Exhibit 10.11
TERMINATION AND RELEASE AGREEMENT
TERMINATION AND RELEASE AGREEMENT, dated as of February 7,
2003 (this "Agreement"), by and between ANCHOR GLASS CONTAINER CORPORATION, a
Delaware corporation (the "Borrower"), and ABLECO FINANCE LLC, as agent for the
Lenders referenced below (in such capacity, the "Agent").
W I T N E S S E T H :
WHEREAS, the Borrower, the Agent and the financial
institutions from time to time party thereto (the "Lenders") are parties to a
Term Loan Agreement, dated as of August 30, 2002 (the "Loan Agreement");
WHEREAS, the obligations of the Borrower to the Lenders in
respect of the Loan Agreement and the other Loan Documents (the "Obligations")
are secured pursuant to the terms of the Loan Agreement and the other Loan
Documents (as defined in the Loan Agreement); and
WHEREAS, the Borrower has advised the Agent that on the Payoff
Date (as hereinafter defined) the Borrower expects to satisfy in full in cash
all of the Obligations and liabilities under and in respect of the Loan
Agreement; and
NOW, THEREFORE, in consideration of the premises and
agreements herein and the payment of the Obligations, the Agent and the Borrower
hereby agree as follows:
1. Capitalized terms used herein that are defined in the
Loan Agreement and not otherwise defined herein are used herein as defined
therein.
2. Subject to (a) the payment of all amounts referred to
in Section 6 hereof, and (b) the understanding that the provisions of the Loan
Agreement and the other Loan Documents that survive the repayment of the
Obligations shall remain in full force and effect, the Agent (on behalf of
Lenders) acknowledges the satisfaction of all Obligations. For the avoidance of
doubt, the survival of certain provisions of the Loan Agreement and the other
Loan Documents shall have no effect on the Agent's release, pursuant to Section
3(b) below, of any lien, security interest or other charge or encumbrance in
favor of the Agent arising under the Loan Agreement and the other Loan
Documents.
3. Without recourse and without any representation or
warranty of any kind, subject to Section 7 hereof, (a) the Agent (on behalf of
the Lenders) hereby terminates the Loan Agreement and the other Loan Documents
(subject to any provision therein providing for the survival thereof), (b) the
Agent (on behalf of the Lenders) hereby terminates and releases any and all
liens, security interests or other charges or encumbrances in favor of the Agent
now or hereafter arising under the Loan Agreement or the other Loan Documents,
and (c) the Borrower hereby releases the Agent and the Lenders and any of their
assignees, participants, officers, directors, members, affiliates, advisors,
attorneys, agents and employees from any duty, liability, obligation or
claim (if any) of any nature whatsoever arising under, or in connection with,
the Loan Agreement or the other Loan Documents or any other related agreement,
instrument or document.
4. Subject to Section 7 hereof, the Agent (on behalf of
the Lenders):
(a) hereby authorizes the Borrower to file UCC-3
termination statements in respect of the UCC-1 financing statements previously
filed by the Agent against the Borrower in connection with the Loan Documents,
without representation, warranty, or recourse to the Agent or the Lenders and at
the sole cost and expense of the Borrower;
(b) agrees, within three Business Days following
the Payoff Date to deliver to the Borrower or its designee: (i) any lien,
releases, mortgage releases, re-assignments of trademarks, copyrights or
patents, discharges of security interests, and other similar discharge or
release documents (and if applicable, in recordable form) as are reasonably
necessary to release, as of record, the security interests, financing
statements, and all other notices of security interests and liens previously
filed by the Agent with respect to the Obligations, (ii) originals of all stock
certificates held by the Agent as Collateral for the Obligations, accompanied by
any stock powers executed in connection therewith, and (iii) return to the
Borrower the originals of any and all promissory notes previously delivered to
the Agent in connection with the Loan Documents, duly marked "paid in full" or
"cancelled" (or with written authorizations to so xxxx such documents after the
Payoff Date actually occurs) as may be appropriate.
(c) will, at the reasonable request of the
Borrower, execute such additional instruments and other writings, and take such
other action, as the Borrower may reasonably request to effect or evidence the
satisfaction of the Obligations, the termination of the effectiveness of the
Loan Agreement, the other Loan Documents or any instruments executed pursuant
thereto, or the release of any liens, security interests or other charges or
encumbrances in favor of the Agent now or hereafter arising under the Loan
Agreement or the other Loan Documents, but, in each case, without representation
or warranty, or recourse to the Agent or the Lenders and at the sole cost and
expense of the Borrower.
5. This Agreement shall be binding on and shall inure
to the benefit of the Agent, the Borrower and their respective successors and
assigns.
6. If payment of the Obligations is made no later than
12:00 noon, New York City time, on February 7, 2003, by a wire transfer of
immediately available funds to the Agent, the aggregate outstanding amount of
the Obligations will be $20,346,666.67, subject to adjustment as set forth in
this Section 6 (as so adjusted the "Payout Amount") consisting of:
(i) $20,000,000 in respect of unpaid principal
outstanding under the Loan Documents (assuming no further loans or repayments
are made);
(ii) $46,666.67 in respect of accrued and unpaid
interest on such unpaid principal amount, assuming no changes in applicable
interest rates and no changes in the outstanding principal amount (the per diem
accrual of such interest being $7,777.77 per day); and
(iii) $300,000 representing the prepayment premium
payable by the Borrower to the Agent pursuant to the Loan Documents;
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If the assumptions set forth above with respect to the
calculation of the principal and interest components of the Payout Amount are
not correct, the Agent will so advise the Borrower and notify the Borrower in
writing on or before the Payoff Date of the adjusted figure for the Payout
Amount, reflecting the appropriate changes in the amounts of principal and
interest.
7. The effectiveness of this Agreement is subject to the
condition precedent that the Agent or the Agent's counsel, as applicable, shall
have received (a) full payment of the Payout Amount by wire transfer of
immediately available funds in accordance with the wire transfer instructions
set forth on Annex A attached hereto, and (b) counterparts of this Agreement
duly executed by the Borrower (the date on which the foregoing conditions shall
first be satisfied herein called the "Payoff Date"). If the Payoff Date does not
occur on or prior to February 7, 2003, then this Agreement shall automatically
terminate.
8. The Borrower acknowledges that the amounts referred
to in Paragraph 6 above are enforceable obligations of it owed to the Agent and
the Lenders pursuant to the provisions of the Loan Documents and confirms its
agreement to the terms and provisions of this letter by returning to the Agent a
signed counterpart of this letter. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which shall be deemed to be an original, but all of which taken together
shall constitute one and the same agreement. Delivery of an executed counterpart
of this Agreement by telefacsimile shall be equally effective as delivery of an
original executed counterpart of this Agreement.
9. The Agent hereby acknowledges that a copy of this
Agreement is being delivered to the Revolving Loan Agent and agrees that the
Revolving Loan Agent and the Revolving Loan Lenders and their respective
successors and assigns may rely hereon.
10. This Agreement shall be governed by and construed in
accordance with the law of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date first above written.
AGENT:
ABLECO FINANCE LLC
By: /s/ Xxxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
BORROWER:
ANCHOR GLASS CONTAINER CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
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