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EXHIBIT 10.27
ASSURANCE AGREEMENT
The undersigned are entering into this Assurance Agreement (the
"Assurance Agreement"), dated as of February 5, 1997, in respect of the
Technical Assistance and License Agreement, dated December 18, 1996 (the
"License Agreement"), between Xxxxx-Xxxxxxxx Glass Container Inc. ("Xxxxx") and
Consumers Packaging Inc. ("Consumers") pursuant to which Anchor Glass
Acquisition Corporation ("New Anchor") is a Licensee Group Member. All
capitalized terms not otherwise defined herein are used as defined in the
License Agreement as in effect on the date hereof.
1. Security Interest. Xxxxx acknowledges and agrees to the
granting on the date hereof by New Anchor of a security interest in the License
Agreement to Bankers Trust Company, as agent (the "Agent") for the lenders under
the Senior Credit Agreement, dated the date hereof (the "Credit Agreement"),
among New Anchor, the Agent and such lenders, and to BT Commercial Corporation,
as agent (the "Revolver Agent") for the lenders under the Credit Agreement,
dated the date hereof (the "Revolving Credit Agreement"), among New Anchor, the
financial institutions named therein, the Revolver Agent, Bankers Trust Company
and PNC Bank, and, subject to the terms and conditions of the License Agreement
and this Assurance Agreement, the exercise by such parties of their rights as
secured creditors in respect of the License Agreement. Xxxxx also agrees to the
granting of a security interest in the License Agreement to the trustee (a "New
Anchor Indenture Trustee") under an indenture (a "Refinancing Indenture") for
any notes secured by property, plant and equipment of New Anchor issued to
refinance borrowings under the Credit Agreement or to the trustee (a "Consumers
Indenture Trustee") under an indenture (a "Consumers Indenture") for the notes
to be issued by Consumers or a subsidiary secured by property, plant and
equipment of Consumers at or near the date of issuance of the notes under the
Refinancing Indenture, and, subject to the terms and conditions of the License
Agreement and this Assurance Agreement, the exercise by such parties of their
rights as secured creditors in respect of the License Agreement. The Agent, the
Revolver Agent, the New Anchor Indenture Trustee, the Consumers Indenture
Trustee and the holders of loans or notes under the Credit Agreement, the
Revolving Credit Agreement, a Refinancing Indenture or a Consumers Indenture are
referred to as the "Secured Parties."
2. Notice and Cure. Xxxxx shall deliver to the Agent, the
Revolving Agent, the Indenture Trustee and the Consumers Trustee (but only so
long as the relevant loans or notes are outstanding), concurrently with delivery
to any member of Licensee Group, copies of any default notices given by Xxxxx
pursuant to the License Agreement. The Secured Parties shall have the right to
cure any such default during the cure periods specified in the License Agreement
and, if during any such cure period a Secured Party has given Xxxxx notice of
its intention to foreclose on the License Agreement, during an additional period
of 30 days beyond the cure periods specified in the License Agreement. In the
event that (i)(A) any such default relates to actions or failures to act by
members of Licensee Group other than New Anchor or its subsidiaries or (B) the
relevant Secured Parties cure any such default relating to actions or failures
to act by New Anchor or its subsidiaries and (ii) Xxxxx exercises any right to
terminate the License Agreement, Xxxxx shall, at the request of New Anchor (or
after foreclosure on the License Agreement by any Secured Party in accordance
with, and subject to, the provisions of paragraph 3 of this
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Assurance Agreement, such Secured Party), grant to New Anchor and its
subsidiaries that are members of Licensee Group a license to use the Technical
Information (including, without limitation, Licensed Patents and Licensed Trade
Secrets) in accordance with the terms set forth in Section 22 of the License
Agreement. In the event that (i) (A) any such default relates to actions or
failures to act by New Anchor or its subsidiaries or (B) the relevant Secured
Parties cure any such default relating to actions or failures to act by
Consumers and its subsidiaries (excluding New Anchor and its subsidiaries) that
are members of Licensee Group and (ii) Xxxxx exercises any right to terminate
the License Agreement, Xxxxx shall, at the request of Consumers (or after
foreclosure on the License Agreement by any Secured Party in accordance with,
and subject to, the provisions of paragraph 3 of this Assurance Agreement, such
Secured Party) grant to Consumers and such subsidiaries a license to use the
Technical Information (including, without limitation, Licensed Patents and
Licensed Trade Secrets) in accordance with the terms set forth in Section 22 of
the License Agreement. Each of the Agent, the Revolving Agent, the Indenture
Trustee and the Consumers Trustee shall notify Xxxxx at such time as the
relevant loans or notes in connection with which they are acting as agent or
trustee have been repaid.
