1
EXHIBIT 10.29
NETTING AGREEMENT
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BETWEEN:
PECHINEY SERVICES, a Belgian limited company (societe anonyme) with head offices
in Brussels at 00, xxxxx Xxxxx-Xxxxxxx - 0000 XXXXXXXXX and with administrative
offices in Brussels at 00, xxx xx xx Xxx - 0000 XXXXXXXXX, registered with the
Belgian Commercial Registrar (registre du commerce), under No. 559568 by Xx.
Xxxxxxxx XXXXX, Administrator-Delegate
Nacanco Paketleme Sanayi Ve Ticaret A.S., a company with administrative offices
in Manisa, Turkey.
National Can Puerto Rico, Incorporated, a company with administrative offices in
Xxxxxx, Puerto Rico.
American National Can Company, a company with administrative offices in Chicago,
Illinois (U.S.A.).
American National Can Overseas Corp., a company with administrative offices in
Chicago, Illinois (U.S.A.).
Pechiney World Trade (USA), Incorporated, a company with administrative offices
in Greenwich, Connecticut (U.S.A.).
American National Can Canada Inc., a company with administrative offices in
Brampton, Ontario (Canada).
Nacanco Deutschland GmbH, a company with administrative offices in
Gelsenkirchen, Germany.
Nacanco Limited, a company with administrative offices in Luton, England.
Pechiney Packaging Food & General Line Limited, a company with administrative
offices in Luton, England.
Nacanco Service Europe Limited, a company with administrative offices in Luton,
England.
Pechiney UK Limited, a company with administrative offices in Berkshire,
England.
Nacanco France, a company with administrative offices in Mont, France.
Nacanco SA, a company with administrative offices in Gravelines, France.
American National Can Asia Pacific Limited, a company with administrative
offices in Cause Bay, Hong Kong.
Nacanco Ireland Limited, a company with administrative offices in Waterford,
Eire.
Nacanco Spa, a company with administrative offices in Nogara, Italy.
Nacanco Can Italia Spa, a company with administrative offices in Castel San
Giorgio (Xxxxxxx), Italy.
National Can Iberia, a company with administrative offices in Valdemorillo,
Spain.
American National Can Holdings (Europe) BV, a company with administrative
offices in Luton, England.
Pechiney, a company with administrative offices in Courbevoie, France.
the aforementioned companies being represented by PECHINEY SERVICES, a Belgian
limited company (societe anonyme) with head offices in Brussels at 00, xxxxx
Xxxxx-Xxxxxxx - 0000 XXXXXXXXX and with administrative offices in Brussels at
00, xxx xx xx Xxx - 0000 XXXXXXXXX, registered with the Belgian Commercial
Registrar (registre du commerce), under No. 559568 by Xx. Xxxxxxxx XXXXX,
Administrator-Delegate
both on behalf of the latter and of the other aforementioned companies, pursuant
to the mandates annexed to the present Agreement
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hereinafter named
collectively the "Companies"
individually the "Company"
and
BANQUE DE NEUFLIZE SCHLUMBERGER XXXXXXX, an Executive Committee-Supervisory
Board company (societe anononyme a Directoire et Conseil de surveillance) with
share capital of 672 000 000 Francs and with head offices at 0 xxxxxx Xxxxx,
00000 Xxxxx Cedex, registered with the "registre du commerce et des societes de
Paris" (the Paris Registrar of Trade and Companies) under No. B 552 003 261
represented by Mr. Jan Willem den BOSCH, Attorney and Xx. Xxxxxx XXXXXXX,
Associate Director, both of whom are duly authorized by Xx. Xxxxx XXXXXXX,
Banker, residing at 0 Xxxxxx Xxxxx, 00000 XXXXX Cedex 08 (France), pursuant to
the powers conferred on him under the original act delivered by Xxxxxx
Xxxx-Xxxxx XXXXXX, Notary, Partner of "Xxxx-Xxxxx PLESSY, Xxxxxx XXXXXXX, Xxxxxx
XXXXXX et Xxxxxxxx XXXXX", Notaires Associes, a Professional Civil Partnership
(Societe Civile Professionelle), member of a Notarial Office (Office Notarial)
in Paris (France), 28 rue Chateaudun, dated February 11, 1993, a power of
attorney by which the aforementioned Xx. Xxxxx Xxxxxxx acted in the name and on
behalf and in the capacity of Chairman of the Executive Committee (President du
Directoire) of the Bank,
named to that position as of January 1, 1993, pursuant to a resolution taken by
the Supervisory Board (Conseil de Surveillance) of the Company on September 30,
1992, of which the certified copy of an excerpt was deposited in the minutes of
the aforementioned Notarial Office on January 15, 1993, and having all powers
hereunder pursuant to articles 124 and 126 of Law 66-537 of July 24, 1966, (the
"Company Act"),
hereinafter the "Bank"
RECITALS:
- the Companies as a result of their relationship and their
wish to alleviate their administrative tasks and to reduce
operating costs have agreed to simplify the settling of their
reciprocal commercial claims by off-setting them in accordance
with the terms and conditions set forth hereunder;
- the Bank, due to its international network and a
computerized system ensuring the adequate functioning of such
off-setting, has declared itself prepared to allow access to
such System by the Companies and simultaneously to handle the
execution of the transactions called for by the Companies
subject to the conditions set forth below:
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ARTICLE I - DEFINITIONS
"CLEARING MEMBER"
PECHINEY SERVICES, a Belgian limited company (societe anonyme) with head offices
in Brussels at 00, xxxxx Xxxxx-Xxxxxxx - 0000 XXXXXXXXX and with administrative
offices in Brussels at 00, xxx xx xx Xxx - 0000 XXXXXXXXX, registered with the
Belgian Commercial Registrar (registre du commerce), under # 559568 by Xx.
