall arise favoring or disfavoring
any party by virtue of the authorship of any provisions of this Subordination
Agreement.
SECTION 9. Severability. Wherever possible, each provision of this
Subordination Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Subordination
Agreement shall be prohibited by or invalid under such law,
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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 Subordination Agreement.
SECTION 10. Merger. This Subordination Agreement represents the final
agreement of the Grantors with respect to the matters contained herein and may
not be contradicted by evidence of prior or contemporaneous agreements, or
subsequent oral agreements, between the Grantors and any Holder of Obligations
or the Agent.
SECTION 11. Headings. Section headings in this Subordination Agreement are
for convenience of reference only and shall not govern the interpretation of any
provision of this Subordination Agreement.
[Remainder of this page intentionally blank]
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IN WITNESS WHEREOF, each of the undersigned Grantors has caused this
Subordination Agreement to be duly executed by its authorized officer as of the
day and year first above written.
AMERICAN NATIONAL CAN GROUP, INC.
By: Dennis M. Byrd
Its: Vice President and Treasurer
PECHINEY NORTH AMERICA, INC.
By: Dennis M. Byrd
Its: Treasurer
AMERICAN NATIONAL CAN COMPANY
By: Dennis M. Byrd
Its: Vice President and Treasurer
S-1
SIGNATURE PAGE TO SUBORDINATION AGREEMENT DATED
JULY, 1999
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ANNEX I TO SUBORDINATION AGREEMENT
Reference is hereby made to the Subordination Agreement (the "Subordination
Agreement") made as of the 22nd day of July, 1999 by Pechiney North America,
Inc., a Delaware corporation, American National Can Company, a Delaware
corporation, American National Can Group, Inc., a Delaware corporation
(collectively, the "Initial Grantors" and along with any other Subsidiaries of
the Borrower which have become parties thereto and together with the
undersigned, the"Grantors") in favor of the Agent, for the ratable benefit of
the Holders of Obligations, under the Facility Agreements. Capitalized terms
used herein and not defined herein shall have the meanings given to them in the
Subordination Agreement. By its execution below, the undersigned [NAME OF NEW
GRANTOR], a [corporation] [partnership] [limited liability company], agrees to
become, and does hereby become, a Grantor under the Subordination Agreement and
agrees to be bound by such Subordination Agreement as if originally a party
thereto. By its execution below, the undersigned represents and warrants as to
itself that all of the representations and warranties contained in Section 2 of
the Subordination Agreement are true and correct in all respects as of the date
hereof.
IN WITNESS WHEREOF, [NAME OF NEW GRANTOR], a [corporation] [partnership]
[limited liability company] has executed and delivered this Annex I counterpart
to the Subordination Agreement as of this __________ day of _________, ____.
[NAME OF NEW GRANTOR]
By:_________________________________________
Title:______________________________________
Execution Copy
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EXHIBIT 10.40
GUARANTY
THIS GUARANTY (this "GUARANTY") is made as of the 22nd day of July, 1999,
by and among PECHINEY NORTH AMERICA, INC., a Delaware corporation, and AMERICAN
NATIONAL CAN COMPANY, a Delaware corporation (collectively, the "INITIAL
GUARANTORS" and along with any additional Subsidiaries which become parties to
this Guaranty by executing an Addendum hereto in the form attached as Annex I,
the "GUARANTORS") in favor of the Agent, for the ratable benefit of the holders
of the Facility Obligations from time to time (each a "HOLDER OF OBLIGATIONS",
including (i) each Lender in respect of its Advances, (ii) the Agent and the
Lenders in respect of all other present and future obligations and liabilities
of the Borrower or any of the Guarantors of every type and description arising
under or in connection with the Facility Agreements or any other Facility Loan
Document, (iii) each Indemnitee in respect of the obligations and liabilities of
the Borrower or any of its Subsidiaries to such Person hereunder or under the
other Facility Loan Documents, and (iv) their respective successors, transferees
and assigns).
WITNESSETH:
WHEREAS, AMERICAN NATIONAL CAN GROUP, INC., a Delaware corporation (the
"BORROWER"), Windmill Funding Corporation ("WINDMILL"), and ABN AMRO BANK N.V.,
in its individual capacity as a Lender and in its capacity as agent (the
"AGENT") for itself and the other Lenders have entered into (i) a certain 5-Year
Finance Facility Agreement dated as of July 22, 1999 (as the same may be
amended, modified, supplemented and/or restated, and as in effect from time to
time, the "5-YEAR FACILITY AGREEMENT") and (ii) a certain 364-Day Finance
Facility Agreement dated as of July 22, 1999 (as the same may be amended,
restated, supplemented or otherwise modified, and as in effect from time to
time, the "364-DAY FACILITY Agreement", and, together with the 5-Year Facility
Agreement, the "FACILITY AGREEMENTS"), providing, subject to the terms and
conditions thereof, for extensions of credit and other financial accommodations
to be made by the Lenders to the Borrower;
WHEREAS, it is a condition precedent to the initial extensions of credit by
the Lenders under each of the Facility Agreements that each of the Guarantors
(constituting all of the Material Domestic Subsidiaries of the Borrower as of
the date hereof) execute and deliver this Guaranty, whereby each of the
Guarantors shall guarantee the payment when due, of all "Facility Obligations"
(as defined in the Facility Agreements), principal, interest, and other amounts
that shall be at any time payable by the Borrower under the Facility Agreements
and the other Facility Loan Documents; and
WHEREAS, in consideration of the direct and indirect financial and other
support that the Borrower has provided, and such direct and indirect financial
and other support as the Borrower may in the future provide, to the Guarantors,
and in order to induce the Lenders and the Agent to enter into the Facility
Agreements, each of the Guarantors is willing to guarantee the obligations of
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Borrower under the Facility Agreements and the obligations of the Borrower or
any of its Subsidiaries under any of the other Facility Loan Documents;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Facility Agreements and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein. For purposes of this Guaranty, "5-YEAR CLO LENDERS" shall mean all
of the Lenders under the 5-Year Facility Agreement, and "364-DAY CLO LENDERS"
shall mean all of the Lenders under the 364-Day Facility Agreement. "LENDERS"
shall mean, collectively, all of the 5-Year CLO Lenders and all of the 364-Day
CLO Lenders. In addition, the following terms shall have the following meanings:
"CREDIT AGREEMENT DOCUMENTS" means the Credit Agreements and the other
documents, instruments and agreements executed in connection therewith, as
the same may from time to time be amended, modified, supplemented and/or
restated in accordance with the terms thereof.
