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Exhibit 10.41
SUPPLY AGREEMENT
This Agreement ("Agreement") is entered into, effective as of the 17th day
of June, 1996 ("Effective Date") by and between THE XXXXX BREWERY COMPANY, an
Arizona corporation ("Buyer"), and ANCHOR GLASS CONTAINER CORPORATION, a
Delaware corporation ("Seller").
RECITALS
A. Buyer has entered into an Asset Purchase Agreement, dated as of April
1, 1996 (the "Asset Purchase Agreement") with Xxxxxxxx Holding Company ("HHC"),
X. Xxxxxxxx Brewing Company, Inc. ("GHB"), and the subsidiaries of GHB listed on
Schedule A attached hereto (the "Xxxxxxxx Subsidiaries"), pursuant to which
Buyer will purchase the following (the "Xxxxxxxx Assets"):
all of the assets and business of HHC, GHB and the Xxxxxxxx
Subsidiaries (collectively, the "Transaction Sellers"), excepting
only the capital stock of the Xxxxxxxx Subsidiaries
(such purchase under the Asset Purchase Agreement being herein referred to as
the "Transaction").
B. Buyer has provided a copy of the Asset Purchase Agreement to Seller.
C. Seller has agreed to provide funds to Buyer for the purpose of
assisting Buyer to complete the Transaction, and Buyer has agreed to purchase
bottles from Seller, all upon the terms and conditions herein provided.
OPERATIVE TERMS
In consideration of the premises and the mutual promises and covenants set
forth below, and for other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Cash Payment by Seller. In order to enable Buyer to purchase the
Xxxxxxxx Assets, Seller shall pay to Buyer, subject to adjustments as provided
herein, TWENTY-THREE MILLION AND NO/100 DOLLARS ($23,000,000.00) ("Cash
Payment"), as follows:
(a) on July 1, 1996, ("Xxxxxxxx Closing Date"), Seller shall pay to
Buyer TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) upon Seller's receipt of
the "Xxxxxxxx Closing Certificate" (as defined below).
(b) on December 31, 1997, Seller shall pay to Buyer SIX MILLION AND
NO/100 DOLLARS ($6,000,000.00); and
(c) on December 31, 1998, Seller shall pay to Buyer SEVEN MILLION AND
NO/100 DOLLARS ($7,000,000.00).
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Except as expressly provided in this Agreement, Buyer shall not be entitled to
receive any interest on any unpaid part of the Cash Payment.
As used in this Agreement, the term "Xxxxxxxx Closing Certificate" shall
mean a certificate signed by any two or more of Xxxxxxx X. Xxxxx, as President
of Buyer, Xxxxxxxxxxx X. Xxxxxxxx, as Senior Vice President (Finance) and Chief
Financial Officer of Buyer, and Xxxxxx X. Xxxxx, as Senior Vice President,
General Counsel and Secretary of Buyer, dated the date of the Xxxxxxxx Closing
and in precisely the form of Schedule B attached hereto.
2. Xxxxxxxx Closing. The closing of the Transaction ("Xxxxxxxx Closing")
shall occur on the Xxxxxxxx Closing Date in the offices of Simpson, Thacher &
Xxxxxxxx in New York, New York.
3. Representations and Warranties of Buyer. Buyer represents and warrants
to Seller that:
(a) the Xxxxxxxx Assets include on the date hereof, and shall
include on the Xxxxxxxx Closing Date, (i) the breweries and other plants
identified in Schedule C attached hereto; and (ii) all the products and product
names owned by or used by the Transaction Sellers and all rights associated
therewith, including without limitation, all intellectual property rights;
(b) on the Xxxxxxxx Closing Date, Buyer shall be the sole owner of
all the Xxxxxxxx Assets;
(c) the financial statement delivered to Seller for Buyer dated
March 31, 1996 is true and complete, as of its date and in all material respects
on the Xxxxxxxx Closing Date, and Buyer is solvent on the date hereof;
(d) the financial statement delivered to Seller for GHB dated
December 31, 1995 is, to the best of Buyer's knowledge, true and complete, as of
its date;
(e) the pro forma financial statement delivered to Seller for Buyer,
after acquisition of the Xxxxxxxx Assets, dated May 2, 1996, is identical to the
pro forma financial statement delivered by Seller to Xxxxxx Guaranty Trust
Company of New York ("Xxxxxx") in connection with the making of the loans
described in the Credit Agreement to be executed on or about the date of the
Xxxxxxxx Closing ("Credit Agreement"), among Buyer, The Xxxxx Companies, Inc.
