SUB-DISTRIBUTION AGREEMENT
AGREEMENT, made as of the 15th day of September, 2005, by and between
Capital Beverage Corporation, a Delaware corporation with offices located at 000
Xxxxxxxx Xxxxxx, Xxxx Basin, Building # 302, Brooklyn, New York 11231
("Capital", "Seller" and/or "Distributor") and Oak Beverages, Inc., a New York
corporation with offices located at Xxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000
("Oak", "Purchaser", and/or "Subdistributor").
W I T N E S S E T H:
WHEREAS, Distributor is engaged in the business of distributing beverage
products including distributing Pabst Products (the "Products") pursuant to the
current "Pabst Brewing Company Distributor Agreement" ("Distribution Agreement")
between the Pabst Brewing Company ("Pabst" and/or "Supplier") and the
Distributor. The Products are the Products described in Section 1.0 of the
Distribution Agreement and listed on Exhibit "A" to the Distribution Agreement.
The exclusive territory (the "Territory") is the Territory described in Section
3.0 of the Distribution Agreement and further described in Exhibit "B" to the
Distribution Agreement. (A copy of the Distribution Agreement is annexed hereto
as Schedule "A").
WHEREAS, the Distribution Agreement requires the prior written consent of
Supplier to Capital in order to enter into a Subdistribution Agreement;
WHEREAS, Distributor and Oak have entered into a certain asset purchase
agreement dated the date hereof (the "Asset Purchase Agreement") concerning the
potential acquisition of the exclusive right to purchase the Products from
Supplier and market, sell and distribute same at wholesale on an exclusive basis
in the Territory (the "Exclusive Distribution Rights");
WHEREAS, the purpose of this Subdistribution Agreement is to allow Oak to
make a financial accommodation to Distributor in order to assist Distributor to
maintain its relationship with Supplier and for Oak to distribute the Products
in the Territory solely during the period from the filing of the Information
Statement with the Securities and Exchange Commission ("SEC") as set forth in
the Asset Purchase Agreement to the end of the limited term of this Agreement.
WHEREAS, Oak entered into the Letter of Intent with Capital dated April 15,
2005 ("Letter of Intent") and the negotiations for entering into a Asset
Purchase Agreement based upon Oak's belief that Distributor would continue to
market, sell and distribute the Products in the Territory and otherwise continue
to operate its business in the ordinary course;
WHEREAS, Distributor has, at its own will, scaled back its business and
operations, including the marketing, selling and distribution of the Products in
the Territory;
WHEREAS, in order to induce Oak to market, sell and distribute the Products
in the Territory, Distributor has agreed to waive any and all rights and claims
it may have against Oak and its affiliates arising from (i) Distributor's
agreement to enter into this Subdistribution Agreement or otherwise reduce or
modify the operation of its business and (ii) the hiring of any of Distributor's
employees by Oak or its affiliates (collectively, the "Waived Actions");
WHEREAS, Oak is willing to market, sell and distribute the Products in the
Territory on the terms and conditions stated herein provided that Distributor
provides waivers to Oak and its affiliates (the "Waivers") which effectively
waive any and all rights and claims Distributor may have against Oak and/or its
affiliates arising from or in connection with the Waived Actions;
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Subdistribution Arrangement. (a) The purpose of this Agreement is to
allow Oak to make a financial accommodation to Distributor in order to assist
Distributor to maintain its relationship with Supplier and for Oak to purchase
the Products and distribute the same within the Territory as a subdistributor to
the Distributor. However, it is hereby acknowledged and agreed that Oak has not
assumed nor shall Oak be liable for any obligations or liabilities arising out
of or relating to the Distribution Agreement. In distributing the Products, Oak
will comply with Pabst's established distribution procedures such as those
stated in the Distribution Agreement. The Distributor will provide Oak with
Pabst's prior express written authorization allowing Oak to act as a
subdistributor to the Distributor for the limited time period stated in this
Subdistribution Agreement.