"CREDIT AGREEMENTS" means the 5-Year Revolving Credit Agreement and
the 364-Day Credit Agreement.
"TRANSACTION DOCUMENTS" means the Facility Loan Documents, the Credit
Agreements and the Credit Agreement Documents, in each case as the same may
from time to time be amended, modified, supplemented and/or restated in
accordance with the terms thereof.
SECTION 2. Representations, Warranties and Covenants. Each of the
Guarantors represents and warrants (which representations and warranties shall
be deemed to have been renewed at the time of the making, conversion or
continuation of any Advance) that:
(a) It is a corporation, limited liability company, partnership or
other commercial entity duly incorporated or formed, validly existing and in
good standing under the laws of its jurisdiction of incorporation or formation
and has all requisite authority to conduct its business as a foreign Person in
each jurisdiction in which its business is conducted, except where the failure
to have such requisite authority would not have a "Material Adverse Effect" (as
defined in the Credit Agreements).
(b) It has the power and authority and legal right to execute and
deliver this Guaranty and to perform its obligations hereunder. The execution
and delivery by it of this Guaranty and the performance by it of its obligations
hereunder have been duly authorized by proper
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proceedings, and this Guaranty constitutes a legal, valid and binding obligation
of such Guarantor, enforceable against such Guarantor in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally.
(c) Neither the execution and delivery by it of this Guaranty, nor the
consummation by it of the transactions herein contemplated, nor compliance by it
with the terms and provisions hereof, will violate any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on it or its
certificate or articles of incorporation or by-laws, limited liability company
or partnership agreement (as applicable) or the provisions of any indenture,
instrument or material agreement to which it is a party or is subject, or by
which it, or its property, is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any Lien in, of or on its
property pursuant to the terms of any such indenture, instrument or material
agreement. No order, consent, approval, license, authorization, or validation
of, or filing, recording or registration with, or exemption by, any
"Governmental Authority" (as defined in the Credit Agreements), is required to
authorize, or is required in connection with the execution, delivery and
performance by it of, or the legality, validity, binding effect or
enforceability against it of, this Guaranty.
In addition to the foregoing, each of the Guarantors covenants that,
so long as any Lender has any Commitment outstanding under either of the
Facility Agreements or any amount payable under the Facility Agreements or any
other Facility Obligations shall remain unpaid, it will, and, if necessary, will
enable the Borrower to, fully comply with those covenants and agreements of the
Borrower applicable to such Guarantor set forth in each of the Transaction
Documents.
SECTION 3. The Guaranty. Each of the Guarantors hereby unconditionally
guarantees, jointly with the other Guarantors and severally, the full and
punctual payment when due (whether at stated maturity, upon acceleration or
otherwise) of the Facility Obligations, including, without limitation, (i) the
principal of and interest on each Advance made to the Borrower (including,
without limitation the Matured Value of each CP Advance) pursuant to the
Facility Agreements, and (ii) all other amounts payable by the Borrower or any
of its Subsidiaries under the Facility Agreements and the other Facility Loan
Documents (all of the foregoing being referred to collectively as the
"GUARANTEED Obligations"). Upon failure by the Borrower or any of its
affiliates, as applicable, to pay punctually any such amount, each of the
Guarantors agrees that it shall forthwith on demand pay such amount at the place
and in the manner specified in the Facility Agreements or the relevant Facility
Loan Document, as the case may be. Each of the Guarantors hereby agrees that
this Guaranty is an absolute, irrevocable and unconditional guaranty of payment
and is not a guaranty of collection.
