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EXHIBIT 10.09
FACILITY PURCHASE AGREEMENT
This Facility Purchase Agreement (the "Agreement")is entered into by
and between Alumax Mill Products, Inc., a Delaware corporation, with its
principal place of business at 12 Salt Creek Lane, Hinsdale, Illinois ("Alumax")
Fleet National Bank (formerly known as Shawmut Bank Connecticut, National
Association, formerly known as The Connecticut National Bank), with its
principal place of business at 777 Main Street, Hartford, Connecticut 06115, in
its individual capacity ("Fleet"), and not in its individual capacity but solely
as the Owner Trustee ("Owner Trustee") for U S WEST Financial Services, Inc., a
Colorado corporation ("USWFS"), with its principal place of business at 6200
South Quebec Street, Suite 350, Englewood, Colorado.
WHEREAS, USWFS is the successor-in-interest to U S WEST CAPITAL
CORPORATION, a New York corporation ("USWCC");
WHEREAS, Alumax, as Lessee, and Owner Trustee, as Lessor, entered into
a certain Facility Lease dated as of November 25, 1986 (the "Facility Lease")
concerning an aluminum container sheet plant and all additions and accessions
thereto located in Bowie County, Texas as more fully described in the Facility
Lease (the "Facility"); and
WHEREAS, Alumax, as Ground Lessor, and Owner Trustee, as Ground Lessee,
entered into a Ground Lease dated as of November 25, 1986 concerning certain
land in Bowie County, Texas on which the Facility is situated; and
WHEREAS, Alumax, as Site Lessee, and Owner Trustee, as Site Lessor,
entered into a Site Lease dated as of November 25, 1986 (the "Site Lease")
concerning certain land in Bowie County, Texas on which the Facility is
situated; and
WHEREAS, Alumax, as Lessee, Alumax Inc., as guarantor, USWCC (USWFS's
predecessor), as Owner Participant, Owner Trustee, and The Connecticut Bank and
Trust Company, National Association, as Indenture Trustee (whose interest has
been succeeded to by State Street Bank and Trust Company of Connecticut,
National Association), and various financial institutions (hereinafter, the
"Note Holders") entered into that certain Participation Agreement dated as of
November 25, 1986 relating to the leveraged lease financing of the Facility; and
WHEREAS, by the First Amendment to the Participation Agreement dated as
of December 31, 1990, Alumax (as Lessee), Alumax
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Inc. (the Guarantor), AMAX Inc., USWFS (as owner Participant), Owner Trustee
and in its individual capacity as "Owner Bank," certain Financial Institutions
listed on Schedule 1 to the Participation Agreement (the "Financial
Institutions"), and the State Street Bank and Trust Company of Connecticut,
successor to The Connecticut Bank and Trust Company, National Association,
(acting in its capacity as Indenture Trustee) agreed to delete Alumax Inc. as a
party to the Participation Agreement and release and discharge Alumax Inc. from
its Guaranty Agreement dated as of November 25, 1986 in return for the
substitution of AMAX Inc. as a party to the Participation Agreement and as the
guarantor of the obligations of Alumax under the Fundamental Agreements; and
WHEREAS, by the First Supplemental Indenture dated as of December 31,
1990, Owner Trustee and State Street Bank and Trust Company, successor to The
Connecticut Bank and Trust Company, National Association (acting solely in its
capacity as Indenture Trustee) agreed to amend the Indenture, Security Agreement
and the First Deed of Trust dated as of November 25, 1986 ("Indenture") to
release Alumax Inc. from its obligations under the Guaranty Agreement dated as
of November 25, 1986 and to substitute therefor the obligations of AMAX Inc.
under its Guaranty Agreement dated as of December 31, 1990 ("AMAX Guaranty");
and
WHEREAS, in connection with the spin-off of Alumax Inc. from AMAX Inc.
in November, 1993, Alumax, Alumax Inc., USWFS, the Owner Trustee, the Indenture
Trustee and the Financial Institutions entered into the Second Amendment to
Participation Agreement dated as of July 30, 1993 and agreed to amend the
Participation Agreement to release and discharge AMAX Inc. from its obligations
under the AMAX Guaranty and to substitute therefor the Guaranty Agreement of
Alumax Inc. dated as of July 30, 1993 ("Second Alumax Guaranty"); and
WHEREAS, in connection with the spin-off of Alumax Inc. from AMAX Inc.
in November, 1993, the Owner Trustee and the Indenture Trustee executed the
Second Supplemental Indenture dated as of July 30, 1993 and agreed to amend the
Indenture to substitute Alumax Inc. for AMAX Inc. as a party thereto and to
release and discharge AMAX Inc. from its obligations under the AMAX Guaranty and
to substitute in AMAX's place the obligations of Alumax Inc. under the Second
Alumax Guaranty.