(b) Oak may market, sell and otherwise distribute Products to any Person
located and taking delivery within the Territory in any reasonable commercial
manner not inconsistent with this Subdistribution Agreement.
(i) The parties agree that nothing contained in this Subdistribution
Agreement shall be deemed to constitute an agreement between a xxxxxx and a beer
wholesaler or an agent for a beer wholesaler or a course of dealing granting the
right to purchase, offer for sale, resale, warehouse or physically deliver beer
sold by a xxxxxx for a continuing period of time. Oak hereby waives any right to
claim pursuant to 55 (c) of the Alcoholic Beverage Control Law that it has any
continuing right to distribute the Products in the Territory after termination
of this Subdistribution Agreement or any right to be paid compensation for the
termination of this Subdistribution Agreement. Said waiver shall run to the
benefit of both the Distributor and the Supplier. In the event that either Oak
is to institute any litigation or proceeding against the Supplier or against the
Distributor pursuant to Section 55 (c) of the Alcoholic Beverage Control Law
concerning its alleged rights arising from the course of dealing under this
Subdistribution Agreement. Oak will be liable to the Supplier and/or the
Distributor for all costs, expenses and legal fees incurred by the Supplier
and/or the Distributor in defending such action or proceeding.
2. Supply. (a) Oak's rights to sell the Products in the Territory arise
pursuant to this Subdistribution Agreement. In this regard, Distributor, on
behalf of Oak, will issue purchase orders for Products requested by Oak,
representing Oak's specific requirements for Products as specified in writing by
Oak to Distributor from time to time (the "Oak Orders").
(i) The Subdistributor, Oak, agrees to pay Pabst for the Oak Orders
pursuant to this Subdistribution Agreement. In addition, during the first
forty-five (45) days from the effective date of this Subdistribution Agreement
(the "45-Day Period"), Oak will pay Capital the following amounts for Products
received by Oak in good condition, pursuant to the applicable Oak Orders: (x)
fifty ($0.50) cents per case of Products; and (y) two dollars ($2.00) per barrel
of Products. Upon the Closing of the transaction contemplated in the Asset
Purchase Agreement, the Purchase Price will be reduced by, and Purchaser will
receive a credit in, an aggregate amount equal to the sum of: twenty-five cents
($0.25) for each case of Products purchased by Oak and sold by Oak to customers
in the Territory, plus fifty cents ($0.50) for each case of Products purchased
by Oak but not sold to such customers, plus One Dollar ($1.00) for each barrel
of Products purchased by Oak and sold by Oak to customers in the Territory, plus
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Two Dollars ($2.00) for each barrel of Products purchased by Oak but not sold to
such customers, all determined during the 45-Day Period. In the event the Asset
Purchase Agreement is terminated by either party for any reason, Capital shall
promptly pay to Oak all of the credits described above in this paragraph.
(b) Subdistributor and Distributor each acknowledges that Subdistributor
will not be liable for any purchase order or other obligations or liabilities of
Distributor to Supplier except for the specific Oak Orders issued pursuant to
Oak's written instructions.
(c) During the term of this Agreement, Distributor will continue its
limited operations with respect to its business and the distribution of the
Products in the Territory, and will maintain a presence at its place of
operations and offices at the address designated in the introductory paragraph
to this Agreement.
3. Delivery, Risk of Loss and Related Matters. With respect to each
purchase order issued by Distributor pursuant to paragraph 2(a) and submitted to
Supplier, Distributor shall request that Supplier shall deliver conforming
Products directly to Oak on the delivery dates specified therein. Unless
otherwise stated in the applicable purchase order, Products ordered pursuant to
each Purchase Order shall be tendered by Supplier to Oak FOB Oak's plant plus
federal taxes paid.
4. Purchase Price and Payment Terms. (a) The price for Products ordered
pursuant to Oak Orders will be the prices currently in effect for Products sold
to Distributor for distribution in the Territory, as same may be modified by
Pabst from time to time.