SECTION 4. Guaranty Unconditional. The obligations of each of the
Guarantors hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
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(i) any extension, renewal, settlement, indulgence, compromise, waiver or
release of or with respect to the Guaranteed Obligations or any part
thereof or any agreement relating thereto, or with respect to any
obligation of any other guarantor of any of the Guaranteed Obligations,
whether (in any such case) by operation of law or otherwise, or any failure
or omission to enforce any right, power or remedy with respect to the
Guaranteed Obligations or any part thereof or any agreement relating
thereto, or with respect to any obligation of any other guarantor of any of
the Guaranteed Obligations;
(ii) any modification or amendment of or supplement to either of the
Facility Agreements or any other Facility Loan Document, including, without
limitation, any such amendment which may increase the amount of the
Facility Obligations guaranteed hereby;
(iii) any release, surrender, compromise, settlement, waiver, subordination
or modification, with or without consideration, of any collateral securing
the Guaranteed Obligations or any part thereof, any other guaranties with
respect to the Guaranteed Obligations or any part thereof, or any other
obligation of any person or entity with respect to the Guaranteed
Obligations or any part thereof, or any nonperfection or invalidity of any
direct or indirect security for the Guaranteed Obligations;
(iv) any change in the corporate, partnership or other existence, structure
or ownership of the Borrower or any other guarantor of any of the
Guaranteed Obligations, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting the Borrower or any other guarantor of
the Guaranteed Obligations, or any of their respective assets or any
resulting release or discharge of any obligation of the Borrower or any
other guarantor of any of the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which the Guarantors
may have at any time against the Borrower, any other guarantor of any of
the Guaranteed Obligations, the Agent, any Holder of Obligations or any
other Person, whether in connection herewith or in connection with any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;
(vi) the enforceability or validity of the Guaranteed Obligations or any
part thereof or the genuineness, enforceability or validity of any
agreement relating thereto or with respect to any collateral securing the
Guaranteed Obligations or any part thereof, or any other invalidity or
unenforceability relating to or against the Borrower or any other guarantor
of any of the Guaranteed Obligations, for any reason related to either of
the Facility Agreements, any other Facility Loan Document, or any provision
of applicable law or regulation purporting to prohibit the payment by the
Borrower or any other guarantor of the Guaranteed Obligations, of any of
the Guaranteed Obligations;
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(vii) the failure of the Agent to take any steps to perfect and maintain
any security interest in, or to preserve any rights to, any security or
collateral for the Guaranteed Obligations, if any;
(viii) the election by, or on behalf of, any one or more of the Holders of
Obligations, in any proceeding instituted under Chapter 11 of Title 11 of
the United States Code (11 U.S.C. 101 et seq.) (the "BANKRUPTCY Code"), of
the application of Section 1111(b)(2) of the Bankruptcy Code;
(ix) any borrowing or grant of a security interest by the Borrower, as
debtor-in-possession, under Section 364 of the Bankruptcy Code;
(x) the disallowance, under Section 502 of the Bankruptcy Code, of all or
any portion of the claims of any of the Holders of Obligations or the Agent
for repayment of all or any part of the Guaranteed Obligations;
(xi) the failure of any other Guarantor to sign or become party to this
Guaranty or any amendment, change, or reaffirmation hereof; or
(xii) any other act or omission to act or delay of any kind by the
Borrower, any other guarantor of the Guaranteed Obligations, the Agent, any
Holder of Obligations or any other Person or any other circumstance
whatsoever which might, but for the provisions of this Section 4,
constitute a legal or equitable discharge of any Guarantor's obligations
hereunder.
SECTION 5. Discharge Only Upon Payment In Full: Reinstatement In Certain
Circumstances. Each of the Guarantors' obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full in cash and the Commitments shall have terminated or expired. If at any
time any payment of the principal of or interest on any Advance or any other
amount payable by the Borrower or any other party under the Facility Agreements
or any other Facility Loan Document is rescinded or must be otherwise restored
or returned upon the insolvency, bankruptcy or reorganization of the Borrower or
otherwise, each of the Guarantors' obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but not made at
such time.
SECTION 6. General Waivers. Each of the Guarantors irrevocably waives
acceptance hereof, presentment, demand or action on delinquency, protest, the
benefit of any statutes of limitations and, to the fullest extent permitted by
law, any notice not provided for herein, as well as any requirement that at any
time any action be taken by any Person against the Borrower, any other guarantor
of the Guaranteed Obligations, or any other Person. Without in any way limiting
the foregoing, each of the Guarantors waives the benefits of Chapter 34 of the
Texas Business and Commerce Code.
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SECTION 7. Subordination of Subrogation. Until the Guaranteed Obligations
have been indefeasibly paid in full in cash, the Guarantors (i) shall have no
right of subrogation with respect to such Guaranteed Obligations and (ii) waive
any right to enforce any remedy which the Holders of Obligations or the Agent
now have or may hereafter have against the Borrower, any endorser or any
guarantor of all or any part of the Guaranteed Obligations or any other Person,
and the Guarantors waive any benefit of, and any right to participate in, any
security or collateral given to the Holders of Obligations and the Agent to
secure the payment or performance of all or any part of the Guaranteed
Obligations or any other liability of the Borrower to the Holders of
Obligations. Should any Guarantor have the right, notwithstanding the foregoing,
to exercise its subrogation rights, each Guarantor hereby expressly and
irrevocably (A) subordinates any and all rights at law or in equity to
subrogation, reimbursement, exoneration, contribution, indemnification or set
off that the Guarantor may have to the indefeasible payment in full in cash of
the Guaranteed Obligations and (B) waives any and all defenses available to a
surety, guarantor or accommodation co-obligor until the Guaranteed Obligations
are indefeasibly paid in full in cash. Each Guarantor acknowledges and agrees
that this subordination is intended to benefit the Agent and the Holders of
Obligations and shall not limit or otherwise affect such Guarantor's liability
hereunder or the enforceability of this Guaranty, and that the Agent, the
Holders of Obligations and their respective successors and assigns are intended
third party beneficiaries of the waivers and agreements set forth in this
Section 7.