WHEREAS, as a credit enhancement for the Second Alumax Guaranty, Alumax
Inc. and USWFS executed a Letter of Credit Agreement dated as of November 11,
1993 whereby Alumax Inc. agreed to and did provide to USWFS a letter of credit
for the benefit of USWFS with respect to the Second Alumax Guaranty; and
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WHEREAS, as a credit enhancement for the Second Alumax Guaranty, Alumax
Inc. and Stonewall Insurance Company, Dixie Insurance Company, Windsor Insurance
Company and Great American Life Insurance Company, each a holder of one or more
notes issued under the Indenture, entered into letter agreements dated as of
November 5, 1993 whereby Alumax Inc. agreed to and did provide the foregoing
Note Holders with letters of credit for their benefit with respect to the Second
Alumax Guaranty; and
WHEREAS, pursuant to Section 4(a) of the Second Alumax Guaranty and by
further agreement of Owner Trustee, USWFS (acting as Owner Participant) dated as
of February 7, 1996, Alumax Inc. caused a letter of credit to be provided to the
Owner Trustee in the face amount of the outstanding Casualty Value, net of
existing letters of credit and other existing security. This letter of credit
was further subject to an assignment agreement between Alumax Inc. and the Owner
Trustee whereunder the letter of credit would be assigned and delivered to the
Indenture Trustee. This assignment was effected on March 29, 1996.
WHEREAS, USWFS is the successor by merger to USWCC; and
WHEREAS, USWFS, the Note Holders, the Owner Trustee and the Indenture
Trustee are parties to one or more trust and indenture agreements that relate to
the foregoing transactions; and
WHEREAS, pursuant to Section 21.1.2(A) of the Facility Lease, Alumax
has the option to purchase all, but not less than all, of the Facility and to
thereby terminate the Facility Lease and with it the Ground Lease and the Site
Lease and the related financing, trust, guaranty and facility support
agreements; and
WHEREAS, Alumax desires to exercise its option pursuant to Section
21.1.2(A) of the Facility Lease and to purchase the Facility, and Owner Trustee,
at the written direction of the Owner Participant, desires to sell the Facility
and to undertake all the actions required by the Fundamental Agreements to give
effect to Alumax's exercise of its option to purchase the Facility and to fully
pay and extinguish the rights of Fleet, the Owner Trustee, the Owner
Participant, the Indenture Trustee and the Note Holders in and to the Facility
and in and to the Fundamental Agreements, as amended or substituted, except such
Fundamental Agreements or portions thereof which are to survive the purchase of
the Facility by Alumax, as specifically set forth below.
NOW, THEREFORE, the parties agree as follows:
1. Terms and Definitions and Incorporation of Fundamental Agreements.
All capitalized terms not expressly defined in this Agreement shall have the
meaning given to such
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terms in the Facility Lease or in the Fundamental Agreement in which they are
defined. The phrase "Fundamental Agreement" shall have the meaning given to such
phrase in the Appendix X of the Participation Agreement. Any reference herein to
a Fundamental Agreement shall be to such agreement as it has been amended or
substituted. For reference purposes only, the definitions set forth in the
Fundamental Agreements are hereby incorporated herein by this reference.
2.Purchase and Sale Obligations. Alumax hereby agrees to purchase the
Facility and Owner Trustee agrees to bargain, transfer and sell the Facility to
Alumax, free and clear of all Lessor Liens and Owner Participant Liens, and to
terminate the Fundamental Agreements, except as set forth below, and to effect
the full payment of the Notes. Notwithstanding any contrary provision of this
Agreement, it is agreed that the Tax Indemnity Agreement shall remain in full
force and effect and shall only, terminate in accordance with Section 11
thereof, the terms and provisions of Sections 7.2, 7.3, 7.4 and 7.5 of the
Participation Agreement shall remain in full force and effect and shall only
terminate in accordance with the provisions of Sections 7.2.8 and 11.10 thereof,
and the terms and provisions in Section 3.2. of the Owner Trust Agreement shall
remain in full force and effect and shall not be terminated.