Xxxxxxxx XXXXX acting as Administrator-Delegate or any person whom it appoints
within the scope of its legal powers, provided however that this delegation of
powers was duly communicated beforehand to the other parties to the present
Agreement by registered letter with proof of receipt.
"SUBSIDIARY"
Any Company controlled by PECHINEY in the sense of article 355.1 of Law 66-537
of July 24, 1966.
"ABN AMRO"
The group of ABN AMRO subsidiaries and banks, of which a portion of capital is
held directly or indirectly by ABN AMRO Holding N.V, a Dutch company.
"NETTING ACCOUNT"
An account named "Netting Account" shall be opened in the books of ABN AMRO in
the name of the Clearing Member. It shall consist of an account that centralizes
all payments made in the course of a netting. Such account shall be opened
exclusively for the purposes of recording the netting transactions; under no
circumstance may it be mingled with other accounts of the Clearing Member and it
shall not give rise to delivery of checks.
"COMPANIES"
All subsidiaries, notably the Clearing member, as well as PECHINEY,
participating in the netting transactions and signatories of the Agreement.
"CALENDAR"
The Bank shall maintain the netting calendar and offer its cooperation to the
Clearing Member for the purposes of defining such calendar, while ensuring that
the netting and settlement dates proposed by the Clearing Member are working
days in the countries in which the Companies are located. The 1995 Calendar
appears in Annex 1.
"NETTING DATE"
Working Day on which the Clearing member determines the final amount to be paid
or received for each Company participating in the Netting.
Such date shall come no later than two (2) days prior to the Settlement Date.
"SETTLEMENT DATE"
Working day on which the net position of each Company shall be credited or
debited. In the absence of another arrangement, such date shall be two (2)
Working days after the Netting date.
"WORKING DAY"
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Working day refers to a day on which the Banks of all of the countries, in which
the settling by the Companies of payment orders required for the netting to
occur, are open.
"NETTING CURRENCY"
Common unit of currency used by the Clearing Member to off-set among the
Companies debts and claims denominated in different currencies listed on
currency markets. By common agreement with the Bank, the Companies and the
Clearing Member choose for the execution of the present Agreement the following
currency: French Francs (FRF).
"NETTING"
Transaction consisting of the centralization on a given date:
- of payments between companies of the same group and to ensure their
off-setting;
- of payments to third parties.
"SETTLEMENT CURRENCY"
Unit of Currency established for each Company for the purposes of satisfying the
payment orders proposed by the System and determined as indicated in Annex 5,
except for orders pertaining to currency transactions, for which the settlement
currency is that of the transaction.
"TRANSACTION CURRENCY"
Unit of currency in which a claim or debt is denominated in the System.
"SYSTEM"
The System is composed of:
- the NettingStation software, which is to be installed on the personal
computers of the Companies and which is used for the periodic settling
of debts and claims;
- a central server, set up in Amstelveen, the Netherlands, which is the
property of, and is maintained by ABN AMRO, and which handles and
distributed information regarding the transactions of the relevant
Companies;
- a telecommunication network to which the Clearing Member and the
Companies have access in order to transmit information using
NettingStation from personal computers to the ABN AMRO server;
- a security code, which allows for the control of access to the network
and to the central server.
This System presents the following characteristics:
- the off-setting transaction shall be executed on behalf of all of the
Companies by the Clearing Member, who shall coordinate and centralize
all Netting payments;
- debts of each Company owed through the System to each of the other
Companies are to be converted into the Netting Currency. The net
positions which arise after off-setting shall then be reconverted on
the Netting Date into the Settlement Currency of each of the Companies;
- in order to allow each Company to asses its net position in its own
Settlement Currency, rates shall be entered into the System on a daily
basis by ABN AMRO. These rates shall be those provided by the Reuter
AABC page. The rates used for the calculation of the final off-set
shall be proposed by the System (AABC Reuters page rates of ABN AMRO)
or provided by the Clearing Member;
- the System allows each Company to enter transactions of cash sales or
purchases of currencies;
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- the System allows the inclusion of debts to third parties, provided
that the regulations applicable to such transactions are complied with
by the Companies. Such third parties shall receive those sums owed to
them in the Transaction Currency;
- the System allows the entry of foreign exchange SWAP agreements, which
shall be settled in the currency of such agreements. They may only be
entered into by one Company in accordance with the particular terms and
conditions to be determined elsewhere by the Clearing Member and the
Bank.