SECTION 8. Contribution with Respect to Guaranteed Obligations.
(a) To the extent that any Guarantor shall make a payment under this
Guaranty (a "GUARANTOR PAYMENT") which, taking into account all other Guarantor
Payments then previously or concurrently made by any other Guarantor, exceeds
the amount which otherwise would have been paid by or attributable to such
Guarantor if each Guarantor had paid the aggregate Guaranteed Obligations
satisfied by such Guarantor Payment in the same proportion as such Guarantor's
"Allocable Amount" (as defined below) (as determined immediately prior to such
Guarantor Payment) bore to the aggregate Allocable Amounts of each of the
Guarantors as determined immediately prior to the making of such Guarantor
Payment, then, following indefeasible payment in full in cash of the Guaranteed
Obligations and termination of the Facility Agreements, such Guarantor shall be
entitled to receive contribution and indemnification payments from, and be
reimbursed by, each other Guarantor for the amount of such excess, pro rata
based upon their respective Allocable Amounts in effect immediately prior to
such Guarantor Payment.
(b) As of any date of determination, the "ALLOCABLE AMOUNT" of any
Guarantor shall be equal to the maximum amount of the claim which could then be
recovered from such Guarantor under this Guaranty without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or
under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
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(c) This Section 8 is intended only to define the relative rights of
the Guarantors, and nothing set forth in this Section 8 is intended to or shall
impair the obligations of the Guarantors, jointly and severally, to pay any
amounts as and when the same shall become due and payable in accordance with the
terms of this Guaranty.
(d) The parties hereto acknowledge that the rights of contribution and
indemnification hereunder shall constitute assets of the Guarantor to which such
contribution and indemnification is owing.
(e) The rights of the indemnifying Guarantors against other Guarantors
under this Section 8 shall be exercisable upon the full and indefeasible payment
of the Guaranteed Obligations in cash and the termination of the Facility
Agreements.
SECTION 9. Stay of Acceleration. If acceleration of the time for payment of
any amount payable by the Borrower under the Facility Agreements or any other
Facility Loan Document is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of the Facility Agreements or any other Facility
Loan Document shall nonetheless be payable by each of the Guarantors hereunder
forthwith on demand by the Agent.
SECTION 10. Notices. All notices, requests and other communications to any
party hereunder shall be given in the manner prescribed in Section 11 of the
Facility Agreements with respect to the Agent at its notice address therein and
with respect to any Guarantor at the address set forth below or such other
address or telecopy number as such party may hereafter specify for such purpose
by notice to the Agent in accordance with the provisions of such Section 11.
Notice Address for Guarantors:
c/o American National Can Group, Inc.
8770 West Bryn Mawr Avenue
Chicago, IL 60631
Attention: Vice President - Treasurer
Telephone No.: (773) 399-3170
Facsimile No.: (773) 399-3115
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with a copy to:
Attention: General Counsel
Telephone No.: (773) 399-3522
Facsimile No.: (773) 399-3527
Address: 8770 West Bryn Mawr Avenue
Chicago, IL 60631
SECTION 11. No Waivers. No failure or delay by the Agent or any Holder of
Obligations in exercising any right, power or privilege hereunder shall operate
as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies provided in this Guaranty, the Facility
Agreements and the other Facility Loan Documents shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 12. Successors and Assigns. This Guaranty is for the benefit of the
Agent and the Holders of Obligations and their respective successors and
permitted assigns, provided, that no Guarantor shall have any right to assign
its rights or obligations hereunder without the consent of all of the Lenders,
and any such assignment in violation of this Section 12 shall be null and void;
and in the event of an assignment of any amounts payable under the Facility
Agreements or the other Facility Loan Documents in accordance with the
respective terms thereof, the rights hereunder, to the extent applicable to the
indebtedness so assigned, may be transferred with such indebtedness. This
Guaranty shall be binding upon each of the Guarantors and their respective
successors and assigns.
SECTION 13. Changes in Writing. Other than in connection with the addition
of additional Subsidiaries of the Borrower which become parties hereto by
executing an Addendum hereto in the form attached as Annex I, neither this
Guaranty nor any provision hereof may be changed, waived, discharged or
terminated orally, but only in writing signed by each of the Guarantors and the
Agent.
SECTION 14. GOVERNING LAW. ANY DISPUTE BETWEEN ANY GUARANTOR AND THE AGENT
OR ANY LENDER, OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH, THIS GUARANTY OR ANY OF THE OTHER FACILITY LOAN DOCUMENTS, AND
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS
SECTION 105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS.
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SECTION 15. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B), EACH OF
THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF, CONNECTED
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH, THIS GUARANTY OR ANY OF THE OTHER FACILITY LOAN DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF CHICAGO, ILLINOIS. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. EACH OF THE GUARANTORS AGREES THAT THE AGENT, ANY
LENDER OR ANY HOLDER OF OBLIGATIONS SHALL HAVE THE RIGHT TO PROCEED AGAINST SUCH
GUARANTOR OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO
(1) OBTAIN PERSONAL JURISDICTION OVER SUCH GUARANTOR OR (2) ENFORCE A JUDGMENT
OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. EACH OF THE GUARANTORS
AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING
BROUGHT BY SUCH PERSON TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
SUCH PERSON. EACH OF THE GUARANTORS WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (B).