3. Purchase Price.
In consideration for conveying all right, title and interest in the
Leased Facility as provided in paragraph 2 herein to Alumax and for terminating
the Fundamental Agreements (to the extent set forth in paragraph 2 above), at
Closing Alumax will pay to Owner Trustee, the following sums (collectively, the
"Purchase Price"):
A. The sum of Six Hundred Thirty Four Thousand Nine Hundred
Forty and 87/100 Dollars ($634,940.87) (the prorated equity portion of the
January 1, 1998 Lease payment).
B. A sum equal to the entire outstanding principal balance of
the Notes (which, as of the Closing Date, is estimated to be approximately
$54,386,386.82) plus accrued interest of approximately $2,316,860.08 and all
other costs and expenses (except the Premiums) of securing the cancellation of
the Notes and the release and discharge of the Indenture and those Fundamental
Agreements securing the Notes.
C. Thirty-Five Million Nine Hundred Thousand and no/100
Dollars ($35,900,000.00) as hereinafter defined in this Agreement.
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D. The Premiums required to be paid in connection with the
payment and discharge of the Notes.
The sums provided for in A, B and C above shall be deemed to constitute the Fair
Market Sales Value of the Facility. Lessor and Lessee expressly waive the
requirement to undertake and perform the Appraisal Procedure provided for in
Section 22.3 of the Facility Lease. Alumax shall not be entitled to pay any
portion of the Purchase Price by assuming all or any portion of the Notes but
rather, payment of the Purchase Price will be effected by wire transfer to the
account designated in writing to Alumax by Owner Trustee and confirmed in
writing by USWFS. Notwithstanding any term, calculation or formulation to the
contrary in the Facility Lease or any other Fundamental Agreement, the parties
acknowledge and agree that the Purchase Price has been fully negotiated between
them and accepted, and it shall supersede any other price or price determination
mechanism as may be called for in the Facility. Lease or any other Fundamental
Agreement. Each party acknowledges that it has made its own independent
determination as to the fair market value of the Facility and the fairness and
reasonableness of the Purchase Price. Further, the parties acknowledge and agree
that, having exercised its purchase option pursuant to Section 21.1.2(A) of the
Facility Lease, and having irrevocably covenanted and agreed herein to give the
Preliminary Election Notice required pursuant to Section 21.2 of the Facility
Lease and the Final Election Notice as required pursuant to Section 22.2 of the
Facility Lease, the duties of Owner Trustee to close the transaction evidenced
hereby and the duties of Alumax to pay the Purchase Price and close the
transaction evidenced hereby are and shall be deemed mandatory, both hereunder
and under the Facility Lease. Accordingly, Alumax hereby assumes and agrees to
pay the Purchase Price and acknowledges and agrees that such payment is required
hereunder and under the Facility Lease and that the Purchase Price constitutes
Supplemental Rent required to be paid by Alumax under the Facility Lease.
4. Covenants and Conditions to Closing.
A. Alumax shall perform the following covenants, each of which
shall also be conditions of the Obligation of Owner Trustee to close:
(1) Alumax shall pay the entire Purchase Price
at Closing.
(2) Alumax shall not commit an event of default
not timely cured or waived prior to Closing
under any of the Fundamental Agreements to
which it is a party.
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(3) Alumax shall execute and deliver all
necessary documents and take all necessary
steps required of Alumax to cause the
obligations of Owner Trustee and USWFS under
the Fundamental Agreements to which Alumax
is a party to be terminated at Closing,
except as set forth in Paragraph 2 above.
B. Conditions to Alumax's Obligation to close:
(1) The Owner Trustee shall have executed and
delivered to Alumax a quit claim deed and
bill of sale and other appropriate
instruments of conveyance, transfer or
assignment, conveying to Alumax, without any
recourse, representation or warranty
whatsoever, express or implied (except as
provided below), the entire right, title and
interest of the Owner Trustee in and to the
Facility, the Site, the Ground Lease, and
the Assigned Rights. Notwithstanding the
foregoing, the instruments of conveyance
shall contain a warranty against Lessor
Liens and Owner Participant Liens.
