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Exhibit 10.13
WAIVER AGREEMENT
This WAIVER AGREEMENT is made and entered into as of February
5, 1997, by and between ANCHOR GLASS CONTAINER CORPORATION, a Delaware
corporation ("Anchor") and CONSUMERS PACKAGING INC., a corporation organized
under the federal laws of Canada ("Consumers").
WITNESSETH:
WHEREAS, Anchor has entered into an Asset Purchase Agreement
with Consumers and Xxxxx-Xxxxxxxx Glass Container Inc., a Delaware corporation
("OI"), dated as of December 18, 1996 (the "Asset Purchase Agreement") with
respect to the sale by Anchor to Consumers and OI of substantially all of the
assets of Anchor on the terms and conditions specified in the Asset Purchase
Agreement, which Asset Purchase Agreement has been approved by order of the
United States Bankruptcy court for the District of Delaware (the "Bankruptcy
Court") which has jurisdiction over the Bankruptcy Case filed by Anchor, as
debtor, pursuant to Chapter 11 of the Bankruptcy Code (Capitalized terms used
herein but not otherwise defined herein shall have the same meanings given them
in the Asset Purchase Agreement);
WHEREAS, pursuant to Section 2.01(i) of the Asset Purchase
Agreement Anchor agreed to transfer and assign to Consumers and OI, and
Consumers and OI agreed to purchase from Anchor, among other things, all of
Anchor's right, title and interest in, to and under all leases of real property
used or owned or held for use in the Business;
WHEREAS, pursuant to Section 2.03(ii) Consumers and OI agreed
to assume all liabilities and obligations of Anchor arising from and after the
Closing Date under all Included Contracts (such definition including all rights
under leases relating to the Purchased Assets or the Business);
WHEREAS, notwithstanding the provisions of Sections 2.01(i)
and 2.03(ii) of the Asset Purchase Agreement, Consumers desires not to purchase
from Anchor its rights under the six leases of real property described on
Schedule A annexed hereto (the "Leases") and Anchor is willing to waive the
obligations of Consumers to purchase the Leases and assume Anchor's liabilities
and obligations thereunder in exchange for the payment of cash and issuance of
securities of New Anchor as described herein;
NOW, THEREFORE, in consideration of the foregoing and for good
and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, Anchor and Consumers hereby agree as follows:
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1. Waiver. Notwithstanding anything to the contrary contained
in the Asset Purchase Agreement, Anchor hereby waives, and releases Consumer
from, the obligation to purchase Anchor's right, title and interest in, to and
under the Leases and assume Anchor's liabilities and obligations under the
Leases. In furtherance of the foregoing, as between Anchor and Consumers, the
Purchased Assets to be acquired by Consumers pursuant to the Asset Purchase
Agreement shall not include Anchor's right, title and interest in, to and under
the Leases and (ii) the Assumed Liabilities to be assumed by Consumers pursuant
to the Asset Purchase Agreement shall not include Anchor's liabilities and
obligations under the Leases.
2. Consideration. (a) In consideration of the foregoing waiver
by Anchor, Consumers hereby agrees to pay to Anchor at the Closing under the
Asset Purchase Agreement, in addition to the Purchase Price provided for
therein, (i) the amount of $595,000 in cash plus (ii) an additional 3,320 shares
of Series A 10% Cumulative Convertible Preferred Stock of New Anchor and 898
shares of Class A Common Stock of New Anchor (collectively, the "Additional
Shares"). The Additional Shares shall have rights, privileges and preferences
identical to the Shares to be issued to Anchor pursuant to the Asset Purchase
Agreement.
(b) The parties hereto acknowledge that the consideration
provided for in paragraph 2(a) hereof was predicated on the assumption that the
allowed claims of the lessors under the Leases pursuant to Section 502(b)(6) of
the Bankruptcy Code would aggregate $1,083,385 (the "Base Amount"). If the
actual aggregate allowed claims of such lessors under the Leases (the "Actual
Claims") exceed the Base Amount for any reason, Consumers agrees to pay to
Anchor, promptly upon the determination of such allowed claims by order of the
Bankruptcy Court, additional consideration for the foregoing waiver by Anchor
equal to 64.6% of the amount by which the Actual Claims exceed the Base Amount
(the "Additional Consideration"). Such Additional Consideration, if any, shall
be paid (i) 85% in cash, (ii) 11.9% by issuance of additional shares of Series A
10% Cumulative Convertible Preferred Stock of New Anchor valued for such purpose
at $25 per share and (iii) 3.1% by issuance of additional shares of Common Stock
of New Anchor valued for such purpose at $24.50 per share. Any shares of New
Anchor issued pursuant to clauses (ii) and (iii) of the preceding sentence shall
be deemed to have been issued and shall be dated as of the Closing Date under
the Asset Purchase Agreement.
3. Assignment to New Anchor. Prior to the Closing, Consumers
shall have assigned to New Anchor all of its rights under this Waiver Agreement
and shall have caused New Anchor to assume all of the liabilities and
obligations of Consumers hereunder. Such assignment and assumption shall not
relieve Consumers of its liabilities and obligations under this Waiver
Agreement.
4. Governing Law, etc. This Waiver Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York, without
regard to the conflicts of law rules of such State. The provisions of Sections
13.11 (Consent to Jurisdiction) and 13.12 (Waiver of Jury Trial) of the Asset
Purchase Agreement shall be applicable to this Waiver Agreement as though fully
set forth herein.
IN WITNESS WHEREOF, each party has caused this Waiver
Agreement to be executed by its duly authorized representative as of the date
first written above.
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ANCHOR GLASS CONTAINER CORPORATION
By: /s/ Xxxx X. Xxxxx, III
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Name: Xxxx X. Xxxxx, III
Title: Vice President
CONSUMERS PACKAGING INC.
By: /s/ Xxxx X. Xxxxxxxx
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By: Xxxx X. Xxxxxxxx
Title: Chairman & Chief Executive Officer
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SCHEDULE A
Name Address City/State Zip Acres/Sq. Ft. Rent Per mth Term
Portland Whse 0000 X. 00xx Xx. Xxxxxx, XX 00000 220,000 $72,000 11/31/01
Xxx-Xxx, Inc. 0000 X. 00xx Xx. Xxxxx, XX 00000 varies $ 2,333 mth to
mth
St. Louis Sales 000 Xxxxxxxxx Xxxxx Xxxxxxxxxx, XX 00000 1830
Office Ste. 8
Napa Sales 0000 Xxxxxx Xxx., Xxxx, XX 00000 3029
Office Ste 204
Pleasanton Sales 0000 X. Xxx Xxxxxxx, Xxxxxxxxxx, XX 00000 1940
Office Ste 115
La Palma Sales 0 Xxxxxxxxxxxx Xx., Xx Xxxxx, XX 00000 2305
Office Ste 170