3. Foreclosure and Sale. The ownership of the capital stock or
plants of Consumers or its subsidiaries (including New Anchor and its
subsidiaries) or the operation of any plant of Consumers or its subsidiaries
(including New Anchor and its subsidiaries) by any Secured Party shall not
constitute a default or require the consent of Xxxxx under the License Agreement
(or any replacement thereof made pursuant to paragraph 2 of this Assurance
Agreement), and such Secured Parties may continue to use the Technical
Information (including, without limitation, the Licensed Patents and the
Licensed Trade Secrets) at such plants in accordance with, and subject to the
terms of, the License Agreement (or a replacement thereof entered into pursuant
to Section 22 of the License Agreement); provided, that such Secured Party is
neither a Customer nor a Manufacturer. The sale or other disposition of the
capital stock or plants of Consumers or its subsidiaries (including New Anchor
and its subsidiaries) by a Secured Party, whether in connection with or
subsequent to a foreclosure of such Secured Party's security interest in the
License Agreement, shall be subject to, and consummated in accordance with, the
terms and conditions of the License Agreement, including, without limitation,
Sections 21 and 22 thereof.
4. Notices. All notices shall be sent to:
Xxxxx at One Xxxxxxx, Xxxxxx, Xxxx 00000, Attention: General Counsel
Consumers at 000 Xxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxx, Xxxxxx,
Attention: Xxxx X. Xxxxxxxx
New Anchor at One Anchor Plaza, 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx, Xxxxxxx
00000, Attention: Xxxx X. Xxxxxxxx
The Agent, Bankers Trust Company, Xxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxx Xxxxxxx
The Revolver Agent, BT Commercial Corporation, 00 Xxxx Xxxxxx, Xxx Xxxx
Xxxx 00000, Attention: Xxxxx Xxxxxxx
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The New Anchor Indenture Trustee and the Consumers Indenture Trustee
shall provide their notice addresses to Xxxxx upon becoming parties to
this Assurance Agreement.
5. Additional Parties. The New Anchor Indenture Trustee and the
Consumer Indenture Trustee shall be entitled to become parties to this Assurance
Agreement on the dates of the Refinancing Indenture and the Consumers Indenture.
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6. Governing Law. This Assurance Agreement shall be construed
according to and governed by the laws of the State of Ohio.
XXXXX-XXXXXXXX GLASS CONTAINER INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
CONSUMERS PACKAGING INC.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chief Executive Officer and Chairman
ANCHOR GLASS ACQUISITION CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chairman and Chief Executive Officer
BT COMMERCIAL CORPORATION, as Agent
By: /s/ Xxxx Xxxxxxxx-Keskinyon
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Name: Xxxx Xxxxxxxx-Keskinyon
Title: Senior Vice President
BANKERS TRUST COMPANY, as Agent
By: /s/ Xxxx Xxxxxxxx-Keskinyon
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Name: Xxxx Xxxxxxxx-Keskinyon
Title: Managing Director
The Bank of New York,
as New Anchor Trustee
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Assistant Treasurer
The Bank of New York
as Consumers Trustee
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Assistant Treasurer
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