(2) The Owner Trustee shall have delivered
documents in a form reasonably acceptable to
Alumax evidencing the termination of the
Site Lease, the Facility Lease and the
Ground Lease and, subject to the exceptions
set forth in Paragraph 2 above, any other
Fundamental Agreement to which Alumax and
the Owner Trustee are parties or pursuant to
which Alumax has obligations and the
Facility and real property related thereto
are encumbered.
(3) Each of the original Notes shall be
delivered to the Closing marked "Paid in
Full."
(4) Subject to the limitations set forth in
Paragraph 2 above, the Owner Trustee and the
Indenture Trustee shall have delivered their
confirmations in writing that each and every
obligation owed and all fees payable by
Alumax under the Facility Lease, the
Indenture and any
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other Fundamental Agreement (except as set
forth in Paragraph 2 above) has been fully
satisfied and discharged and that each such
agreement (except as set forth in Paragraph
2 above) and all other security interests,
assignments and liens in favor of or arising
through Lessor have been terminated and
released, such confirmations and releases to
be in a form reasonably satisfactory to
Alumax.
(5) The July 30, 1993 guaranty of Alumax Inc.
and all prior guaranties of the obligations
of Alumax shall have been terminated with
such termination in a form reasonably
acceptable to Alumax.
(6) All original letters of credit and any
replacement letters of credit identified on
Schedule 1 hereto, issued for the account of
Alumax, shall be returned to Alumax, and all
agreements under which such letters of
credit were delivered shall be terminated.
(7) Title to the Facility shall not be
encumbered on the date of Closing by any
Owner Participant Lien not then being paid
and satisfied from the proceeds of this
transaction, or by any Lessor Lien.
5. Pre-Closing Covenants. From the date this Agreement is executed and
becomes effective to the Closing Date, the parties covenant to one another as
follows:
A. Alumax shall duly and timely perform all of its
obligations under the Facility Lease and each of the
Fundamental Agreements to which it is a party or
regarding which it has assumed obligations.
B. Within ten days from the date this Agreement is
executed by an authorized officer of Owner Trustee
and USWFS, and in all events prior to September 30,
1996, Alumax shall give the Preliminary Election
Notice required pursuant to Section 22.1. of the
Facility Lease, and conforming to the transaction set
forth in this Agreement. Within ten days thereafter,
Alumax shall give the Final Election Notice as
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required pursuant to Section 22.2. of the Facility
Lease, which notice shall set forth the election
agreed to pursuant to this Agreement.
C. Promptly upon receipt by the Owner Trustee of the
Final Election Notice provided for in (B) above, and
in all events within thirty days thereafter, the
Owner Trustee, pursuant to Section 2.03(f) of the
Indenture, shall give the Indenture Trustee the
notice provided for therein, and the Owner Trustee
shall undertake to timely perform all of the
obligations of the Owner Trustee and Lessor as
required under the Fundamental Agreements to give
full force and effect to Alumax's exercise of its
option to purchase the Facility.
D. Neither USWFS nor Fleet nor the Owner Trustee will
encumber, pledge, hypothecate, assign or otherwise
impair title in and to the Facility, the Ground Lease
or the Site Lease or their rights in and to the
Fundamental Agreements.
6. Indemnification by Alumax.
A. Indemnification. Alumax agrees to pay and indemnify Owner
Trustee and USWFS for any and all costs, expenses, interest, Premiums, penalties
or liability suffered by or incurred directly or indirectly in connection with
and arising under the Fundamental Agreements by reason of the prepayment of the
indebtedness evidenced by the Notes and secured, among other things, by the
Indenture or by reason of the determination of the Purchase Price on the basis
of a negotiated fair market value rather than on the basis of an appraisal. This
section shall specifically survive for a period of one year following the
closing contemplated herein and shall not be merged in the instruments of
closing. This indemnity specifically excludes any claim for damages or loss made
by USWFS or Owner Trustee based on any claim asserted by them that the Purchase
Price did not represent fair market value and any loss, cost expense, interest,
penalties or liability arising from or incurred directly or indirectly as a
result of the tortious act of USWFS or Owner Trustee. Alumax shall be given
prompt notice of any claim for indemnification made hereunder, and the exclusive
right to assume the defense and/or settlement thereof with counsel of its own
choosing. By entering into this indemnity, it is not the intent of the parties
to expand or extend any obligation of indemnity owed by Alumax to any parties
under the Fundamental Agreements except as expressly set forth herein.
