EXHIBIT 1
CONSOLIDATED CONTAINER COMPANY LLC
CONSOLIDATED CONTAINER CAPITAL, INC.
AND
THE SUBSIDIARY GUARANTORS LISTED HEREIN
$185,000,000 of
10 1/8% Senior Subordinated Notes due 2009
Purchase Agreement
June 24, 1999
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
DEUTSCHE BANK SECURITIES INC.
J.P. MORGAN SECURITIES INC.
BEAR, STEARNS & CO. INC.
CONSOLIDATED CONTAINER COMPANY LLC
CONSOLIDATED CONTAINER CAPITAL, INC.
and the Subsidiary Guarantors listed herein
$185,000,000
10 1/8% Senior Subordinated Notes due 2009
PURCHASE AGREEMENT
June 24, 1999
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
DEUTSCHE BANK SECURITIES INC.
J.P. MORGAN SECURITIES INC.
BEAR, STEARNS & CO. INC.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Consolidated Container Company LLC, a Delaware limited liability
company (the "Company"), and Consolidated Container Capital, Inc., a Delaware
corporation, ("Consolidated Container Capital" and, together with the Company,
the "Issuers"), propose to issue and sell to Donaldson, Lufkin & Jenrette
Securities Corporation ("DLJ"), Deutsche Bank Securities Inc. ("DBS"), J.P.
Morgan Securities Inc. ("J.P. Morgan") and Bear, Stearns & Co. Inc. ("Bear,
Stearns" and, together with DLJ, DBS and J.P. Morgan, the "Initial Purchasers")
an aggregate of $185,000,000 in principal amount of their 10 1/8% Senior
Subordinated Notes due 2009 (the "Senior Subordinated Notes"), subject to the
terms and conditions set forth herein. The Senior Subordinated Notes are to be
issued pursuant to the provisions of an indenture (the "Indenture"), to be dated
as of the Closing Date (as defined below), among the Issuers, the Subsidiary
Guarantors (as defined below) and The Bank of New York, as trustee (the
"Trustee"). The Senior Subordinated Notes and the New Senior Subordinated Notes
(as defined below) issuable in exchange therefor are collectively referred to
herein as the "Notes." The Notes will be guaranteed (the "Subsidiary
Guarantees") by each of the entities listed on Schedule A hereto (each, a
"Subsidiary Guarantor" and collectively the "Subsidiary Guarantors"). Upon
consummation of the Contributions and Mergers (as defined below), each
Subsidiary Guarantor shall join this Agreement by execution of the joinder
attached hereto as Exhibit A.
Proceeds from the offering of the Notes will be used in connection
with the contributions and mergers (the "Contributions and Mergers") pursuant to
the terms of a Contribution and Merger Agreement, dated as of April 29, 1999 and
as amended and/or restated to date (the "Contribution and Merger Agreement"),
among Suiza Foods Corporation ("Suiza Foods"), Franklin
Plastics, Inc. ("Franklin Plastics"), the Suiza Companies identified therein,
Vestar Packaging LLC, Reid Plastics Holdings, Inc. ("Reid Plastics"), the Reid
Companies identified therein, Reid Plastics Group LLC, Consolidated Container
Holdings LLC, the owner of all of the member units of the Company ("Holdings"),
and the Company. As part of the Contributions and Mergers, certain of the Suiza
Companies (as defined in the Contribution and Merger Agreement) and each of the
Reid Companies (as defined in the Contribution and Merger Agreement, other than
those incorporated outside of the United States) will be merged with and into
the Company. Also pursuant to the Contribution and Merger Agreement, certain of
the Suiza Companies or their operations will be contributed to the Company. Upon
completion of the Contributions and Mergers, Vestar Packaging LLC and Reid
Plastics will collectively own 51% of the member units of Holdings, and Suiza
Foods, through Franklin Plastics, which is 88% owned by Suiza Foods on a primary
basis, will own 49% of the member units of Holdings. The Contribution and Merger
Agreement, the agreements set forth on Schedule B hereto, and all closing
documents relating to the closing of the Contributions and Mergers are herein
referred to as the "Contribution and Merger Documents."
1. Offering Memorandum. The Senior Subordinated Notes will be
offered and sold to the Initial Purchasers pursuant to one or more exemptions
from the registration requirements under the Securities Act of 1933, as amended
(the "Securities Act"). The Issuers and the Subsidiary Guarantors have prepared
a preliminary offering memorandum, dated June 9, 1999 (the "Preliminary Offering
Memorandum"), and a final offering memorandum, dated June 24, 1999 (the
"Offering Memorandum"), relating to the Senior Subordinated Notes and the
Subsidiary Guarantees.
Upon original issuance thereof, and until such time as the same is
no longer required pursuant to the Indenture, the Senior Subordinated Notes (and
all securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER: (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB"), (B) IT HAS ACQUIRED THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) OR
REGULATION D UNDER THE SECURITIES ACT (AN "IAI"), (2) AGREES THAT
IT WILL NOT RESELL OR
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OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE CONSOLIDATED
CONTAINER COMPANY LLC, CONSOLIDATED CONTAINER CAPITAL, INC. OR
ANY OF OUR RESPECTIVE SUBSIDIARIES, (B) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT, (D) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS
NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO
CONSOLIDATED CONTAINER COMPANY LLC AND CONSOLIDATED CONTAINER
CAPITAL, INC. THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON
AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUERS) OR (G) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR
AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND."