The Bank and Companies agree that the Companies shall be provided every
new version of the NettingStation software free of charge.
"SYSTEM PARAMETERS"
The information provided by the Clearing Member and the Companies to the Bank
pertaining to, among other things, the address, contact persons, banking
references of the Companies.
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ARTICLE II - SYSTEM ACCESS
The Bank shall offer the Companies a non-exclusive right of use of the system
subject to the conditions of the present Agreement. Access to the System's
central server is limited to those periods set forth in Annex 2 of the present
Agreement.
The bank guaranties that it holds the necessary rights to provide the Companies
the right of use. The fact that the Bank shall provide such a right of use in no
way gives rise to a transfer of relevant property rights, notably as regards the
software and the information framework.
The Companies renounce any cession to third parties or any copy, under any
circumstances, of software, documentation, security codes, instruction manuals,
and other information pertaining to the System that they receive from the Bank,
except for backup copies, which may be saved at another location than the
Companies' offices, provided the Bank has consented thereto beforehand. The
Companies must in that case take all necessary precautions to prevent access to
these copies by unauthorized third parties.
The Companies shall keep confidential such software, documentation, security
codes, instruction manual, and any other information provided by the Bank and
shall take all necessary precautions to ensure such confidentiality.
For security purposes, the Companies must act in strict accordance with the
security procedures agreed upon with the Bank, in particular authentification
procedures. The Companies are responsible for maintaining in a secure place the
authentification codes and other security measures communicated to them by the
bank, as well as for the consequences of their possession by unauthorized
persons.
Where authentification measures are used, the Companies shall be made
unconditionally liable both to the Bank and to any third party as a result of
orders or instructions that they have communicated to the Bank, even if such
orders or instructions were given by an unauthorized person.
Neither the Companies nor the Bank shall question the validity of messages
transmitted and maintained by computer. Messages transmitted in accordance with
the authentification procedures agreed upon shall the same evidentiary value as
a validly written and signed document.
ARTICLE III - SCOPE OF THE AGREEMENT
The Companies shall be responsible for the information provided to the System
and for the System Parameters that they communicate to the bank.
The bank must ensure the accurate maintenance of the Clearing Member's Account
as regards the execution of the present Agreement (in particular, but without
being limited to the following, the execution of wire and transfer orders,
compliance with effective dates for payment and cashing in, etc.) and the
execution of currency transactions requested by the Clearing Member.
It is expressly agreed that the off-setting, having been decided as falling
within the responsibility of the Clearing Member and of the Companies, and
executed by means of the System, shall liberate each Company with respect to
each of the others up to a maximum of the amounts entered into the System as
final and net.
Each Company undertakes to execute payment orders that are necessary for the
automatic settlement by setting-off the amount that one Company would owe the
other on the Netting Date as calculated in the Netting currency and under the
supervision of the Clearing Member, by means of the System. The following shall
hold true regardless of the currency in which the relevant reciprocal claims and
debts are denominated.
The Companies retain the right to execute separately the settlement of any debt
that they wish to exclude from the netting arrangement. The relevant Companies
would then have to exclude from the System all entries of information pertaining
to such debt.
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ARTICLE IV - OPERATION
The Companies shall be required to enter into the System the amount of their
debts (or claims) due for repayment to each of the other Companies.
All reciprocal debts and claims, denominated in the various currencies shall be
converted into the Netting Currency.
On the Netting date, and for each Company, two amounts expressed in the Netting
Currency shall be calculated:
- the total of claims owed by the remaining Companies
- the total of debts owed to the remaining Companies.
The balance of the amounts, to be paid or received, depending on the case, shall
constitute the net position of each Company.
The System shall provide on the netting date a statement of payment orders to
the credit of the bank account or accounts of those Companies whose net position
is a credit balance. Such payment shall be the value in exchange for their net
credit balance positions in the Settlement Currency. The Companies shall
instruct their banks to make the necessary transfers in order to settle on the
Settlement Date their net debit balances on the Netting Account (as specified in
their respective netting reports).
On the order and subject to the liability of the Clearing Member, the different
positions that result from the netting shall be satisfied by the execution of
the payment orders.
The conditions that apply to payment orders pertaining to Netting are set forth
in Annex 3.
The Clearing Member undertakes to take all steps in order to ensure the netting
transactions are executed in accordance with the regulations pertaining to
netting in the country of residence of each Company. ABN AMRO reserves the right
to modify or not to execute any instruction that would be contrary to such
regulations.
As regards third parties, the System shall provide a statement of payment orders
that reflects the amount and currency of the transactions entered into by the
Companies, third parties having no participation whatsoever in the netting.
Under no circumstances shall the payment orders cause the Netting Account to
have a debit balance.