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B. Reference is made to Paragraph 2 above for certain terms
and provisions of the Fundamental Agreements (including certain indemnification
provisions) which are not to be terminated at the Closing.
7. Representations and Warranties. Fleet, Owner Trustee and Alumax
represent and warrant to each other as follows:
A. that it has the full power and authority to enter
into this Agreement and that this Agreement
constitutes a legal, valid and binding obligation
enforceable against it in accordance with its terms;
B. that the person executing this Agreement has been
duly authorized and empowered to execute and deliver
this Agreement on behalf of such party; and
C. that the execution, delivery and performance of this
Agreement and action called for in furtherance of
this Agreement or contemplated thereby do not and
will not, to the best of such party's knowledge,
violate, conflict with, or result in a breach of any
of the terms of any indenture, agreement or
instrument to which it is a party or by which it is
bound, or constitute a default thereunder, and to the
best of its knowledge do not and will not violate any
law, rule, regulation, order, writ, judgement,
injunction, decree, determination, or award presently
in effect; and
D. that no consent, approval or authorization of, or
declaration, filing or registration with any (solely
with respect to Fleet, Connecticut or Federal)
regulatory authority is required to be made or
obtained in connection with the execution, delivery
and performance of this Agreement and the
consummation of the transactions contemplated hereby;
and
E. that the execution, delivery and performance of this
Agreement will not and do not violate any provision
of any of the incorporation and other documents under
which it is formed and organized; and
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8. Closing. The closing ("Closing") shall be held at the offices
of Alumax, 5655 Peachtree Parkway, Norcross, Georgia 30092
commencing at 9:00 a.m. on November 25, 1997 unless the
parties shall otherwise agree in writing. The Closing shall be
a physical closing with authorized representatives of each
party present, and at the Closing all funds and documents
shall be tendered and simultaneously exchanged.
9. Miscellaneous Covenants.
A. Each party will bear its own costs and expenses under
this Agreement, excepting that Alumax will pay the
expenses of the Owner Trustee and the Indenture
Trustee incurred by them in the proper execution of
the obligations set forth in Sections 5C or as may
otherwise be required by the transactions
contemplated by this Agreement, including the
reasonable fees and expenses of their counsel.
B. The costs to record transfer of title, filing fees,
transfer taxes, mortgage and lien release filing fees
and other similar fees, if any, shall be paid by
Alumax.
C. The cost of obtaining any title insurance commitment
or title insurance policy which Alumax may desire to
obtain shall be paid by Alumax.
D. Notices. Any notice required to be given hereunder
shall be in writing and delivered by U.S. Postal
Service, first class, postage prepaid addressed to
the party as set forth herein or by any national
next-day carrier . Notices shall be effective only
upon receipt.
If to Fleet or Owner Trustee:
Fleet National Bank
Corporate Trust Administration
777 Main Street
Hartford, Connecticut 06115
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With a copy to:
U S WEST Financial Services, Inc.
6200 South Quebec Street
Suite 350
Englewood, CO 80111
Attn: President
And with a copy to:
U S WEST, Inc.
Law Department
7800 East Orchard Road
Suite 480
Englewood, CO 80111
Attn: Senior Tax Counsel
If to Alumax:
Alumax Mill Products, Inc.
c/o Alumax Inc.
Law Department
5655 Peachtree Parkway
Norcross, Georgia 30092-2812
10. Environmental Cooperation. Alumax covenants and agrees to
reasonably cooperate with the owner Trustee and USWFS in connection with any
reasonable environmental study, audit or report which the Owner Trustee or USWFS
orders prior to the date of Closing with respect to the Site and/or the
Facility.
