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Exhibit 10.12
EXECUTION COPY
FIRST AMENDMENT dated as of February
4, 1997 (this "Amendment"), to the Agreement
dated as of December 18, 1996 (the "Vitro
Agreement"; capitalized terms used but not
otherwise defined herein shall have the
meanings assigned to such terms in the Vitro
Agreement), between Vitro, Sociedad Anonima,
a corporation organized under the laws of
Mexico ("Vitro"), Consumers Packaging Inc.,
a corporation organized under the federal
laws of Canada ("Consumers"), and Anchor
Glass Acquisition Corporation, a Delaware
corporation ("New Anchor").
WHEREAS, Vitro is undertaking the obligations set forth in the
Vitro Agreement in part to prevent the termination of the Seller Defined Benefit
Plans (the "Plans"); and
WHEREAS, in order to avert the termination by the PBGC of the
Plans, Vitro and the PBGC have entered into a Term Sheet dated as of January 29,
1997, pursuant to which, among other things, Vitro has agreed to provide a
contingent guarantee in favor of the PBGC; and
WHEREAS, the parties hereto recognize that the non-termination
of such Plans now and in the future is part of the on-going consideration of the
Vitro Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
understandings described above and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Amendment to the Vitro Agreement. (a) The Vitro
Agreement is hereby amended by adding a new Section 27 as follows:
"27. PBGC Guarantee. Notwithstanding anything to the contrary
contained herein, if after the Closing Date, any of the Seller
Defined Benefit Plans are terminated (unless pursuant to a
successful standard termination pursuant to Section 4041(b) of
ERISA), then Vitro shall, as of the date of termination cease
to have any continuing obligations under Sections 4, 5, 6 and
7 of this Agreement and all such obligations of Vitro shall be
null and void; provided, however, to the extent that any
obligation of Vitro arising under any such Section shall have
been incurred before the date of any such termination, Vitro
shall continue to be thereunder liable to such extent;
provided further that if any of such Plans are terminated
pursuant to Section 4042(a)(4) of ERISA, such obligations
shall terminate and become null and void only upon the PBGC's
demanding payment under or asserting that it may have a right
to payment under the PBGC Agreement (as defined below) or the
PBGC's otherwise taking any action in furtherance of the
foregoing."
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(b) The Vitro Agreement is hereby amended by adding a new
Section 28 as follows:
"28. Subrogation Rights of Vitro in respect of PBGC Guaranty.
New Anchor hereby acknowledges that Vitro and its Affiliates have subrogation
rights against New Anchor with respect to any and all payments made by Vitro or
any of its Affiliates under the contingent guarantee in favor of the PBGC
pursuant to that certain Term Sheet dated as of January 29, 1997 or the
agreement entered into pursuant thereto (as the same may be amended from time to
time, the "PBGC Agreement"), and New Anchor hereby waives, and agrees not to
assert, any defenses with respect to such subrogation rights."
(c) The Vitro Agreement is hereby amended by adding a new
Section 29 as follows:
"29. Rights of Vitro in respect of Vitro Guaranty of Tampa
Lease. (a) Vitro and its Affiliates shall have the right to set off and
otherwise apply any and all amounts owed by Vitro and any such
Affiliate to New Anchor under this Agreement against any and all Losses
of Vitro or any of its Affiliates arising in respect of and all
payments made by Vitro or any of its Affiliates in respect of that
certain Guaranty Agreement dated as of March 31, 1996, among Vitro,
Citibank, N.A. and Citicorp Leasing, Inc., as amended from time to
time, or any guaranty issued in replacement or substitution therefor
(collectively, "Tampa Payments"), irrespective of whether Vitro or any
such Affiliate shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of Vitro and its
Affiliates under the foregoing sentence are in addition to other rights
and remedies (including, without limitation, other rights of set-off)
that Vitro or any such Affiliate may have.
(b) In addition to the rights set forth in paragraph (a)
above, if New Anchor fails to reimburse Vitro or any of its Affiliates
in respect of any Tampa Payments within 30 business days after demand
therefor, Vitro and its Affiliates shall, as of such date, cease to
have any continuing obligations under Sections 4, 5, 6 and 7 of this
Agreement and all such obligations of Vitro and any such Affiliate
shall be null and void; provided, however, to the extent that any
obligation of Vitro or any such Affiliate arising under any such
Section shall have been incurred before such date, Vitro and any such
Affiliate shall continue to be thereunder liable to such extent."
SECTION 2. Vitro Agreement; Terms. Except for the amendments
expressly entered into pursuant to this Amendment, the Vitro Agreement shall
continue in full force and effect in accordance with the provisions thereof on
the date hereof. This Amendment shall apply and be effective only with respect
to the provisions of the Vitro Agreement specifically amended or modified
hereby. As used in the Vitro Agreement, the terms "Agreement", "this Agreement",
"herein", "hereinafter", "hereunder", "hereto" and words of similar import shall
mean from and after the date hereof unless the context otherwise specifically
requires, the Vitro Agreement as amended or modified by this Agreement.
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SECTION 3. Applicable Law. This Amendment shall be governed by
and construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed entirely within such State,
without regard to conflicts of law principles of such State.
SECTION 4. Counterparts. This Amendment may be executed in one
or more counterparts, all of which shall be considered one and the same
Amendment, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to the other parties.
SECTION 5. Headings. The headings of this Amendment are for
the purposes of reference only and shall not limit or otherwise affect the
meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the date first written above.
VITRO, SOCIEDAD ANONIMA,
by
/s/ Xxxx Xxxxxxx Xxxxx
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Name: Xxxx Xxxxxxx Xxxxx
Title: Chief Financial Officer
CONSUMERS PACKAGING INC.,
by
/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chief Executive Officer
ANCHOR GLASS ACQUISITION
CORPORATION,
by
/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chief Executive Officer
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