("Xxxxx, Inc.") certain lending banks named therein, and Xxxxxx as agent;
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(f) after consummation of the acquisition by Buyer of the Xxxxxxxx
Assets, neither Buyer nor any "Affiliate of Buyer" (as defined below) will have
any obligation or commitment, oral or written, to purchase bottles or other
glass containers from any person or entity except (i) obligations to Seller
pursuant to this Agreement, (ii) the existing, unfulfilled, portion of Buyer's
obligations assumed from Xxxxxxxx to other vendors to purchase no more than ***
gross bottles in calendar year 1996, a portion of which obligations were
fulfilled before the date hereof; (iii) obligations existing as of the date
hereof to other vendors to purchase no more than *** gross bottles in calendar
year 1997, *** gross bottles in calendar year 1998, *** gross bottles in
calendar year 1999, *** gross bottles in calendar year 2000, and *** gross
bottles in calendar year 2001, and (iii) incidental bottles purchased by Buyer
for its own use and not for packaging, resale or distribution by Buyer.
As used in this Agreement, the term "Affiliate of Buyer" shall mean each
subsidiary of Buyer, each entity in which Buyer has a majority interest or
voting control, each entity owning, either directly or indirectly, an equity
interest in Buyer, and each entity succeeding Buyer by operation of law or
following a merger or sale of Buyer's stock or assets. Buyer shall ensure that,
during the term hereof, no Affiliate of Buyer shall, individually or in the
aggregate, purchase Bottles from vendors other than Seller unless Buyer is
entitled under this Agreement to purchase such Bottles directly from such other
vendors.
4. Purchase and Sale.
(a) Commencing on the date of the Xxxxxxxx Closing, Seller will sell
to Buyer and Buyer will purchase from Seller bottles and glass containers
produced at Seller's plants ("Bottles"), conforming in all material ways to the
"Specifications" (as defined below). At all times during the term of this
Agreement, subject to the conditions expressly set forth herein, Buyer shall
purchase from Seller one hundred percent (100%) of Buyer's total requirement for
bottles and other glass containers, excluding only (i) bottles supplied by other
vendors which currently have valid, enforceable contracts with Buyer, subject to
the limits specified in Sections 3(f) and 5 of this Agreement, (ii) bottles
supplied by other vendors pursuant to valid, enforceable contracts with entities
acquired by Buyer or an Affiliate of Buyer (by way of asset purchase, stock
purchase, merger, or otherwise) after the date hereof, but only to the extent
that such contracts were not created with the express or implicit consent of
Buyer in contemplation of the acquisition and only to the extent that Buyer is
obligated by law or under the terms of such contracts, or required as a
condition to the acquisition by Buyer, to assume and perform the obligations of
such other entity after the date of such acquisition, and (iii) bottles
purchased by Buyer in accordance with Sections 4(e) and 4(f) of this Agreement.
(b) Buyer acknowledges that Seller's agreement to pay the Cash
Payment is made in consideration of Buyer's agreement to purchase 100% of
Buyer's requirements for Bottles, as provided herein. Buyer expects to purchase
Bottles in the following amounts for each calendar year ("Expected Purchases"),
which amounts reflect Buyer's current requirements and its expected future
requirements but not necessarily its actual future requirements:
*** Confidential treatment requested pursuant to Rule 406.
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Calendar Year Number of Gross of Bottles
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1996 4.6 Million(1) (excluding
Bottles purchased by Xxxxxxxx
before the Xxxxxxxx Closing Date)
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1997 *** Million
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1998-2001 *** Million
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2002-2011 *** Million
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(1) Which amount will be (A) adjusted downward by any amount by which
actual sales to other vendors under Section 3(f)(ii) in 1996 is
below *** million gross as of the date of the Xxxxxxxx
Closing, and (B) adjusted upward by any amount by which actual sales
to other vendors under Section 3(f)(ii) in 1996 is above *** million
gross as of the date of the Xxxxxxxx Closing.