(C) SERVICE OF PROCESS. EACH OF THE GUARANTORS WAIVES PERSONAL SERVICE OF
ANY PROCESS UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
WRITS, PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING
THEREOF BY THE AGENT OR THE HOLDERS OF OBLIGATIONS BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE GUARANTORS IN CARE OF THE BORROWER AT THE ADDRESS
PROVIDED FOR NOTICES TO THE BORROWER UNDER THE FACILITY AGREEMENTS. NOTHING
HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF THE AGENT OR THE
HOLDERS OF OBLIGATIONS TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY
OTHER MANNER PERMITTED BY APPLICABLE LAW. EACH OF THE GUARANTORS IRREVOCABLY
WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO
THIS
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GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS THAT ANY
SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS GUARANTY WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) WAIVER OF BOND. EACH OF THE GUARANTORS WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER,
PRELIMINARY OR PERMANENT INJUNCTION, THIS GUARANTY OR ANY OTHER FACILITY LOAN
DOCUMENT.
(F) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER PARTY
HERETO THAT IT HAS DISCUSSED THIS GUARANTY AND, SPECIFICALLY, THE PROVISIONS OF
THIS SECTION 15, WITH ITS COUNSEL.
SECTION 16. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Guaranty. In the event an
ambiguity or question of intent or interpretation arises, this Guaranty shall be
construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Guaranty.
SECTION 17. Taxes, Expenses of Enforcement, etc. (A) (i) Any and all
payments by any of the Guarantors hereunder (whether in respect of principal,
interest, fees or otherwise) shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, interest, penalties or any liabilities with respect
thereto including those arising after the date hereof as a result of the
adoption of or any change in any law, treaty, rule, regulation, guideline or
determination of a Governmental Authority or any change in the
10
<PAGE> 11
interpretation or application thereof by a Governmental Authority but excluding,
in the case of each Lender and the Agent, such taxes (including income taxes,
franchise taxes and branch profit taxes) as are imposed on or measured by such
Lender's or the Agent's, as the case may be, net income by the United States of
America or any Governmental Authority of the jurisdiction under the laws of
which such Lender or the Agent, as the case may be, is organized (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings, and
liabilities which the Agent or a Lender determines to be applicable to this
Guaranty, the other Facility Loan Documents, the Commitment or the Advances
being hereinafter referred to as "TAXES"). If any Guarantor shall be required by
law to deduct or withhold any Taxes from or in respect of any sum payable
hereunder or under any of the other Facility Loan Documents to any Holder of
Obligations, (i) the sum payable shall be increased as may be necessary so that
after making all required deductions or withholdings (including deductions
applicable to additional sums payable under this Section 17(A)) such Lender or
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions or withholdings been made, (ii) the applicable
Guarantor shall make such deductions or withholdings, and (iii) the applicable
Guarantor shall pay the full amount deducted or withheld to the relevant
taxation authority or other authority in accordance with applicable law. If a
withholding tax of the United States of America or any other Governmental
Authority shall be or become applicable (y) after the date of this Guaranty, to
such payments by the applicable Guarantor made to the Lending Installation or
any other office that a Lender may claim as its Lending Installation, or (z)
after such Lender's selection and designation of any other Lending Installation,
to such payments made to such other Lending Installation, such Lender shall use
reasonable efforts to make, fund and maintain the affected Advances through
another Lending Installation of such Lender in another jurisdiction so as to
reduce the applicable Guarantor's liability hereunder, if the making, funding or
maintenance of such Advances through such other Lending Installation of such
Lender does not, in the judgment of such Lender, otherwise adversely affect such
Advances, or obligations under the Revolving Loan Commitments of such Lender.
(ii) In addition, each of the Guarantors agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges, or similar levies which arise from any payment made hereunder, or from
the execution, delivery or registration of, or otherwise with respect to, this
Guaranty, the other Facility Loan Documents, the Commitments or the Advances
(hereinafter referred to as "OTHER TAXES").
(iii) Each of the Guarantors indemnifies each Lender and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed by any Governmental Authority on amounts payable under
this Section 17(A)) paid by such Lender or the Agent (as the case may be) and
any liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within thirty (30) days
after the date such Lender or the Agent (as the case may be) makes written
demand therefor. If the Taxes or Other Taxes with respect to which any Guarantor
has made either a direct payment to the taxation or other authority
11
<PAGE> 12
or an indemnification payment hereunder are subsequently refunded to any Lender,
such Lender will return to the applicable Guarantor an amount equal to the
lesser of the indemnification payment or the refunded amount. A certificate as
to any additional amount payable to any Lender or the Agent under this Section
17(A) submitted to the applicable Guarantor and the Agent (if a Lender is so
submitting) by such Lender or the Agent shall show in reasonable detail the
amount payable and the calculations used to determine such amount and shall,
absent manifest error, be deemed presumptively correct. With respect to such
deduction or withholding for or on account of any Taxes and to confirm that all
such Taxes have been paid to the appropriate Governmental Authorities, the
applicable Guarantor or Guarantors shall promptly (and in any event not later
than thirty (30) days after receipt) furnish to each Lender and the Agent such
certificates, receipts and other documents as may be required (in the reasonable
judgment of such Lender or the Agent) to establish any tax credit to which such
Lender or the Agent may be entitled.
