EXHIBIT 1
PLASTIPAK HOLDINGS, INC.
10.75% SENIOR NOTES DUE 2011
---------------
PURCHASE AGREEMENT
August 15, 2001
Goldman, Sachs & Co.,
As representative of the several Purchasers
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004
Ladies and Gentlemen:
Plastipak Holdings, Inc., a Michigan corporation (the "COMPANY"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Purchasers named in Schedule I hereto (the "PURCHASERS") an aggregate of
$275,000,000 principal amount of the 10.75% Senior Notes due 2011 specified
above (the "SECURITIES"). The Securities will be unconditionally guaranteed as
to the payment of principal, premium, if any, and interest (the "GUARANTEES") by
each of the entities named in Schedule II hereto (each a "GUARANTOR" and,
collectively, the "GUARANTORS").
1. Each of the Company and the Guarantors, jointly and severally,
represents and warrants to, and agrees with, each of the Purchasers that:
(a) A preliminary offering circular, dated August 3, 2001 (the
"PRELIMINARY OFFERING CIRCULAR") and an offering circular, dated August 15, 2001
(the "OFFERING CIRCULAR") have been prepared in connection with the offering of
the Securities. Any reference to the Preliminary Offering Circular or the
Offering Circular shall be deemed to refer to and include any Additional Issuer
Information (as defined in Section 5(f)) furnished by the Company prior to the
completion of the distribution of the Securities. The Preliminary Offering
Circular or the Offering Circular and any amendments or supplements thereto did
not and will not, as of their respective dates, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by a Purchaser
through Goldman, Sachs & Co. expressly for use therein;
(b) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in the
Offering Circular any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Offering Circular; and, since the
respective dates as of which information is given in the Offering Circular,
there has not been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Offering Circular;
(c) The Company and its Significant Subsidiaries (as defined in Rule
1-02(w) under Regulation S-X of the United States Securities Act of 1933, as
amended (the "SECURITIES ACT")) have good and marketable title in fee simple to
all real property and good and marketable title to all personal property owned
by them, in each case free and clear of all liens, encumbrances and defects
except such as are described in the Offering Circular or such as do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and its Significant
Subsidiaries; and any real property and buildings held under lease by the
Company and its Significant Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by the Company and its Significant Subsidiaries;
(d) The Company and each Guarantor have been duly incorporated or
formed, as the case may be, and are validly existing as a corporation, limited
liability company or limited partnership, as the case may be, in good standing
under the laws of their respective jurisdictions, with power and authority
(corporate and other) to own their properties and conduct their business as
described in the Offering Circular, and have been duly qualified as a foreign
corporation, limited liability company or limited partnership, as the case may
be, for the transaction of business and are in good standing under the laws of
each other jurisdiction in which they own or lease properties or conduct any
business so as to require such qualification, except where such failure to
qualify or be in good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole. The Company and each Guarantor
are not subject to any material liability or disability by reason of the failure
to be so qualified in any such jurisdiction; and each subsidiary of the Company
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
(e) The Company has an authorized capitalization as set forth in the
Offering Circular, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of each subsidiary
of the Company have been duly and validly authorized and issued, are fully
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paid and non-assessable and (except for directors' qualifying shares and
except as otherwise set forth in the Offering Circular) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims;
(f) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company enforceable in accordance with their terms
and entitled to the benefits provided by the indenture to be dated as of August
20, 2001 (the "INDENTURE") by and among the Company, the Guarantors and Wells
Fargo Bank Minnesota, National Association, as trustee, (the "TRUSTEE"), under
which they are to be issued, which will be substantially in the form previously
delivered to you subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; the Indenture has been duly
authorized and, when executed and delivered by the Company, the Guarantors and
the Trustee, the Indenture will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and the Securities and the Indenture will conform to the
descriptions thereof in the Offering Circular and will be in substantially the
form previously delivered to you;
(g) The Guarantees have been duly authorized by the Guarantors, and
when executed, authenticated, issued and delivered pursuant to this Agreement
and the Indenture, will constitute valid and legally binding obligations of the
Guarantors entitled to the benefits provided by the Indenture, enforceable in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles. The Guarantees
will conform to the descriptions thereof in the Offering Circular;
(h) The exchange and registration rights agreement to be dated August
20, 2001, among the Company, the Guarantors and the Purchasers (the
"REGISTRATION RIGHTS AGREEMENT") has been duly authorized by the Company and the
Guarantors, and when executed and delivered by the Company and the Guarantors,
will constitute the valid and legally binding obligation of the Company and the
Guarantors, enforceable against the Company and the Guarantors in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles. Pursuant to the Registration
Rights Agreement, the Company and the Guarantors will agree to file with the
Commission, under the circumstances set forth therein, (i) a registration
statement under the Securities Act relating to another series of debt securities