ARTICLE V - BANK LIABILITY
The Bank undertakes to ensure the adequate functioning of the System. However,
its liability hereunder is strictly limited to the tasks allocated to it and
listed below:
- the follow up of payment orders on their effective date,
- the follow up of the execution and presentation of the
administrative documents showing the set off of operations to
financial authorities, in accordance with their
specifications,
- the execution of potential Netting exchange transactions,
i.e. the execution of currency purchase or sale orders
according to orders given by the Clearing Member following the
regular rules of the currency exchange market.
The Bank shall consider information received from the Companies and its
knowledge relating to the Companies' contemplated operations as confidential
unless otherwise specified by law or statutes applicable to the Bank.
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Under no circumstances shall the Bank be liable for a technical failure, and in
particular for the defective functioning of the connection equipment to the
automated trading system installed on the Companies' premises which could affect
the execution of the Clearing Member's instructions, and in general in the event
of lateness in the trading or execution of such instructions due to a case of
force majeure or to an event beyond its control or the control of ABN AMRO, or
an event caused by a Company or a third party. ABN AMRO is not considered to be
a third party in the sense of the present provision in Sections II, III, IV.
Except for the cases enumerated above, the Bank undertakes to intervene at its
own cost (directly or indirectly) to remedy the potential failures of the System
that have been discovered.
The Bank is bound in any case to inform the Clearing Member of all problems or
failures of the System as soon it is has become aware of them and shall do its
best to remedy the situation, or at least, to provide the Companies with
alternatives in due course.
In addition, the Bank shall do its best to keep the Clearing Member informed of
any evolution of local legislation on Netting in the countries in which the
Companies are located and which could affect the Netting's operation as
described in the present Agreement.
If the Bank's liability is engaged due to the execution of this Agreement, the
Companies would only be entitled to request as indemnification and damages for
their actual loss the lesser of the two following amounts:
- FRF 200,000
- the actual amount of remuneration paid by the Clearing Member over
the course of the twelve months preceding the event having given rise to the
loss.
The parties expressly agree that the limits upon the liability of the Bank set
forth in the present section shall not be applicable in the event of gross fault
or gross negligence on the part of the bank or in the event of the
non-application by ABN AMRO of the correct effective date to the payment orders,
subject only to the reservations provided for in Section IV above.
ARTICLE VI - PAYMENT
All expenses, commissions and fees due to the Bank pursuant the execution of the
present Agreement are set forth in Schedules 3 and 4. They shall be included in
a monthly statement made out to the Clearing Member after each Netting Date, and
shall be sent to the Clearing Member. The Clearing Member shall effect payment
by direct transfer upon receipt.
The Clearing Member shall re-xxxx each Company for the commissions and fees of
the Bank attributable to each Company.
The Bank reserves the right to modify the rates of its services listed in
Schedules 3 and 4. In this case, it shall alert the Clearing Member by
registered mail with acknowledgment of receipt two months before the expected
date of application of the new rates. The new rates cannot take effect without
agreement of the Clearing Member.
The rates shall be increased by the amount of the TVA at the rates in effect at
the date of billing.
ARTICLE VII - DURATION OF THE AGREEMENT
The present Agreement is concluded for a duration of one year from its taking
effect, renewable by tacit agreement for an unlimited period. The Agreement
shall take effect at the time that the Bank, the Clearing Member and at least
two companies have signed it.
1. Each party may terminate the present Agreement by registered mail with
acknowledgment of receipt:
- to the Bank, if the termination is requested by the Clearing Member;
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- to the Clearing Member, if the termination is requested by the Bank;
- to the Bank and the Clearing Member, if the termination is requested
by another party.
Aside from the specific exceptions outlined below, this termination shall take
effect on the date of receipt by the addressee of the letter of termination
except in the case where termination is requested by a Company other than the
Clearing Member, in which case the termination shall take effect on receipt of
the termination letter by the Bank.
2. The termination of the present Agreement may be executed and may take
effect in spite of the above provisions under the following conditions:
2.1 before the end of the first year of execution of the present
Agreement with one months' notice. This termination shall take
effect on the first Settlement Date following the end of the
first year;
2.2 after the first year of execution of the present Agreement, at
any time, subject to three months' notice. This termination
shall take effect on the first Settlement Date following the
expiration of the notice.
3. It is expressly agreed that this Agreement shall be terminated as of
right without notice and without any other formality other than that
provided for in paragraph VII 1 above.
3.1 If it appears necessary to the Bank or to any of the
Companies, including the Clearing Member, in any of the
following cases:
- non-execution by one of the Companies of its
obligations under this Agreement;
- failure to pay caused by one of the Companies and
declared to the central bank of its country of
residence;
- seizure, blockage or any opposition imposed on one
of the accounts opened on the books of the Bank or
of ABN AMRO in the name of one of the Companies;
- suspension of activity or payment or any out of
court or judicial bankruptcy procedure or
liquidation of one of the Companies;
- loss of Subsidiary status by one of the Companies;
- non-respect by one of the Companies of any of its
commitments under this Agreement;
- in case of the occurrence of new circumstances,
especially the changing of applicable legal,
regulatory or fiscal provisions that affect the
validity or the conditions of execution of this
Agreement and whose existence would be justified by
the party requesting the termination.