11. Confidentiality. Except as required by law or as either party may
reasonably determine is required to comply with regulatory or securities law or
regulation disclosure requirements, Alumax, Fleet and Owner Trustee each
covenant to the other that, without the other party's consent, (a) it will hold
in strict confidence all documents and other information concerning the
Facility and the Site, including, without limitation, the results of any
inspections made by any party hereto, and the other party and the other party's
business and properties, and (b) if the Closing should not occur, such
confidence shall be maintained and all such documents and information (if in
written form) shall, immediately after termination of this Agreement, be
returned to the party originally furnishing same, and (c) neither Alumax, Fleet
nor Owner Trustee, nor any of their affiliates will hold any press conference,
issue any press release, record this Agreement or any other document containing
any information concerning this Agreement or otherwise divulge the existence of
this Agreement or the terms contained herein to any prospective purchaser,
lender, investor or other third party or the public generally (except for their
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respective current investors, consultants, brokers/dealers, confidential legal
and accounting advisers and any prospective lenders providing financing for the
Facility (provided that any and all communications with such lenders shall be
private and confidential) and then only to the extent such terms are customarily
disclosed to the applicable person in connection with transactions similar to
the one contemplated hereby, and provided that any such investor, consultant,
broker/dealer, legal and accounting advisors and lenders are informed of the
confidentiality provisions of this section). Notwithstanding the foregoing,
Alumax, Fleet and the Owner Trustee shall cooperate to develop a mutually
acceptable joint statement to release to the press and public at or immediately
after the Closing. This section shall specifically survive the Closing and shall
not be merged into the instruments of closing. Notwithstanding the foregoing,
the obligations of this section shall not apply to matters which are disclosed
in the joint statement or are a matter of public record.
12. Disclaimer of Warranties and Representations -- "As Is -- Where
Is." Except as stated in this Agreement, neither Fleet, Owner Trustee nor USWFS
nor anyone acting for or on behalf of either of them has made any
representation, statement, warranty or promise, either written or oral,
concerning the Facility or the Site or the feasibility, desirability or
adaptability thereof for any particular purpose. All matters other than those
specifically addressed in this Agreement have been or shall be independently
verified by Alumax, and except as otherwise provided herein, Alumax is
purchasing the Facility and consummating the transaction described herein based
on its own examination and inspection, in its "as is, where is" physical
condition and state of repair, subject to all latent and patent defects. Alumax:
hereby waives and the Owner Trustee, Fleet and USWFS hereby disclaim all
warranties of any type or kind whatsoever with respect to the Facility and the
Site except as expressly set forth in this Agreement.
13. Waiver and Release. Except to the extent caused by a breach of any
of Fleet's or Owner Trustee's express representations set forth herein, Alumax,
for Alumax and Alumax's successors and assigns, releases Fleet, the Owner
Trustee, USWFS and their agents, employees, officers, directors, brokers,
contractors and representatives from, and waives any and all causes of action or
claims against any of such persons for (i) any and all liability attributable to
any physical condition of or at the Facility or the Site, including, without
limitation, the presence on, under or about the Facility or the Site of any
dangerous, harmful or hazardous substances and materials; (ii) any and all
liability resulting from the failure of the Facility or the Site to comply with
any applicable laws, including, without limitation, any environmental law; and
(iii) any liabilities, damages or injury arising from connected with or
otherwise caused by statements,
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opinions or information obtained from any of such persons with respect to the
Facility or the Site. Further, each party hereto releases each other party
hereto and waives any and all causes of action or claims based on the adequacy
of the Purchase Price or, except as expressly set forth herein, on any
statements or information, whether written or oral, provided by one party to the
other with respect thereto.
14. ARBITRATION OF DISPUTES. ANY CLAIM, CONTROVERSY OR DISPUTE
BETWEEN ALUMAX, FLEET, THE OWNER TRUSTEE, USWFS AND ALUMAX INC., OR ANY OF THEM,
WHETHER SOUNDING IN CONTRACT, STATUTE, TORT, FRAUD, MISREPRESENTATION OR OTHER
LEGAL THEORY, RELATED DIRECTLY TO THIS AGREEMENT, WHENEVER BROUGHT AND WHETHER
BETWEEN THE PARTIES TO THIS AGREEMENT OR BETWEEN ONE OF THE PARTIES TO THIS
AGREEMENT AND THE EMPLOYEES, AGENTS OR AFFILIATED BUSINESSES OF THE OTHER PARTY,
SHALL BE RESOLVED BY ARBITRATION AS PRESCRIBED IN THIS SECTION UNLESS SUCH
CLAIM, CONTROVERSY OR DISPUTE INVOLVES OTHER PARTIES FOR A PROPER AND COMPLETE
RESOLUTION THEREOF AND ONE OR MORE SUCH OTHER PARTIES DOES NOT AGREE TO
PARTICIPATE IN SUCH ARBITRATION. THE FEDERAL ARBITRATION ACT, 9 U.S.C. Sections
1-15, NOT STATE LAW, SHALL GOVERN THE ARBITRATION OF ALL SUCH CLAIMS.
A SINGLE ARBITRATOR WHO IS A RETIRED FEDERAL OR NEW YORK JUDGE SHALL
CONDUCT THE ARBITRATION UNDER THE THEN CURRENT RULES OF THE AMERICAN ARBITRATION
ASSOCIATION (THE "AAA"). THE ARBITRATOR SHALL BE SELECTED BY MUTUAL AGREEMENT
OF THE PARTIES, OR IF THEY ARE UNABLE TO REACH AGREEMENT ON THE ARBITRATOR
WITHIN THIRTY (30) DAYS OF WRITTEN NOTICE BY ONE PARTY TO THE OTHER INVOKING
THIS ARBITRATION PROVISION, IN ACCORDANCE WITH AAA PROCEDURES FROM A LIST OF
QUALIFIED PEOPLE MAINTAINED BY THE AAA. THE ARBITRATION SHALL BE CONDUCTED IN
NEW YORK CITY, NEW YORK AND ALL EXPEDITED PROCEDURES PRESCRIBED BY THE AAA RULES
SHALL APPLY.
THERE SHALL BE NO DISCOVERY OTHER THAN THE EXCHANGE OF INFORMATION
WHICH IS PROVIDED TO THE ARBITRATOR BY THE PARTIES. THE ARBITRATOR SHALL HAVE
AUTHORITY ONLY TO GRANT SPECIFIC PERFORMANCE AND TO ORDER OTHER EQUITABLE RELIEF
AND TO AWARD COMPENSATORY DAMAGES, BUT SHALL NOT HAVE THE AUTHORITY TO AWARD
PUNITIVE DAMAGES OR OTHER NONCOMPENSATORY DAMAGES OR ANY OTHER FORM OF RELIEF.
THE ARBITRATOR SHALL AWARD TO THE PREVAILING PARTY ITS REASONABLE ATTORNEYS'
FEES AND COSTS AND OTHER EXPENSES INCURRED IN THE ARBITRATION, EXCEPT THE
PARTIES SHALL SHARE EQUALLY THE FEES AND EXPENSES OF THE ARBITRATOR. THE
ARBITRATOR'S DECISION AND AWARD SHALL BE FINAL AND BINDING, AND JUDGMENT ON THE
AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION
THEREOF.
IF ANY PARTY FILES A JUDICIAL OR ADMINISTRATIVE ACTION ASSERTING CLAIMS
SUBJECT TO ARBITRATION AS PRESCRIBED HEREIN, AND ANOTHER PARTY SUCCESSFULLY
STAYS SUCH ACTION OR COMPELS ARBITRATION
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OF SAID CLAIMS, THE PARTY FILING SAID ACTION SHALL PAY THE OTHER PARTY'S COSTS
AND EXPENSES INCURRED IN SEEKING SUCH STAY OR COMPELLING ARBITRATION, INCLUDING
REASONABLE ATTORNEYS' FEES.
15. Miscellaneous Provisions.
A. Applicable Law. This Agreement shall be construed in
accordance with the laws of the State of New York.
B. Business Day. If the date of the Closing is to occur
on a holiday or other non-business day, or if any
period of time set forth in this Agreement expires on
a holiday or other non-business day, then such date
of Closing or expiration date shall be on the
following business day.
C. Assignment. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
Neither Alumax, Fleet nor owner Trustee shall have
the right to assign their rights or obligations under
this Agreement, in whole or in part, to any person or
entity without the prior written consent of the other
party, which consent shall not be unreasonably
withheld.
D. Captions and Headings. The captions and headings
contained in this Agreement are for convenience only
and are not a part of this Agreement.
E. Construction of Agreement. The parties hereto
acknowledge that they have each had the benefit of
independent counsel with regard to this Agreement and
that this Agreement has been prepared as a result of
the joint efforts of the parties and their respective
counsel. Accordingly, the parties agree that the
provisions of this Agreement shall not be construed
or interpreted for or against any part based upon
authorship.