(i) Nothing contained herein will prevent Pabst and Oak from mutually
agreeing to modifications of payment terms for the Oak Orders.
(b) Capital will invoice Oak for Oak Orders after the underlying Products
related to the Oak Orders are delivered to the shipping point and Oak shall pay
each invoice directly to Supplier within twenty (20) days from the date of the
invoice. In addition, at that time, during the 45-Day Period, Oak will pay
Capital the following amounts for Products received by Oak in good condition,
pursuant to the applicable Oak Orders: (x) fifty ($0.50) cents per case of
Products; and (y) two dollars ($2.00) per barrel of Products. Upon the Closing
of the transaction contemplated in the Asset Purchase Agreement, the Purchase
Price will be reduced by, and Purchaser will receive a credit in, an aggregate
amount equal to the sum of: twenty-five cents ($0.25) for each case of Products
purchased by Oak and sold by Oak to customers in the Territory, plus fifty cents
($0.50) for each case of Products purchased by Oak but not sold to such
customers, plus One Dollar ($1.00) for each barrel of Products purchased by Oak
and sold by Oak to customers in the Territory, plus Two Dollars ($2.00) for each
barrel of Products purchased by Oak but not sold to such customers, all
determined during the 45-Day Period. In the event the Asset Purchase Agreement
is terminated by either party for any reason, Capital shall promptly pay to Oak
all of the credits described above in this paragraph.
5. Term. The term of this Agreement shall be for a period commencing on the
date of the filing of the Information Statement with the SEC pursuant to the
Asset Purchase Agreement and continuing thereafter until the first of the
following to occur: (i) the closing of the transactions contemplated by the
Asset Purchase Agreement, (ii) the termination of the Asset Purchase Agreement,
(iii) Ninety (90) days from the date of this Agreement, or (iv) the earlier
termination of this Agreement.
6. Termination. (a) Subject to paragraph 7(a), Oak shall only have the
right to terminate this Agreement as follows:
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(i) in the event Distributor breaches any material provision of the
Asset Purchase Agreement or any material provision hereof and fails to cure same
within thirty (30) days after receiving written notice thereof.
(ii) if any of the following events occur, Oak shall have the right to
terminate this Agreement by giving at least ten (10) days prior written notice
thereof to Distributor:
(A) Distributor makes a general assignment for the benefit of
creditors, or consents to the appointment of a receiver, liquidator or similar
official of all or substantially all of its assets, or if a receiver is
appointed for all or a substantial portion of Distributor's assets and such
appointment is not discharged for a period of ninety (90) days; or
(B) Distributor commences an action or proceeding or takes
advantage of or files under any federal or state insolvency statutes including,
without limitation, the United States Bankruptcy code, seeking to have an order
of relief entered with respect to it, or seeking adjudication as a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or other relief with respect to its debts;
(C) there shall be commenced against Distributor any action or
proceeding of the nature referred to in the immediately preceding sub-paragraph
which is not stayed or dismissed within ninety (90) days;
(D) in the event of a conviction or plea of guilty or no contest
to a felony by Distributor or by the Controlling Shareholders of Distributor (as
defined in the Asset Purchase Agreement), which in the reasonable judgment of
Oak may adversely affect the goodwill or interests of Products in the Territory;
or
(E) in the event of the revocation or suspension for thirty-one
days or more of any license or permit required of Distributor for the normal
operation of its business; or
(F) court established fraudulent conduct on the part of
Distributor in its dealings with Oak.
7. Relationship of the Parties and Related Matters. (a) Oak's status
hereunder shall at all times be that of an independent contractor. Nothing in
this Agreement is intended, nor shall it be construed, to (i) make Distributor,
on the one hand, and Oak or any of its affiliates, on the other hand, partners
or joint venturers nor grant a right in or to any business activity or
investments of or to the income or proceeds disbursed therefrom; or (ii) create
a relationship between Supplier, on the one hand, and Oak or any of its
affiliates, on the other hand, of principal and agent or employer and employee.