(iv) Within thirty (30) days after the date of any payment of Taxes or
Other Taxes by any Guarantor, the applicable Guarantor shall furnish to the
Agent the original or a certified copy of a receipt evidencing payment thereof.
(v) Without prejudice to the survival of any other agreement of the
Guarantors hereunder, the agreements and obligations of the Guarantors contained
in this Section 17(A) shall survive the payment in full of all Guaranteed
Obligations and the termination of this Guaranty.
(vi) Each Lender (including any Replacement Lender or Purchaser) that is
not created or organized under the laws of the United States of America or a
political subdivision thereof (each a "NON-U.S. LENDER") shall deliver to the
Borrower and the Agent on or before the Closing Date, or, if later, the date on
which such Lender becomes a Lender pursuant to Section 12(a) of the applicable
Facility Agreement (and from time to time thereafter upon the request of the
Borrower or the Agent, but only for so long as such Non-U.S. Lender is legally
entitled to do so), either (1)(x) two (2) duly completed copies of either (A)
IRS Form W-8BEN (or, if delivered on or before December 31, 1999, IRS Form
1001), or (B) IRS Form W-8ECI (or, if delivered on or before December 31, 1999,
IRS Form 4224), or in either case an applicable successor form, and (y) for
periods prior to January 1, 2000, a duly completed copy of IRS Form W-8 or W-9
or applicable successor form; or (2) in the case of a Non-U.S. Lender that is
not legally entitled to deliver either form listed in clause (vi)(1)(x), (x) a
certificate of a duly authorized officer of such Non-U.S. Lender to the effect
that such Non-U.S. Lender is not (A) a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (B) a "10 percent shareholder" of any Guarantor within
the meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled foreign
corporation receiving interest from a related person within the meaning of
Section 881(c)(3)(C) of the Code (such certificate, an "EXEMPTION CERTIFICATE")
and (y) two (2) duly completed copies of IRS Form W-8BEN or applicable successor
form. Each such Lender further agrees to deliver to the Borrower and the Agent
from time to time a true and accurate certificate executed in duplicate by a
duly authorized officer of such Lender in a form satisfactory to the Borrower
and the Agent, before or promptly upon the occurrence of any event requiring a
change
12
<PAGE> 13
in the most recent certificate previously delivered by it to the Borrower and
the Agent pursuant to this Section 17(A)(vi). Further, each Lender which
delivers a form or certificate pursuant to this clause (vi) covenants and agrees
to deliver to the Borrower and the Agent within fifteen (15) days prior to the
expiration of such form, for so long as this Guaranty is still in effect,
another such certificate and/or two (2) accurate and complete original
newly-signed copies of the applicable form (or any successor form or forms
required under the Code or the applicable regulations promulgated thereunder).
Each Lender shall promptly furnish to the Borrower and the Agent such
additional documents as may be reasonably required by any Guarantor or the Agent
to establish any exemption from or reduction of any Taxes or Other Taxes
required to be deducted or withheld and which may be obtained without undue
expense to such Lender. Notwithstanding any other provision of this Section
17(A), no Guarantor shall be obligated to gross up any payments to any Lender
pursuant to Section 17(A)(i), or to indemnify any Lender pursuant to Section
17(A)(iii), in respect of United States federal withholding taxes to the extent
imposed as a result of (x) the failure of such Lender to deliver to the Borrower
the form or forms and/or an Exemption Certificate, as applicable to such Lender,
pursuant to Section 17(A)(vi), (y) such form or forms and/or Exemption
Certificate not establishing a complete exemption from U.S. federal withholding
tax or the information or certifications made therein by the Lender being untrue
or inaccurate on the date delivered in any material respect, or (z) the Lender
designating a successor Lending Installation at which it maintains its Advances
which has the effect of causing such Lender to become obligated for tax payments
in excess of those in effect immediately prior to such designation; provided,
however, that the applicable Guarantor shall be obligated to gross up any
payments to any such Lender pursuant to Section 17(A)(i), and to indemnify any
such Lender pursuant to Section 17(A)(iii), in respect of United States federal
withholding taxes if (x) any such failure to deliver a form or forms or an
Exemption Certificate or the failure of such form or forms or exemption
certificate to establish a complete exemption from U.S. federal withholding tax
or inaccuracy or untruth contained therein resulted from a change in any
applicable statute, treaty, regulation or other applicable law or any
interpretation of any of the foregoing occurring after the date hereof, which
change rendered such Lender no longer legally entitled to deliver such form or
forms or Exemption Certificate or otherwise ineligible for a complete exemption
from U.S. federal withholding tax, or rendered the information or the
certifications made in such form or forms or Exemption Certificate untrue or
inaccurate in any material respect, (y) the redesignation of the Lender's
Lending Installation was made at the request of the Borrower or (z) the
obligation to gross up payments to any such Lender pursuant to Section 17(A)(i),
or to indemnify any such Lender pursuant to Section 17(A)(iii), is with respect
to a Purchaser that becomes a Purchaser as a result of an assignment made at the
request of the Borrower.
