EXTRADE II, S.A. DE C.V.
CROWN IMPORTS LLC
Dated: January 2, 2007
This Importer Agreement (“ Agreement ”), dated this 2 nd day of January, 2007, by and between Extrade II, S.A. de C.V., a sociedad anónima de capital variable organized under the laws of Mexico (“ Extrade II ”), and Crown Imports LLC, a Delaware limited liability company (“ Importer ”).
WHEREAS, Extrade, S.A. de C.V. and Barton Beers, Ltd., a Maryland corporation (“ Barton ”), are parties to a certain Importer Agreement, dated as of November 22, 1996, and as amended subsequent thereto, pursuant to which Barton has exclusive rights to import and sell certain beer products of Grupo Modelo, S.A. de C. V. (“ Grupo Modelo ”) or another member of the Modelo Group in an area in the United States primarily west of the Mississippi River (“ West Coast Importer Agreement ”);
WHEREAS, Diblo, S.A. de C.V. and Barton have now agreed to establish and engage in a joint venture for the principal purpose of importing, marketing and selling Product (as defined below), and, in connection therewith, they have caused to be formed the Importer which is owned by the Modelo Party (as defined below) and Barton, and the Modelo Party and Barton are parties to a Limited Liability Company Agreement, dated of even date herewith, which governs the business operations of Importer;
WHEREAS , Extrade II desires to grant to Importer and Importer desires to obtain from Extrade II the exclusive right to sell Product within the Territory (defined below) on the terms and conditions set forth herein;
NOW, THEREFORE , in consideration of the promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.1. For purposes of this Agreement, the following terms have the meanings set forth below:
“ Adjusted JV Commencement Price Increase ” has the meaning assigned to that term in Section 5.2(d) .
“ Affiliate ” of any Person means any other Person which, directly or indirectly, controls or is controlled by that Person, or is under common control with that Person. For purposes of this definition, “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise; provided, however, that for purposes of this Agreement, Importer shall not be an Affiliate of Extrade II and Extrade II shall not be an Affiliate of Importer.
“ Barton ” means Barton Beers, Ltd., a Maryland corporation.
“ Barton Membership Interest ” has the meaning assigned to that term in the Company Agreement.
“ Base Customer Price ” means [****]
“ Base-Year ” means the twelve (12) month period commencing on July 1, 2005, and ending on June 30, 2006.
“Base-Year Profit ” has the meaning assigned to that term in Section 5.2 .
“ Beer ” means beer, ale, porter, stout, malt beverages, and any other versions or combinations of the foregoing, including, without limitation, non-alcoholic versions of any of the foregoing.
“ Business Plan ” has the meaning assigned to that term in the Company Agreement.
“ Case ” means (1) units aggregating approximately 288 ounces (except with respect to CORONITA in which instances such units shall aggregate approximately 168 ounces) plus (2) their Containers.
“ Company Agreement ” means the Amended and Restated Limited Liability Company Agreement, dated of even date herewith, by and between the Modelo Party and Barton, which governs the business operations of Importer.
“ Container ” includes the bottle, can or similar receptacle in which Product is directly placed, and the box, carton or similar item in which such receptacle is packaged.
“ Designated Brewery ” means the brewery at which Grupo Modelo produces the Product for sale to Importer.
“ Diblo ” means Diblo, S.A. de C.V., a sociedad anónima de capital variable organized under the laws of Mexico.
“ East Coast Importation Rights ” means the exclusive rights to import and sell certain brands of Beer in the United States of America except for the portion of the country included in the West Coast Importation Rights.
“ East Coast Importer Agreement ” means the Importer Agreement relating to the East Coast Importation Rights.
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“ Extrade ” means Extrade, S.A. de C.V., a sociedad anónima de capital variable organized under the laws of Mexico.
“ Extrade II ” means Extrade II, S.A. de C.V., a sociedad anónima de capital variable organized under the laws of Mexico.