Capital is only concerned with the results to be accomplished by Oak in its
marketing, distribution and sale of Products pursuant hereto; the manner and
means to be employed by Oak in achieving such results are entirely within its
own authority and control. Oak is free to, and will, schedule its own operations
and truck routing. Moreover, Oak will be operating out of a location other than
that of the Distributor, using different equipment and methods of operation and
distribution. Accordingly, the parties acknowledge and agree that the
transactions contemplated by this Agreement do not constitute a substantial
continuity of the Distributor's business or its operations.
(b) Distributor acknowledges that Oak has agreed to be subdistributor to
Capital in accordance with the terms of this Agreement solely at the request of,
and for the benefit of, Distributor. In that regard, Distributor hereby
acknowledges and agrees that neither Oak nor any of its affiliates shall be
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liable for any liabilities, direct or indirect indebtedness, guaranty,
endorsement, claim, loss, damage, deficiency, cost, expense, obligation or
responsibility, fixed or contingent, accrued or unaccrued, known or unknown,
xxxxxx or inchoate, asserted or unasserted, conditional or unconditional,
matured or unmatured, liquidated or unliquidated, secured or unsecured,
secondary or other (collectively, the "Liabilities"), which result from or arise
from the Waived Actions, whether or not the transactions contemplated under the
Asset Purchase Agreement are consummated.
8. Representations and Warranties. Pursuant to this Subdistribution
Agreement, Oak will receive the usual representations and warranties made in the
Distribution Agreement by Pabst to Capital concerning the Products purchased by
Oak to be distributed in the Territory.
9. Indemnification
(a) Capital ("Seller") hereby agrees to indemnify, protect, reimburse and
hold harmless Oak (Purchaser ), and Purchaser's affiliates, and their respective
shareholders, officers, directors, successors and assigns, and each of them
(hereinafter collectively referred to as the "Purchaser Group") from and against
any and all Damages of whatsoever kind and nature, imposed upon, incurred by or
asserted or awarded against any of the Purchaser Group directly or indirectly
arising out of, relating to or resulting from (i) any Liabilities or obligations
of Seller including, without limitation, the Seller Retained Liabilities (as
defined in the Asset Purchase Agreement); (ii) Seller's breach of any agreement,
covenant, term, condition or provision contained herein or Seller's failure to
perform any agreement, covenant, term, condition or provision on its part to be
performed hereunder; (iii) Seller's misrepresentation or breach of any
representation or warranty made by Seller hereunder as if such representation or
warranty were made both on the date hereof and as of the Closing Date, or any
misstatement or omission in any certificate, schedule, application, exhibit or
other document delivered or caused to be delivered by Seller pursuant to or in
furtherance of the transactions contemplated hereby; (iv) Seller's breach of
paragraph 8(a)(vii) of the Asset Purchase Agreement; or (v) Damages to Purchaser
caused by Seller's stockholders.
(b) A party making a claim for indemnification hereunder (hereinafter
referred to as the "Indemnified Party"), shall give the other party (hereinafter
referred to as the "Indemnifying Party") written notice of such claim within a
reasonable time from the actual discovery of same (the "Indemnification
Notice"); provided, however, that the failure to give such notice will not
relieve the Indemnifying Party from any liability that it may have to the
Indemnified Party except to the extent that the Indemnifying Party demonstrates
actual prejudice as a result thereof. Any such Indemnification Notice shall be
accompanied by a copy of documents which have been served upon the Indemnified
Party, if any.
(i) With respect to claims for indemnification relating to an action
or Proceeding of a third party, the Indemnifying Party shall, subject to the
rights of or duties to any insurer, reinsurer or other Person having liability
therefor, have the option to assume, at the Indemnifying Party's sole cost and
expense, the control of the defense of any legal proceedings, including
employment of counsel reasonably satisfactory to the Indemnified Party, provided
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each of the following conditions are satisfied (collectively, the "Defense
Conditions"): (A) the Indemnifying Party gives written notice thereof to the
Indemnified Party no later than twenty (20) days from the date of receipt of the
Indemnification Notice (the "Assumption Notice"); (B) the Indemnifying Party is
not also a party to such Proceeding and the Indemnified Party determines in good
faith that joint representation would be inappropriate; (C) the Indemnified
Party determines in good faith that joint representation would not be
inappropriate due to a conflict of interest; (D) the Indemnifying Party provides
the Indemnified Party with evidence reasonably acceptable to the Indemnified
Party that the Indemnifying Party will have sufficient financial resources to
defend against the claims raised in the Proceeding and fulfill its
indemnification obligations hereunder; (E) the claim involves only money damages
and does not seek an injunction or other equitable relief (however, if the claim
seeks equitable relief, the Indemnified Party will control, at its option, the
defense of the Proceeding at the Indemnified Party's cost), and (F) the
Indemnifying Party conducts the defense of such claim actively and diligently.
If the Indemnifying Party shall have exercised its right to assume control and
established its right to do so, the Indemnified Party may, in its sole
discretion and at its sole cost and expense, employ counsel to represent it in
addition to counsel employed by the Indemnifying Party. If the Indemnifying
Party exercises its right to assume control, it will be conclusively established
for purposes of this Agreement that the claims made in that proceeding are
within the scope and subject to indemnification. The Indemnified Party shall
cooperate with the Indemnifying Party assuming control of legal proceedings and
shall make available all pertinent information under the control of the
Indemnified Party as to such legal proceedings and shall make appropriate
personnel reasonably available for discovery and trial. In addition, in no event
will Purchaser be entitled to indemnification of any Damages incurred by it in
excess of the Purchase Price.
In the event that the Indemnifying Party shall exercise its right to
undertake control of the defense of any such legal proceedings, such
Indemnifying Party may only compromise or settle such legal proceeding on behalf
of and for the account of the Indemnified Party after it obtains the prior
written consent of the Indemnified Party; provided, however, that if the
Indemnifying Party shall receive an offer of a settlement or compromise from the
other parties in the applicable legal proceedings at a particular monetary
amount excluding Seller Creditors (as defined below), or obtain a commitment
from such parties that they would accept a compromise or settlement at such
monetary amount if offered, and such settlement or compromise requires only the
payment of such amount, the granting of an appropriate release or similar
accommodation, and no other relief, and there is (i) no finding or admission of
any violation of any Applicable Laws or any violation of the rights of any
Person and no effect on any other claims that may be made against the
Indemnified Party; (ii) the offer of settlement or compromise would not violate
the restrictions and qualifications set forth in paragraph 3(b) of the Asset
Purchase Agreement concerning use of the Increased Escrow Amount; and that (iii)
settlement of such claim is not, in the good faith judgment of the Indemnified
Party, likely to establish a precedential custom or practice adverse to the
continuing business interests of the Indemnified Party and the Indemnified Party
refuses to consent thereto and elects to continue the legal proceedings, then
the Damages of the Indemnified Party which are the subject of the applicable
legal proceedings to which the settlement or compromise relates shall be deemed
to be limited to that amount of Damages which the Indemnified Party would have
had if such compromise or settlement had been effected. For purposes hereof, the
term "Seller Creditors" means any third party asserting a claim against
Purchaser relating to Seller Retained Liabilities. In the event that the
Indemnifying Party does not exercise its option to assume control of any such
action or proceeding, then the Indemnifying Party shall nevertheless be obliged
to indemnify the Indemnified Party pursuant to the provisions hereof, and shall
promptly pay all Damages as incurred by the Indemnified Party.
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In the event any of the Defense Conditions is or becomes unsatisfied, then
(i) the Indemnified Party may defend against, and consent to the entry of any
judgment or enter into any settlement with respect to such claim in any manner
it may deem appropriate (and the Indemnified Party need not consult with, or
obtain any consent from, the Indemnifying Party in connection therewith), (ii)
the Indemnifying Party will reimburse the Indemnified Party promptly and
periodically for the costs of defending against such claim (including reasonable
attorneys' fees and expenses) in accordance with paragraph 9(c) and (iii) the
Indemnifying Party will remain responsible for any Damages the Indemnified Party
may suffer resulting from, arising out of, relating to, or caused by such claim;
and
(ii) Any claim for indemnification with respect to any matter not
related to a third party claim may be asserted by Indemnification Notice. The
claim specified in such notice shall be deemed valid and the Indemnified Party
shall be entitled to indemnification hereunder on account of such claim unless
within twenty (20) days of the Indemnifying Party's receipt of the
Indemnification Notice, the Indemnifying Party gives notice to the Indemnified
Party that it disputes the validity of such claim. In such event the dispute
will be settled in accordance with the provisions of paragraph 16(g) of the
Asset Purchase Agreement.
(c) Any and all amounts due for indemnity hereunder shall be promptly paid,
in lawful money of the United States of America, as Damages are incurred, and in
any event within thirty (30) days after written demand therefor. Payments shall
be made in accordance with the reasonable instructions of the Indemnified Party.
(d) The Indemnifying Party hereby consents to the non-exclusive
jurisdiction of any court in which a Proceeding is brought against the
Indemnified Party for purposes of any claim that an Indemnified Party may have
under this Agreement with respect to such Proceeding or the matters alleged
therein, and agrees that, in addition to any other method of service of process
available under applicable law, process may also be served on the Indemnifying
Party for any such Proceeding by facsimile and by overnight carrier, if sent to:
Xx. Xxxxxxx X. Xxxxxx
Capital Beverage Corporation
000 Xxxxxxxx Xxxxxx
Xxxx Basin, Building # 302
Brooklyn, New York 11231
-and-
Xxxxxxx X. Xxxxx, Esq.
Xxxxx & Xxxxxxxxxxx, LLP
000 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
(e) Notwithstanding the foregoing, Purchaser may not assert any claim for
indemnification by Seller until the aggregate of all claims exceeds $20,000.00,
and thereupon, Seller's obligations for indemnification of Purchaser will be in
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full force and effect for all Damages. In addition, in no event will Purchaser
be entitled to indemnification of any Damages incurred by it in excess of the
Purchase Price.
(f) The right to indemnification, payment of Damages or other remedy based
on any representations, warranties, covenants, or obligations made under this
Agreement will not be affected by any investigation conducted with respect to,
or any knowledge acquired (or capable of being acquired) at any time, whether
before or after the execution and delivery of this Agreement or the Closing
Date, with respect to the accuracy or inaccuracy of or compliance with, any such
representation, warranty, covenant, or obligation. The waiver of any condition
based on the accuracy of any representation or warranty, or on the performance
of or compliance with any covenant or obligation, will not affect the right to
indemnification, payment of Damages, or other remedy based on such
representations, warranties, covenants, and obligations.
(g) The Escrow Amount shall first be used to satisfy claims by Purchaser
for indemnification under this Section, before the other assets of Seller are
used for such purpose, subject to the following: (i) the provisions of paragraph
7 of the Asset Purchase Agreement, (ii) to the extent the Escrow Amount is
available, (iii) provided the assets of Seller or its Distribution Business are
not dissipated, and (iv) Purchaser does not deem itself to be insecure. The
Indemnifying Party shall not reduce the Escrow Amount or the Increased Escrow
Amount as payment for legal fees and expenses incurred by it in assuming the
defense of the Indemnified Party under paragraph 7 of the Asset Purchase
Agreement.
