EXHIBIT 10.26
AMENDED AND RESTATED
MANAGEMENT SERVICES AGREEMENT
This Amended and Restated Management Services Agreement (the
"Agreement") is made as of this 14th day of February, 1997 by and between S&H
INC., a Connecticut corporation ("S&H"), and SILGAN CONTAINERS CORPORATION, a
Delaware corporation ("Containers").
W I T N E S S E T H:
WHEREAS, S&H and Containers have entered into the Amended and
Restated Management Services Agreement dated as of December 21, 1993 (the
"Original Management Services Agreement"), pursuant to which S&H provides
general management, supervision, administrative and other services to Containers
in accordance with the terms of the Original Management Services Agreement;
WHEREAS, S&H also is a party to an Amended and Restated
Management Services Agreement dated as of December 21, 1993 with each of Silgan
Holdings Inc. ("Holdings"), Silgan Corporation, a wholly owned subsidiary of
Holdings and the parent holding company of Containers ("Silgan"), and Silgan
Plastics Corporation, a wholly owned subsidiary of Silgan ("Plastics");
WHEREAS, S&H and each of Holdings, Silgan and Plastics are
entering into an amended and restated management services agreement dated as of
the date hereof (collectively, as so amended and restated, the "Affiliate
Management Services Agreements"); and
WHEREAS, in contemplation of the consummation of an initial
public offering of the common stock of Holdings pursuant to an effective
registration statement under the Securities Act of 1933, as amended, S&H and
Containers desire to amend and restate hereby the Original Management Services
Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, S&H and Containers agree as follows:
1. Management Services.
(a) S&H and Containers hereby agree that, during
the period beginning on the date hereof and continuing throughout the term
hereof, S&H and its Affiliates shall provide to Containers general management,
supervision and administrative services, including, without limitation, the
preparation of the annual and long-term business plans, and perform such other
duties and provide such other services as Containers shall be permitted to
request of S&H pursuant to the Certificate of Incorporation or By-Laws of
Holdings or pursuant to applicable law, which power and authority Containers
hereby grants to S&H ("General Management Services"). (The General Management
Services are hereinafter collectively referred to as the "Services" and
individually as a "Service").
(b) Any Service hereunder shall be provided to
Containers only by S&H or its Affiliates or such consultants, subcontractors or
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agents as may be selected from time to time by S&H to assist S&H in its
provision of the Services. It is understood and agreed that S&H may retain the
services of Morgan Stanley & Co. Incorporated or another suitable investment
bank as financial advisor to Containers or as an underwriter or placement agent
for offerings of securities by Containers.
2. Fees; Payment.
(a) In consideration for General Management
Services provided by S&H to Containers hereunder, Containers shall pay to S&H
aggregate fees or compensation therefor (not including any related out-of-pocket
expenses), (i) on a monthly basis, an amount equal to Containers' Proportionate
Percentage (as defined below) of five thousand dollars ($5,000) plus 2.475% of
EBDIT (as defined in Paragraph 2(i) hereof) for such calendar month until EBDIT
for the calendar year to date has reached the Scheduled Amount (as defined in
Paragraph 2(d) hereof) for such calendar year, and 1.65% of EBDIT for such
calendar month to the extent that EBDIT for the calendar year to date exceeds
the Scheduled Amount but is not greater than the Maximum Amount (as defined in
Paragraph 2(d) hereof) (the "Monthly Management Fee"); and (ii) on a quarterly
basis, an amount equal to Containers' Proportionate Percentage of 2.475% of
EBDIT for such calendar quarter until EBDIT for the calendar year to date has
reached the Scheduled Amount, and l.65% of EBDIT for such calendar quarter to
the extent that EBDIT for the calendar year to date exceeds the Scheduled Amount
but is not greater than the Maximum Amount (the "Quarterly Management Fee"). For
purposes of this Section 2, "Proportionate Percentage" means such percentage of
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EBDIT for a given period that is attributable to the results of Containers for
such period.