If Buyer purchases less than the Expected Purchases in any calendar year as a
result of Buyer's insolvency, or as a result of the packaging of bottles by an
Affiliate of Buyer, or as a result of a sale of stock or assets by Buyer or a
merger or other corporate reorganization of Buyer, the Cash Payment shall be
adjusted or repaid to Seller, on an equitable basis, to compensate Seller for
the loss of expected business.
(c) On or before September 30 of each year, Buyer shall provide to
Seller, in writing, an estimate of Buyer's bottle requirements, by item, size
and brewery location, for the upcoming calendar year, and, thereafter, Buyer
shall notify Seller, in writing, of any revision to such estimate, each such
revision to be effective on the first day of the second calendar month after the
notice (such estimate, as so revised and as otherwise modified from time to time
by written agreement between Seller and Buyer, is referred to herein as the
"Estimate of Requirements"), by item, by brewery for the upcoming calendar year.
If an estimate is not provided to Seller by any September 30 for the upcoming
calendar year, the most recent prior Estimate of Requirements will be effective
on January 1 of such calendar year.
(d) As used herein, the term "Specifications" shall mean the written
specifications previously provided to Seller by Buyer for the Bottle types and
sizes described in Schedule D attached hereto and the written specifications
hereafter provided to Seller by Buyer and mutually agreed upon by Seller and
Buyer for Bottle types and sizes hereafter desired by Seller.
(e) If Seller is unable to provide sufficient Bottles to satisfy
Buyer's requirements, Seller shall notify Buyer as to the number or type, if
any, of Bottles that Seller elects not to provide, and Buyer will have the right
until further notice from Seller to purchase from other sources the number of
Bottles, which, together with the Bottles supplied by Seller, is sufficient to
satisfy such requirements. Thereafter, upon notice from Seller that it will
provide sufficient Bottles to satisfy
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such requirements, Buyer shall, as soon as possible under the circumstances,
resume purchasing Bottles from Seller to the extent required under Section 4(a)
of this Agreement.
If Seller fails to provide Bottles in material compliance with the
Specifications, Buyer shall so notify Seller in writing, and Seller shall
exercise reasonable efforts to otherwise correct such noncompliance within a
reasonable time under the circumstances, but in any event within sixty (60) days
after Buyer's written notice. If Seller fails to timely correct such
noncompliance as required under this Section 4(e), Buyer will have the right
until the noncompliance is corrected to purchase from other sources the number
of Bottles, which, together with the Bottles supplied by Seller, is sufficient
to satisfy the Buyer's requirements. Thereafter, upon Seller's correction of the
noncompliance, Buyer shall, as soon as possible under the circumstances, resume
purchasing Bottles from Seller to the extent required under Section 4(a) of this
Agreement.
(f) ***
(i) ***
(ii) ***
(iii) ***
*** Confidential treatment requested pursuant to Rule 406.
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(iv) A failure by Buyer to timely provide any notice permitted
under this Section 4(f) will be deemed for all purposes to constitute a
waiver of Buyer's right to provide such notice.
(v) Notwithstanding the rights of Buyer in this Section 4(f)
to purchase Bottles from sources other than Seller, it is the intention of
the parties that Seller will become the sole source of Bottles for Buyer.
The parties shall exercise good faith efforts to effectuate such
intention.
(g) ***
5. Buyer's Covenants.
(a) Except as expressly permitted herein, neither Buyer nor any
Affiliate of Buyer may purchase bottles or other glass containers during the
term hereof from any vendor other than Seller (individually, an "Other Vendor",
and, collectively, the "Other Vendors").
(b) If Buyer or any Affiliate of Buyer enters into any "co-packing"
agreement or other arrangement, partnership or agreement ("Co-Packing
Agreement"), Buyer or such Affiliate of Buyer shall exercise reasonable, good
faith efforts to (i) permit Buyer to have the right, under such Co-Packing
Agreement, to purchase Bottles or to designate the supplier of Bottles, and (ii)
ensure that the net effect of all such Co-Packing Agreements, taken together,
does not result in a reduction of Bottles purchased from Seller. Additionally,
if, under the terms of any Co-Packing Agreement, Buyer or any Affiliate of Buyer
has the right to purchase bottles or to designate the supplier of bottles, then
Buyer shall not permit the purchase of bottles thereunder from any Other Vendor,
except to the extent that any such purchase is otherwise permitted under this
Agreement.