2. Agreements to Sell and Purchase. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Issuers agree to issue
and sell to the Initial Purchasers, and the Initial Purchasers agree, severally
and not jointly, to purchase from the Issuers, the principal amounts of Senior
Subordinated Notes set forth opposite the name of such Initial Purchaser on
Schedule C hereto at a purchase price equal to 97 1/4% of the principal amount
thereof (the "Purchase Price").
3. Terms of Offering. The Initial Purchasers have advised the
Issuers that the Initial Purchasers will make offers (the "Exempt Resales") of
the Senior Subordinated Notes purchased
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hereunder on the terms set forth in the Offering Memorandum, as amended or
supplemented, solely to (i) persons whom the Initial Purchasers reasonably
believe to be "qualified institutional buyers" as defined in Rule 144A under the
Securities Act ("QIBs") and (ii) to persons permitted to purchase the Senior
Subordinated Notes in offshore transactions in reliance upon Regulation S under
the Securities Act (each, a "Regulation S Purchaser") (such persons specified in
clauses (i) and (ii) being referred to herein as the "Eligible Purchasers"). The
Initial Purchasers will offer the Senior Subordinated Notes to Eligible
Purchasers initially at a price equal to 100% of the principal amount thereof.
Such price may be changed at any time without notice.
Holders (including subsequent transferees) of the Senior
Subordinated Notes will have the registration rights set forth in the
registration rights agreement (the "Registration Rights Agreement"), to be dated
the Closing Date, in substantially the form of Exhibit B hereto, for so long as
such Senior Subordinated Notes constitute "Transfer Restricted Securities" (as
defined in the Registration Rights Agreement). Pursuant to the Registration
Rights Agreement, the Issuers and the Subsidiary Guarantors will agree to file
with the Securities and Exchange Commission (the "Commission") under the
circumstances set forth therein, (i) a registration statement under the
Securities Act (the "Exchange Offer Registration Statement") relating to the
Issuers' 10 1/8% new Senior Subordinated Notes due 2009 (the "New Senior
Subordinated Notes"), to be offered in exchange for the Senior Subordinated
Notes (such offer to exchange being referred to as the "Exchange Offer") and the
Subsidiary Guarantees thereof and (ii) a shelf registration statement pursuant
to Rule 415 under the Securities Act (the "Shelf Registration Statement" and,
together with the Exchange Offer Registration Statement, the "Registration
Statements") relating to the resale by certain holders of the Senior
Subordinated Notes and to use their best efforts to cause such Registration
Statements to be declared and remain effective and available for use by such
holders for the periods specified in the Registration Rights Agreement and to
consummate the Exchange Offer. This Agreement, the Indenture, the Notes, the
Subsidiary Guarantees, the Senior Credit Facility (as described in the Offering
Memorandum) and the Registration Rights Agreement are hereinafter sometimes
referred to collectively as the "Operative Documents."
4. Delivery and Payment.
(a) Delivery of, and payment of the Purchase Price for, the
Senior Subordinated Notes shall be made at the offices of Latham & Watkins, 885
Third Avenue, New York, New York 10022, or such other location as may be
mutually acceptable. Such delivery and payment shall be made at 9:00 a.m. New
York City time, on July 1, 1999 or at such other time on the same date or such
other date as shall be agreed upon by the Initial Purchasers and the Issuers in
writing. The time and date of such delivery and the payment for the Senior
Subordinated Notes are herein called the "Closing Date."
(b) One or more of the Senior Subordinated Notes in definitive
global form, registered in the name of Cede & Co., as nominee of The Depository
Trust Company ("DTC"), having an aggregate principal amount corresponding to the
aggregate principal amount of the Senior Subordinated Notes (collectively, the
"Global Note"), shall be delivered by the Issuers to the Initial
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Purchasers (or as the Initial Purchasers direct) in each case with any transfer
taxes thereon duly paid by the Issuers against payment by the Initial Purchasers
of the Purchase Price thereof by wire transfer in same day funds to the order of
the Company. The Global Note shall be made available to the Initial Purchasers
for inspection not later than 9:30 a.m., New York City time, on the business day
immediately preceding the Closing Date.
5. Agreements of the Issuers and the Subsidiary Guarantors. Each of
the Issuers (or following the Contributions and Mergers, each of the Issuers and
the Subsidiary Guarantors), hereby agrees with the Initial Purchasers as
follows:
(a) To advise the Initial Purchasers promptly (and, if
requested by the Initial Purchasers, confirm such advice in writing) of (i) the
issuance by any state securities commission of any stop order suspending the
qualification or exemption from qualification of any Senior Subordinated Notes
for offering or sale in any jurisdiction designated by the Initial Purchasers
pursuant to Section 5(e) hereof, or the initiation of any proceeding by any
state securities commission or any other federal or state regulatory authority
for such purpose and (ii) the happening of any event during the period referred
to in Section 5(c) below that makes any statement of a material fact made in the
Preliminary Offering Memorandum or the Offering Memorandum untrue or that
requires any additions to or changes in the Preliminary Offering Memorandum or
the Offering Memorandum in order to make the statements therein not misleading.
The Issuers (or following the Contributions and Mergers, the Issuers and the
Subsidiary Guarantors) shall use their best efforts to prevent the issuance of
any stop order or order suspending the qualification or exemption of any Senior
Subordinated Notes under any state securities or Blue Sky laws and, if at any
time any state securities commission or other federal or state regulatory
authority shall issue an order suspending the qualification or exemption of any
Senior Subordinated Notes under any state securities or Blue Sky laws, the
Issuers (or following the Contributions and Mergers, the Issuers and the
Subsidiary Guarantors) shall use their best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers to the Issuers as many copies of the
Offering Memorandum, and any amendments or supplements thereto, as the Initial
Purchasers may reasonably request for the time period specified in Section 5(c).
Subject to the Initial Purchasers' compliance with its representations and
warranties and agreements set forth in Section 7 hereof, the Issuers consent to
the use of the Preliminary Offering Memorandum and the Offering Memorandum, and
any amendments and supplements thereto required pursuant hereto, by the Initial
Purchasers in connection with Exempt Resales.
(c) During such period as in the opinion of counsel for the
Initial Purchasers an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchasers, not to make any
amendment or supplement to the Offering Memorandum of which the Initial
Purchasers shall not previously have been advised or to which the Initial
Purchasers shall reasonably object after being so advised and to prepare
promptly upon the Initial Purchasers' reasonable request, any amendment or
supplement to the Offering Memorandum which may be
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necessary or advisable in the reasonable determination of both the Initial
Purchasers and the Issuers in connection with such Exempt Resales.
(d) If, during the period referred to in Section 5(c) above,
any event shall occur or condition shall exist as a result of which, in the
opinion of counsel to the Initial Purchasers, it becomes necessary to amend or
supplement the Offering Memorandum in order to make the statements therein, in
the light of the circumstances when such Offering Memorandum is delivered to an
Eligible Purchaser, not misleading, or if, in the reasonable opinion of counsel
to the Initial Purchasers, it is necessary to amend or supplement the Offering
Memorandum to comply with any applicable law, forthwith to prepare an
appropriate amendment or supplement to such Offering Memorandum so that the
statements therein, as so amended or supplemented, will not, in the light of the
circumstances when it is so delivered, be misleading, or so that such Offering
Memorandum will comply with applicable law, and to furnish to the Initial
Purchasers and such other persons as the Initial Purchasers may designate such
number of copies thereof as the Initial Purchasers may reasonably request.
(e) Prior to the sale of all Senior Subordinated Notes
pursuant to Exempt Resales as contemplated hereby, to cooperate with the Initial
Purchasers and counsel to the Initial Purchasers in connection with the
registration or qualification of the Senior Subordinated Notes for offer and
sale to the Initial Purchasers and pursuant to Exempt Resales under the
securities or Blue Sky laws of such jurisdictions as the Initial Purchasers may
reasonably request and to continue such registration or qualification in effect
so long as required for Exempt Resales and to file such consents to service of
process or other documents as may be necessary in order to effect such
registration or qualification; provided, however, that neither the Issuers nor
any Subsidiary Guarantor shall be required in connection therewith to qualify as
a foreign corporation in any jurisdiction in which it is not now so qualified or
to take any action that would subject it to general consent to service of
process or taxation other than as to matters and transactions relating to the
Preliminary Offering Memorandum, the Offering Memorandum or Exempt Resales, in
any jurisdiction in which it is not now so subject.
(f) During a period of five years from the date of the
Offering Memorandum and so long as the Notes are outstanding, to furnish to the
Initial Purchasers as soon as available copies of all reports or other
communications furnished by the Issuers or filed with the Commission or any
national securities exchange on which any class of securities of the Issuers is
listed and such other publicly available information furnished by the Company to
the Trustee or to the holders of the Notes pursuant to the Indenture or the TIA
(as defined).
(g) So long as any of the Senior Subordinated Notes remain
outstanding and during any period in which the Issuers and the Subsidiary
Guarantors are not subject to Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), to make available to any holder of
Senior Subordinated Notes in connection with any sale thereof and any
prospective purchaser of such Senior Subordinated Notes from such holder, the
information ) ("Rule 144A Information") required by Rule 144A(d)(4) under the
Securities Act.
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(h) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of the obligations of the Issuers
(or following the Contributions and Mergers, the Issuers and the Subsidiary
Guarantors) under this Agreement, including: (i) the fees, disbursements and
expenses of counsel to the Issuers (or following the Contributions and Mergers,
the Issuers and the Subsidiary Guarantors) and accountants of the Issuers and
the Subsidiary Guarantors in connection with the sale and delivery of the Senior
Subordinated Notes to the Initial Purchasers and pursuant to Exempt Resales, and
all other fees and expenses in connection with the preparation, printing, filing
and distribution of the Preliminary Offering Memorandum, the Offering Memorandum
and all amendments and supplements to any of the foregoing (including financial
statements), including the mailing and delivering of copies thereof to the
Initial Purchasers and persons designated by it in the quantities specified
herein, (ii) all costs and expenses related to the transfer and delivery of the
Senior Subordinated Notes to the Initial Purchasers and pursuant to Exempt
Resales, including any transfer or other taxes payable thereon, (iii) all costs
of printing or producing this Agreement, the other Operative Documents and any
other agreements or documents in connection with the offering, purchase, sale or
delivery of the Senior Subordinated Notes, (iv) all expenses in connection with
the registration or qualification of the Senior Subordinated Notes and the
Subsidiary Guarantees for offer and sale under the securities or Blue Sky laws
of the several states and all costs of printing or producing any preliminary and
supplemental Blue Sky memoranda in connection therewith (including the filing
fees and fees and disbursements of counsel for the Initial Purchasers in
connection with such registration or qualification and memoranda relating
thereto), (v) the cost of printing certificates representing the Senior
Subordinated Notes and the Subsidiary Guarantees, (vi) all expenses and listing
fees in connection with the application for quotation of the Senior Subordinated
Notes in the National Association of Securities Dealers, Inc. ("NASD") Automated
Quotation System - PORTAL ("PORTAL"), (vii) the fees and expenses of the Trustee
and the Trustee's counsel in connection with the Indenture, the Notes and the
Subsidiary Guarantees, (viii) the costs and charges of any transfer agent,
registrar and/or depositary (including DTC), (ix) any fees charged by rating
agencies for the rating of the Notes, (x) all costs and expenses of the Exchange
Offer and any Registration Statement, as set forth in the Registration Rights
Agreement, and (xi) and all other costs and expenses incident to the performance
of the obligations of the Issuers (or following the Contributions and Mergers,
the Issuers and the Subsidiary Guarantors) hereunder for which provision is not
otherwise made in this Section.
(i) To use its best efforts to effect the inclusion of the
Senior Subordinated Notes in PORTAL and, if the Notes are not listed on any
national securities exchange, to maintain the listing of the Senior Subordinated
Notes on PORTAL for so long as the Senior Subordinated Notes are outstanding.
(j) To obtain the approval of DTC for "book-entry" transfer of
the Notes, and to comply with all of its agreements set forth in the
representation letters of the Issuers and the Subsidiary Guarantors to DTC
relating to the approval of the Notes by DTC for "book-entry" transfer.
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(k) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell, contract to
sell or otherwise transfer or dispose of any debt securities of the Issuers or
any Subsidiary Guarantor or any warrants, rights or options to purchase or
otherwise acquire debt securities of the Issuers or any Subsidiary Guarantor
substantially similar to the Notes and the Subsidiary Guarantees (other than (i)
the Notes and the Subsidiary Guarantees, (ii) commercial paper issued in the
ordinary course of business and (iii) borrowings under the existing credit
facilities of Reid Plastics, Inc., Franklin Plastics, Inc. or Plastic
Containers, Inc.) without the prior written consent of the Initial Purchasers.
(l) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Securities
Act) that would be integrated with the sale of the Senior Subordinated Notes to
the Initial Purchasers or pursuant to Exempt Resales in a manner that would
require the registration of any such sale of the Senior Subordinated Notes under
the Securities Act.
(m)To comply with all of its agreements set forth in the
Registration Rights Agreement.
(n) Not to voluntarily claim, and to actively resist any
attempts to claim, the benefit of any usury laws against the holders of any
Notes and the related Subsidiary Guarantees.
(o) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it prior
to the Closing Date and to satisfy all conditions precedent to the delivery of
the Senior Subordinated Notes and the Subsidiary Guarantees.
6. Representations, Warranties and Agreements of the Issuers. As of
the date hereof, the Issuers represent and warrant to, and agree with, the
Initial Purchasers that:
(a) The Preliminary Offering Memorandum and the Offering
Memorandum do not, and any supplement or amendment to them will not, as of their
respective dates, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties contained
in this paragraph (a) shall not apply to statements in or omissions from the
Preliminary Offering Memorandum or the Offering Memorandum (or any supplement or
amendment thereto) based upon information relating to the Initial Purchasers
furnished to the Issuers in writing by the Initial Purchasers expressly for use
therein. No stop order preventing the use of the Preliminary Offering Memorandum
or the Offering Memorandum, or any amendment or supplement thereto, or any order
asserting that any of the transactions contemplated by this Agreement are
subject to the registration requirements of the Securities Act, has been issued.
(b) Each of the Company and each of its subsidiaries is and,
after giving effect to the Contributions and Mergers in accordance with the
terms of the Contribution and Merger
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Documents, will be a corporation or limited liability company, duly incorporated
or formed, as the case may be, validly existing and in good standing under the
laws of its jurisdiction of incorporation or organization, as the case may be,
and has the corporate power (in the case of a corporation) or power (in the case
of a limited liability company) and authority to carry on its business as
described in the Preliminary Offering Memorandum and the Offering Memorandum and
to own, lease and operate its properties, and, after giving effect to the
Contributions and Mergers in accordance with the terms of the Contribution and
Merger Documents, will be duly qualified and in good standing as a foreign
corporation or limited liability company, as the case may be, and authorized to
do business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(c) All limited liability company interests of the Company
are owned by Holdings, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature (each a "Lien") (other than
those in favor of the lenders under the Senior Credit Facility). All shares
of capital stock of Consolidated Container Capital, Inc. are owned by the
Company, free and clear of any Liens (other than those in favor of the
lenders under the Senior Credit Facility). All outstanding limited liability
company interests of the Company have been duly authorized, validly issued
and are not subject to any preemptive or similar rights. All outstanding
shares of capital stock of Consolidated Container Capital, Inc. have been
duly authorized and validly issued and are fully paid, non-assessable and not
subject to any preemptive or similar rights.
(d) The entities listed on Schedule D hereto are, or upon
consummation of the Contributions and Mergers, will be the only subsidiaries,
direct or indirect, of the Company. All of the outstanding shares of capital
stock of each of the Company's subsidiaries that are corporations have been or,
after giving effect to the Contributions and Mergers in accordance with the
terms of the Contribution and Merger Documents, will be duly authorized and
validly issued, fully paid and non-assessable, and owned by the Company,
directly or indirectly through one or more subsidiaries, free and clear of any
Liens (other than Liens in favor of the lenders under the Senior Credit Facility
and other than Reid Mexico, S.A. de C.V., which is 51% owned by the Company).
All of the outstanding limited liability company interests of each of the
Company's subsidiaries that are limited liability companies have been and, after
giving effect to the Contributions and Mergers in accordance with the terms of
the Contribution and Merger Documents, will be duly authorized and validly
issued and are owned by the Company, directly or indirectly through one or more
subsidiaries, free and clear of any Liens (other than those in favor of the
lenders under the Senior Credit Facility).
(e) This Agreement has been duly authorized, executed and
delivered by each of the Issuers.
(f) On the Closing Date, the Indenture will have been duly
authorized by each of the Issuers and each of the Subsidiary Guarantors and will
have been validly executed and delivered by each of the Issuers and each of the
Subsidiary Guarantors. When the Indenture has been
10
duly executed and delivered by each of the Issuers, each of the Subsidiary
Guarantors and the Trustee, the Indenture will be a valid and binding agreement
of each of the Issuers, each Subsidiary Guarantor, enforceable against the
Issuers and each Subsidiary Guarantor in accordance with its terms, except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally, (ii) general equitable principles
(whether considered in a proceeding in equity or at law) and (iii) an implied
covenant of good faith and fair dealing. On the Closing Date, the Indenture will
conform in all material respects to the requirements of the Trust Indenture Act
of 1939, as amended (the "TIA" or "Trust Indenture Act"), and the rules and
regulations of the Commission applicable to an indenture which is qualified
thereunder.
(g) On the Closing Date, the Senior Subordinated Notes will
have been duly authorized, validly executed and delivered by each of the
Issuers. When the Senior Subordinated Notes have been issued, executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Initial Purchasers in accordance with the terms of this
Agreement, the Senior Subordinated Notes will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Issuers, enforceable
in accordance with their terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally, (ii) general equitable principles (whether considered in a proceeding
in equity or at law) and (iii) an implied covenant of good faith and fair
dealing. On the Closing Date, the Senior Subordinated Notes will conform as to
legal matters to the description thereof in the Offering Memorandum.
(h) On the Closing Date, the New Senior Subordinated Notes
will have been duly authorized by each of the Issuers. When the New Senior
Subordinated Notes are issued, executed and authenticated in accordance with the
terms of the Exchange Offer and the Indenture, the New Senior Subordinated Notes
will be entitled to the benefits of the Indenture and will be the valid and
binding obligations of each of the Issuers, enforceable against each of the
Issuers in accordance with their terms, except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally, (ii) general equitable principles (whether considered in a proceeding
in equity or at law) and (iii) an implied covenant of good faith and fair
dealing.
(i) On the Closing Date, the Subsidiary Guarantee to be
endorsed on or annexed to the Senior Subordinated Notes by each Subsidiary
Guarantor will have been duly authorized, executed and delivered by each such
Subsidiary Guarantor. When the Senior Subordinated Notes have been issued,
executed and authenticated in accordance with the Indenture and delivered to and
paid for by the Initial Purchasers in accordance with the terms of this
Agreement, the Subsidiary Guarantee of each Subsidiary Guarantor endorsed
thereon or annexed thereto will be entitled to the benefits of the Indenture and
will be the valid and binding obligation of such Subsidiary Guarantor,
enforceable against such Subsidiary Guarantor in accordance with its terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights
11
generally, (ii) general equitable principles (whether considered in a proceeding
in equity or at law) and (iii) an implied covenant of good faith and fair
dealing. On the Closing Date, the Subsidiary Guarantees to be endorsed on or
annexed to the Senior Subordinated Notes will conform as to legal matters to the
description thereof in the Offering Memorandum.
(j) On the Closing Date, the Subsidiary Guarantee to be
endorsed on or annexed to the New Senior Subordinated Notes by each Subsidiary
Guarantor will have been duly authorized by such Subsidiary Guarantor and, when
issued, will have been duly executed and delivered by each such Subsidiary
Guarantor. When the New Senior Subordinated Notes have been issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Subsidiary Guarantee of each Subsidiary Guarantor endorsed
thereon or annexed thereto will be entitled to the benefits of the Indenture and
will be the valid and binding obligation of such Subsidiary Guarantor,
enforceable against such Subsidiary Guarantor in accordance with its terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally, (ii) general
equitable principles (whether considered in a proceeding in equity or at law)
and (iii) an implied covenant of good faith and fair dealing. When the New
Senior Subordinated Notes are issued, authenticated and delivered, the
Subsidiary Guarantees to be endorsed or annexed to on the New Senior
Subordinated Notes will conform as to legal matters to the description thereof
in the Offering Memorandum.
(k) The Registration Rights Agreement has been duly authorized
by the each of Issuers and, on the Closing Date, will have been duly authorized
by each of the Subsidiary Guarantors and will have been duly executed and
delivered by each of the Issuers and each of the Subsidiary Guarantors. When the
Registration Rights Agreement has been duly executed and delivered, the
Registration Rights Agreement will be a valid and binding agreement of each of
the Issuers and each of the Subsidiary Guarantors, enforceable against each of
the Issuers and each of the Subsidiary Guarantors in accordance with its terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally, (ii) general
equitable principles (whether considered in a proceeding in equity or at law),
(iii) an implied covenant of good faith and fair dealing and (iv) any rights of
indemnity or contribution thereunder may be limited by federal or state
securities laws or public policy considerations. On the Closing Date, the
Registration Rights Agreement will conform as to legal matters to the
description thereof in the Offering Memorandum.
(l) The Contribution and Merger Agreement has been duly
authorized, executed and delivered by the Company and is a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally, (ii) general
equitable principles (whether considered in a proceeding in equity or at law),
(iii) an implied covenant of good faith and fair dealing and (iv) any rights of
indemnity or contribution thereunder may be limited by federal or state
securities laws or public policy considerations. On the Closing Date, the
Contribution and
12
Merger Agreement will conform as to legal matters to the description thereof in
the Offering Memorandum.
(m) By or on the Closing Date, the Senior Credit Facility will
have been duly authorized, executed and delivered by each of Holdings and the
Company. When the Senior Credit Facility has been duly executed and delivered,
the Senior Credit Facility will be a valid and binding agreement each of the
Issuers and each of the Subsidiary Guarantors, enforceable against each of the
Issuers and each of the Subsidiary Guarantors in accordance with its terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally, (ii) general
equitable principles (whether considered in a proceeding in equity or at law),
(iii) an implied covenant of good faith and fair dealing and (iv) the effects of
the possible judicial application of foreign laws or foreign governmental or
judicial action affecting creditors' rights. On the Closing Date, the Senior
Credit Facility will conform as to legal matters to the description thereof in
the Offering Memorandum.
(n) Neither the Company nor any of its subsidiaries is in
violation of or, after giving effect to the Contributions and Mergers in
accordance with the terms of the Contribution and Merger Documents, will be (i)
in violation of its respective charter, by-laws or operating agreement, as the
case may be, or (ii) in default in the performance of any obligation, agreement,
covenant or condition contained in any indenture, loan agreement, mortgage,
lease 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 or
their respective properties are bound, except in the case of clause (ii) for
such violations that would not have a Material Adverse Effect.
(o) The execution, delivery and performance of this Agreement
and the other Operative Documents by each of the Issuers (or following the
Contributions and Mergers, each of the Issuers and each of the Subsidiary
Guarantors), compliance by each of the Issuers and each of the Subsidiary
Guarantors with all provisions hereof and thereof, the consummation of the
Contributions and Mergers and the consummation of the other transactions
contemplated hereby and thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except as may be required under (1) securities or
Blue Sky laws of the various states with respect to the purchase and
distribution of the Senior Subordinated Notes by the Initial Purchasers, (2) the
Securities Act and the Trust Indenture Act with respect to the Exchange Offer
required by the Registration Rights Agreement, (3) any filings or recordings
pursuant to the Senior Credit Facility and its related security documents to
perfect the security interests in the collateral thereunder and (4) (A) the New
Jersey Industrial Site Recovery Act and (B) certain post-closing filings
relating to the Connecticut Transfer Act, with respect to the consummation of
the Contribution and Merger Agreement), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the charter,
by-laws or operating agreement, as the case may be, of the Company or any of its
subsidiaries or any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its subsidiaries,
taken as a whole, to which the Company or any of its subsidiaries is a party or
by which
13
the Company or any of its subsidiaries or their respective properties are bound,
except for such violations that would not have a Material Adverse Effect, (iii)
violate any applicable law or any rule, regulation, judgment, order or decree of
any court or any governmental body or agency having jurisdiction over the
Company, any of its subsidiaries or their respective properties, except for such
violations that would not have a Material Adverse Effect, (iv) result in the
imposition or creation of (or the obligation to create or impose) a Lien under,
any agreement or instrument to which the Company or any of its subsidiaries are
a party or by which the Company or any of its subsidiaries or their respective
properties are bound (other than those in favor of the lenders under the Senior
Credit Facility), or (v) result in the termination, suspension or revocation of
any Authorization (as defined below) of the Company or any of its subsidiaries
or result in any other impairment of the rights of the holder of any such
Authorization, except as would not have a Material Adverse Effect.
(p) Except as disclosed in the Offering Memorandum, there are
and, after giving effect to the Contributions and Mergers in accordance with the
terms of the Contribution and Merger Documents, there will be no legal or
governmental proceedings pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of their respective properties are
subject, which might result, singly or in the aggregate, in a Material Adverse
Effect.
(q) Except as disclosed in the Offering Memorandum, neither
the Company nor any of its subsidiaries has and, after giving effect to the
Contributions and Mergers in accordance with the terms of the Contribution and
Merger Documents, will have violated (i) any foreign, federal, state or local
law or regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) any provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or (iii) any
provisions of the Foreign Corrupt Practices Act or the rules and regulations
promulgated thereunder, except with respect to each of clauses (i), (ii) and
(iii) of this clause (q) for such violations which, singly or in the aggregate,
would not have a Material Adverse Effect.
(r) Except as disclosed in the Offering Memorandum, there are
and, after giving effect to the Contributions and Mergers in accordance with the
terms of the Contribution and Merger Documents, there will be no costs or
liabilities associated with Environmental Laws (including, without limitation,
any capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any Authorization, any
related constraints on operating activities and any potential liabilities to
third parties) which would, singly or in the aggregate, have a Material Adverse
Effect.
(s) Each of the Company and its subsidiaries has and, after
giving effect to the Contributions and Mergers in accordance with the terms of
the Contribution and Merger Documents, will have such permits, licenses,
consents, exemptions, franchises, authorizations and other approvals (each, an
"Authorization") of, and has and, after giving effect to the Contributions and
Mergers in accordance with the terms of the Contribution and Merger Documents,
will have made all filings with and notices to, all governmental or regulatory
authorities and self-regulatory organizations and all courts and other
tribunals, including without limitation, under any applicable
14
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is and, after giving effect to the Contributions and Mergers in
accordance with the terms of the Contribution and Merger Documents, will be
valid and in full force and effect, and each of the Company and its subsidiaries
is and, after giving effect to the Contributions and Mergers in accordance with
the terms of the Contribution and Merger Documents, will be in compliance with
all the terms and conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect thereto; and
no event has occurred (including, without limitation, the receipt of any notice
from any authority or governing body) which allows or, after notice or lapse of
time or both, would allow, revocation, suspension or termination of any such
Authorization or results or, after notice or lapse of time or both, would result
in any other impairment of the rights of the holder of any such Authorization;
and such Authorizations contain and, after giving effect to the Contributions
and Mergers in accordance with the terms of the Contribution and Merger
Documents, will contain, no restrictions that are burdensome to the Company or
any of its subsidiaries; except where such failure to be valid and in full force
and effect or to be in compliance, the occurrence of any such event or the
presence of any such restriction would not, singly or in the aggregate, have a
Material Adverse Effect.
(t) Each of the Company and its subsidiaries has and,
immediately after the Contributions and Mergers in accordance with the terms of
the Contribution and Merger Documents, will have, good and marketable title in
fee simple to all real property and good and marketable title to all personal
property owned by it that is material to the business of the Company and its
subsidiaries, in each case free and clear of all Liens and defects, except Liens
described in the Offering Memorandum, Liens in favor of the lenders under the
Senior Credit Facility or Liens that 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 or any of its subsidiaries. Any real property and
buildings held under lease by the Company or any of its subsidiaries are and,
immediately after the Contributions and Mergers in accordance with the terms of
the Contribution and Merger Documents, will be held by the Company or such
subsidiary 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 or such subsidiary.
(u) Except as disclosed in the Offering Memorandum, each of
the Company and its subsidiaries owns or possesses, and immediately after the
Contributions and Mergers in accordance with the terms of the Contribution and
Merger Documents, will own or possess, or can acquire on reasonable terms, all
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 and
trade names ("intellectual property") currently employed by it in connection
with the business now operated, or immediately after the Contributions and
Mergers in accordance with the terms of the Contribution and Merger Documents,
will be operated by the Company and its subsidiaries, except where the failure
to own or possess or otherwise be able to acquire such intellectual property
would not, singly or in the
15
aggregate, have a Material Adverse Effect. Neither the Company nor any of its
subsidiaries has received within the last three years any written notice of
infringement of asserted rights of others with respect to any of such
intellectual property that, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse Effect.
(v) Each of the Company and its subsidiaries will, after
giving effect to the Contributions and Mergers in accordance with the terms of
the Contribution and Merger Documents, carry insurance (including
self-insurance, if any) in such amounts and covering such risks as in its
reasonable determination is adequate for the conduct of its business and the
value of its properties.
(w) The accountants that have certified the financial
statements and supporting schedules included in the Preliminary Offering
Memorandum and the Offering Memorandum are independent public accountants with
respect to the Issuers and the Subsidiary Guarantors, as required by Rule 101 of
the AICPA's Code of Professional Conduct and its interpretations and rulings.
(x) The historical financial statements, together with related
notes forming part of the Offering Memorandum (and any amendment or supplement
thereto), present fairly the consolidated financial position, results of
operations and changes in financial position of the Company and its subsidiaries
on the basis stated in the Offering Memorandum at the respective dates or for
the respective periods to which they apply; such statements and related notes
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial information set forth in the Offering
Memorandum (and any amendment or supplement thereto) are, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company.
(y) The pro forma financial statements included in the
Preliminary Offering Memorandum and the Offering Memorandum have been prepared
on a basis consistent with the historical financial statements of the Company
and its subsidiaries and give effect to assumptions used in the preparation
thereof on a reasonable basis and in good faith and present fairly the
historical and proposed transactions contemplated by the Preliminary Offering
Memorandum and the Offering Memorandum; and such pro forma financial statements
comply as to form in all material respects with the requirements applicable to
pro forma financial statements included in registration statements on Form S-1
under the Securities Act. The other pro forma financial and statistical
information and data included in the Offering Memorandum are, in all material
respects, accurately presented and prepared on a basis consistent with the pro
forma financial statements.
(z) The Issuers are not and, after giving effect to (i) the
Contributions and Mergers in accordance with the terms of the Contribution and
Merger Documents and (ii) the offering and sale of the Senior Subordinated Notes
and the application of the net proceeds thereof as described in the Offering
Memorandum, will not be, an "investment company," as such term is defined in the
Investment Company Act of 1940, as amended.
16
(aa) There are and, after giving effect to the Contributions
and Mergers in accordance with the terms of the Contribution and Merger
Documents, there will be no contracts, agreements or understandings between
either Issuer or any Subsidiary Guarantor and any person granting such person
the right to require such Issuer or such Subsidiary Guarantor to file a
registration statement under the Securities Act with respect to any securities
of such Issuer or such Subsidiary Guarantor or to require such Issuer or such
Subsidiary Guarantor to include such securities with the Notes and Subsidiary
Guarantees registered pursuant to any Registration Statement.
(bb) None of the transactions contemplated by this Agreement,
including the use of proceeds by the Company, will violate, Regulation T (12
C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R.
Part 224) of the Board of Governors of the Federal Reserve System.
(cc) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act (i) has imposed (or has informed any Issuer or any Subsidiary
Guarantor that it is considering imposing) any condition (financial or
otherwise) on any Issuer's or any Subsidiary Guarantor's retaining any rating
assigned to any Issuer or any Subsidiary Guarantor, any securities of any Issuer
or any Subsidiary Guarantor or (ii) has indicated to any Issuer or any
Subsidiary Guarantor that it is considering (a) the downgrading, suspension, or
withdrawal of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (b) any change in
the outlook for any rating of any Issuer, any Subsidiary Guarantor or any
securities of any Issuer or any Subsidiary Guarantor.
(dd) Since the respective dates as of which information is
given in the Offering Memorandum, other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there has not occurred any material adverse change
or any development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business, management, or
operations of the Company and its subsidiaries, taken as a whole, (ii) there has
not been any material adverse change or any development involving a prospective
material adverse change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries has incurred any material liability or obligation, direct or
contingent.
(ee) The Company has delivered to the Initial Purchasers true
and correct conformed copies of the Contribution and Merger Agreement, including
all schedules and exhibits thereto, and there have been no amendments,
alterations, modifications or waivers thereto or in the exhibits or schedules
thereto, except as have been delivered to the Initial Purchasers.