(b) Such Quarterly Management Fee shall continue
to accrue, but shall not be paid, to S&H by Containers in the event that, and
from the date on which, Containers or Silgan shall have received written notice
("Notice") from the Agent (as defined below) that an Event of Default (as such
term is defined in the Credit Agreement, dated as of August 1, 1995, among
Silgan, Containers, Plastics, the lenders from time to time party thereto,
Bankers Trust Company, as Administrative Agent and as a Co-Arranger (the
"Agent"), and Bank of America Illinois, as Documentation Agent and as a
Co-Arranger, as in effect from time to time, and any refinancings, renewals,
amendments or extensions thereof (the "Credit Agreement")) exists under any of
Sections 9.01, 9.03 (but only to the extent resulting from the violation of one
or more of Sections 8.08, 8.09, 8.10, and 8.11 of the Credit Agreement),
9.04(i)(x), 9.04(ii) or 9.05 of the Credit Agreement (each of the foregoing
Events of Default, a "Financial Covenant Event of Default") until, and shall be
paid by Containers to S&H on, the earliest to occur of (x) the first date after
receipt of such Notice upon which no Financial Covenant Event of Default to
which the Notice related or otherwise known to S&H or Containers shall be in
existence (and so long as no such Financial Covenant Event of Default would be
in existence after giving effect to the payment of such unpaid portion of the
Quarterly Management Fee), (y) the first date occurring 180 days or more after
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receipt by Silgan of a written notice from the Agent stating that no Event of
Default exists under Section 9.01 of the Credit Agreement, or (z) the date that
Silgan, Containers, Plastics, California-Washington Can Corporation, a wholly
owned subsidiary of Containers, and SCCW Can Corporation, a wholly owned
subsidiary of Containers, shall have paid all outstanding Obligations (as such
term is defined under the Credit Agreement). In the event that a Notice is
delivered by the Agent, Containers shall pay to S&H that portion of any unpaid
Quarterly Management Fee that has accrued with respect to that portion of such
calendar quarter prior to the occurrence of any Financial Covenant Event of
Default to which such Notice relates.
(c) Nothing contained in Paragraph 2(b) shall
prevent the Agent from giving successive Notices of the type described in
Paragraph 2(b) (in which case the rules set forth in Paragraph 2(b) shall apply
to, and the time periods set forth therein shall begin to run on, the date of
such subsequent Notice); provided that only one Notice relating to a single
Financial Covenant Event of Default and all other Financial Covenant Events of
Default in existence at the date of the giving of any such Notice may be given.
Notwithstanding anything to the contrary stated herein, if at any time after the
giving of Notice by the Agent to Silgan, S&H shall certify in writing to Silgan
that all Financial Covenant Events of Default to which such Notice relates have
been cured or waived, and that S&H knows of no other Financial Covenant Event of
Default then in existence, then Containers shall, unless it knows of the
existence of a Financial Covenant Event of Default which has not yet been cured
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or waived, pay to S&H any accrued and unpaid Quarterly Management Fee or portion
thereof in the manner set forth in Paragraph 2(g) hereof unless a Financial
Covenant Event of Default would result from such payment. S&H shall not be
required to deliver any such certification to Silgan upon the occurrence of the
dates or events set forth in clauses (y) or (z) of Paragraph 2(b), and promptly
after the occurrence of such date or event, Containers will pay to S&H any
accrued and unpaid Quarterly Management Fee or portion thereof.
(d) For any given calendar year during the term
of this Agreement, the Scheduled Amount and the Maximum Amount for such calendar
year will be the amounts set forth in Schedule I hereto.
(e) In addition to the Monthly Management Fee
and the Quarterly Management Fee, Containers shall also reimburse S&H in an
amount equal to all out-of-pocket expenses paid by S&H in providing the Services
hereunder, including fees and expenses paid to consultants, subcontractors and
other third parties, in connection with such Services. Such expenses shall be
payable by Containers to S&H monthly in arrears.