3.2 If it appears necessary to the Clearing Member in the event of
non-execution by the Bank of any of its obligations under this
Agreement;
3.3 If it appears necessary to the Bank:
- in the event of non-execution by the Clearing
Member of any of its obligations under this
Agreement;
- there is a lack of agreement on the modification by
the Bank of the pricing of its services appearing
in Schedules 3 and 4.
However, except for the provisions in Article VII-1 above, the
Agreement shall be terminated under law upon the occurrence of the
event independent of the date of receipt of the letter of termination
above in one of the following cases:
- seizure blockage or any opposition affecting one of the
Clearing Member's accounts,
- suspension of payment or any out of court or judicial
bankruptcy procedure or liquidation of the Clearing Member.
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4. The termination of this Agreement shall only apply to the Company to
which one or the other of the cases of termination mentioned above
occurs, except if it concerns the Clearing Member or the Bank, in which
case this Agreement shall be terminated in its entirety and shall cease
to apply to all of the Companies.
In all cases of termination, the payment anticipated in Article VI
shall remain due to the bank until the date of the termination; those
relating to the maintenance of the accounts shall be due for all months
that have begun.
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ARTICLE VIII - DECLARATIONS AND PRIOR CONDITIONS
The Clearing Member declares that:
- netting transactions between the Companies are executed under its
sole supervision;
- the person signing this Agreement on behalf of the Companies has been
duly authorized for this purpose by the appropriate authorities of
the Clearing Member.
Each Company declares that concerning the requirements for the signature and
execution of this Agreement:
- that this Agreement and its application are in accordance with the
Company's bylaws.
- that at the date of signature of this Agreement, it conforms to
the legislation and regulations applicable to the Company and that
all the authorizations required have been obtained from the
appropriate authorities of the Company or from any third parties.
Each Company agrees to conform to all applicable regulations concerning the
execution of this Agreement; the Bank cannot be held liable on this account.
ARTICLE IX - AMENDMENT
Any modification to this Agreement shall be made in the form of a supplemental
agreement signed by the Clearing Member, on behalf of and with the authorization
of the Companies, and by the Bank.
Any Subsidiary may request to be made a party to this Agreement, either directly
with the express consent of the Clearing Member, or through its intermediary. If
the Bank agrees to this request, the Subsidiary concerned shall sign a
supplemental agreement with the Bank and the Clearing Member, under the terms of
which the subsidiary shall be considered to be a party to this Agreement; this
shall be applicable as soon as the Subsidiary satisfies the conditions provided
under Article VIII, without it being necessary to obtain the agreement of the
other Companies.
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ARTICLE X - APPLICABLE LAW AND JURISDICTION
This Agreement is subject to French law.
Only the French version of this Agreement shall be valid and binding, to the
exclusion of any translation in another language.
Failing out of court settlement by the parties, any dispute relating to the
validity, interpretation or execution of any provision of this Agreement shall
be ruled upon by the competent courts within the jurisdiction of the Court of
Appeal of Paris.
Done in duplicate in
Brussels
July 21, 1995
For the Companies For the Bank
(seal and signature) (seal and signature)
X. XXXXX Mr. Jan Shallem den BOSCH
President of PECHINEY SERVICES Mr. Claude
00 xxx xx xx Xxx - Xxx 0 XXXXXX
0000 Xxxxxxxx XXXXXXX
Tel. (00) 000.00.00 3 Avenue
Fax (00) 000.00.00 75410 Pari
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SCHEDULE 1
NETTING CALENDAR 1995
----------------------------------------------------------------------------------------------------------------
Month Netting Code Reporting Control Compensation Value
X-6 X-4 X-2
----------------------------------------------------------------------------------------------------------------
August 0895 7/24 7/25 7/31 8/2
----------------------------------------------------------------------------------------------------------------
September 0995 8/23 8/28 8/30 9/1
----------------------------------------------------------------------------------------------------------------
October 1095 9/21 9/26 9/28 10/2
----------------------------------------------------------------------------------------------------------------
November 1195 10/25 10/30 11/2 11/6
----------------------------------------------------------------------------------------------------------------
December 1295 11/21 11/28 11/30 12/04
----------------------------------------------------------------------------------------------------------------
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ACCESS SCHEDULE
Access to the System's central server is limited to the following schedule:
from 2:00 a.m. to 12:00 a.m. seven days a week.
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SCHEDULE 3
Financial Conditions of International Transfers and Accounts
----------------------------------------------------------------------------------------------------------------
Opening Account Monthly maintenance of International transfers International transfers
account received issued
----------------------------------------------------------------------------------------------------------------
0 150 150 150
----------------------------------------------------------------------------------------------------------------
Prices are indicated in French francs excluding tax.