“ FOB ” means “free on board” the Designated Brewery; meaning for purposes of this Agreement that (i) Extrade II shall bear the expense and risk of loss of transporting Product to the Designated Brewery and (ii) that title to Product shall pass from Extrade II to Importer at the Designated Brewery.
“Force Majeure” means the inability, after giving effect to the allocation requirements of Section 4.1 , of Extrade II to supply Product pursuant to Article IV as a direct result of: acts of God; strikes or other labor unrest; civil disorder; fire; explosion; perils of the sea; flood; drought; war; riots; sabotage; terrorism; accident; embargo; priority, requisition or allocation mandated by governmental action; changes in laws or regulations that impair the Production or export of Beer into the Territory; shortage or failure of supply of ingredients or raw materials necessary to produce Product; or other cause beyond control of Extrade II or the Modelo Group. The duration of any Force Majeure occurrence is limited to the period during which Extrade II is unable to supply Product, or make reasonable alternative arrangements to supply Product, due of the event or condition giving rise to such Force Majeure occurrence.
“ herein ” and “ hereunder ” refer to this entire Agreement.
“ Importer ” means Crown Imports LLC, a Delaware limited liability company.
“ JV Commencement Price Increase ” has the meaning assigned to that term in Section 5.2 .
“ law ”, unless otherwise expressly stated in this Agreement, includes statutes, regulations, decrees, ordinances and other governmental requirements, whether federal, state, local or of other authority.
“Marcas Modelo” means Marcas Modelo, S.A. de C.V., a sociedad anónima de capital variable organized under the laws of Mexico.
“ Modelo Group ” means Grupo Modelo and all Persons that, now or in the future, are related to Grupo Modelo by virtue of Grupo Modelo’s direct or indirect share ownership; provided, however, that for purposes of this Agreement, Importer shall not be a member of the Modelo Group.
“ Modelo Party ” means GModelo Corporation.
“Pass-Through Revenues” means [****]
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“ Person ” means any individual, corporation, partnership, limited partnership, limited liability company, joint venture, syndicate, sole proprietorship, a company with or without share capital, unincorporated association, trust, trustee, executor, administrator or other legal representative, regulatory body or agency, government or governmental agency, authority or entity, however designated or constituted.
“ Price ” has the meaning assigned to that term in Section 5.1 .
“ Price Adjustment ” has the meaning assigned to that term in Section 5.4 .
“ Product ” means (i) Beer packaged in Containers bearing one or more of the Trademarks, or (ii) any other Beer, whether or not bearing one or more Trademarks, which is produced, marketed or sold by Grupo Modelo or any member of the Modelo Group in or into the Territory during the term of this Agreement.
“ Production ” means the manufacturing, bottling and packaging of Beer.
“Strategic Pricing Initiative” has the meaning assigned to that term in the Company Agreement.
“Sub-license Agreement” means the Sub-license Agreement dated as of the date hereof by and between Importer and Marcas Modelo.
“ Territory ” means the fifty states of the United States of America, the District of Columbia and Guam.
“ Trademarks ” means the trademarks described in Exhibit A to this Agreement as belonging to a member of the Modelo Group, as such Exhibit may be supplemented from time to time pursuant to Section 3.4 , together with the trademark rights related thereto referred to in Section 2.8 of the Sub-license Agreement.
“West Coast Importation Rights” means all of Barton’s rights to import Beer under the West Coast Importer Agreement.
“West Coast Importer Agreement” means the Importer Agreement, dated as of November 22, 1996, by and between Barton and Extrade, as amended.
(a) Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender; (ii) words using the singular or plural number also include the plural or singular number, respectively; (iii) the terms “hereof,” “herein,” “hereby” and derivative or similar words refer to this entire Agreement; (iv) the terms “Article”, “Section”, “Schedule” or “Exhibit” refer to the specified Article, Section, Schedule or Exhibit of this Agreement, unless otherwise specifically stated; (v) the words “include” or “including” shall mean “include, without limitation” or “including, without limitation;” and (vi) the word “or” shall be disjunctive but not exclusive.
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(b) References to agreements and other documents shall be deemed to include all subsequent amendments and other modifications thereto.