(vii) Upon the request, and at the expense of the Borrower, each Lender to
which any Guarantor is required to pay any additional amount pursuant to this
Section 17(A), shall reasonably afford the applicable Guarantor the opportunity
to contest, and shall reasonably cooperate with the applicable Guarantor in
contesting, the imposition of any Tax giving rise to such payment; provided,
13
<PAGE> 14
that (i) such Lender shall not be required to afford the applicable Guarantor
the opportunity to so contest unless the applicable Guarantor shall have
confirmed in writing to such Lender its obligation to pay such amounts pursuant
to this Guaranty; and (ii) the Borrower shall reimburse such Lender for its
reasonable attorneys' and accountants' fees and disbursements incurred in so
cooperating with the applicable Guarantor in contesting the imposition of such
Tax; provided, however, that notwithstanding the foregoing, no Lender shall be
required to afford any Guarantor the opportunity to contest, or cooperate with
the applicable Guarantor in contesting, the imposition of any Taxes, if such
Lender in good faith determines that to do so would have an adverse effect on
it.
(B) Expenses of Enforcement, Etc. After the occurrence of an Event of
Default under the 5-Year Facility Agreement, the 5-Year CLO Lenders shall have
the right at any time, and, after the occurrence of an Event of Default under
the 364-Day Facility Agreement, the 364-Day CLO Lenders shall have the right at
any time to direct the Agent to commence enforcement proceedings with respect to
the Guaranteed Obligations. The Guarantors agree to reimburse the Agent and the
Holders of Obligations for any reasonable costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and time charges of
attorneys for the Agent and the Holders of Obligations, which attorneys may be
employees of the Agent or the Holders of Obligations) paid or incurred by the
Agent or any Holders of Obligation in connection with the collection and
enforcement of amounts due under the Facility Loan Documents, including without
limitation this Guaranty. The Agent agrees to distribute payments received from
any of the Guarantors hereunder to the Holders of Obligations on a pro rata
basis for application in accordance with the terms of the respective Facility
Agreements.
SECTION 18. Setoff. At any time after all or any part of the Guaranteed
Obligations have become due and payable (by acceleration or otherwise), each
Holder of Obligations and the Agent may, without notice to any Guarantor and
regardless of the acceptance of any security or collateral for the payment
hereof, appropriate and apply toward the payment of all or any part of the
Guaranteed Obligations then due (i) any indebtedness due or to become due from
such Holder of Obligations or the Agent to any Guarantor, and (ii) any moneys,
credits or other property belonging to any Guarantor, at any time held by or
coming into the possession of such Holder of Obligations or the Agent or any of
their respective affiliates.
SECTION 19. Financial Information. Each Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Borrower and its Subsidiaries and any and all endorsers and/or other Guarantors
of all or any part of the Guaranteed Obligations, and of all other circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations, or any part
thereof, that diligent inquiry would reveal, and each Guarantor hereby agrees
that none of the Holders of Obligations or the Agent shall have any duty to
advise such Guarantor of information known to any of them regarding such
condition or any such circumstances. In the event any Holder of Obligations or
the Agent, in its sole discretion, undertakes at any time or from time to time
to provide any such information to a Guarantor, such Holder of Obligations or
such Agent shall be
14
<PAGE> 15
under no obligation (i) to undertake any investigation not a part of its regular
business routine, (ii) to disclose any information which such Holder of
Obligations or such Agent, pursuant to accepted or reasonable commercial finance
or banking practices, wishes to maintain confidential or (iii) to make any other
or future disclosures of such information or any other information to such
Guarantor.
SECTION 20. Severability. 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.
SECTION 21. Merger. This Guaranty represents the final agreement of each of
the Guarantors with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, or subsequent
oral agreements, between the Guarantor and any Holder of Obligations or the
Agent.
SECTION 22. Headings. Section headings in this Guaranty are for convenience
of reference only and shall not govern the interpretation of any provision of
this Guaranty.
[Remainder of this page intentionally blank]
15
<PAGE> 16
IN WITNESS WHEREOF, each of the Guarantors has caused this Guaranty to be
duly executed by its authorized officer as of the day and year first above
written.
PECHINEY NORTH AMERICA, INC.
By: Dennis M. Byrd
Its: Treasurer
AMERICAN NATIONAL CAN COMPANY
By: Dennis M. Byrd
Its: Vice President and Treasurer
S-1
<PAGE> 17
ANNEX I TO GUARANTY
Reference is hereby made to the Guaranty (the "GUARANTY") made as of the
22nd day of July, 1999 by Pechiney North America, Inc., a Delaware corporation,
and American National Can Borrower, a Delaware corporation (collectively, the
"INITIAL GUARANTORS" and along with any other Subsidiaries of the Borrower which
have become parties thereto and together with the undersigned, the "GUARANTORS")
in favor of the Agent, for the ratable benefit of the Holders of Obligations,
under the Facility Agreements. Capitalized terms used herein and not defined
herein shall have the meanings given to them in the Guaranty. By its execution
below, the undersigned [NAME OF NEW GUARANTOR], a [corporation] [partnership]
[limited liability company], agrees to become, and does hereby become, a
Guarantor under the Guaranty and agrees to be bound by such Guaranty as if
originally a party thereto. By its execution below, the undersigned represents
and warrants as to itself that all of the representations and warranties
contained in Section 2 of the Guaranty are true and correct in all respects as
of the date hereof.