(c) Buyer and each Affiliate of Buyer shall terminate as soon as
possible its obligations and commitments to all Other Vendors (including,
without limitation those Other Vendors described in Section 4(a)(ii) hereof, but
excluding Other Vendors from whom Buyer is expressly authorized to purchase
under Sections 4(e) and 4(f) hereof), provided, however, that Buyer and the
Affiliates of Buyer will not be obligated, in connection with any such
termination, to breach any such obligations and commitments. In order to
accomplish such terminations, Buyer shall diligently provide notice of
termination as may be required or permitted under any contract with any such
Other Vendor.
(d) The amount of bottles and other glass containers purchased by
Buyer from all Other Vendors (excluding Other Vendors from whom Buyer is
expressly authorized to purchase under Section 4(e) and 4(f) hereof) during any
calendar year shall not exceed the amounts specified in the foregoing Section
3(f) for any calendar year.
(e) Neither Buyer nor any Affiliate of Buyer shall purchase from any
Other Vendor (excluding Other Vendors from whom Buyer is expressly authorized to
purchase under
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Sections 4(e) and 4(f) hereof) any size or type of bottle which is not currently
being supplied by, or required to be supplied by, such Other Vendor to Buyer
under a valid and enforceable contract with such Other Vendor.
(f) Buyer shall cause each Affiliate of Buyer to comply in all
respects with the provisions of this Agreement pertaining to such Affiliate of
Buyer. Additionally, if Buyer has an equity interest in any entity which is not
an Affiliate of Buyer, Buyer shall exercise reasonable good faith efforts to
cause such entity to comply with the provisions of this Agreement pertaining to
the Affiliate of Buyer.
6. Term. The initial term of this Agreement shall commence effective as of
the Effective Date and continue until June 30, 2011. The term of this Agreement
shall be extended automatically for additional terms of two (2) years each,
unless, at least six (6) months prior to the end of a term, one party has
delivered to the other party a notice of termination of this Agreement.
7. Prices
(a) The initial prices of Bottles to be purchased hereunder are set
forth on Schedule D attached hereto and incorporated herein by reference. Such
prices are effective through March 31, 1997, and shall be adjusted thereafter as
set forth in this Section 7. Prices for new products shall be determined by
mutual agreement as and when such new products are introduced.
(b) During the first (1st) calendar quarter of 1997, Seller shall
present to Buyer data, in the form set forth in Schedule E, for the purpose of
establishing Bottle prices for the period beginning April 1, 1997 and ending
December 31, 1997 ("Partial Year"). Such data will identify the average
annualized changes (for the twelve month period ending March 31, 1997) in the
primary glass production cost components at Seller's plants, weighted as shown,
using April 1, 1996 as the base calculation date and will identify, as the "%
increase/decrease in Bottle prices," an amount equal to *** percent *** of the
"total effect" on component cost. Except as provided in Sections 7(f) and (g)
below, Bottle prices for the Partial Year shall be adjusted upward or downward,
as appropriate, by the "% increase/decrease in Bottle prices".
(c) During the fourth (4th) calendar quarter of 1997, Seller shall
present to Buyer data, in the form set forth in Schedule E, for the purpose of
establishing Bottle prices for the period beginning January 1, 1998 and ending
December 31, 1998 ("First Full Year"). Such data will identify the average
annualized changes (during the nine-month period ending December 31, 1997) in
the primary glass production cost components at Seller's plants, weighted as
shown, using April 1, 1997 as the base calculation date and will identify, as
the "% increase/decrease in Bottle prices", an amount equal to *** percent ***
of the "total effect" on component cost. Except as provided in Sections 7(f) and
(g) below, Bottle prices for the First Full Year shall be adjusted upward or
downward, as appropriate, by the "% increase/decrease in Bottle prices".
