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EXHIBIT 10.35
5-YEAR FINANCE FACILITY AGREEMENT
July 22, 1999
American National Can Group, Inc.
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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
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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
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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:
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=======================================================================================================================
AVERAGE
TOTAL NET APPLICABLE FLOATING APPLICABLE EURODOLLAR APPLICABLE
INDEBTEDNESS RATE MARGIN MARGIN FACILITY
TO CAPITAL FEE
RATIO PERCENTAGE
=======================================================================================================================
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
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S0.50 TO 1.0
0.25% 0.75% 1.20% 1.70% 0.30%
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S0.45 TO 1.0 AND--
0.50 TO 1.0 0.0% 0.50% 1.00% 1.50% 0.25%
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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%
=======================================================================================================================
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
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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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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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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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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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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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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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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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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.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice-President -- Treasurer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
American National Can Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
The address for communications to the Agent is:
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ABN AMRO Bank N.V.
Suite 725
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
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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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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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 ▇▇▇▇▇'▇ or A-2 from S&P, for short term debt,
or below Baa3 from ▇▇▇▇▇'▇ 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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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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(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. ▇▇▇▇▇▇▇▇▇, Account Number ▇▇▇▇▇▇▇ (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 ▇▇▇▇▇ 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 ▇▇▇▇▇'▇ 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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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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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
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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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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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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:
---------------------------------------
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
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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
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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
43
EXHIBIT B
TO
FINANCE FACILITY
BORROWING REQUEST
ABN AMRO Bank N.V.
Structured Finance
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
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:
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Name:
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Title:
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B-1
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
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(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.
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The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
AMERICAN NATIONAL CAN GROUP, INC.
By:
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Name:
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Title:
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