IN WITNESS WHEREOF, [NAME OF NEW GUARANTOR], a [corporation] [partnership]
[limited liability company] has executed and delivered this Annex I counterpart
to the Guaranty as of this __________ day of _________, ____.
[NAME OF NEW GUARANTOR]
By:___________________________________________
Title:________________________________________
<PAGE> 1
EXHIBIT 21
American National Can Group, Inc. Subsidiaries
Name Jurisdiction
- ---- ------------
American Can (U.K.) Ltd. United Kingdom
American Can Holdings (U.K.) Ltd. United Kingdom
American National Can Asia Pacific Ltd. China
American National Can Company Delaware
American National Can Company of Delaware Delaware
American National Can de Argentina, S.A. Argentina
American National Can do Brasil, Ltda. Brazil
American National Can France S.A. France
American National Can Holdings (Europe) B.V. Netherlands
American National Can Iberica, S.A. Spain
American National Can Ireland Ltd. Ireland
American National Can Ltd. United Kingdom
American National Can Overseas Corporation Delaware
American National Can Paketleme Sanayi ve Ticaret A.S. Turkey
American National Can Services (Europe) Ltd. United Kingdom
American National Can S.p.A. Italy
American National Can Zhaoqing Co. Ltd. (60%) China
ANC Container Company Delaware
ANC Receivables Corporation Delaware
ANC Recycling, Inc. Delaware
ANC Services Corporation Delaware
Assetsteady Ltd. United Kingdom
The Magic Can Company Delaware
GC North Bergen Corporation Delaware
Nacanco America Corporation Delaware
Nacanco Atlantic France
Nacanco Deutschland GmbH Germany
Nacanco Finance Corporation Delaware
Nacanco GmbH & Co. KG Germany
Nacanco Holding Europe France
Nacanco Holding France France
Nacanco Holdings (U.K.) Ltd. United Kingdom
Nacanco Netherlands B.V. Netherlands
Nacanco (45) Pensions Ltd. United Kingdom
Nacanco 1988 Pensions Ltd. United Kingdom
Nacanco Pension Trust Ltd. United Kingdom
Nacanco S.A. France
Nacanco Verwaltungs GmbH Germany
Natadco, Ltd. Delaware
National Trading Corporation Delaware
The Renaissance Insurance Company Vermont
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 (No. 333-30608) of American National Can Group, Inc. of
our report dated February 10, 2000 relating to the financial statements, which
appears in this Form 10-K.
/s/ PricewaterhouseCoopers LLP
Chicago, Illinois
March 6, 2000
<PAGE> 1
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned whose signature
appears below constitutes and appoints Edward A. Lapekas, Alan H. Schumacher and
William A. Francois, and each of them, the true and lawful attorneys-in-fact and
agents of the respective undersigned, with full power of substitution and
resubstitution for the respective undersigned and in the respective
undersigned's name, place and stead, in any and all capacities, to sign American
National Can Group, Inc.'s Form 10-K Annual Report and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the respective undersigned might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney
as of this 24th day of February 2000.
/s/ Frank W. Considine
- ---------------------------------- -----------------------------------
Christel Bories Frank W. Considine
/s/ Ronald J. Gidwitz /s/ George D. Kennedy
- ---------------------------------- -----------------------------------
Ronald J. Gidwitz George D. Kennedy
/s/ Homer J. Livingston, Jr. /s/ Roland H. Meyer, Jr.
- ---------------------------------- -----------------------------------
Homer J. Livingston, Jr. Roland H. Meyer, Jr.
/s/ James J. O'Connor /s/ Alain Pasquier
- ---------------------------------- -----------------------------------
James J. O'Connor Alain Pasquier
/s/ Jean-Pierre Rodier /s/ Jean-Dominique Senard
- ---------------------------------- -----------------------------------
Jean-Pierre Rodier Jean-Dominique Senard
/s/ James R. Thompson
- ---------------------------------- -----------------------------------
James R. Thompson Jack H. Turner
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<ARTICLE> 5
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> DEC-31-1999
<EXCHANGE-RATE> 1
<CASH> 53,155
<SECURITIES> 0
<RECEIVABLES> 150,950
<ALLOWANCES> 7,464
<INVENTORY> 222,707
<CURRENT-ASSETS> 577,096
<PP&E> 1,408,917
<DEPRECIATION> 618,718
<TOTAL-ASSETS> 3,226,818
<CURRENT-LIABILITIES> 683,734
<BONDS> 1,037,327
0
0
<COMMON> 550
<OTHER-SE> 1,060,141
<TOTAL-LIABILITY-AND-EQUITY> 3,226,818
<SALES> 2,328,074
<TOTAL-REVENUES> 2,328,074
<CGS> 1,848,407
<TOTAL-COSTS> 2,107,313
<OTHER-EXPENSES> (13,466)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 70,761
<INCOME-PRETAX> 163,466
<INCOME-TAX> 69,734
<INCOME-CONTINUING> 97,619
<DISCONTINUED> 4,557
<EXTRAORDINARY> (1,823)
<CHANGES> 0
<NET-INCOME> 100,353
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