(f) (i) Not later than fifteen (15) days after
the end of each calendar month during the term hereof with respect to the
Monthly Management Fee and (ii) not later than thirty (30) days after the end of
each full calendar quarter during the term hereof with respect to the Quarterly
Management Fee, S&H shall furnish Containers with a bill for an amount equal to
the Monthly Management Fee and the Quarterly Management Fee, respectively, then
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owing with respect to periods ended on or before the end of such calendar month
or such calendar quarter.
(g) Each bill furnished to Containers hereunder
shall be paid in full within thirty (30) days of the receipt of such bill,
except that any accrued and unpaid Quarterly Management Fee or portion thereof
shall be paid on the earliest date on which such payment is permitted to be made
pursuant to Paragraphs 2(a), 2(b) and 2(c) hereof. All payments of such bills
shall be sent to:
S&H Inc.
4 Landmark Square
Suite 400
Stamford, CT 06901
Attention: R. Philip Silver
or to such other address as S&H may specify from time to time by written notice
to Containers.
(h) All fees and expenses paid to S&H by
Holdings and Silgan pursuant to their respective Affiliate Management Services
Agreements with S&H, shall be credited to the Monthly Management Fee, the
Quarterly Management Fee and the expenses referred to in Paragraphs 2(a) and
2(e) hereof.
(i) For purposes of this Section 2, EBDIT shall
mean, for any period, the consolidated net income of Holdings and its
subsidiaries, before interest expense and provision for income taxes and without
giving effect to any extraordinary non-cash gains or extraordinary non-cash
losses and any adjustments resulting from changes in the value of employee stock
options and/or stock appreciation rights, and adjusted by adding thereto (i) the
amount of any fees and expenses paid pursuant to this Agreement or the Affiliate
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Management Services Agreements, (ii) the amount of all charges and expenses
incurred in connection with any refinancing, restructuring, recapitalization or
reorganization involving Holdings and its subsidiaries (which charges and
expenses have been charged against the consolidated net income of Holdings or
its subsidiaries), and (iii) the amount of all amortization of intangibles,
covenants not to compete, goodwill and debt financing costs and all depreciation
(which amortization and depreciation have been charged against the consolidated
net income of Holdings and its subsidiaries, before interest expense), computed
in accordance with generally accepted accounting principles.
3. Direct Expenses.
It is understood that the consideration to be paid by
Containers to S&H for Services hereunder shall not be in lieu of, and that
Containers shall be directly liable for, direct expenses incurred by Containers,
or by S&H on Containers' behalf (other than the out-of-pocket expenses billed to
Containers by S&H pursuant to Paragraph 2(e) hereof), for services rendered to
Containers by third parties, including, but not limited to, legal and accounting
fees and insurance premiums. Containers shall pay any compensation (including
employee benefit costs and any related out-of-pocket expenses) to officers and
other employees of Containers who provide substantially full-time services to
Containers, other than Messrs. R. Philip Silver ("Silver"), D. Greg Horrigan
("Horrigan"), Harley Rankin, Jr. ("Rankin") and Harold J. Rodriguez, Jr.
("Rodriguez") who shall receive no salaries (it being understood, however, that
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Containers shall reimburse S&H in respect of compensation paid by S&H to Messrs.
Rankin and Rodriguez consistent with the reimbursement therefor by Containers to
S&H in 1996), notwithstanding that said officers and other employees may
simultaneously be officers or employees of S&H or one of its subsidiaries or
Affiliates.