10. Miscellaneous Provisions.
(a) Notices. All notices permitted, required or provided for by this
Agreement shall be made in writing, and shall be deemed adequately delivered if
delivered by facsimile transmission and U.S. Express Mail to the following
If to Capital/Distributor:
Xx. Xxxxxxx X. Xxxxxx
Capital Beverage Corporation
000 Xxxxxxxx Xxxxxx
Xxxx Basin, Building # 302
Brooklyn, New York 11231
With a copy to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxx & Xxxxxxxxxxx, LLP
000 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
If to Subdistributor/Oak:
Xx. Xxxxx Xxxxxxx
Oak Beverages, Inc.
Xxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
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With a copy to:
Xxxxx Xxxxxxxxxx, Esq.
Ettelman & Xxxxxxxxxx, P.C.
000 Xxxxxxx Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
(b) Modification or Amendment. This Agreement may not be modified or
amended except by an instrument in writing signed by the party or parties
against whom enforcement is sought.
(c) Headings. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
(d) Invalidity of Provision. Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. Further, to the extent
that any term or provision hereof is deemed invalid, void or otherwise
unenforceable, but may be made enforceable by amendment thereto, the parties
agree that such amendment may be made so that the same shall, nevertheless, be
enforceable to the fullest extent permissible under the laws and public policies
applied in any such jurisdiction in which enforcement is sought.
(e) Governing Law. (i) All questions pertaining to the validity,
construction, execution and performance of this Agreement shall be construed and
governed in accordance with the laws of the State of New York, without giving
effect to (i) comity of nations; or (ii) principles of conflicts or choice of
law.
(ii) Any actions or proceedings commenced in connection with this
Agreement shall be brought in a federal or state court located in the state of
New York, New York County, and to the extent not otherwise subject to the
jurisdiction of such courts, each of the parties agrees to waive any objection
to such jurisdiction and to subject itself to the jurisdiction of such courts.
(f) Waiver of Breach. Any waiver of any of the provisions of this
Agreement, or of any inaccuracy in or non-fulfillment of any of the
representations, warranties or obligations hereunder or contemplated hereby,
shall not be effective unless made in writing and signed by the party against
whom the enforcement of any such waiver is sought.
(g) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which shall constitute but one and
the same instrument.
(h) Assignment Neither Capital nor Oak may assign or otherwise delegate any
of its rights or obligations hereunder without the prior written consent of the
other party, which consent will not be unreasonably withheld. Any attempted
assignment in violation of this paragraph 10 (h) shall be null and void, without
legal force or effect.
(i) Survival. The terms of this paragraph 10 (i) and paragraphs 7, 8, and 9
shall survive the termination of this Agreement.
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(j) Entire Agreement. This Agreement and the applicable purchase orders
issued by Oak pursuant hereto constitute and contain the entire agreement and
understanding between the parties, and supersede and replace all prior
negotiations and all agreements, proposed or otherwise, whether written or oral,
concerning the subject matter hereof. All exhibits attached hereto, and all
certificates, documents and other instruments delivered or to be delivered
pursuant to the terms hereof are hereby expressly made a part of this Agreement
as fully as those set forth herein, and all references herein to the terms "this
Agreement", "hereof", "hereunder", "herein", "hereby" or "hereto" shall be
deemed to refer to this Agreement and to all such writings.
(k) Capitalized Terms. Any Capitalized Term contained in this Agreement
which is not defined in this Agreement shall have the meaning as described in
the Asset Purchase Agreement.
No course of dealing, usage of trade or course of performance shall be
relevant to explain, supplement or modify any express provision of this
Agreement.
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement
to be executed and delivered by a duly authorized member or officer, as the case
may be, all on the day and year first above written.
OAK BEVERAGES, INC.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: President
CAPITAL BEVERAGE CORPORATION
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: President and Chief Executive Officer
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Schedule A
PABST BREWING COMPANY DISTRIBUTOR AGREEMENT