(d) During the fourth (4th) calendar quarter of each year during the
term of this Agreement, beginning in 1998 (including any extended term), Seller
shall present to Buyer data, in the form set forth in Schedule E, for the
purpose of establishing Bottle prices for the calendar year beginning on the
next succeeding January 1. Such data will identify the average annualized
changes
*** Confidential treatment requested pursuant to Rule 406.
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(during the twelve month period ending on December 31 of the year the data is
given) in the primary glass production cost components at Seller's plants,
weighted as shown, using the preceding January 1 as the base calculation date
and will identify, as the "% increase/decrease in Bottle prices", an amount
equal to *** percent *** of the "total effect" on component cost. Except as
provided in Sections 7(f) and (g) below, Bottle prices for the following
calendar year shall be adjusted upward or downward, as appropriate, by the "%
increase/decrease in Bottle prices".
(e) Buyer shall have the right to have an audit of Seller's records
performed by Buyer's independent accountants for the limited purpose of
verifying the correctness of the data and the calculations shown in each
Schedule E submitted to Buyer. Buyer recognizes that such records are the
confidential, proprietary information of Seller, and Buyer shall take such steps
as are reasonably necessary to ensure that no information or data from such
records is revealed to any person or entity except Buyer's accountants and
employees of Buyer who have a business need to know such information and who
have agreed to maintain the confidentiality of such records.
(f) If Seller's marginal income from the sale of Bottles under this
Agreement deteriorates for two successive years during the term hereof as a
result of market conditions, component costs or production costs over which
Seller has no effective control, Buyer shall reasonably consider a reasonable
increase in prices as necessary to restore Seller's marginal income from such
sales.
(g) It is the intention of the parties that Buyer shall not become
economically disadvantaged, relative to other purchasers from Seller, as a
direct result of the prices determined pursuant to the foregoing Sections 7(a) -
(f). Accordingly, an alternative adjustment in price shall be made as follows
for any product:
(i) if Seller sells substantially the same product at
substantially the same annual volume to another purchaser and Seller has
agreed to make an adjustment in the price to that purchaser for the same
period, which adjustment (expressed as a percentage of the price for that
product for the previous period) is more favorable than the adjustment to
Buyer as computed under the foregoing Sections 7(b) - (d). In such case,
the price for such product to Buyer shall be adjusted downward by the same
percentage as the price for such product was adjusted to the other
purchaser for the same period.
(ii) if Seller sells substantially the same product at a
different volume to another purchaser and Seller has agreed to make an
adjustment in the price to that purchaser for the same period, which
adjustment (expressed as a percentage of the price for that product for
the previous period) is more favorable than the adjustment to Buyer as
computed under the foregoing Sections 7(b) - (d). In such case, the price
for such product to Buyer shall be adjusted downward equitably by Seller
based on the relative costs to, and volumes purchased by, Buyer and the
other purchaser.
The price of all other products purchased by Buyer shall be adjusted as provided
in the foregoing Sections 7(b) - (d). Buyer acknowledges that the data for the
computations required by this Section 7(g) is largely confidential and may not
be disclosed by Seller. For purposes of determining the accuracy of such
computations, Buyer shall rely solely on summary information provided by Seller
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and Seller's good-faith obligation to adjust prices hereunder in an accurate,
timely manner, and Buyer shall not have the right to receive data supporting any
adjustments made hereunder.
8. Payment Terms. All Bottles sold pursuant to this Agreement shall be
invoiced upon shipment with payment terms of "1% Ten/Net 30 days," i.e., a one
percent discount will be taken by Buyer for payment by the 10th day following
receipt of the invoice, with net payment due by the thirtieth day following
receipt of the invoice.
9. Ordering and Delivery. Buyer shall order Bottles from Seller by issuing
annually a standard purchase order form with a reference on the front side
thereof to this Agreement. In the event there are any inconsistencies between
the terms and conditions stated on the preprinted purchase order and the terms
and conditions of this Agreement, the provisions of this Agreement shall govern.
10. Packaging. Packaging shall be in accordance with normal industry
standards, unless specific other packaging requirements are mutually agreed upon
by Seller and Buyer.