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SCHEDULE 4
Financial Conditions of Nettingstation
INSTALLATION:
Installation includes providing software, manuals, Digipass (security
equipment), as well as installing the System's parameters on the ABN AMRO
server.
TRAINING:
This includes a one-day user training session in Paris and in the United States.
Supplementary training can be organized on location at the Bank at the request
of the Clearing Member for a maximum of ten participants. Training costs charged
by the Bank are fixed at French francs 6,000 (excluding tax) per day.
MAINTENANCE:
This includes telephone assistance to the Companies and the supply of new
versions of the Nettingstation software package.
INSTALLATION COSTS:
Installing parameters, training, evaluation, maintenance: FF 40,000 (excluding tax)
Digipass (2 cards recommended per station): FF 250/card (excluding tax)
PERIODIC COSTS:
Monthly fixed costs: FF 150/subsidiary (excluding tax)
FF 50/other participant (excluding tax)
Processing costs: FF 6,000/Netting (excluding tax)
FF 1.50/transaction (excluding tax)
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SCHEDULE 5
Currency of payments by participants
----------------------------------------------------------------------------------------------------------------
Company Currency of payment
----------------------------------------------------------------------------------------------------------------
Nacanco Paketleme Sanayi Ve Ticaret A.S. Transaction
----------------------------------------------------------------------------------------------------------------
National Can Puerto Rico, Incorporated USD
----------------------------------------------------------------------------------------------------------------
American National Can Company USD
----------------------------------------------------------------------------------------------------------------
American National Can Company ITO Transaction
----------------------------------------------------------------------------------------------------------------
American National Can Overseas Corp. USD
----------------------------------------------------------------------------------------------------------------
Pechiney World Trade (USA) USD
----------------------------------------------------------------------------------------------------------------
American National Can Canada Inc. CAD
----------------------------------------------------------------------------------------------------------------
Nacanco Deutschland GmbH DEM
----------------------------------------------------------------------------------------------------------------
Nacanco Limited GBP
----------------------------------------------------------------------------------------------------------------
Pechiney Packaging Food & General Line Limited GBP
----------------------------------------------------------------------------------------------------------------
Nacanco Service Europe Limited GBP
----------------------------------------------------------------------------------------------------------------
Pechiney UK Limited GBP
----------------------------------------------------------------------------------------------------------------
Nacanco France FRF
----------------------------------------------------------------------------------------------------------------
Nacanco SA FRF
----------------------------------------------------------------------------------------------------------------
American National Can Asia Pacific Limited HKD
----------------------------------------------------------------------------------------------------------------
Nacanco Ireland Limited IEP
----------------------------------------------------------------------------------------------------------------
Nacanco Spa ITL
----------------------------------------------------------------------------------------------------------------
National Can Italia Spa ITL
----------------------------------------------------------------------------------------------------------------
National Can Iberian SA ESP
----------------------------------------------------------------------------------------------------------------
American National Can Holdings (Europe) BV NLG
----------------------------------------------------------------------------------------------------------------
Pechiney Transaction
----------------------------------------------------------------------------------------------------------------
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AMENDMENT
OF [ ] 1999
TO THE NETTING AGREEMENT
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BETWEEN:
Pechiney, a company (societe anonyme) with head offices at 0 xxxxx xx
Xxxxxxxxxx Xxxxxxxx 00000 Xxxxx, registered with the "registre du commerce et
des societes de Paris" (the Paris Registrar of Trade and Companies) under No. [
], represented by Mr. [ ] who is duly authorized,
acting on behalf of both Pechiney and those companies included in the list found
in Annex 1, under the powers hereinafter annexed,
Hereinafter referred to individually as the "Company" and collectively
as the "Companies",
On the one part,
AND
Banque Neuflize Schlumberger Mallet, an Executive Committee-Supervisory
Board company (societe anononyme a Directoire et Conseil de surveillance) with
head offices at 0 xxxxxx Xxxxx, 00000 Xxxxx Cedex, registered with the "registre
du commerce et des societes de Paris" (the Paris Registrar of Trade and
Companies) under No. 552 003 261, represented by Mr. [ ] who is duly authorized,
Hereinafter the "Bank",
On the other part,
Hereinafter referred to individually as the "Party" and collectively as
the "parties".
RECITALS:
A netting agreement (hereinafter the "Agreement") was entered into on
July 21, 1995 between the Bank, on the one part, and Pechiney Services, on the
other part, acting on behalf of the "COMPANIES", as this expression is defined
in the Agreement.
By letters exchanged between the Bank, Pechiney Services and the
COMPANIES, on December 12, 1997, Pechiney Services assigned to Pechiney the
entirety of its rights and obligations pursuant to the Agreement in its capacity
as "CLEARING MEMBER" as this expression is defined in the Agreement.
The Parties wish to modify the Agreement so that the Companies, in
which AMERICAN NATIONAL CAN GROUP Incorporated shall hold, directly or
indirectly, more than one half of the voting rights and whose list appears
hereinafter in Annex 2, remain parties to the Agreement, whereas they would no
longer constitute "SUBSIDIARIES" in the sense of the Agreement, in accordance
with the terms and conditions of the present amendment (hereinafter the
"Amendment").