(c) References to statutes shall include all regulations promulgated thereunder and, except to the extent specifically provided below, references to statutes or regulations shall be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation.
(d) The language used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against any party. This Agreement is the joint drafting product of the parties hereto and each provision has been subject to negotiation and agreement and shall not be construed for or against any party as drafter thereof.
(e) All accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP.
(f) All amounts in this Agreement are stated and shall be paid in United States dollars.
CERTAIN UNDERTAKINGS OF MODELO
Extrade II represents and warrants that (a) Extrade II has and will maintain throughout the term of this Agreement the exclusive right to sell Product for export to the Territory; (b) there is not in effect any agreement between Extrade II and any other person or entity giving any right to any such other person or entity to sell Product in the Territory; and (c) Extrade II has the full contractual and corporate power and authority to perform its obligations under this Agreement.
3.1. Subject to the terms of this Agreement, Extrade II hereby grants to Importer the exclusive right to sell Product within the Territory, including for resale.
3.2. Importer agrees not to sell Product outside the Territory except with the prior written permission of Extrade II. Importer shall use its commercially reasonable efforts to prevent parties purchasing Product directly or indirectly from Importer from reselling such Product outside the Territory or in any manner not authorized by this Agreement.
3.3. Importer agrees that, during the term of this Agreement, Importer shall not, without Extrade II’s prior written permission, purchase or sell in the Territory any Beer manufactured in Mexico other than Product.
3.4. (a) In the event, during the term of this Agreement, Extrade II or any member of the Modelo Group plans to initiate a program for the production, marketing or sale in or into the Territory of any Product for which pricing is not set forth on Exhibit B , Extrade II shall give Importer written notice of such plan not less than ninety (90) days before such program is
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initiated. At the written election of Importer delivered to Extrade II within ninety (90) days after receipt by Importer of such notice, the parties shall amend this Agreement to add pricing for such Product to the list on Exhibit B , to add the identifying mark or marks to Exhibit A , to modify the definition of “Case” in Article I accordingly, and/or to add a new definition to Article I that describes the unit packaging of such Product if it is not a Case, such as keg or mini-keg, and to also modify the definition of “Container” in Article I accordingly. Extrade II represents and warrants that it has and will maintain throughout the term of this Agreement the exclusive right to sell such Product for export to the Territory.
(b) In the event, during the term of this Agreement, Extrade II or any member of the Modelo Group plans to use a new trademark on any Product to be sold in the Territory, Extrade II shall give Importer written notice of such plan not less than ninety (90) days before implementation thereof. At the written election of Importer delivered to Extrade II within ninety (90) days of the receipt by Importer of such notice, the parties shall amend this Agreement to add such new trademark to Exhibit A .
SUPPLY OF PRODUCT LINE
4.1. Importer shall purchase from Extrade II, and Extrade II shall supply to Importer, such volumes of Product as are required by Importer for importation and sale within the Territory pursuant to this Agreement. [****]
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4.2. All orders for Product under this Agreement shall be made by Importer specifying the type of Product ordered and the quantities thereof. Subject to Section 4.1 and Force Majeure, each such order shall constitute a binding obligation between Importer and Extrade II in accordance with the terms of this Agreement five (5) days after receipt thereof by Extrade II on the terms of the order, subject to modifications that the parties agree to within such five-day period.
4.3. EXCEPT AS STATED IN THIS AGREEMENT, EXTRADE II MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, CONCERNING PRODUCT.
4.4. Extrade II will supply Product to Importer FOB the Designated Brewery (whether rail or other transportation as requested by Importer). [****]
4.6. All terms and conditions set forth on any order shall be of no force and effect, other than the type of Product ordered, the quantities ordered and the mode of transportation if other than rail.
4.7. Anything in Section 4.2 to the contrary notwithstanding, in the event of any conflict between the provisions of any order and the provisions of this Agreement (including without limitation terms of payment and warranties concerning Product), the provisions of this Agreement shall govern.
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PRICING AND PAYMENT PROCEDURES
5.1. As to each Product, th