11. Force Majeure. In the event that either party's performance of its
obligations under this Agreement are delayed or prevented as a result of any
law, decree, order or regulation, either local, state or federal, or in the
event of such delay or prevention of performance as a result of any riots, war,
public disturbances, strikes, fires, floods, acts of God, accidents of
navigation, failure of delivery of raw material, or for any other reason
(whether or not of the same class or kind as set forth above), which occurrence
was not within the control of the party whose performance has been affected and
which, by the exercise of reasonable diligence, that party could not have
reasonably prevented or avoided, then such party's failure to perform shall be
excused and such party shall not be subject to any liability for its failure to
perform its obligations hereunder; provided that the party whose performance has
been affected takes all reasonable action to remove the occurrence which has
prevented or delayed its performance as expeditiously as possible. The
requirement that any such Force Majeure be removed as quickly as possible shall
not require the settlement of strikes or labor controversies by acceding to the
demands of the opposing party or parties to the extent that the party whose
performance has been affected continues to negotiate with such party. Either
party may, at its option, suspend delivery or receipt of Bottles during the
period that such cause continues.
12. Warranties
(a) In lieu of all other warranties whether express or implied,
Seller hereby expressly warrants that the Bottles sold to Buyer hereunder shall
be materially free from defects in the workmanship and materials; shall conform
in material respects to the Specifications as may be amended by agreement from
time to time; and in any case shall be suitable for use as containers for
Buyer's beverages. These warranties shall survive acceptance and payment by
Buyer. Seller specifically disclaims all other warranties, including without
limitation all implied warranties of merchantability and fitness for a
particular purpose.
(b) Seller shall not be liable to Buyer, or to any other party, to
the extent that Seller reasonably establishes that claims have resulted from (i)
faulty crowns, or (ii) the failure of Buyer (or any other person, other than a
person engaged or otherwise hired by Seller, from time to
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time having control or custody of allegedly defective Bottles) to exercise in
accordance with the customary good commercial practice of the trade the proper
degree of care in conveying, warehousing, inspecting, using, packing,
distributing, or storing filled or unfilled Bottles.
(c) Nothing in this Agreement shall be construed to impose upon
Seller liability (i) for consequential damages of any kind, such as lost profits
or lost business, or (ii) for damages and expenses attributable to acts or
omissions of Buyer, its employees or agents, or any parties other than Seller or
its agents or employees.
13. Waiver. No failure or delay on the part of either party in exercising
its right, power or remedy under this Agreement shall operate as a waiver of
such right, power or remedy nor shall any single or partial exercise of any such
right, power or remedy operate as a waiver thereof.
14. Termination. This Agreement may be terminated by either party prior to
the expiration of the initial term of this Agreement or any renewal thereof for
breach of a material provision of this Agreement by either party, provided the
party alleging the breach gives the other party a written notice setting forth
the nature of such breach, and said other party shall have ninety (90) days from
receipt of such notice to cure the breach. If said other party has not secured
the breach within said ninety-day period, this Agreement may be terminated
immediately by the party alleging the breach. Disputes regarding any breach
hereof or the curing of any such breach will be resolved in accordance with
Section 19 hereof.
15. Effect of Termination. In the event of termination of this Agreement
by either party pursuant to the provisions of Section 14 above, Buyer shall be
required to take delivery and pay for all Bottles previously ordered from Seller
unless the notice of termination by Buyer states that such Bottles do not meet
the Specifications therefor. Also, upon termination of this Agreement for any
reason, Seller shall have no further obligation to pay to Buyer any part of the
Cash Payment, and buyer shall immediately repay to Seller any part of the Cash
Payment previously paid by Seller which exceeds the product of (a) $4,200.91,
multiplied by (b) the number of days after the Xxxxxxxx Closing Date when the
termination occurred.
16. Notices. Any notices or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been given if
personally delivered or sent by certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to Buyer, to: The Xxxxx Brewery Company
000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Vice President in Charge
of Purchasing
With a copy, at the same address, to the attention of Buyer's General
Counsel;
If to Seller, to: Anchor Glass Container Corporation
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
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Attention: Senior Vice President,
Beer Industry
With a copy to: Carlton, Fields, Xxxx, Xxxxxxxx,
Xxxxx & Xxxxxx, P.A.
Xxx Xxxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Xx.
or to such other address as may hereafter be furnished by the respective party
by notice to the other party in the manner required above. Such notice or
communication shall be deemed to have been effected and received as of the date
personally delivered, or if mailed, three (3) days after the date so mailed.