of the Company with terms substantially identical to the Securities (the
"EXCHANGE SECURITIES") to be offered in exchange for the Securities (the
"EXCHANGE OFFER"), and (ii) to the extent required by the Registration Rights
Agreement, a shelf registration statement pursuant to Rule 415 of the Securities
Act relating to the resale by certain holders of the Securities, and in each
case, to use all commercially reasonable efforts to cause such registration
statements to be declared effective. The Exchange Securities have been duly
authorized for issuance by the Company, and when issued and authenticated in
accordance with the terms of the Indenture will be the valid and legally binding
obligations of the Company, entitled to the benefits provided by the Indenture,
enforceable in accordance with their terms, subject, as to enforcement, to
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bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
(i) The guarantees of the Company's obligations under the Securities
to be issued with terms substantially identical to the Guarantees (the "EXCHANGE
GUARANTEES") to be offered in exchange for the Guarantees in the Exchange Offer
have been duly authorized by the Guarantors, and when executed, authenticated,
issued and delivered pursuant to this Agreement and the Indenture; will
constitute valid and legally binding obligations of the Guarantors entitled to
the benefits provided by the Indenture, enforceable in accordance with their
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(j) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of the
Securities) will violate or result in a violation of Section 7 of the United
States Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), or any
regulation promulgated thereunder, including, without limitation, Regulations T,
U, and X of the Board of Governors of the Federal Reserve System;
(k) Prior to the date hereof, neither the Company, the Guarantors nor
any of their affiliates have taken any action which is designed to or which has
constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the Company or any
Guarantor in connection with the offering of the Securities and the Guarantees;
(l) The issue and sale of the Securities and the Guarantees and the
compliance by the Company and the Guarantors with all of the provisions of the
Securities, the Guarantees, the Indenture, the Registration Rights Agreement and
this Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation,
Certificate of Formation, partnership agreement or By-laws or other
organizational documents, as applicable, of the Company or any of the Guarantors
or any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its subsidiaries
or any of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Securities and the Guarantees
or the consummation by the Company and the Guarantors of the transactions
contemplated by this Agreement, the Registration Rights Agreement or the
Indenture, except for the filing of a registration statement by the Company with
the Commission pursuant to the Securities Act pursuant to Section 1(h) hereof
and such consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Purchasers;
(m) Neither the Company nor any of its subsidiaries is in violation of
its Certificate of Incorporation, Certificate of Formation, partnership
agreement or By-laws or other organizational
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documents, as applicable, or in default in the performance or observance of any
material obligation, covenant or condition contained in any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound which default
would have a material adverse effect on the Company and its subsidiaries taken
as a whole;
(n) The statements set forth in the Offering Circular under the
caption "Description of Notes", insofar as they purport to constitute a summary
of the terms of the Securities and the Guarantees and under the captions
"Certain United States Federal Tax Consequences" and "Plan of Distribution",
insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(o) Other than as set forth in the Offering Circular, there are no
legal or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future financial position, shareholders' equity
or results of operations of the Company and its subsidiaries considered as one
entity taken as a whole; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(p) When the Securities and the Guarantees are issued and delivered
pursuant to this Agreement, neither the Securities nor the Guarantees will be of
the same class (within the meaning of Rule 144A under the Securities Act), as
securities or guarantees which are listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S. automated
inter-dealer quotation system;
(q) Neither the Company nor any of its subsidiaries is, and after
giving effect to the offering and sale of the Securities will be an "investment
company", as such term is defined in the United States Investment Company Act of
1940, as amended (the "INVESTMENT COMPANY ACT");
(r) Neither the Company, the Guarantors nor any person acting on its
or their behalf has offered or sold the Securities by means of any general
solicitation or general advertising within the meaning of Rule 502(c) under the
Securities Act;
(s) Within the preceding six months, none of the Company, the
Guarantors or any other person acting on behalf of the Company or any Guarantor
has offered or sold to any person any Securities or Guarantees, or any
securities of the same or a similar class as the Securities or Guarantees, other
than Securities or Guarantees offered or sold to the Purchasers hereunder. The
Company and the Guarantors will take reasonable precautions designed to insure
that any offer or sale, direct or indirect, in the United States or to any U.S.
person (as defined in Rule 902 under the Securities Act) of any Securities or
Guarantees or any substantially similar security issued by the Company, within
six months subsequent to the date on which the distribution of the Securities or
the Guarantees has been completed (as notified to the Company by Goldman, Sachs
& Co.), is made under restrictions and other circumstances reasonably designed
not to affect the status of the offer
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and sale of the Securities and the Guarantees in the United States and to U.S.
persons contemplated by this Agreement as transactions exempt from the
registration provisions of the Securities Act;
(t) Neither the Company, the Guarantors nor any of their affiliates
does business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes;
(u) Grant Thornton LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Securities Act and the rules and regulations of
the Commission thereunder;
(v) Except as described in the Offering Circular, (i) neither the
Company nor any of its subsidiaries is in violation of any federal, state, local
or foreign statute, law, rule, regulation, ordinance, code, published policy or
rule of common law or any published judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, non-sanitary wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively, "HAZARDOUS
MATERIALS") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"ENVIRONMENTAL LAWS") except where such violation would not, singly or in the
aggregate, have a material adverse effect on the Company and its subsidiaries
taken as a whole, (ii) the Company and its subsidiaries have all material
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in substantial compliance with their
requirements, (iii) to the Company's knowledge there are no pending or
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Laws against the
Company or any of its subsidiaries and (iv) there are no events or circumstances
that might reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or Environmental Laws, except such
orders, actions, suits or proceedings as would not have a material adverse
effect on the Company and its subsidiaries taken as a whole;
(w) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "INTELLECTUAL PROPERTY") necessary to carry on the business now
operated by them, and neither the Company nor any of its subsidiaries has
received any notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual Property or of
any facts or circumstances which would render any Intellectual Property invalid
or inadequate to protect the interest of the Company or any of its subsidiaries
therein, except for a lawsuit filed by North American Container, Inc. for
alleged infringement of U.S. Patent No. 5,072,841 as disclosed in the Offering
Circular under the caption "Legal Proceedings" or such infringements, conflicts,
facts or
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circumstances which would not have a material adverse effect on the Company and
its subsidiaries taken as a whole; and
(x) The Company maintains title insurance for its domestic owned real
property which is customary in coverage and amount.
2. Subject to the terms and conditions herein set forth, the Company
and the Guarantors agree to issue and sell to each of the Purchasers, and each
of the Purchasers agrees, severally and not jointly, to purchase from the
Company and the Guarantors, at a purchase price of 97.525% of the principal
amount thereof, plus accrued interest, if any, from August 20, 2001 to the Time
of Delivery hereunder, the principal amount of Securities (including the
Guarantees thereof) set forth opposite the name of such Purchaser in Schedule I
hereto.
3. Upon the authorization by you of the release of the Securities and
the Guarantees, the several Purchasers propose to offer the Securities for sale
upon the terms and conditions set forth in this Agreement and the Offering
Circular and each Purchaser hereby represents and warrants to, and agrees with
the Company and the Guarantors that:
(a) It will offer and sell the Securities only to persons who it
reasonably believes are "qualified institutional buyers" ("QIBs") within the
meaning of Rule 144A under the Securities Act in transactions meeting the
requirements of Rule 144A;
(b) It is an Institutional Accredited Investor; and
(c) It will not offer or sell the Securities by any form of general
solicitation or general advertising, including, but not limited to, the methods
described in Rule 502(c) under the Securities Act.
4. (a) The Securities to be purchased by each Purchaser hereunder
will be represented by one or more definitive global Securities in book-entry
form, which will be deposited by or on behalf of the Company with The Depository
Trust Company ("DTC") or its designated custodian. The Company and the
Guarantors will deliver the Securities and the Guarantees to Goldman, Sachs &
Co., for the account of each Purchaser, against payment by or on behalf of such
Purchaser of the purchase price therefor by wire transfer in immediately
available funds, by causing DTC to credit the Securities to the account of
Goldman, Sachs & Co. at DTC. The Company will cause the certificates
representing the Securities to be made available to Goldman, Sachs & Co. for
checking at least twenty-four hours prior to the Time of Delivery (as defined
below) at the office of DTC or its designated custodian (the "DESIGNATED
OFFICE"). The time and date of such delivery and payment shall be 9:30 a.m., New
York City time, on August 20, 2001 or such other time and date as Goldman, Sachs
& Co. and the Company may agree upon in writing. Such time and date are herein
called the "TIME OF DELIVERY".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents reasonably
requested by the Purchasers pursuant to Section 7(i) hereof, will be delivered
at such time and date at the offices of Seyburn, Kahn, Ginn, Bess & Serlin,
P.C., 2000 Town Center, Suite 1500, Southfield, Michigan 48075 (the "CLOSING
LOCATION"), and the Securities
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and the Guarantees will be delivered at the Designated Office, all at the Time
of Delivery. A meeting will be held at the Closing Location at 1:00 p.m., New
York City time, on the New York Business Day next preceding the Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. Each of the Company and the Guarantors, jointly and severally,
agrees with each of the Purchasers:
(a) To prepare the Offering Circular in a form approved by you; to
make no amendment or any supplement to the Offering Circular which shall be
disapproved by you promptly after reasonable notice thereof; and to furnish you
with copies thereof;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Securities, provided that in connection therewith neither the Company nor
any of the Guarantors shall be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(c) To furnish the Purchasers with copies of the Offering Circular and
each amendment or supplement thereto signed by an authorized officer of the
Company with the independent accountants' report(s) in the Offering Circular,
and any amendment or supplement containing amendments to the financial
statements covered by such report(s), signed by the accountants, and additional
written and electronic copies thereof in such quantities as you may from time to
time reasonably request, and if, at any time prior to the expiration of nine
months after the date of the Offering Circular, any event shall have occurred as
a result of which the Offering Circular as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Offering Circular is
delivered, not misleading, or, if for any other reason it shall be necessary or
desirable during such same period to amend or supplement the Offering Circular,
to notify you and upon your request to prepare and furnish without charge to
each Purchaser and to any dealer in securities as many written and electronic
copies as you may from time to time reasonably request of an amended Offering
Circular or a supplement to the Offering Circular which will correct such
statement or omission or effect such compliance;
(d) During the period beginning from the date hereof and continuing
until the date six months after the Time of Delivery, not to offer, sell
contract to sell or otherwise dispose of, without the consent of Goldman, Sachs
& Co. and except as provided hereunder, any securities of the Company or any
Guarantor that are substantially similar to the Securities or the Guarantees;
(e) Not to be or become, at any time prior to the expiration of three
years after the Time of Delivery, an open-end investment company, unit
investment trust, closed-end investment
8
company or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act;
(f) At any time when the Company is not subject to Section 13 or 15(d)
of the Exchange Act, for the benefit of holders from time to time of Securities,
to furnish at its expense, upon request, to holders of Securities and
prospective purchasers of securities information (the "ADDITIONAL ISSUER
INFORMATION") satisfying the requirements of subsection (d)(4)(i) of Rule 144A
under the Securities Act;
(g) If requested by you, to use its best efforts to cause the
Securities to be eligible for the PORTAL trading system of the National
Association of Securities Dealers, Inc.;
(h) To furnish to the holders of the Securities as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet
and statements of income, shareholders' equity and cash flows of the Company and
its consolidated subsidiaries certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the date of the
Offering Circular), to make available to the holders of the Securities
consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail;
(i) During a period of three years from the date of the Offering
Circular, to furnish to you copies of all reports or other communications
(financial or other) furnished to holders of Securities of the Company or any of
the Guarantors, and to deliver to you (i) as soon as they are available, copies
of any reports and financial statements furnished to or filed with the
Commission or any securities exchange on which the Securities, or any class of
securities of the Company or the Guarantors is listed; and (ii) such additional
information concerning the business and financial condition of the Company and
the Guarantors as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to its
shareholders generally or to the Commission);
(j) During the period of two years after the Time of Delivery, the
Company and the Guarantors will not, and will not permit any of their
"affiliates" (as defined in Rule 144 under the Securities Act) to, resell any of
the Securities which constitute "restricted securities" under Rule 144 that have
been reacquired by any of them;
(k) The Company and the Guarantors shall file and use all commercially
reasonable efforts to cause to be declared or become effective under the
Securities Act, on or prior to 180 days after the Time of Delivery, a
registration statement on Form S-4 providing for the registration of the
Exchange Securities and the Exchange Guarantees, the exchange of the Securities
for the Exchange Securities and the exchange of the Guarantees for the Exchange
Guarantees, all in a manner which will permit persons who acquire the Exchange
Securities and the Exchange Guarantees to resell the Exchange Securities and the
Exchange Guarantees pursuant to Section 4(1) of the Securities Act; and
(l) To use the net proceeds received by it from the sale of the
Securities pursuant to this Agreement in the manner specified in the Offering
Circular under the caption "Use of Proceeds."
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6. Each of the Company and the Guarantors, jointly and severally,
covenants and agrees with the several Purchasers that the Company and the
Guarantors will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the issue of the Securities and the Guarantees and all other
expenses in connection with the preparation, printing and filing of the
Preliminary Offering Circular and the Offering Circular and any amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Purchasers and dealers; (ii) the cost of printing or producing any Agreement
among Purchasers, this Agreement, the Registration Rights Agreement, the
Indenture, the Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities and the Exchange
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Purchasers in connection with such qualification and in connection with the Blue
Sky and legal investment surveys; (iv) any fees charged by securities rating
services for rating the Securities and the Exchange Securities; (v) the cost of
preparing the Securities, the Guarantees, the Exchange Securities and the
Exchange Guarantees; (vi) the fees and expenses of the Trustee and any agent of
the Trustee in connection with the Indenture, the Securities and the Exchange
Securities; (vii) any cost incurred in connection with the designation of the
Securities for trading in PORTAL and (viii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the Purchasers
will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Purchasers hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company and the Guarantors herein are, at and as of the
Time of Delivery, true and correct, the condition that the Company and the
Guarantors shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) Latham & Watkins, counsel for the Purchasers, shall have furnished
to you such opinion or opinions, dated the Time of Delivery, with respect to the
matters covered in paragraphs (vi), (viii) and (x) of subsection (b) below and
paragraphs (v), (vi) and (vii) of subsection (c) below as well as such other
related matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(b) Seyburn, Kahn, Ginn, Bess and Serlin, P.C. counsel for the
Company, shall have furnished to you their written opinion, dated the Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Michigan, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Offering
Circular;
10
(ii) The Company has an authorized capitalization as set forth
in the Offering Circular, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable;
(iii) Each domestic subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; and all of the
issued shares of capital stock of each such subsidiary have been duly
and validly authorized and issued, are fully paid and non-assessable,
and (except for directors' qualifying shares and except as otherwise
set forth in the Offering Circular) are owned directly or indirectly by
the Company, and to the best of such counsel's knowledge are free and
clear of all liens, encumbrances, equities or claims, except as
disclosed in the Offering Circular (such counsel being entitled to rely
in respect of the opinion in this clause in respect of matters of fact
upon certificates of officers of the Company or its subsidiaries,
provided that such counsel shall state that they believe that both you
and they are justified in relying upon such certificates);
(iv) To the best of such counsel's knowledge and other than as
set forth in the Offering Circular, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(v) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors;
(vi) The Securities have been duly authorized, executed,
authenticated, issued and delivered by the Company;
(vii) The Exchange Securities have been authorized by the
Company;
(viii) The Guarantees have been duly authorized, executed,
authenticated, issued and delivered by the Guarantors;
(ix) The Exchange Guarantees have been authorized by the
Guarantors;
(x) The Indenture has been duly authorized, executed and
delivered by the Company and the Guarantors;
(xi) The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and the Guarantors;
(xii) The issue and sale of the Securities and the Guarantees and
the compliance by the Company and the Guarantors with all of the
provisions of the
11
Securities and the Guarantees, the Indenture, the Registration Rights
Agreement and the Purchase Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the Certificate of Incorporation, Certificate of
Formation, Partnership Agreement or By-laws or other organizational
document of the Company or any of the Guarantors or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any
of their properties;
(xiii) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Purchasers;
(xiv) Other than as described in the Offering Circular, to such
counsel's knowledge (i) neither the Company nor any of its subsidiaries
is in violation of any federal, state or local statute, law, rule,
regulation, ordinance, code, published policy or rule of common law or
any judicial or administrative interpretation thereof, including any
published judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, non-sanitary wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "HAZARDOUS MATERIALS") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "ENVIRONMENTAL LAWS")
except where such violation would not, singly or in the aggregate, have
a material adverse effect on the Company and its subsidiaries taken as
a whole, (ii) the Company and its subsidiaries have all material
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(iii) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Laws against the Company or any of its
subsidiaries and (iv) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency against or affecting the Company or any of
its subsidiaries relating to Hazardous Materials or Environmental Laws,
except such orders, actions, suits or proceedings as would not
12
have a material adverse effect on the Company and its subsidiaries
taken as a whole; and
(xv) Any U.S. real property and buildings held under lease by
the Company and its subsidiaries relating to its manufacturing plants
or corporate headquarters are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries (in giving the
opinion in this clause, such counsel may state that they are giving
such opinion based on Michigan law based on the assumption that the
laws governing the leases are the same as the laws of the state of
Michigan and they are relying in respect of matters of fact, upon
certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that they believe that both you and they
are justified in relying upon such certificates);
Such counsel shall also state that, in the course of preparing the
Offering Circular, they have considered the information set forth
therein, and have participated in conferences with representatives and
officers of the Company, including its internal counsel and independent
public accountants, during the course of which the contents of the
Offering Circular and related matters were discussed; that they have
not independently checked the accuracy or completeness of, or otherwise
verified, and accordingly are not passing upon, and do not assume
responsibility for, the accuracy, completeness or fairness of the
statements contained in the Offering Circular; that they have relied as
to factual matters upon the officers and representatives of the
Company; and that, as a result of such consideration and participation,
nothing has come to their attention which causes them to believe that
the Offering Circular and any further amendments or supplements thereto
made by the Company prior to the Time of Delivery (other than the
financial statements, financial data and supporting schedules therein,
as to which such counsel need express no opinion) contained as of its
date or contains as of the Time of Delivery an untrue statement of a
material fact or omitted or omits, as the case may be, to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(c) Mayer, Brown & Platt, counsel for the Company, shall have
furnished to you their written opinion, dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
13
(i) Assuming that the Securities have been duly authorized,
executed, authenticated, issued and delivered, and duly paid for in
accordance with the applicable provisions of this Agreement, the
Securities constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture, enforceable
against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, (ii) laws or underlying policies limiting
rights of indemnity or contribution and (iii) general principles of
equity;
(ii) Assuming that the Guarantees have been duly authorized,
executed and delivered by all parties thereto, the Guarantees to be
delivered at the Time of Delivery constitute valid and legally binding
obligations of the Guarantors entitled to the benefits provided by the
Indenture, enforceable against the Guarantors in accordance with their
terms, except to the extent that enforcement thereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally, (ii) laws or underlying
policies limiting rights of indemnity or contribution and (iii) general
principles of equity;
(iii) Assuming that the Indenture has been duly authorized,
executed and delivered by all parties thereto, the Indenture
constitutes a valid and legally binding instrument, enforceable against
the Company and the Guarantors in accordance with its terms, except to
the extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other
similar laws now or hereafter in effect relating to or affecting
creditors' rights generally, (ii) laws or underlying policies limiting
rights of indemnity or contribution and (iii) general equity
principles;
(iv) Assuming that the Registration Rights Agreement has been
duly authorized, executed and delivered by all parties thereto, the
Registration Rights Agreement is a valid and legally binding agreement
of the Company and each Guarantor, enforceable against the Company and
each Guarantor in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
now or hereafter in effect relating to or affecting creditors' rights
generally, (ii) laws or underlying policies limiting rights of
indemnity or contribution and (iii) general principles of equity;
(v) The statements set forth in the Offering Circular (i) under
the caption "Description of Notes" insofar as they purport to
constitute a summary of the terms of the Securities under the caption
"Certain United States Federal Tax Consequences," and under the caption
"Plan of Distribution," insofar as they purport to describe the
provisions of the laws and documents referred to therein, are accurate
and complete in all material respects;
14
(vi) The Securities, the Guarantees and the Indenture conform to
the descriptions thereof in the Offering Circular in all material
requests;
(vii) Assuming the accuracy of the representations, warranties
and agreements of the Purchasers contained herein, no registration of
the Securities under the Securities Act, and no qualification of an
indenture under the United States Trust Indenture Act of 1939 with
respect thereto, is required for the offer, sale and initial resale of
the Securities by the Purchasers in the manner contemplated by this
Agreement and the Offering Circular; and
(viii) The Company is not an "investment company", as such term is
defined in the Investment Company Act.
(d) Trench, Rossi and Wantanabe, special Brazilian counsel to the
Company, shall have furnished to you their written opinion, dated the Time of
Delivery, in form and substance satisfactory to you, to the effect that:
(i) Each Brazilian subsidiary of the Company has been duly
organized and is validly existing as a corporation, limited liability
company or limitada in good standing under the laws of its jurisdiction
of incorporation; and all of the issued equity interests of each such
subsidiary have been duly and validly authorized and issued, are fully
paid and non-assessable, and are owned directly or indirectly by the
Company, and to the best of such counsel's knowledge are free and clear
of all liens, encumbrances, equities or claims, except as disclosed in
the Offering Circular (such counsel being entitled to rely in respect
of the opinion in this clause in respect of matters of fact upon
certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that they believe that both you and they
are justified in relying upon such certificates); and
(ii) The City of Paulinia duly authorized the donation of, and
the indefinite right to use, the land on which Plastipak do Brasil's
Paulinia facility is built; however, transfer of title of the land to
Plastipak do Brasil is pending the resolution of an outstanding tax
issue between the City of Paulinia and the Brazilian federal
government.
(e) The Company shall engage special Argentinean counsel who shall
have furnished to you their written opinion, dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The Company's Argentinean subsidiary has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation; and all of the
issued shares of capital stock of each such subsidiary have been duly
and validly authorized and issued, are fully paid and non-assessable,
and are owned directly or indirectly by the Company, and to the best of
such counsel's knowledge are free and clear of all liens, encumbrances,
equities or claims, except as disclosed in the Offering Circular (such
counsel being entitled to rely in respect of the opinion in this clause
in respect of matters of fact upon certificates of officers of the
15
Company or its subsidiaries, provided that such counsel shall state
that they believe that both you and they are justified in relying upon
such certificates).
(f) Leann M. Underhill, general counsel of the Company, shall have
furnished to you her written opinion, dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction (such
counsel being entitled to rely in respect of the opinion in this clause
upon opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company, provided that such counsel
shall state that they believe that both you and they are justified in
relying upon such opinions and certificates);
(ii) The Company and its subsidiaries have adequate title
insurance on all U.S. real property owned by them;
(iii) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation, Certificate of
Formation, Partnership Agreement or By-laws or other organizational
documents or in default in the performance or observance of any
material obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound which default would have a material adverse
effect on the Company and its subsidiaries taken as a whole; and
(iv) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "INTELLECTUAL PROPERTY") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others
with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
subsidiaries therein, except for a lawsuit filed by North American
Container, Inc. for alleged infringement of U.S. Patent No. 5,072,841
as disclosed in the Offering Circular under the caption "Legal
Proceedings" or such infringements, conflicts, facts or circumstances
which would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
Such counsel shall also state that, in the course of preparing the
Offering Circular, she has considered the information set forth
therein, and has participated in conferences
16
with other representatives and other officers of the Company, as well
as its independent public accountants, during the course of which the
contents of the Offering Circular and related matters were discussed;
and that, as a result of such consideration and participation, nothing
has come to her attention which causes her to believe that the Offering
Circular and any further amendments or supplements thereto made by the
Company prior to the Time of Delivery (other than the financial
statements, financial data and supporting schedules therein, as to
which such counsel need express no opinion) contained as of its date or
contains as of the Time of Delivery an untrue statement of a material
fact or omitted or omits, as the case may be, to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(g) On the date of the Offering Circular prior to the execution of
this Agreement and also at the Time of Delivery, Grant Thornton LLP shall have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you;
(h) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Offering Circular any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Offering Circular, and (ii) since the
respective dates as of which information is given in the Offering Circular there
shall not have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Offering
Circular, the effect of which, in any such case described in clause (i) or (ii),
is in the judgment of the Purchasers so material and adverse as to make it
impracticable or inadvisable to proceed with the offering or the delivery of the
Securities on the terms and in the manner contemplated in this Agreement and in
the Offering Circular;
(i) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no
such organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities;
(j) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or the Nasdaq National Market; (ii) a
general moratorium on commercial banking activities declared by either Federal
or New York State authorities; (iii) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in this
clause (iii) in the judgment of the Purchasers makes it impracticable or
inadvisable to proceed with the offering or the delivery of the Securities on
the terms and in the manner contemplated in the Offering Circular; or (iv) the
occurrence of any material adverse change in the existing financial political or
economic conditions in the United States or
17
elsewhere which, in the judgment of the Purchasers, would materially and
adversely affect the financial markets, or the markets for the Securities and
other debt securities;
(k) The Securities have been designated for trading on PORTAL; and
(l) The Company shall have furnished or caused to be furnished to you
at the Time of Delivery certificates of officers of the Company satisfactory to
you as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance by the Company
of all of its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (g) and (h) of this Section
and as to such other matters as you may reasonably request.
8. (a) The Company and each Guarantor will, jointly and severally,
indemnify and hold harmless each Purchaser against any losses, claims, damages
or liabilities, joint or several, to which such Purchaser may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Offering Circular or the Offering Circular, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, and will reimburse each Purchaser for any legal or other
expenses reasonably incurred by such Purchaser in connection with investigating
or defending any such action or claim as such expenses are incurred; provided,
however, that neither the Company nor any Guarantor shall be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Offering Circular or the Offering
Circular or any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any Purchaser through
Goldman, Sachs & Co. expressly for use therein.
(b) Each Purchaser will indemnify and hold harmless the Company and
the Guarantors against any losses, claims, damages or liabilities to which the
Company and any Guarantor may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Offering
Circular or the Offering Circular, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Offering Circular or the Offering Circular or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by such Purchaser through Goldman, Sachs & Co. expressly for use
therein; and will reimburse the Company and the Guarantors for any legal or
other expenses reasonably incurred by the Company and the Guarantors in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying
18
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors on the one hand and
the Purchasers on the other from the offering of the Securities. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Guarantors on the one hand and the Purchasers on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Guarantors on the one hand and the Purchasers on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company and the
Guarantors bear to the total underwriting discounts and commissions received by
the Purchasers, in each case as set forth in the Offering Circular. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
and the Guarantors on the one hand or the Purchasers on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Guarantors and
the Purchasers agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Purchasers were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to
19
above in this subsection (d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Purchaser shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to investors
were offered to investors exceeds the amount of any damages which such Purchaser
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. The Purchasers' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company and the Guarantors under this
Section 8 shall be in addition to any liability which the Company and the
Guarantors may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Purchaser within the
meaning of the Securities Act; and the obligations of the Purchasers under this
Section 8 shall be in addition to any liability which the respective Purchasers
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company or any Guarantor and to each person, if any,
who controls the Company or any Guarantor within the meaning of the Securities
Act.
9. (a) If any Purchaser shall default in its obligation to purchase
the Securities which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to purchase such
Securities on the terms contained herein. If within thirty-six hours after such
default by any Purchaser you do not arrange for the purchase of such Securities,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you to
purchase such Securities on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Securities, or the Company notifies you that it has so arranged
for the purchase of such Securities, you or the Company shall have the right to
postpone the Time of Delivery for a period of not more than ten days, in order
to effect whatever changes may thereby be made necessary in the Offering
Circular, or in any other documents or arrangements, and the Company agrees to
prepare promptly any amendments to the Offering Circular which in your opinion
may thereby be made necessary. The term "Purchaser" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Purchaser to purchase the principal
amount of Securities which such Purchaser agreed to purchase hereunder and, in
addition, to require each non-defaulting Purchaser to purchase its pro rata
share (based on the principal amount of Securities which such Purchaser agreed
to purchase hereunder) of the Securities of such defaulting Purchaser or
Purchasers for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Purchaser from liability for its default.
20
(c) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of all the Securities, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Purchasers to purchase
Securities of a defaulting Purchaser or Purchasers, then this Agreement shall
thereupon terminate, without liability on the part of any non-defaulting
Purchaser or the Company, except for the expenses to be borne by the Company and
the Purchasers as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Purchaser from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Guarantors and the several
Purchasers, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Purchaser or any controlling person of any
Purchaser, or the Company, the Guarantors or any officer or director or
controlling person of the Company or a Guarantor, and shall survive delivery of
and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Purchaser
except as provided in Sections 6 and 8 hereof; but, if for any other reason, the
Securities (including the Guarantees with respect thereto) are not delivered by
or on behalf of the Company as provided herein, the Company will reimburse the
Purchasers through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Purchasers in making preparations for the purchase, sale and delivery of the
Securities, but the Company shall then be under no further liability to any
Purchaser except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or given
by you.
13. All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Purchasers shall be delivered or sent by mail,
telex or facsimile transmission to you as the representatives at 1 Liberty
Plaza, 7th Floor, New York, New York 10006, Attention: Registration Department;
and if to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Offering Circular,
Attention: Secretary; provided, however, that any notice to a Purchaser pursuant
to Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Purchaser at its address set forth in its Purchasers'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the
benefit of, the Purchasers, the Company, the Guarantors and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and the Guarantors and each person who controls the
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Company, any Guarantor or any Purchaser, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Purchaser shall be deemed a successor or assign by reason
merely of such purchase.
15. Time shall be of the essence of this Agreement.
16. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
17. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
18. The Company is authorized, subject to applicable law, to disclose
any and all aspects of this potential transaction that are necessary to support
any U.S. federal income tax benefits expected to be claimed with respect to such
transaction, without the Purchasers imposing any limitation of any kind.
19. If the foregoing is in accordance with your understanding, please
sign and return to us counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Purchasers, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Purchasers and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Purchasers is pursuant to the authority set forth in a form of Agreement
among Purchasers, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
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Very truly yours,
Issuer:
PLASTIPAK HOLDINGS, INC.
By: /S/ William C. Young
------------------------------
Name: William C. Young
Title: President
Guarantors:
WHITELINE EXPRESS, LTD.
By: /S/ William C. Young
------------------------------
Name: William C. Young
Title: President
CLEAN TECH, INC.
By: /S/ William C. Young
------------------------------
Name: William C. Young
Title: President
PLASTIPAK PACKAGING, INC.
By: /S/ William C. Young
------------------------------
Name: William C. Young
Title: President
TABB REALTY, LLC
By: Plastipak Holdings, Inc.
By: /S/ William C. Young
------------------------------
Name: William C. Young
Title: Manager
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
/S/ Goldman, Sachs & Co.
- --------------------------------
(Goldman, Sachs & Co.)
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SCHEDULE I
PRINCIPAL
AMOUNT OF
SECURITIES
TO BE
PURCHASER PURCHASED
------------
Goldman, Sachs & Co............................................................. $225,500,000
ABN AMRO Incorporated........................................................... $ 16,500,000
Banc One Capital Markets, Inc................................................... $ 16,500,000
Fleet Securities, Inc........................................................... $ 8,250,000
NatCity Investments, Inc........................................................ $ 8,250,000
============
Total......................................................... $275,000,000
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SCHEDULE II
Whiteline Express, Ltd.
Clean Tech, Inc.
Plastipak Packaging, Inc.
TABB Realty, LLC
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