F. Further Instruments. The parties agree to execute
such further instruments as may be reasonably
necessary in order to complete the transaction
contemplated hereby in accordance with the terms,
intent and purpose of this Agreement.
G. Third Party Beneficiary. USWFS is a third party
beneficiary of this Agreement and the
14
15
representations, warranties, indemnities, covenants
and obligations of the parties set forth herein.
H. Complete Agreement. This is the complete agreement
between the parties as to the subject matter stated
herein and any and all prior written and verbal
negotiations and agreements are contained herein or
are superseded by the terms of this Agreement. This
Agreement may only be amended in a writing signed by
all parties hereto.
I. Trust Capacity of Fleet. This instrument is executed
by Fleet, not in its individual capacity, except as
specifically provided herein, but solely in its
capacity as owner/trustee under an owner Trust
Agreement dated November 25, 1986, for the benefit of
USWFS (the successor by merger to U S WEST Capital
Corporation).
J. Guaranty by Alumax, Inc. This Agreement shall not be
of any force or effect unless and until (a) it is
fully executed by the parties hereto, and (b) the
guaranty set forth below is executed by Alumax Inc.
K. A material default by either party pursuant to the
terms of the Facility Lease shall be deemed to
constitute a default hereunder, and a material
default hereunder by either of the parties shall be
deemed to constitute a default under the Facility
Lease.
EXECUTED AND EFFECTIVE as of the 18th day of September, 1996.
ALUMAX MILL PRODUCTS, INC.
By: /s/ Lawrence B. Frost
----------------------------------
Name: LAWRENCE B. FROST
--------------------------------
Title: Vice President
-------------------------------
FLEET NATIONAL BANK
not in its individual
capacity, except as
specifically provided
herein, but solely in its
capacity as Owner Trustee
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
15
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This instrument is executed by U S WEST Financial Services, Inc. ("USWFS") as
successor by merger to U S WEST Capital Corporation, for the purpose of
approving the above Facility Purchase Agreement and for the purpose of
authorizing and instructing Fleet National Bank, as Owner Trustee USWFS, to
execute the same in such capacity and to take any and all actions on behalf of
USWFS that are required to be taken by the owner Trustee or the Lessor to give
full effect to the exercise by Alumax of its option to purchase the Facility and
to close said purchase.
U S WEST Financial Services, Inc.
By: /s/ Robert L. Hirsch
------------------------------
Name: Robert L. Hirsch
----------------------------
Title: VP
---------------------------
Date: September 17, 1996
----------------------------
FOR GOOD AND VALUABLE CONSIDERATION, the receipt, adequacy and
sufficiency of which are hereby confessed and acknowledged, Alumax Inc. does
hereby guarantee the prompt, full and faithful performance by Alumax Mill
Products, Inc. of its obligations set forth in the above Facility Purchase
Agreement.
Executed as of the 19th day of September, 1996.
Alumax Inc.
By: /s/ Lawrence B. Frost
----------------------------------
Name: LAWRENCE B. FROST
--------------------------------
Title: Senior Vice President
-------------------------------
17
SCHEDULE 1
=====================================================================================================================
L/C Number Effect. Date Mat. Date Amount Beneficiary
---------------------------------------------------------------------------------------------------------------------
SBY-502267 11/11/93 12/31/96 39,200,000.00 U S WEST
Financial
---------------------------------------------------------------------------------------------------------------------
1269/Sl1085 11/09/93 01/20/97 3,883,109.09 Great American
Life Ins.
---------------------------------------------------------------------------------------------------------------------
1269/S11086 11/09/93 01/20/97 2,329,865.45 Windsor Insurance
Co.
---------------------------------------------------------------------------------------------------------------------
1269/S11088 11/09/93 01/20/97 2,329,865.45 Dixie Insurance Co.
---------------------------------------------------------------------------------------------------------------------
1269/S11113 11/09/93 01/31/97 1,718,664.08 American Life &
Casualty
---------------------------------------------------------------------------------------------------------------------
1269/S11087 11/09/93 01/20/97 3,106,487.27 Stonewall-Insurance
Co.
---------------------------------------------------------------------------------------------------------------------
9603061S287 3/18/96 12/30/96 47,816,683.00 State Street Bank
by way of
Assignment from
Fleet
=====================================================================================================================