21
THE PARTIES NOW AGREE AS FOLLOWS:
ARTICLE 1. The Parties have decided that the Companies, in which
AMERICAN NATIONAL CAN GROUP Incorporated shall hold, directly
or indirectly, more than one half of the voting rights and
whose list appears in Annex 2 (hereinafter the
"Beneficiaries"), are to remain parties to the Agreement,
whereas the Beneficiaries would no longer constitute
SUBSIDIARIES in the sense of the Agreement. Consequently, the
Parties are modifying the definition of the expression
"COMPANIES" of article 1 of the Agreement to include the
expression the "Beneficiaries", as defined above.
For purposes of clarity, it is specified that the
provisions of article 3.1 of the Agreement, relating to the
option to terminate the Agreement in the event of the loss of
the status of AFFILIATE by a COMPANY shall not be applicable
to the Beneficiaries.
ARTICLE 2. The Amendment shall take effect from the day of the
official listing on the New York Stock Exchange of the
majority of the shares issued by [AMERICAN NATIONAL CAN GROUP
Incorporated]. The Amendment shall remain in effect until
August 30, 1999, the date of expiration of the Agreement.
ARTICLE 3. The provisions of the Amendment are incorporated into the
Agreement, the entirety of the provisions of the latter being
applicable to the former, subject to those express
modifications set forth above.
Made at Paris, on this day of
In two (2) copies
For Pechiney For the Bank
Mr. [ ] Mr. [ ]
22
ANNEX 1
LIST OF BENEFICIARIES
Nacanco Paketleme Sanayi Ve Ticaret A.S., a company with administrative offices
in Manisa, Turkey
ADDRESS: Organize San Bolgesi, Manisa, TURKEY
American National Can Company, a company with administrative offices in Chicago,
Illinois (United States of America)
ADDRESS: 0000 Xxxx Xxxx Xxxx Xxx., Xxxxxxx, XX 00000-0000 XXX.
American National Overseas Corp., a company with administrative offices in
Chicago, Illinois (United States of America)
ADDRESS: 0000 Xxxx Xxxx Xxxx Xxx., Xxxxxxx, XX 00000-0000 XXX.
American National Can Canada Inc., a company with administrative offices in
Brampton, Ontario (Canada)
ADDRESS: 000, Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx, X0X XX0, Xxxxxx.
Nacanco Deutschland GmbH, a company with administrative offices in Gelsenkichen,
Germany
ADDRESS: Xxxxxxxxxxxxxx 00, 0000 Xxxxxxxxxxxxxx-Xxxx, Xxxxxxx.
Nacanco Limited, a company with administrative offices in Luton, England
ADDRESS: 000 Xxxxxxxxxx Xxxxx, Xxxxx, Xxxxxxxxxxxx XX0 0XX, XX.
Nacanco Service Europe Limited, a company with administrative offices in Luton,
England
ADDRESS: 000 Xxxxxxxxxx Xxxxx, Xxxxx, Xxxxxxxxxxxx XX0 0XX, XX.
Nacanco France, a company (societe anonyme) with administrative offices in Mont,
France
ADDRESS: Xxxxx xx Xxxx, 00000, Xxxx, Xxxxxx.
Nacanco SA, a company (societe anonyme) with administrative offices in
Gravelines, France
ADDRESS: Usine de Gravelines, route des Vignots, ZIP xxx Xxxxxx, 00000
Xxxxxxxxxx, Xxxxxx.
American National Can Asia Pacific Limited, a company with administrative
offices in Cause Bay, Hong Kong
ADDRESS: 000 Xxxxxxxxxx Xxxx, 0000 Xxxxxxx House, Causeway BAY, Hong Kong.
Nacanco Ireland Limited, a company with administrative offices in Waterford,
Eire
ADDRESS: Xxxxxxxxx Xxxxxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxx, Xxxxxxx.
Nacanco Spa, a company with administrative offices in Nogara, Italy
ADDRESS: Xxx Xxxxxx xx Xxxxx 00, Xxxx Xxxxxxxxxxx xx Xxxxxx, 00000 Nogara
(Verona), Italy.
National Italiana Srl, a company with administrative offices in Pianella
(Xxxxxxx), Italy
ADDRESS: Xxxxxxxx Xxxxxxxxxxx, 00000 Xxxxxxxx, Xxxxx.
National Can Iberica SA, a company with administrative offices in Valdemorillo,
Spain
ADDRESS: Xxxx Xxxxxxxx-000 XX 00, 00000 Xxxxxxxxxxxx (Xxxxxx), Xxxxx.
American National Can Holdings (Europe) BV, a company with administrative
offices in Luton, England
ADDRESS: 000 Xxxxxxxxxx Xxxxx, Xxxxx, Xxxxxxxxxxxx XX0 0XX, XX.
