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Exhibit 10.24
SUPPLY AGREEMENT
This SUPPLY AGREEMENT (this "Agreement") is made as of the 5th day of
February, 1997, by and between ANCHOR GLASS ACQUISITION CORPORATION, a Delaware
corporation, with offices at 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx, Xxxxxxx 00000
("SUPPLIER"), and XXXXX-XXXXXXXX GLASS CONTAINER INC., a Delaware corporation,
with offices at One XxxXxxx, Xxxxxx, Xxxx 00000 ("PURCHASER").
WITNESSETH:
WHEREAS, PURCHASER, Consumers Packaging Inc., a corporation organized
under the federal laws of Canada and the corporate parent of SUPPLIER, and
Anchor Glass Container Corporation, a Delaware corporation ("Anchor"), have
entered into an Asset Purchase Agreement dated as of December 18, 1996 (as
amended, the "Asset Purchase Agreement"), pursuant to which, as of the date
hereof, PURCHASER is purchasing the OI Assets and SUPPLIER is purchasing
substantially all of the assets of the Business (other than the OI Assets) and
Anchor is selling, assigning, transferring and delivering the OI Assets to
PURCHASER and substantially all of the assets of the Business (other than the OI
Assets) to SUPPLIER (as those terms are defined in the Asset Purchase
Agreement); and
WHEREAS, certain products related to the portion of the Business being
acquired by PURCHASER have been manufactured, packaged and supplied using assets
of the Business not among the OI Assets; and
WHEREAS, PURCHASER desires to have SUPPLIER manufacture, package and
supply PURCHASER with such products for resale by PURCHASER; and
WHEREAS, SUPPLIER is willing to do so under the terms and conditions
hereinafter set forth; and
WHEREAS, PURCHASER'S willingness to consummate the transactions
contemplated by the Asset Purchaser Agreement are conditioned upon and dependent
upon SUPPLIER entering into this Agreement;
NOW, THEREFORE, in consideration of these presents and the covenants,
agreements and stipulations hereinafter set forth, the parties agree as follows:
1. DEFINITIONS
1.1 "Product(s)" shall mean the glass containers produced at SUPPLIER's
plants conforming to the Specifications.
1.2 "Specifications" shall mean such specifications for the Product as
are described below and otherwise from time to time proposed by Coors and agreed
to by PURCHASER and SUPPLIER.
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1.3 "Coors" shall mean Coors Brewing Company, a Colorado corporation,
to which PURCHASER is reselling the Products.
2. MATERIALS
Packaging shall be in accordance with normal industry standards, unless
specific packaging requirements are provided to SUPPLIER by PURCHASER and agreed
to by SUPPLIER. Said agreement shall not be unreasonably withheld.
3. PRODUCTION AND PRODUCTION FORECASTS
3.1 Beginning on the effective date of this Agreement, PURCHASER will
provide SUPPLIER with PURCHASER's estimated Product requirements for the
upcoming ten (10) weeks, by item and by Coors brewery to which such items are to
be shipped.
3.2 SUPPLIER's production load plan and any subsequent changes thereto
will be subject to PURCHASER's review and approval. Said approval shall not be
unreasonably withheld. SUPPLIER agrees to minimize the number of plants
supplying PURCHASER.
3.3 PURCHASER's estimates provided pursuant to Section 3.1 shall be
revised periodically by PURCHASER with a rolling ten-week forecast of
requirements. SUPPLIER will be obligated to provided all of PURCHASER's revised
needs for Products.
3.4 SUPPLIER shall manufacture and package the Products pursuant to the
requirements set forth in PURCHASER's shipping instructions. Such shipping
instructions shall be firm and shall be timely filled by SUPPLIER.
3.5 All Products manufactured by SUPPLIER (including any Products
embodying Specification changes mutually agreed upon among Coors, PURCHASER and
SUPPLIER) shall qualify to Coors' reasonable satisfaction for product
compatibility and for handling and passage through the receiving, processing,
closure and distribution handling systems at each of the applicable Coors
facilities where such Products will be utilized.
3.6 Movement of finished goods from SUPPLIER's plant or warehouse to
designated locations shall be arranged by SUPPLIER in coordination with
PURCHASER. Product is to be shipped via clean trucks and trailers suitable for
transportation of glass containers and protection of their contents with respect
to integrity and quality, in keeping with good commercial practice and all
applicable laws, rules and regulations.
4. ORDERING AND DELIVERY
4.1 PURCHASER shall order Products from SUPPLIER by issuing a standard
purchase order form with a reference on the front side thereof to this
Agreement. In the event that 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.
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4.2 All Products purchased by PURCHASER pursuant to this Agreement
shall be delivered to the Coors brewery or other location specified by PURCHASER
in full truckload quantities. If requested by PURCHASER, SUPPLIER shall deliver
all Products purchaser hereunder using transport vehicles that are operated or
contracted by SUPPLIER. In addition, PURCHASER shall have the right to arrange
its own transportation of Products. If PURCHASER arrange its own transportation
of Products. If PURCHASER arranges its own transportation of Products, title and
risk of loss shall pass to PURCHASER upon the Products being loaded onto
PURCHASER's or PURCHASER's agent's truck at SUPPLIER's facility.
4.3 Upon request, SUPPLIER shall also report its inventories of
finished Product and any materials purchased or supplied by PURCHASER to
PURCHASER.
5. EQUIPMENT AND CAPACITY
SUPPLIER shall furnish, at its own cost and expense, all equipment
required by PURCHASER for manufacturing and packaging the Products in accordance
with the Specifications and in compliance with federal, state and local laws,
rules and regulations.
6. PRICES AND PAYMENT TERMS
6.1 The initial prices of Products to be purchased hereunder are set
forth on Schedule A, which is attached hereto and by this reference made a part
hereof.
6.2 Should PURCHASER backhaul Products on its own or utilize its own
designated carriers, the backhaul allowance is equivalent to the truckload rates
set forth on Schedule A and will be credited directly to PURCHASER. In order to
be entitled to the full backhaul allowance hereunder, PURCHASER must utilize
equipment that carries at least the same amount of Products as that provided
through SUPPLIER. The allowance shall be adjusted downward for smaller trailers
or for less than full truckload quantities.
6.3 All Products 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 PURCHASER for payment by the 10th day following
receipt of the invoice, with net payment due by the thirtieth day following
receipt of the invoice.
6.4 All invoices shall be accompanied by a signed copy of the outbound
xxxx of lading setting forth the relevant consignee, production codes and
quantities of each code shipped. Invoices shall be sent to PURCHASER.
6.5 SUPPLIER shall maintain and retain accurate records of production,
shipment, scrap losses, rejected raw materials, and rejected Product, as well as
other records required to be kept by applicable local, state or federal law or
as may be reasonably requested by PURCHASER. Such records shall be available to
PURCHASER for audit verification at any time during SUPPLIER's regular business
hours and shall be retained by SUPPLIER for PURCHASER's use for at least one (1)
year after completion of production with respect to any Product.
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7. QUALITY CONTROL, TESTING
7.1 SUPPLIER shall manufacture and package the Product in accordance
with the representations and warranties set forth in Section 10 and in such
fashion as to permit PURCHASER TO maintain at least a "93" rating on Coors'
vendor rating program, consistent with the practice of Anchor. SUPPLIER agrees
to permit access to its facilities so that PURCHASER may participate in Coors'
supplier certification program.
7.2 PURCHASER reserves the right to issue Specifications at any time,
delete, alter or add to any Specifications, or to issue supplementary
instructions by written notice at any time.
7.3 SUPPLIER shall store all raw materials, packaging materials and
finished Product in a clean, dry area, in a manner to prevent contamination by
foreign materials. Storage and handling shall be strictly in accordance with the
provisions of all applicable laws and the quality control programs and standards
set forth in this Section 7.
7.4 SUPPLIER shall have each shipment of raw materials and packaging
materials, whether supplied by PURCHASER or purchased by SUPPLIER, analyzed for
such matters as PURCHASER may reasonably require before any of said materials
are used in making and packaging the Product. Such analysis may be conducted
in-house or by an outside laboratory approved by PURCHASER. These tests are to
be considered routine and are to be performed at SUPPLIER's expense.
7.5 SUPPLIER shall not use any raw materials or packaging materials
that do not strictly comply with PURCHASER's instructions or applicable laws,
rules or regulations.
7.6 SUPPLIER shall perform routine in-process and finished product
checks it deems necessary to assure Product quality. These tests are to be
considered routine and are to be performed at SUPPLIER's expenses.
7.7 Product shall not be released for shipment unless it strictly
complies with the Specifications and all applicable laws, rules and regulations.
SUPPLIER shall place any noncomplying Product on hold.
7.8 Production codes for Product must be in accordance with the
Specifications. SUPPLIER shall maintain detailed records on raw and packaging
material usage, finished product records on raw and packaging material usage,
finished product production by code date and shipping of Product, so that
Product can be traced in case of a recall. SUPPLIER shall be capable of giving a
complete response to PURCHASER within twenty-four (24) hours of notification,
including the code date and location of each lot of Product still within its
direct control.
7.9 (a) Product that PURCHASER alleges does not meet the Specifications
may be rejected by PURCHASER on notice to SUPPLIER ("Rejected Product").
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(b) Rejected Product is to be stored intact by PURCHASER and made
available to representatives of SUPPLIER for inspection and testing promptly
after notification of such rejection.
(c) Should any dispute arise as to whether Rejected Product does
or does not comply with the Specifications, the parties agree to submit within
fifteen (15) days of the notice referred to in clause (a) above samples of the
Rejected Product to an independent, third party testing laboratory. The cost of
such testing shall be paid equally by the parties hereto. The decision of the
laboratory shall be binding on both parties.
(d) Any Rejected Product agreed by both parties to not comply
fully with the Specifications, or so determined by the laboratory referred to in
clause (c) above ("Unusable Product"), shall be disposed of in a manner
designated by SUPPLIER at SUPPLIER's expense.
(e) Where PURCHASER has paid in full to SUPPLIER the price for
Products so determined to be Unusable Product, SUPPLIER shall reimburse
PURCHASER for the price of such Products.
8. INSPECTION, ACCESS, AUDITS
SUPPLIER's facility shall meet or exceed all requirements established
by state, local or federal regulations, including but not limited to Good
Manufacturing Practices. Upon forty-eight (48) hours notice, PURCHASER's
personnel shall have access to SUPPLIER's facility during normal business hours
and during production of the Products for the purpose of conducting quality
inspections, and shall have access to the results of any test or audit performed
by SUPPLIER or at SUPPLIER's direction.
9. QUALITY CONTROL SAMPLES
At its own cost and expense, SUPPLIER shall collect and keep retention
samples in accordance with SUPPLIER's normal operating procedures.
10. WARRANTIES, CONFORMITY
10.1 SUPPLIER represents and warrants that the Products that it sells
pursuant to this Agreement will be produced utilizing technology that is either
in the public domain, or the exclusive property of SUPPLIER or to which SUPPLIER
has access pursuant to a valid license. SUPPLIER will indemnify PURCHASER from
any costs associated with SUPPLIER's failure to comply with this Section 10.1.
10.2 SUPPLIER expressly warrants that Products furnished to PURCHASER
pursuant to this Agreement shall be free from defects in workmanship and
materials and shall conform to PURCHASER's Specifications, standards and
tolerances in effect as of the date hereof or as revised by PURCHASER and agreed
to by SUPPLIER prior to production. SUPPLIER further warrants that all Products
sold hereunder will conform in quality and will be fit for the
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purpose for which they are intended, i.e., that they shall be commercially
acceptable containers for Coors products.
10.3 SUPPLIER represents and warrants that (1) the substances and
materials which SUPPLIER uses in connection with the manufacture of Products are
(A) permissible under all applicable federal, state, local, or foreign laws,
regulations, or rules as they may be amended from time to time and (B) neither
unsafe food additives nor adulterated nor misbranded under the Federal Food,
Drug and Cosmetic Act; and (2) that the Products manufactured from such
substances may be introduced into interstate commerce within the provisions of
Section 402 and 409 of the Federal Food, Drug and Cosmetic Act.
10.4 The above warranties shall survive acceptance of and payment for
Products by PURCHASER. SUPPLIER shall reimburse PURCHASER for any costs incurred
as a result of recalls required due to SUPPLIER's failure to comply with Section
10.1 or 10.2.
10.5 PURCHASER shall give SUPPLIER written notice of any breach of
warranty promptly after PURCHASER's discovery thereof.
10.6 SUPPLIER MAKES NO INDEMNITY, REPRESENTATION OR WARRANTY, EITHER
EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS EXCEPT FOR THE WARRANTIES AND
INDEMNITIES EXPRESSLY SET FORTH IN THIS SECTION 10 AND IN SECTION 12, AND IN NO
EVENT SHALL SUPPLIER BE LIABLE TO PURCHASER FOR SPECIAL OR CONSEQUENTIAL DAMAGES
BEYOND THOSE DAMAGES EXPRESSLY PROVIDED HEREIN.
10.7 (a) SUPPLIER warrants and represents that SUPPLIER shall comply
with all local, state and Federal labor and employment laws, including, but not
limited to Title VII as amended, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act, the Americans with Disabilities Act, the Fair
Labor Standards Acts, the Occupational Safety and Health Act of Labor Standards
Acts, the Occupational Safety and Health Act of 1979 and ERISA and any rules and
regulations relating to said acts.
(b) SUPPLIER hereby acknowledges that the qual opportunity clause
required by Executive Order 11246, as amended by Executive Order 11375, is
incorporated by reference in this contract and SUPPLIER certifies, by execution
of the contract that:
(i) no segregated facilities are maintained contrary to the
regulations under the Executive Orders;
(ii) it has developed and follows appropriate affirmative action
programs under such regulations; and
(iii) it will incorporate by reference or otherwise in its subcontracts
the equal opportunity clause and obtain assurance from its subcontractors as to
facilities and affirmative action programs.
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(c) SUPPLIER shall notify PURCHASER of any potential strike or labor
action in SUPPLIER's facility that could affect the production or shipment of
the Product.
11. INSURANCE; INDEMNIFICATION
11.1 SUPPLIER shall provide all proper safeguards and shall assume all
risks in its performance of this Agreement.
11.2 SUPPLIER agrees to and shall indemnify PURCHASER against and hold
PURCHASER harmless from any and all claims, loss, damage, causes of action,
suits and liabilities of every kind (including, but not limited to, liabilities
under applicable environmental laws, attorney's fees and expenses incurred in
the investigations, defense and settlement of any claim or suit or for the
payment of any judgment) for injuries or death of any person, and all damages to
and destruction of property by whomsoever owned including loss of use and/or
contamination thereof, resulting directly or indirectly, in whole or in part,
from the prosecution or omission of any work or obligation undertaken by
SUPPLIER or required of SUPPLIER by this Agreement, except to the extent, but
only to the extent, that such injuries, death or damages are proximately caused
by PURCHASER's or Coors' negligence. SUPPLIER shall defend PURCHASER against any
claim or litigation in connection with any injury, death, or damage cover by
SUPPLIER's indemnity at SUPPLIER's expense with counsel reasonably acceptable to
PURCHASER or, at the election of PURCHASER, shall reimburse PURCHASER for
reasonable legal fees and other costs incurred in PURCHASER's own defense of
such claims or litigation. PURCHASER shall have the right to participate in the
defense of any claims or litigation and PURCHASER shall have the right to
approve any settlement in any case over $25,000 in which SUPPLIER is obligated
to indemnify PURCHASER, which approval may not be unreasonably withheld. The
foregoing indemnity shall apply without limitation in the event of any such
injury's occurrence in connection with materials or equipment supplied by
PURCHASER.
11.3 SUPPLIER shall secure before commencing, and maintain during the
performance of its obligations under this Agreement, with insurance carriers
satisfactory to PURCHASER, the following types of insurance and minimum
coverages: (A) Comprehensive General Liability Insurance including Product
Liability with the minimum bodily injury limits of $50,000,000 each occurrence
and property damage limits of $50,000,000 each occurrence; (B) Automobile
Liability Insurance with minimum bodily injury limits of $50,000,000 each
occurrence and property damage limits of $50,000,000 each occurrence; (C)
Statutory Workmen's Compensation and Occupational Disease Disability Insurance;
(D) Employer's Liability Insurance with limits of $50,000,000 each occurrence.
SUPPLIER shall furnish to PURCHASER evidence of such insurance coverage in the
form of Certificates of Insurance, together with evidence that the insurance
carrier has assumed the liability of SUPPLIER hereunder either under a properly
executed Assumption of Contractual Liability endorsement or by a Certificate of
Contractual Liability Insurance. PURCHASER and Coors shall be named as
additional insureds on all insurance policies required of SUPPLIER hereunder.
All Certificates of Insurance shall provide that PURCHASER shall be given 30
days written notice prior to any change, substitution or cancellation prior to
the stated expiration date. Insurance policies in Items (A) and (B) above which
are secured by SUPPLIER pursuant to this Agreement shall be "occurrence" type
policies and shall not be "claims made" policies. All Certificates of Insurance
shall provide evidence of the
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type of policies being provided. Product Liability Insurance shall continue in
effect for PURCHASER's benefit for a period of two (2) years from the date of
the last delivery of Product to PURCHASER. In case of SUPPLIER's failure to
furnish said policies and/or certificates of insurance or the cancellation of
any required insurance, PURCHASER may, at its option, immediately terminate this
Agreement. SUPPLIER shall have the right to self insure for all or part of its
obligations under this Section 11.3.
11.4 SUPPLIER's representations, warranties, covenants, agreements,
indemnities and obligations in this Agreement, including, without limitation,
those contained in this Section 11 and Sections 8 and 10, shall survive and
shall not in any way be diminished, affected or deemed to be waived by
PURCHASER's acceptance of any Product or its payment therefor. No failure by
PURCHASER to conduct any test or inspection, or to give notice following any
test or inspection of any defects or non-conformities of any Product, shall
constitute a waiver of any breach by SUPPLIER of any of its representations,
warranties, covenants, agreements, indemnities or other obligations contained
herein, including, without limitation, those contained in this Section 11 and
Sections 8 and 10.
12. RELATIONSHIP OF THE PARTIES
SUPPLIER shall be deemed an independent contractor and not an agent or
employee of PURCHASER with respect to the terms and provisions of this Agreement
and neither it nor any of its employees shall in any respect act as an agent or
employee of PURCHASER. All persons employed by SUPPLIER in connection with this
Agreement are to be employees or agents or SUPPLIER and under no circumstances
shall SUPPLIER or any of its employees or agents be deemed to be employees or
agents of PURCHASER.
13. TERM, TERMINATION
13.1 This Agreement shall commence as of the date hereof and shall
remain in effect until it is terminated by PURCHASER giving not less than thirty
(30) days' prior written notice to SUPPLIER; provided, however, that this
Agreement may not be terminated by PURCHASER pursuant to this Section 13.1 for a
period of ninety (90) days after the date hereof.
13.2 Notwithstanding the foregoing, either party may terminate this
Agreement immediately on notice if:
(i) the other party suspends or discontinues its business operations,
makes any assignment for the benefit of its creditors, commences voluntary
proceedings for liquidation in bankruptcy, admits in writing its inability
to pay its debts generally as they become due or consents to the appointment
of a receiver, trustee or liquidator of the other party or of all or any
part of its property, or if there is an execution sale of a material portion
of its assets;
(ii) involuntary bankruptcy or reorganization proceedings a recommenced
against the other party or any of its properties or if a receiver or trustee
is appointed for the other party or any of its property;
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(iii) the other party files or consents to the filing of a petition for
reorganization or arrangements under the Bankruptcy Code; or
(iv) the other party fails materially to comply with any provision of
this Agreement on its part to be performed and fails to correct such failure
within thirty (30) days of the date on which such party is notified in
writing of the failure.
13.3 The continuation of any obligation of PURCHASER to purchase
Product pursuant to this Agreement shall be subject to SUPPLIER's continuing
satisfaction of SUPPLIER's obligations contained in Sections 3.1 and 3.5 and to
SUPPLIER showing continuing improvement, to the reasonable satisfaction of
PURCHASER, in SUPPLIER's level of quality, service and innovation and
maintaining quality, service and innovation at levels that meet or exceed the
levels maintained by Coors' prior supplier of Products.
13.4 Within ninety (90) days of the termination of this Agreement, for
any reason other than SUPPLIER's breach, PURCHASER shall order out any packaging
materials, labels or decorating supplies that SUPPLIER has purchased exclusively
for PURCHASER in accordance with this Agreement for the production of the
Products (or that Anchor had prior to the date hereof purchased exclusively for
the production of the Products). The amount of such materials covered shall not
exceed a quantity consistent with PURCHASER's forecasts under Section 3.3
(unless such quantity is consistent with Coors' forecasts as of the date hereof
under its previous existing supply agreement with Anchor and SUPPLIER has not
purchased any materials of the kind after the date hereof).
13.5 Upon termination of this Agreement for any reason whatsoever,
SUPPLIER shall immediately deliver to PURCHASER all Specifications, artwork, all
packaging materials purchased by PURCHASER and all other materials, supplies or
equipment provided by PURCHASER. SUPPLIER shall also deliver to PURCHASER all
Product manufactured hereunder, and shall invoice PURCHASER in accordance with
the terms hereof.
14. FORCE MAJEURE
In the event that either party's performance of its obligations under
this Agreement shall be 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 (or,
in the case of PURCHASER,
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Coors, as the case may be) continues to negotiate with such party. Either party
may, at its option, suspend delivery or receipt of Products during the period
that such cause continues, and reduce its obligation to sell or purchase
Products by the amount of suspended deliveries or receipts.
15. APPLICABLE LAW
This Agreement shall be construed in accordance with the laws of the
State of Ohio, without regard to its rules on conflicts of law.
16. NOTICE; DESIGNATION
16.1 Unless otherwise indicated herein, all notices, requests, demands
or other communications to the respective parties hereto shall be deemed to have
been given or made when deposited in the mails, registered or certified mail,
return receipt requested, postage prepaid, or by means of overnight delivery
service when delivered to such service addressed or by facsimile to the
respective party at the following address:
To PURCHASER:
Xxxxx-Xxxxxxxx Glass Container Inc.
One XxxXxxx
Xxxxxx, Xxxx 00000
Attention: X.X. Xxxxxxx
with copies to:
Xxxxx-Xxxxxxxx Glass Container Inc.
One XxxXxxx
Xxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
To SUPPLIER:
Anchor Glass Acquisition Corporation
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Chairman
with copies to:
Consumers Packaging Inc.
000 Xxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxx X. Xxxxxxxx
Chairman
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16.2 If a specific contact person is mentioned in a provision, notice
concerning the subject matter of such provision shall be directed to such
person. The address or the name of any contact person may be changed by sending
notice in the manner set forth above. Unless otherwise indicated, if no contact
person is designated for a specific function as set forth in this Agreement, the
contact person for such function shall be X.X. Xxxxxxx for PURCHASER and Xxxx X.
Xxxxxxxx for SUPPLIER.
17. ASSIGNMENT
Neither party shall assign its interest in this Agreement without the
prior written consent of the other party.
18. MODIFICATION, NONWAIVER, SEVERABILITY
18.1 Neither this Agreement nor any part hereof may be changed, altered
or amended orally. Any modification must be by written instrument signed by
parties.
18.2 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 right,
power or remedy operate as a waiver thereof.
18.3 If any provision of this Agreement is held ineffective for any
reason, the other provisions shall remain effective.
19. ENTIRE AGREEMENT; CAPTIONS; COUNTERPARTS
19.1 This Agreement contains the entire understanding of the parties,
superseding in all respects any and all prior oral or written agreements or
understandings pertaining to the subject matter hereof.
19.2 The captions herein are included for convenience of reference only
and shall be ignored in the construction or interpretation hereof.
19.3 This Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
20. CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
20.1 Each party hereto irrevocably submits to the exclusive
jurisdiction of (a) the Supreme Court of the State of New York, New York County,
(b) the United States District Court for the Southern District of New York and
(c) to the extent applicable, the United States Bankruptcy Court for the
District of Delaware for the purposes of any suit, action or other proceeding
arising out of or related to this Agreement, or any transaction contemplated
hereby
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but for no other purpose. Each party hereto agrees to commence any action, suit
or proceeding relating hereto either in the United States District Court for the
Southern District of New York or if such suit, action or proceeding may not be
brought in such court for jurisdictional reasons, in the Supreme Court of the
State of New York, New York County or, to the extent applicable, the United
States Bankruptcy Court for the District of Delaware. Each party hereto further
agrees that service of any process, summons, notice or document by U.S.
registered mail to such party's respective address set forth in Section 16.1
shall be effective service of process for any action, suit or proceeding in New
York with respect to any matters to which it has submitted to jurisdiction in
this paragraph 20.
20.2 Each party hereto irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby in (i) the Supreme
Court of the State of New York, New York County, (ii) the United States District
Court for the Southern District of New York or (iii) to the extent applicable,
the United States Bankruptcy Court for the District of Delaware, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum. SUPPLIER also hereby
irrevocably and unconditionally waives to the extent not prohibited by
applicable law, and agrees not to assert, by way of motion, as a defense or
otherwise, in any such action, suit or proceeding, any claim that it is not
subject personally to the jurisdiction of the above-named courts, that its
property is exempt or immune from attachment or execution, that the venue of any
such action, suit or proceeding brought in one of the above-named courts is
improper, or that this Agreement or the transactions contemplated hereby may not
be enforced in of by such court.
20.3 EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS
AGREEMENT, ANY OTHER DOCUMENT REFERRED TO HEREIN OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
ANCHOR GLASS ACQUISITION CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chairman and CEO
XXXXX-XXXXXXXX GLASS CONTAINER INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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SCHEDULE A
PACKAGING MEMPHIS/ELKTON GOLDEN GOLDEN
MOLD NUMBER (IF APPLICABLE) DESCRIPTION BULK $/GROSS BULK $/GROSS CASED $/GROSS
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71218 12 oz. Returnable 16.00 17.49 N/A
80735 24--carrier 7 oz. Short or Tall 9.34 10.20 11.22
812HB/812K1 24--carrier 12 oz. LNNR 11.40 12.49 14.14
812B2/812J1 24--carrier 12 oz. Convenience 9.90 10.89 12.39
812E9/812G2 24--carrier 12 oz. Zima 11.04 12.12 13.58
81614 16 oz. BB Bat 24.04 38.33 N/A
81602 16 oz. BB Bat 25.57 39.01 N/A
82206 22 oz. 19.97 21.74 N/A
82204/82205 24--carrier 22 oz Zima 19.48 21.48 22.80
83225 12--carrier 32 oz. 22.61 24.96 27.16
81611 24--carrier 16 oz .Widemouth 14.28 15.71 16.74
81611 24--partition 16 oz. Widemouth 14.28 15.71 17.80
82207 22 oz. Widemouth 19.97 21.84 N/A
83233 12-carrier 32 oz. Widemouth 24.28 26.62 28.82
83233 12--partition 32 oz. Widemouth 24.28 26.62 30.32
84020 12--carrier 40 oz. Widemouth 25.93 28.57 30.91
84020 12--partition 40 oz. Widemouth 25.93 28.57 32.78
Price for cased goods with 24 bottles include $0.65/gross for carton setup and
$0.24/gross for carrier or partition insertion
Prices for cased goods with 12 bottles include $0.75/gross for carton setup and
$0.34/gross for carrier or partition insertion.
Prices for bottles delivered to Golden have been adjusted to include incremental
freight in accordance with the Coors Supply Agreement.
Prices include 6.5% volume discount rebate.
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ANCHOR GLASS CONTAINER CORPORATION
TRANSACTION FEES
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Other Payments Required At Closing:
Change of Control Payments to Key
Executives $ 1,045,064.27
Pension Cash Payments 9,056,100.00
Rothschild Inc. 4,412,790.00
Xxxxxx Xxxxxxxx 495,237.63
White & Case 574,299.14
Title Payment Due to Xxxxxxx Title for CGC
Work 765,549.98
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Total Other Payments Required At Closing $ 16,349,041.02
Other Payments Due After Closing:
Xxxxx, Day $ 838,478.00
Xxxxxx Xxxxxxx 748,732.00
Environ 61,094.42
Towers Xxxxxx 25,530.00
American Appraisal 251,583.00
Xxxxx Xxxxx 13,950.00
Citibank (Tampa Lease Extension) 100,000.00
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Total Other Fees Due After Closing $ 2,039,367.42
BT Fees:
Revolver:
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Upfront Fee 2.25% $110,000,000.00 $ 2,475,000.00
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Agent Fee 75,000.00
Expenses 64,003.68
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Total BTCC Revolver $ 2,614,003.68
Bridge:
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Commitment Fee 1.50% $130,000,000.00 $ 1,950,000.00
Funding Fee 1.50% $130,000,000.00 1,950,000.00
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Expenses & BT Canada 125,143.46
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Total BT Bridge $ 4,025,143.46
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TOTAL CONSUMERS FUNDING
REQUIREMENT $225,497,555.58
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Consumers Sources:
Consumers Equity $ 75,000,000.00
Consumers Additional Equity 5,000,000.00
Support Payment - Additional Equity 5,000,000.00
Bridge Loan 130,000,000.00
Revolver 104,555.58
Xxxxx' Net Purchase of Inventory 4,393,000.00
Fees Paid by Consumers 6,000,000.00
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Total Sources $225,497,555.58
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ANCHOR GLASS CONTAINER CORPORATION
TRANSACTION FEES
Fees
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1. Total Purchase Price (a) $ 392,837,000.00
2. Minus Convertible Preferred (b) (46,900,000.00)
3. Minus Common (b) (12,000,000.00)
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4. Total Cash Purchase Price Before Adjustment for Closed Plants 333,937,000.00
5. Minus Xxxxx-Illinois Portion (a) (128,362,000.00)
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6. Consumers' Cash Portion Before Adjustment for Closed Plants 205,575,000.00
7. Minus Adjustment for Closed Plants (5,700,000.00)
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8. Consumers Portion After Adjustment for Closed Plants 199,875,000.00
9. Plus Extra Cash for Lease Rejections 595,000.00
----------------
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10. Total Consumers Cash Payment to Creditors $ 200,470,000.00
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PAYMENTS TO:
Minus Xxxx-Xxxxxx $ (3,000,000.00)
Coors Cure Costs (3,801,000.00)
Title Company (Xxxxxxx Title) (4,266,152.84)
Foothill (108,556,958.60)
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Xxxxx Xxxxxx (Creditors) $ 80,845,888.56
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Total Consumers Cash Payment $ 200,470,000.00
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(a) Per Xxxx Xxxx Certificate dated 1/24/97.
(b) Does not include the extra 3.320 shares of Convertible Preferred and the
898 shares of Common Stock to be issued to the Creditors for certain
lease rejections.
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