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Exhibit 2.2
AMENDMENT TO
ASSET PURCHASE AGREEMENT
This AMENDMENT is made and entered into as of February 5, 1997, by
and among ANCHOR GLASS CONTAINER CORPORATION, a Delaware corporation ("Anchor"),
CONSUMERS PACKAGING INC., a corporation organized under the federal laws of
Canada ("Consumers"), and XXXXX-XXXXXXXX GLASS CONTAINER INC., a Delaware
corporation ("OI").
WITNESSETH:
WHEREAS, Anchor has entered into an Asset Purchase Agreement with
Consumers and 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); and
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, all of Anchor's right, title
and interest in, to and under the Purchased Assets including all real property
used or owned or held for use in the Business in each case together with all
buildings, fixtures and improvements erected thereon; and
WHEREAS, pursuant to Section 2.06(b) of the Asset Purchase
Agreement, Anchor agreed to deliver to Consumers and OI, three business days
prior to the Closing Date, a certificate, signed by Anchor's Chief Financial
Officer, setting forth (i) Anchor's good faith estimate of the Estimated
Post-Filing Trade Payables and (ii) Anchor's good faith estimate of the
Estimated Final Net Assets; and
WHEREAS, Anchor has delivered the certificate described above dated
January 24, 1997 and pursuant to Section 2.06 of the Asset Purchase Agreement,
Consumers and OI are obligated to pay to Anchor the Estimated Purchase Price in
the amount of $333,937,000 in cash, of which $205,575,000 is payable by
Consumers; and
WHEREAS, Consumers and Anchor are desirous of amending the Asset
Purchase Agreement to eliminate from the Purchased Assets to be acquired by
Consumers three of the closed plants facilities owned by Anchor and to reduce
the Purchase Price and the Estimated Purchase Price otherwise payable by
Consumers in cash on the Closing Date by $5.7 million:
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NOW, THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto hereby agree as follows:
1. Purchased Assets. Notwithstanding anything to the contrary
contained in the Asset Purchase Agreement, including, without limitation,
Section 2.01(i) thereof, the Purchased Assets shall not include the plant
facilities owned by Anchor described on Schedule 3.11(b) to the Asset Purchase
Agreement as the properties located at Corsicana, Texas (including the
warehouse), Xxxxxxxxxx Xxxx, Xxxxxxxxxx xxx Xxx Xxxxxxx, Xxxxxxxxxx
(collectively, the "Excluded Properties"). Schedule 3.11(b) to the Asset
Purchase Agreement is hereby amended to delete the Excluded Properties therefrom
and the Asset Purchase Agreement is hereby amended such that the terms
"Purchased Assets" and "Real Properties" as used in the Asset Purchase Agreement
shall not include the Excluded Properties and the term "Excluded Assets" as used
therein shall include the Excluded Properties. All other references in the Asset
Purchase Agreement and the Schedules thereto to any of the Excluded Properties
are hereby deleted. Consumers shall have the right to remove any machinery and
equipment (but not building fixtures) and Anchor owned inventory located at any
of the Excluded Properties within the lesser of 60 days following the Closing
Date or the date of sale of any Excluded Property.
2. Assumed Liabilities. Notwithstanding anything to the contrary
contained in the Asset Purchase Agreement, including, without limitation,
Section 2.03(v) thereof, the Assumed Liabilities shall not include any
liabilities or obligations of Anchor relating to or in connection with the
Excluded Properties (the "Related Liabilities").
3. Purchase Price. The Purchase Price and the Estimated Purchase
Price for the Purchased Assets are hereby reduced by $5.7 million. To effectuate
such reduction, (i) the amount of $333.6 million appearing in clause (i)(A) of
the first sentence of Section 2.06(a) of the Asset Purchase Agreement is hereby
reduced to $327.9 million and the amount thereof payable by Consumers is hereby
reduced from $208.6 million to $202.9 million and (ii) the amount of $333.6
million appearing in clause (i) of the fourth sentence of Section 2.06(a) of the
Asset Purchase Agreement is hereby reduced to $327.9 million.
4. Closing Balance Sheet. Notwithstanding anything to the contrary
contained in the Asset Purchase Agreement, including, without limitation,
Sections 2.08 and 2.09 thereof, the Excluded Properties and the Related
Liabilities, at a net value of $6.84 million, shall be excluded from the Closing
Balance Sheet and solely for purposes of calculating any adjustment to the
Purchase Price pursuant to Section 2.09 of the Asset Purchase Agreement, the net
assets shown on the Reference Balance Sheet shall be reduced by the amount of
$6.84 million which is the agreed book value of the Excluded Properties net of
the Related Liabilities. It is the intention of the parties that this paragraph
4 shall preclude any adjustment in the Purchase Price pursuant to Section 2.09
of the Asset Purchase Agreement by reason of the exclusion of the Excluded
Properties net of the Related Liabilities from the Purchased Assets and the
Assumed Liabilities.
5. Future Sales of Excluded Properties. Anchor agrees that, in
connection with the sale of any of the Excluded Properties by Anchor, it will
include a covenant restricting
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any subsequent owner from operating such Excluded Property for the manufacture
of glass containers.
6. Assignment to New Anchor. Prior to the Closing, Consumers shall
have assigned to New Anchor all of its rights under this Amendment 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 Amendment.
7. Governing Law, etc. This Amendment 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 Amendment as though fully set forth
herein.
IN WITNESS WHEREOF, each party has caused this Amendment to be
executed by its duly authorized representative as of the date first written
above.
ANCHOR GLASS CONTAINER CORPORATION
By:/s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Senior Vice President
CONSUMERS PACKAGING INC.
By:/s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Chairman and Chief Executive Officer
XXXXX-XXXXXXXX GLASS CONTAINER INC.
By:/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
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