17. Entire Agreement. This Agreement, including the attached Schedules and
any purchase orders issued by Buyer pursuant to this Agreement, contains the
entire agreement between the parties with respect to the matters covered hereby,
and there are no other agreements, written or oral, with respect to such matters
except as set forth herein. This Agreement may be amended only by a writing duly
executed by each of the parties. This Agreement supersedes all prior agreements
between Buyer and Seller with respect to the sale and purchase of Bottles.
18. Assignability. Neither this Agreement nor any right or obligation
arising hereunder shall be assigned by either party hereto without the prior
written consent of the other party (which consent shall not be unreasonably
withheld) except that the parties agree that no such consent shall be necessary
if either party hereto is a party to a merger or consolidation which results in
the rights and obligations hereunder being transferred, by operation of law, to
a successor company.
19. Dispute Resolution. If the parties hereto are unable to resolve a
disagreement or reach agreement concerning any dispute on any matter, the
parties or either party may refer the matter for good-faith resolution to the
Chief Executive Officers of the parties or other individuals holding comparable
executive positions and who have applicable decision-making authority ("CEO's").
Within 20 days after referral to the CEO's, the CEO's shall meet at a mutually
acceptable time and place to exchange relevant information and attempt to
resolve the disagreement. Resolution of the disagreement by the CEO's shall be
final and binding on the parties.
20. Captions. The captions of the various sections of the Agreement have
been inserted only for the purpose of convenience of reference. Such captions
are not a part of this Agreement and shall not be deemed in any manner to
modify, explain or restrict any provisions of this Agreement.
21. Limit of Authority. Both parties are independent contractors and this
Agreement does not constitute either party as the legal representative of the
other for any purpose whatsoever. Neither party has authority under this
Agreement to assume or create any obligation whatsoever, expressed or implied,
on behalf or in the name of the other party, nor to bind the other in any manner
whatsoever.
22. Confidentiality. Neither party shall, without the written consent of
the other party, disclose the terms or content of this Agreement to any other
person or entity, except employees and
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agents of the party as necessary for the performance or enforcement of this
Agreement, institutions to whom the party has applied for financing, and others
upon the order or demand of any court, tribunal or governmental agency.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.]
THE XXXXX BREWERY COMPANY ANCHOR GLASS CONTAINER CORPORATION
By: /s/ X. X. Xxxxx By: /s/Xxxxxxx Xxxxx Xxxxxxx
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Name: X.X. Xxxxx Name: Xxxxxxx Xxxxx Xxxxxxx
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Title: Senior Vice President Title: President
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Date: June 17, 1996 Date: June 18, 1996
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx Xxxxxx
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Chairman of the Board
Date: June 18, 1996
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SCHEDULE A
XXXXXXXX SUBSIDIARIES
Blitz-Weinherd Brewing Company
Carling National Brewing Company, Inc.
Xxxxxxxxx Xxxxxxx Brewing Company
GHB Souvenir Sales, Inc.
Xxxxxxxx Air Services, Inc.
Xxxxxxxx Brewing Company, Inc.
Xxxxxxxx Export Marketing, Inc.
HBC Leasing Company, Inc.
Lone Star Brewing Company, Inc.
Rainier Brewing Company, Inc.
15
SCHEDULE B
CERTIFICATE
This Certificate has been given by The Xxxxx Brewery Company, an Arizona
corporation, to Anchor Glass Container Corporation, a Delaware corporation,
pursuant to Section 2 of the Supply Agreement dated June 17, 1996 between Xxxxx
and Anchor ("Supply Agreement"). Capitalized terms that are used but not defined
herein will have the meanings ascribed to them in the Supply Agreement.
