This Joint Venture JV Agreement involves
Title: AMENDMENT NO. 1 TO THE AGREEMENT TO ESTABLISH JOINT VENTURE
Governing Law: New York Date: 1/3/2007
Industry: Beverages (Alcoholic)
AMENDMENT NO. 1 dated as of January 2, 2007 (this “ Amendment ”) to the Agreement to Establish Joint Venture, dated July 17, 2006 (the “ Agreement ”), between Barton Beers, Ltd., a corporation incorporated under the laws of the State of Maryland (“ Barton ”), and Diblo, S.A. de C.V., a sociedad anónima de capital variable organized under the laws of Mexico (“ Diblo ”).
WHEREAS the parties hereto have agreed to certain changes to the Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements herein set forth, the parties hereto agree as follows:
SECTION 1. Definitions . Capitalized terms used but not otherwise defined herein have the meanings assigned to them in the Agreement.
SECTION 2. Amendments to Article 1 . (a) Section 1.1 is hereby amended by deleting the definition “Related Agreements” and replacing it with the following definition:’
“‘ Related Agreements ’ means, collectively, the Company LLC Agreement, the Barton Contribution Agreement, the Importer Agreement, the Brewery Purchase and Sale Agreements, the Sub-license Agreement, the Administrative Services Agreement, the CBI Guarantee and the other agreements and documents executed and delivered by the Modelo Party or Barton or their Affiliates in connection with the consummation of the transactions contemplated hereby.”
(b) Section 1.1 is hereby amended by adding the following definitions in alphabetical order:
“‘ Extrade II ’ means Extrade II, S.A. de C.V., a sociedad anónima de capital variable organized under the laws of Mexico.
‘ Marcas Modelo ’ means Marcas Modelo, S.A. de C.V., a sociedad anónima de capital variable organized under the laws of Mexico.
‘ Sub-license Agreement ’ has the meaning assigned to such term in Section 3.3.
‘ Trademarks ’ has the meaning assigned to such term in the Sub-license Agreement.”
SECTION 3. Amendment to Article III . (a) Article III is hereby amended by deleting Section 3.1 and replacing it with the following:
“3.1 Importer and Brewery Purchase and Sale Agreements . (a) At the Closing and immediately following the execution of the LLC Agreement, Extrade II shall execute and deliver an agreement designating the Company as the exclusive importer of the Beer sold under the Brands in the Territory (the “Importer Agreement”) in the form attached hereto as Exhibit D.
(b) At the Closing, Extrade II and each of the subsidiaries of Diblo that will sell Beer to Extrade II to enable Extrade II to fulfill its obligations under the Importer Agreement shall execute and deliver an agreement in a form reasonably satisfactory to Diblo and Barton (each, a “Brewery Purchase and Sale Agreement”).”
(b) Article III is hereby amended by adding the following Section 3.3:
“ 3.3 Sub-license Agreement . At the Closing and immediately following the execution of the LLC Agreement, Marcas Modelo shall execute and deliver an agreement granting the Company an exclusive sub-license to use the Trademarks within the Territory, solely in connection with the activities contemplated in the Importer Agreement (the “Sub-license Agreement”), in the form attached hereto as Exhibit E.”
SECTION 4. Amendments to Article IV . (a) Article IV is hereby amended by deleting Section 4.1 and replacing it with the following:
“ 4.1 Guarantee . Diblo hereby absolutely, unconditionally and irrevocably guarantees to Barton and the Company, as a primary obligor and not merely as a surety, the due and punctual performance and observance of, and compliance with, all covenants, agreements, obligations, liabilities, representations and warranties of Extrade II under or pursuant to the Importer Agreement, of Marcas Modelo under or pursuant to the Sub-license Agreement and of the Modelo Party under or pursuant to the Related Documents to which it is a party and any damages incurred by Barton or the Company as a consequence of Extrade II not executing the Importer Agreement at Closing or Marcas Modelo not executing the Sub-license Agreement at Closing (all such obligations and any such damages being collectively referred to as the “Guaranteed Obligations”). Diblo further agrees that the Guaranteed Obligations may be amended, modified, extended or renewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee notwithstanding any amendment, modification, extension or renewal of any of the Guaranteed Obligations, whether or not any of the foregoing would in any way increase Diblo’s obligations hereunder. Diblo irrevocably and unconditionally waives, and agrees that its liability under its guarantee shall be unaffected by, any act, omission, delay or other circumstance or any election of remedies by Barton or the Company that might otherwise constitute a legal or equitable discharge or d