Exhibit 2.2
WAIVER AGREEMENT
This WAIVER AGREEMENT is made and entered into as of February 5,
1997, by and between ANCHOR GLASS CONTAINER CORPORATION, a Delaware corporation
("Anchor") and CONSUMERS PACKAGING INC., a corporation organized under the
federal laws of Canada ("Consumers").
WITNESSETH:
WHEREAS, Anchor has entered into an Asset Purchase Agreement with
Consumers and Xxxxx-Xxxxxxxx Glass Container Inc., a Delaware corporation
("OI"), dated as of December 18, 1996 (the "Asset Purchase Agreement") with
respect to the sale by Anchor to Consumers and OI of substantially all of the
assets of Anchor on the terms and conditions specified in the Asset Purchase
Agreement, which Asset Purchase Agreement has been approved by order of the
United States Bankruptcy court for the District of Delaware (the "Bankruptcy
Court") which has jurisdiction over the Bankruptcy Case filed by Anchor, as
debtor, pursuant to Chapter 11 of the Bankruptcy Code (Capitalized terms used
herein but not otherwise defined herein shall have the same meanings given them
in the Asset Purchase Agreement);
WHEREAS, pursuant to Section 2.01(i) of the Asset Purchase Agreement
Anchor agreed to transfer and assign to Consumers and OI, and Consumers and OI
agreed to purchase from Anchor, among other things, all of Anchor's right, title
and interest in, to and under all leases of real property used or owned or held
for use in the Business;
WHEREAS, pursuant to Section 2.03(ii) Consumers and OI agreed to
assume all liabilities and obligations of Anchor arising from and after the
Closing Date under all Included Contracts (such definition including all rights
under leases relating to the Purchased Assets or the Business);
WHEREAS, notwithstanding the provisions of Sections 2.01(i) and
2.03(ii) of the Asset Purchase Agreement, Consumers desires not to purchase from
Anchor its rights under the six leases of real property described on Schedule A
annexed hereto (the "Leases") and Anchor is willing to waive the obligations of
Consumers to purchase the Leases and assume Anchor's liabilities and obligations
thereunder in exchange for the payment of cash and issuance of securities of New
Anchor as described herein;
NOW, THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, Anchor and Consumers hereby agree as follows:
1. WAIVER. Notwithstanding anything to the contrary contained in the
Asset Purchase Agreement, Anchor hereby waives, and releases Consumer from, the
obligation to purchase Anchor's right, title and interest in, to and under the
Leases and assume Anchor's liabilities and obligations under the Leases. In
furtherance of the foregoing, as between Anchor and Consumers, the Purchased
Assets to be acquired by Consumers pursuant to the Asset Purchase Agreement
shall not include Anchor's right, title and interest in, to and under the Leases
and (ii) the Assumed Liabilities to be assumed by Consumers pursuant to the
Asset Purchase Agreement shall not include Anchor's liabilities and obligations
under the Leases.
2. CONSIDERATION. (a) In consideration of the foregoing waiver by
Anchor, Consumers hereby agrees to pay to Anchor at the Closing under the Asset
Purchase Agreement, in addition to the Purchase Price provided for therein, (i)
the amount of $595,000 in cash plus (ii) an additional 3,320 shares of Series A
10% Cumulative Convertible Preferred Stock of New Anchor and 898 shares of Class
A Common Stock of New Anchor (collectively, the "Additional Shares"). The
Additional Shares shall have rights, privileges and preferences identical to the
Shares to be issued to Anchor pursuant to the Asset Purchase Agreement.
(b) The parties hereto acknowledge that the consideration provided for
in paragraph 2(a) hereof was predicated on the assumption that the allowed
claims of the lessors under the Leases pursuant to Section 502(b)(6) of the
Bankruptcy Code would aggregate $1,083,385 (the "Base Amount"). If the actual
aggregate allowed claims of such lessors under the Leases (the "Actual Claims")
exceed the Base Amount for any reason, Consumers agrees to pay to Anchor,
promptly upon the determination of such allowed claims by order of the
Bankruptcy Court, additional consideration for the foregoing waiver by Anchor
equal to 64.6% of the amount by which the Actual Claims exceed the Base Amount
(the "Additional Consideration"). Such Additional Consideration, if any, shall
be paid (i) 85% in cash, (ii) 11.9% by issuance of additional shares of Series A
10% Cumulative Convertible Preferred Stock of New Anchor valued for such purpose
at $25 per share and (iii) 3.1% by issuance of additional shares of Common Stock
of New Anchor valued for such purpose at $24.50 per share. Any shares of New
Anchor issued pursuant to clauses (ii) and (iii) of the preceding sentence shall
be deemed to have been issued and shall be dated as of the Closing Date under
the Asset Purchase Agreement.
3. ASSIGNMENT TO NEW ANCHOR. Prior to the Closing, Consumers shall
have assigned to New Anchor all of its rights under this Waiver Agreement and
shall have caused New Anchor to assume all of the liabilities and obligations of
Consumers hereunder. Such assignment and assumption shall not relieve Consumers
of its liabilities and obligations under this Waiver Agreement.
4. GOVERNING LAW, ETC. This Waiver Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to the conflicts of law rules of such State. The provisions of Sections 13.11
(Consent to Jurisdiction) and 13.12 (Waiver of Jury Trial) of the Asset Purchase
Agreement shall be applicable to this Waiver Agreement as though fully set forth
herein.
IN WITNESS WHEREOF, each party has caused this Waiver Agreement to be
executed by its duly authorized representative as of the date first written
above.
ANCHOR GLASS CONTAINER CORPORATION
By: /s/ Xxxx X. Xxxxx III
Name: Xxxx X. Xxxxx III
Title: Vice President
CONSUMERS PACKAGING INC.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Chairman and Chief Executive
Officer
SCHEDULE A
Name Address City/State Zip Acres/Sq Rent Term
.Ft. Per
mth
Portland 0000 X. Xxxxxx, XX 00000 220,000 $ 11/31/01
Xxxx 00xx Xx. 72,000
Xxx-Xxx, 0000 X. Xxxxx, XX 00000 varies $ mth
Inc. 54th St. 2,333 to
mth
St. Louis 410 Manchester, 63011 1830
Sales Xxxxxxxxx XX
Xxxxxx Xxxxx Xxx.
0
Xxxx 0000 Soscol Xxxx, XX 00000 0000
Xxxxx Xxx., Xxx
Xxxxxx 204
Pleasanton 0000 X. Xxx Xxxxxxxxxx, 00000 1940
Sales Positas, XX
Xxxxxx Xxx 000
Xx Xxxxx 0 Xx Xxxxx, 00000 0000
Xxxxx Xxxxxxxxxxxx XX
Xxxxxx Xx., Xxx
000