Buyer hereby certifies to Seller that, upon delivery by Seller to Buyer of
the portion of the Cash Payment due upon the Xxxxxxxx Closing Date, (A) the
Xxxxxxxx Closing will be consummated and complete, subject to no conditions or
contingencies; (B) Buyer will own all the Xxxxxxxx Assets, free of any claims by
Xxxxxxxx, any trustee in bankruptcy for Xxxxxxxx, any creditors of Xxxxxxxx or
any other person or entity, excepting only (i) the liens securing loans to Buyer
in the aggregate amount $250,000,000.00, as evidenced by the Credit Agreement
dated on or about the date of the Xxxxxxxx Closing among Buyer, Xxxxx, Inc.,
certain subsidiaries of Buyer, certain lending banks named therein, and Xxxxxx
Guaranty as agent and (ii) other liens existing in the ordinary course of
Buyer's business; (C) the sale of the Xxxxxxxx Assets to Buyer on the Xxxxxxxx
Closing Date will be permitted by the United States Bankruptcy Court for the
District of Delaware; (D) Buyer will have the full right to produce, bottle and
distribute all the products currently produced, bottled or distributed by the
Transaction Sellers; and (E) all Buyer's representations and warranties in the
Supply Agreement are true and complete on the date of the Xxxxxxxx Closing.
THE XXXXX BREWERY COMPANY
By:
-----------------------------
By:
-----------------------------
16
SCHEDULE C
XXXXXXXX BREWERIES AND OTHER PLANTS
La Crosse, Wisconsin,
Baltimore, Maryland,
San Antonio, Texas,
Seattle, Washington,
Portland, Oregon,
Perry, Georgia
17
SCHEDULED
FY97
FY97 ANCHOR PRICING Rev 3 6/6/97
PKG XXXXX P.O. Dividing Standard
DESCRIPTION CODE PART # MOULD PRICE PRICE/GR Unit Cost
--------
*** *** *** *** *** *** *** ***
*** Confidential treatment requested pursuant to Rule 406.
Schedule D - Page 1
18
FY97
Rev 3 6/6/97
FY97 ANCHOR PRICING
PKG XXXXX P.O. Dividing Standard
DESCRIPTION CODE PART # MOULD PRICE PRICE/GR Unit Cost
--------
*** *** *** *** *** *** *** ***
*** Confidential treatment requested pursuant to Rule 406.
Schedule D - Page 2
19
FY97
Rev 3 6/6/97
FY97 ANCHOR PRICING
PKG XXXXX P.O. Dividing Standard
DESCRIPTION CODE PART # MOULD PRICE PRICE/GR Unit Cost
--------
*** *** *** *** *** *** *** ***
*** Confidential treatment requested pursuant to Rule 406.
Schedule D--Page 3
20
FY97
Rev 3 6/6/97
FY97 ANCHOR PRICING
PKG XXXXX P.O. Dividing Standard
DESCRIPTION CODE PART # MOULD PRICE PRICE/GR Unit Cost
--------
*** *** *** *** *** *** *** ***
*** Confidential treatment requested pursuant to Rule 406.
Schedule D--Page 4
21
FY97
Rev 3 6/6/97
FY97 ANCHOR PRICING
PKG XXXXX P.O. Dividing Standard
DESCRIPTION CODE PART # MOULD PRICE PRICE/GR Unit Cost
--------
*** *** *** *** *** *** *** ***
*** Confidential treatment requested pursuant to Rule 406.
Schedule D--Page 5
22
FY97
Rev 3 6/6/97
FY97 ANCHOR PRICING
PKG XXXXX P.O. Dividing Standard
DESCRIPTION CODE PART # MOULD PRICE PRICE/GR Unit Cost
--------
*** *** *** *** *** *** *** ***
*** Confidential treatment requested pursuant to Rule 406.
Schedule D - page 6
23
FY97
Rev 3 6/6/97
FY97 ANCHOR PRICING
PKG XXXXX P.O. Dividing Standard
DESCRIPTION CODE PART # MOULD PRICE PRICE/GR Unit Cost
--------
*** *** *** *** *** *** *** ***
*** Confidential treatment requested pursuant to Rule 406.
Schedule D - page 7
24
FY97
Rev 3 6/6/97
FY97 ANCHOR PRICING
PKG XXXXX P.O. Dividing Standard
DESCRIPTION CODE PART # MOULD PRICE PRICE/GR Unit Cost
--------
*** *** *** *** *** *** *** ***
*** Confidential treatment requested pursuant to Rule 406.
Schedule D - page 8
25
SCHEDULE E
Primary Cost Components
***
*** Confidential treatment requested pursuant to Rule 406.