23
Avenant-netting-2-25/6/99
Projet aux fins de discussion uniquement
ANNEXE 2
GUARANTEE
Reference is made to the agreement dated [ ] 1999 (the "Amendment") entered
into between Pechiney a company incorporated under the laws of France and
having its registered office at 0 xxxxx xx Xxxxxxxxxx Xxxxxxxx, 00000 Xxxxx
(Xxxxxx) ("Pechiney"), Banque de Neuflize Schlumberger Mallet a company
incorporated under the laws of France and having its registered office at 0
xxxxxx Xxxxx, 00000 Xxxxx (Xxxxxx) (the "Bank") and AMERICAN NATIONAL CAN GROUP
Incorporated a company incorporated under the laws of the State of Illinois and
having its registered office at [ ] (United States of America) ("ANC GROUP
Inc."), pursuant to which the netting agreement dated July 21, 1995 (the
"Netting Agreement") has been amended, in order to maintain as Parties to the
Netting Agreement, until September 3, 1999 the "Beneficiares" as defined in the
Netting Agreement, even though the "Beneficiares" are not anymore "FILIALES" as
defined in the Netting Agreement.
In accordance with the Amendment, ANC GROUP Inc. hereby unconditionally and
irrevocably undertakes, without any right to raise any exceptions whatsoever,
to:
(i) pay on first demand of the Bank and without delay, all the sums which are
due by the "Beneficiares" to the Bank pursuant to the Netting Agreement as
amended by the Amendment;
(ii) guarantee vis-a-vis the Bank all the obligations of the "Beneficiares"
under the Netting Agreement as amended by the Amendment.
This guarantee will come into force on the date of effect of the Amendment and
will remain fully valid and in full force until the complete fulfilment of the
"Beneficiares" obligations under the Netting Agreement as amended by the
Amendment.
ANC GROUP Inc. represents and warrants that it has full authority, power and
capacity to enter into and carry out its obligations under this guarantee.
Terms used in this guarantee which are defined in the Netting Agreement and the
Amendment shall have the meaning given to them in the Netting Agreement and the
Amendment.
This guarantee shall be governed by French Law regardless conflict of law
rules. Any dispute arising out of or in connection with shall be exclusively
submitted to the competent courts in the jurisdiction of the Cour x'xxxxx of
Paris
In [ ], on [ ] 1999
ANC GROUP Inc.
-----------------------------------
By:
Title:
24
Avenant-netting-2-25/6/99
Projet aux fins de discussion uniquement
ANNEXE 3
GUARANTEE
Reference is made to the agreement dated [ ] 1999 (the "Amendment") entered into
between Pechiney a company incorporated under the laws of France and having its
registered office at 0 xxxxx xx Xxxxxxxxxx Xxxxxxxx, 00000 Xxxxx (Xxxxxx)
("Pechiney"), Banque de Neuflize Schlumberger Mallat a company incorporated
under the laws of France and having its registered office at 0 xxxxxx Xxxxx,
00000 Xxxxx Xxxxx (Xxxxxx) (the "Bank") and AMERICAN NATIONAL CAN GROUP
Incorporated a company incorporated under the laws of the State of Illinois and
having its registered office at [ ] (United States of America) ("ANC GROUP
Inc."), pursuant to which the netting agreement dated July 21, 1995 (the
"Netting Agreement") has been amended, in order to maintain as Parties to the
Netting Agreement, until September 3, 1999 the "Beneficiaires" as defined in the
Netting Agreement, even though the "Beneficiaires" are not anymore "FILIALES"
as defined in the Netting Agreement.
In accordance with the Amendment, ANC GROUP Inc. hereby unconditionally and
irrevocably undertakes, without any right to raise any exceptions whatsoever,
to:
(i) pay on first demand of Pechiney and without delay, all the sums which
are due by the "Beneficiaires" to the Pechiney and/or the "SOCIETES" as
defined in the Netting Agreement pursuant to this Netting Agreement as
amended by the Amendment;
(ii) guarantee vis-a-vis Pechiney all the obligations of the "Beneficiaires"
under the Netting Agreement as amended by the Amendment;
(iii) guarantee vis-a-vis Pechiney the obligations of the "Beneficiaires"
under the installation and implementation proceeding of the software to
be used in order to carry out the netting operations after September 3,
1999.
This guarantee will come into force on the date of effect of the Amendment and
will remain fully valid and in full force until the complete fulfilment of the
"Beneficiaires" obligations under the Netting Agreement as amended by the
Amendment.
ANC GROUP Inc. represents and warrants that it has full authority, power and
capacity to enter into and carry out its obligations under this guarantee.
Terms used in this guarantee which are defined in the Netting Agreement and the
Amendment shall have the meaning given to them in the Netting Agreement and the
Amendment.
This guarantee shall be governed by French Law regardless conflict of law
rules. Any dispute arising out of or in connection with shall be exclusively
submitted to the competent courts in the jurisdiction of the Cour x'xxxxx of
Paris
In [ ], on [ ] 1999
ANC Group Inc.
-----------------------------
By:
Title:
