EXHIBIT 10.28
THIRD AMENDMENT TO SUPPLY AGREEMENT
THIS THIRD AMENDMENT TO SUPPLY AGREEMENT (the "Amendment") is made and
entered into as of this 28th day of April, 1995, by and between DEL MONTE
CORPORATION, a New York corporation ("DM"),and SILGAN CONTAINERS CORPORATION, a
Delaware corporation ("Seller").
B A C K G R O U N D
A. DM and Seller are parties to a Supply Agreement made and entered into
as of September 3, 1993, as amended by an amendment made and entered into as of
December 21, 1993 and a Second Amendment made and entered into as of May 10,
1994 (the "Second Amendment") (as amended, the "Supply Agreement").
B. Subject to the terms and conditions of this Amendment, the parties
desire to further amend the Supply Agreement.
THE PARTIES AGREE AS FOLLOWS:
ARTICLE I
DEFINITIONS
Any terms used in this Amendment without definition shall have the
meanings set forth in the Supply Agreement.
ARTICLE II
CONSIGNMENT ENDS
The Supply Agreement is hereby amended by adding the following as ARTICLE
XX to the Supply Agreement immediately following ARTICLE XIX thereof in full
substitution of Article XX as added by the Second Amendment:
ARTICLE XX
CONSIGNMENT ENDS
In order to alleviate Seller's shortage of storage space during each
Supply Year hereunder, the parties agree that Seller may ship Ends on
consignment (the "Consignment Ends") to the DM Facilities (other than
Modesto, Plymouth, Crystal City and Mexico) during the period and up to
the amounts set forth in the schedule attached as Exhibit 20 hereto.
Exhibit 20 will be amended monthly by Seller and DM to reflect actual and
projected quantities of Consignment Ends for each Facility, and DM may
refuse to store additional Consignment Ends at any Facility. Seller will
send DM a xxxx of lading marked "Consignment Xxxx of Lading" for all
Consignment Ends shipped to a Facility at the time of shipment. DM shall
store such Consignment Ends at the Facilities in a commercially reasonable
manner mutually agreed to by the parties in order to protect such
Consignment Ends from deterioration or damage. DM shall also store such
Consignment Ends separate and segregated from DM's assets and inventory.
Upon receipt by DM of the Consignment Ends DM shall promptly inspect the
Consignment Ends to determine compliance
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with specifications (including diameter), condition and quantity and
thereafter DM shall promptly provide Seller with an acknowledgement of
receipt of the Consignment Ends. Risk of loss for Consignment Ends that
conform to specification shall pass from Seller to DM upon delivery by DM
of such acknowledgement to Seller. Title to Consignment Ends shall remain
with Seller until, and shall pass to DM upon, the date of usage by DM of
such Consignment Ends. DM shall notify Seller of the commencement of
packing at any Facility of the primary product produced at such Facility
(the "Primary Pack Notice"). After receipt of the Primary Pack Notice,
Seller shall send a Payment Invoice for 10% of the Consignment Ends at
such Facility on the Monday after the first full week of packing at such
Facility as determined by the Pack Notice and for 10% of such Consignment
Ends at such Facility on each of the nine succeeding Mondays. DM shall
notify Seller of any change in the primary product produced at any
Facility. The parties hereto agree that DM shall first use all Consignment
Ends at a Facility (including all Consignment Ends held from a prior
packing season as provided below) prior to using any other Ends of the
same specification at such Facility. DM shall notify Seller of the
conclusion of the packing season at each Facility, and Seller shall
promptly thereafter inspect such Facility to determine the amount, if any,
of unused Ends at such Facility. Seller shall issue a
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credit against amounts owed by DM to Seller pursuant to the Agreement for
the amount of any full pallets of unused Ends that have not been damaged,
and DM shall hold such unused Ends on consignment in accordance with the
terms of this paragraph and pay for such Ends when used in the subsequent
packing season. DM hereby agrees to execute and deliver to Seller any
financing statements or other documents as shall be reasonably requested
by Seller to evidence the consignment contemplated by this paragraph.
ARTICLE III
REAFFIRMATION
The parties hereby reaffirm all of the other terms and conditions of the
Supply Agreement, including without limitation Sections 3.4 (Working Capital)
and 3.7 (Return of Nonconforming Containers. This Amendment amends the Supply
Agreement only to the extent specified herein and shall not constitute an
amendment to any other provision of the Supply Agreement. From and after the
date hereof, all references to the Supply Agreement in the Supply Agreement and
other documents referred to therein shall be references to the Supply Agreement
as amended hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly signed and delivered as of the date that appears in the first paragraph of
this Amendment.
DEL MONTE CORPORATION
By: /s/ XXXXXX X. XXXXXXX
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Its: Sr. VP & Treasurer
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SILGAN CONTAINERS CORPORATION
By:
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Its: V.P. Sales/Mkt.
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