4. Term.
(a) The term of this Agreement shall commence on
the date hereof and shall continue until June 30, 1999. Thereafter, the term of
this Agreement shall be automatically renewed for successive one-year terms
unless prior to the date that is 180 days prior to the expiration of the initial
term or the then current one-year term, as the case may be, either party shall
have given the other party written notice of its election not to renew the term
of this Agreement (it being understood that the determination by Containers
whether to give such written notice of its election not to renew the term of
this Agreement will be made by the independent members of the Board of Directors
of Holdings). For purposes hereof, the independent members of the Board of
Directors of Holdings shall not include any employee or affiliate of S&H, any
officer of Holdings or any member of the Board of Directors that is affiliated
with any entity that is receiving or is entitled to receive any payment from
Holdings under this Agreement or any payment from S&H in connection with this
Agreement. The term of this Agreement may be terminated prior to the expiration
of the initial term or the then current one-year term, as the case may be, by
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written notice to the other party as follows: (i) by Containers for Cause, (ii)
by S&H for Cause, (iii) by Containers for any reason other than Cause, upon at
least 180 days prior written notice, (iv) by S&H for any reason other than (A)
Cause or (B) because of a Change of Control, upon at least 180 days prior
written notice, or (v) by S&H at any time after a Change of Control.
(b) Upon termination of any Affiliate Management
Services Agreement by the party thereto other than S&H for any reason other than
"Cause" as defined in such Affiliate Management Services Agreement, this
Agreement shall be deemed to have been terminated by Containers pursuant to
clause (iii) of the last sentence of Section 4(a) hereof, effective as of the
date of termination of such Affiliate Management Services Agreement. Upon
termination by S&H of any Affiliate Management Services Agreement for any reason
other than "Cause" or because of a "Change of Control," each as defined in such
Affiliate Management Services Agreement, this Agreement shall be deemed to have
been terminated by S&H pursuant to clause (iv) of the last sentence of Section
4(a) hereof, effective as of the date of termination of such Affiliate
Management Services Agreement.
(c) For purposes of this Section 4, a "Change of
Control" shall be deemed to have occurred when a majority of the Board of
Directors of Holdings shall not consist of "Continuing Holdings Directors,"
which shall mean (i) the directors of Holdings on the date hereof and (ii) each
other director of Holdings who is either recommended, approved or nominated for
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election, or is elected, to the Board of Directors of Holdings by a majority of
the other Continuing Holdings Directors.
5. Events of Default.
Any one of the following defaults shall constitute an Event of
Default (other than by reason of an Event of Force Majeure in the case of each
of Paragraphs 5(a)-(f)):
(a) (i) The failure or refusal of S&H to comply
with or perform its obligations under this Agreement if such failure or refusal
continues unremedied for more than 60 days after written notice of the existence
of such failure or refusal shall have been given to S&H by Containers or (ii)
the failure or refusal of Containers to comply with or perform its obligations
under this Agreement if such failure or refusal continues unremedied for more
than 60 days after written notice of the existence of such failure or refusal
shall have been given to Containers by S&H;
(b) S&H or Holdings is declared insolvent or
bankrupt by any court of competent jurisdiction, or a voluntary petition in
bankruptcy is filed in any court of competent jurisdiction by either of them;
(c) An involuntary petition in bankruptcy is
filed in any court of competent jurisdiction against S&H or Holdings and within
forty-five (45) days thereafter shall not have been dismissed or stayed (and, in
the event of any such stay, such stay shall not have been set aside and the
petition dismissed within forty-five (45) days after the stay shall have been
granted);
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(d) A trustee or receiver is appointed for S&H or
Holdings and remains undischarged for more than forty-five (45) days after being
appointed;
(e) A proceeding seeking a reorganization,
arrangement, liquidation or dissolution of S&H or Holdings is instituted in a
court of competent jurisdiction and remains undismissed for more than forty-five
(45) days after being instituted;
(f) S&H or Holdings voluntarily seeks any such
reorganization or arrangement or makes an assignment for the
benefit of creditors; or
(g) Death or permanent disability of both
Horrigan and Silver. For the purposes of this Agreement, "permanent disability"
shall mean the inability of Horrigan or Silver, as the case may be, by reason of
illness or injury to perform substantially all of his duties as Chairman of the
Board or as President of Holdings (or in performing his duties in any other
office in Holdings or any of its respective Affiliates to which he may be duly
appointed) during any continuous period of one hundred eighty (180) days.
6. Cause.
(a) The occurrence of any of the following shall
constitute "Cause" for purposes of clause (i) of the last sentence of Section
4(a) of this Agreement:
(i) An Event of Default, except for the Event of
Default described in Section 5(a)(ii) of this Agreement; or
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(ii) Criminal conduct or gross negligence by S&H
in the performance of the Services; or
(iii) The termination of any Affiliate Management
Services Agreement by Holdings, Silgan or Plastics, as the
case may be, for "Cause" as defined therein.
(b) The occurrence of either of the following
shall constitute "Cause" for purposes of clause (ii) of the last sentence of
Section 4(a) of this Agreement:
(i) An Event of Default, except for the Event
of Default described in Section 5(a)(i) of this Agreement;
or
(ii) The termination of any Affiliate Management
Services Agreement by S&H for "Cause" as defined therein.
7. Remedies. (a) In the event this Agreement is
terminated (or deemed terminated) by Containers prior to June 30, 1999 for any
reason other than for Cause, Containers shall be required to pay to S&H as
liquidated damages, within thirty (30) days of such termination, the present
value of the sum of (i) the Monthly Management Fee (or any portion thereof) that
would have been payable by Containers to S&H for each month (or any portion
thereof) from the date of such termination through June 30, 1999 and (ii) the
Quarterly Management Fee (or any portion thereof) that would have been payable
by Containers to S&H for each quarter (or portion thereof) from the date of such
termination through June 30, 1999, in each case calculated based on a discount
rate of eight percent (8%) per annum.
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(b) In the event this Agreement is terminated by
Containers after June 30, 1999 for any reason other than for Cause, Containers
shall be required to pay to S&H as liquidated damages, within thirty (30) days
of such termination, the present value of the sum of (i) the Monthly Management
Fee (or any portion thereof) payable by Containers to S&H for each month (or any
portion thereof) from the date of such termination through the end of the then
current one-year term and (ii) the Quarterly Management Fee (or any portion
thereof) payable by Containers to S&H for each quarter (or portion thereof) from
the date of such termination through the end of the then current one-year term,
in each case calculated based on a discount rate of eight percent (8%) per
annum.
(c) The amounts described in clauses (i) and
(ii) of Sections 7(a) and 7(b) shall be calculated based upon the projections of
Holdings' EBDIT for the period from the date of such termination through June
30, 1999 or through the end of the then current one-year term, as the case may
be, which projections are (1) included in Holdings' most recently prepared
forecast statements required under the Credit Agreement or (2) if the Credit
Agreement is not in existence, included in Holdings' most recently prepared
forecast statements presented to its Board of Directors (provided such forecast
statements are prepared on a basis consistent with the requirements under the
Credit Agreement that was in effect last).
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8. Force Majeure.
The term "Event of Force Majeure" as used herein shall mean
any failure of a party to perform any of its obligations hereunder if such
failure is due to circumstances beyond its control, including but not limited
to, any requisition by any government authority, act of war, strike, boycott,
lockout, picketing, riot, sabotage, civil commotion, insurrection, epidemic,
disease, act of God, fire, flood, accident, explosion, earthquake, storm,
failure of public utilities or common carriers, mechanical failure, embargo, or
prohibition imposed by any governmental body or agency having authority over the
party, which would have constituted an Event of Default but for the fact that
such events constituted an Event of Force Majeure. The party affected by an
Event of Force Majeure shall give prompt notice thereof to the other parties
hereto and each party shall use its best efforts to minimize the duration and
consequences of, and to eliminate, any such Event of Force Majeure. At such time
as an Event of Force Majeure no longer exists, the respective obligations of the
parties hereto shall be reinstated and this Agreement shall continue in full
force and effect.
9. Insurance.
S&H agrees that for the term of this Agreement it shall cause
Containers to obtain and maintain insurance for such risks and in such amounts
similar to companies of comparable size which are engaged in similar business
activities, provided that S&H shall be deemed to be in compliance with the
provisions of this paragraph if Containers maintains a level of insurance which
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complies with the applicable terms of the Credit Agreement.
10. Indemnification.
(a) Containers shall indemnify to the fullest
extent permitted by law (as now or hereafter in effect) S&H and each of its
Affiliates, officers, directors, employees, consultants and subcontractors, and
any Person controlling S&H and each of its Affiliates or any such consultant or
subcontractor (each, an "S&H Indemnitee," and collectively, the "S&H
Indemnitees") to the extent that any S&H Indemnitee is made, or threatened to be
made, a defendant to, or is involved in any manner in, any action, suit or
proceeding (whether civil, criminal, administrative, investigative or otherwise)
by reason of the fact that such S&H Indemnitee is or was an agent of Containers.
(b) In furtherance and not in limitation of the
powers conferred by statute:
(i) Containers may purchase and maintain
insurance on behalf of any S&H Indemnitee as an agent of
Containers against any liability asserted against any S&H
Indemnitee and incurred by any S&H Indemnitee in such
capacity, or arising out of any S&H Indemnitee's status as
such, whether or not Containers would have the power to
indemnify such S&H Indemnitee against such liability under
the provisions of law; and
(ii) Containers may create a trust fund, grant a
security interest and/or use other means (including,
without limitation, letters of credit, surety bonds and/or
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other similar arrangements), as well as enter into
contracts providing indemnification to the full extent
authorized or permitted by law and including as part
thereof provisions with respect to any or all of the
foregoing to ensure the payment of such amounts as may
become necessary to effect indemnification as provided
therein, or elsewhere.
(c) The manner of any indemnification under this
Agreement shall be in accordance with Section 2.8 of the Stockholders Agreement
dated as of December 21, 1993 among Silver, Horrigan, The Morgan Stanley
Leveraged Equity Fund II, L.P., Bankers Trust New York Corporation, First Plaza
Group Trust and Holdings (as amended from time to time, the "Stockholders
Agreement").
11. Noncompetition.
(a) During the term of this Agreement, S&H hereby
agrees that it will not, directly or indirectly, own, render services to,
manage, operate, control, or participate in the ownership, management, operation
or control of a business that is engaged in any "Business". For purposes hereof,
the term "Business" shall mean the manufacture and sale anywhere in the world of
consumer goods packaging products.
(b) In the event that this Agreement is
terminated by S&H pursuant to clause (iv) of the last sentence of Section 4(a)
hereof, S&H hereby agrees that, for a period of one year beginning on the date
of such termination, it will not, directly or indirectly: (i) own, render
services to, manage, operate, control, or participate in the ownership,
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management, operation or control of a business that is engaged in any Business;
(ii) interfere with any customer or supplier relationship between Holdings
and/or its subsidiaries and any other person or business entity; or (iii)
disclose or use any confidential or proprietary information relating to Holdings
and its subsidiaries' businesses, except for any information already in the
public domain through no act of S&H and except as may be required by law or
governmental or court order.
(c) Notwithstanding anything herein to the
contrary, nothing herein, however, shall restrict S&H from making any
investments in any company whose stock is listed on a national securities
exchange or actively traded in the over-the-counter markets, so long as such
investment does not give S&H the right to control or influence the policy
decisions of any such company engaged in any Business.
(d) If any particular provision or portion of
this Section 11 shall be adjudicated to be invalid or unenforceable, this
Section 11 shall be deemed amended to delete therefrom such provision or portion
adjudicated to be invalid or unenforceable, and such amendment will apply only
with respect to the operation of such provision or portion in the particular
jurisdiction in which such adjudication was sought.
(e) The parties recognize that the performance
of the obligations under this Section 11 by S&H is special, unique and
extraordinary in character, and that in the event of a breach, or threatened
breach, of any of the terms and conditions of this Section 11, Containers shall
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be entitled, if it so elects, in addition to any other remedies available to
Containers, to enforce the specific performance thereof or to enjoin any breach
thereof.
12. Notices.
All notices and other communications required by or
specifically provided for in this Agreement shall be in writing and shall be
deemed to have been given (a) when delivered in person, (b) when sent by telex
or telecopier with answerback received, or (c) seventy-two (72) hours after
having been deposited in the U.S. mails, certified mail with return receipt
requested and postage prepaid, and in any case addressed to the party for which
it is intended at that party's address as set forth below, or at such other
address as the addressee shall have designated by notice hereunder to the other
party.
If to S&H:
S&H Inc.
4 Landmark Square
Suite 400
Stamford, CT 06901
Attention: R. Philip Silver
If to Containers:
Silgan Containers Corporation
4 Landmark Square
Suite 400
Stamford, CT 06901
Attention: R. Philip Silver
If a notice is sent to any of the above, a copy shall be sent to the
following:
Winthrop, Stimson, Putnam & Roberts
Financial Centre
695 East Main Street
P.O. Box 6760
Stamford, CT 06904-6760
Attention: Frank W. Hogan, III, Esq.
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Any notice or request sent by telecopier or similar facsimile telecommunication
shall be confirmed promptly by the sending of a copy of such notice or request
to the addressee thereof by prepaid certified mail, return receipt requested.
13. Definitions.
Terms not defined herein which are defined in the Stockholders
Agreement shall have the meanings ascribed to them therein.
14. Amendment; Assignment; Binding Effect.
This Agreement may be amended or modified only by a
written instrument signed by the parties hereto. No party shall assign or
transfer this Agreement, in whole or in part, or any of such party's rights or
obligations hereunder, to any other person or entity without the prior written
consent of the other party hereto, except that S&H may transfer or assign all of
its rights and obligations hereunder to any entity directly or indirectly
succeeding to S&H by merger, consolidation or reorganization. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective permitted assigns.
15. Waiver; Severability.
The failure of a party to insist in any instance upon the
strict and punctual performance of any provision of this Agreement shall not
constitute a continuing waiver of such provision. No party shall be deemed to
have waived any right, power, or privilege under this Agreement or any
provisions hereof unless such waiver shall have been in writing and duly
executed by the party to be charged with such waiver, and such waiver
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shall be a waiver only with respect to the specific instance involved and shall
in no way impair the rights of the waiving party or the obligations of any other
party in any other respect or at any other time. If any provision of this
Agreement shall be waived, or be invalid, illegal or unenforceable, the
remaining provisions of this Agreement shall be unaffected thereby and shall
remain binding and in full force and effect.
16. Relationship of the Parties.
In all matters relating to this Agreement, each party
hereto shall be solely responsible for the acts of its employees, and employees
of one party shall not be considered employees of the other party. Except as
otherwise provided herein, no party shall have any right, or authority to create
any obligation, express or implied, on behalf of any other party.
17. Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to its
conflict of laws rules and laws.
18. Entire Agreement; Termination of Original Management
Services Agreement.
This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements and understandings, either oral or written, with respect
thereto. Upon the execution and delivery of this Agreement, the Original
Management Services Agreement shall be terminated and shall be of no effect
whatsoever.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
S&H INC.
By: /s/ R. Philip Silver
--------------------------------
Title: President and Co-Chief
Executive Officer
SILGAN CONTAINERS CORPORATION
By:/s/ Harley Rankin, Jr.
--------------------------------
Title: Vice President
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SCHEDULE I
(000's Omitted)
Scheduled Amount1 Maximum Amount1/
1997 $ 89,500 1997 $ 100,504
1998 95,500 1998 102,964
1999 101,500 1999 105,488
2000 108,653 2000 108,653
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1 For each calendar year after 2000, the Scheduled Amount for such calendar year
shall be an amount equal to the Maximum Amount for such calendar year. For each
calendar year after 2000, the Maximum Amount for such calendar year shall be
equal to one hundred and three percent (103%) of the Maximum Amount for the
prior calendar year.