(ff) There is no strike or material labor dispute, slowdown or
work stoppage involving the employees of the Company or any of its subsidiaries
which is pending or, to the best knowledge of the Issuers, threatened.
17
(gg) The Company maintains and, after giving effect to the
Contributions and Mergers in accordance with the terms of the Contribution and
Merger Documents, will maintain, a system of internal accounting controls
sufficient to provide reasonable assurance that: (i) transactions are executed
in accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(hh) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been and, after
giving effect to the Contributions and Mergers in accordance with the terms of
the Contribution and Merger Documents, will have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other charges
due pursuant to such returns or pursuant to any assessment received by the
Company or any of its subsidiaries have been and, after giving effect to the
Contributions and Mergers in accordance with the terms of the Contribution and
Merger Documents, will have been, paid, other than those being contested in good
faith and for which adequate reserves have been provided.
(ii) Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its date, contains all the information specified in,
and meeting the requirements of, Rule 144A(d)(4) under the Securities Act.
(jj) When the Senior Subordinated Notes and the Subsidiary
Guarantees are issued and delivered pursuant to this Agreement, neither the
Senior Subordinated Notes nor the Subsidiary Guarantees will be of the same
class (within the meaning of Rule 144A under the Securities Act) as any security
of the Issuers or the Subsidiary Guarantors that is listed on a national
securities exchange registered under Section 6 of the Exchange Act or that is
quoted in a United States automated inter-dealer quotation system.
(kk) No form of general solicitation or general advertising
(as defined in Regulation D under the Securities Act) was used by the Issuers,
the Subsidiary Guarantors or any of their respective representatives (other than
the Initial Purchasers, as to whom the Issuers make no representation) in
connection with the offer and sale of the Senior Subordinated Notes contemplated
hereby, including, but not limited to, articles, notices or other communications
published in any newspaper, magazine, or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising. No securities of the same
class as the Senior Subordinated Notes have been issued and sold by the Issuers
within the six-month period immediately prior to the date hereof.
(ll) Prior to the effectiveness of any Registration Statement,
the Indenture is not required to be qualified under the TIA.
18
(mm) None of the Issuers, the Subsidiary Guarantors nor any of
their respective affiliates or any person acting on its or their behalf (other
than the Initial Purchasers, as to whom the Issuers make no representation) has
engaged or will engage in any directed selling efforts within the meaning of
Regulation S under the Securities Act ("Regulation S") with respect to the
Senior Subordinated Notes or the Subsidiary Guarantees.
(nn) Neither the Company nor anyone acting at its direction
has offered or sold or, solely in connection with Exempt Resales pursuant to
this Agreement, will offer or sell the Senior Subordinated Notes in transactions
other than offshore transactions in reliance on Regulation S under the
Securities Act, if any.
(oo) The sale of the Senior Subordinated Notes pursuant to
Regulation S is not part of a plan or scheme by the Issuers, the Subsidiary
Guarantors or any of their respective affiliates or any person acting on its or
their behalf (other than the Initial Purchaser, as to whom the Issuers make no
representation) to evade the registration provisions of the Act.
(pp) The Issuers, the Subsidiary Guarantors and their
respective affiliates and all persons acting on their behalf (other than the
Initial Purchasers, as to whom the Issuers makes no representation) have
complied with and, after giving effect to the Contributions and Mergers in
accordance with the terms of the Contribution and Merger Documents, will comply
with the offering restrictions requirements of Regulation S in connection with
the offering of the Senior Subordinated Notes outside the United States and, in
connection therewith, the Offering Memorandum will contain the disclosure
required by Rule 902(g).
(qq) The Senior Subordinated Notes sold in reliance on
Regulation S will be represented upon issuance by a temporary global security
that may not be exchanged for definitive securities until the expiration of the
40 day distribution compliance period referred to in Rule 903(c)(3) of the
Securities Act and only upon certification of beneficial ownership of such
Senior Subordinated Notes by non-U.S. persons or U.S. persons who purchased such
Senior Subordinated Notes in transactions that were exempt from the registration
requirements of the Securities Act.
(rr) No registration under the Securities Act of the Senior
Subordinated Notes or the Subsidiary Guarantees is required for the sale of the
Senior Subordinated Notes and the Subsidiary Guarantees to the Initial
Purchasers as contemplated hereby or for the Exempt Resales, assuming the
accuracy of the Initial Purchasers' representations and warranties and
agreements set forth in Section 7 hereof.
(ss) Each certificate signed by any officer of either Issuer
or any Subsidiary Guarantor and delivered to the Initial Purchasers or counsel
for the Initial Purchasers shall be deemed to be a representation and warranty
by such Issuer or such Subsidiary Guarantor to the Initial Purchasers as to the
matters covered thereby.
19
The Issuers acknowledge that the Initial Purchasers and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 9 hereof, counsel to the Issuers and the Subsidiary Guarantors and
counsel to the Initial Purchasers, will rely upon the accuracy and truth of the
foregoing representations and hereby consents to such reliance.
7. Initial Purchasers' Representations and Warranties. Each of the
Initial Purchasers, severally and not jointly, represents and warrants to the
Issuers (or following the Contributions and Mergers, the Issuers and the
Subsidiary Guarantors), and agrees that:
(a) Such Initial Purchaser is either a QIB or an institutional
"accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) (an "Accredited Institution"), in either case, with such
knowledge and experience in financial and business matters as is necessary in
order to evaluate the merits and risks of an investment in the Senior
Subordinated Notes.
(b) Such Initial Purchaser (A) is not acquiring the Senior
Subordinated Notes with a view to any distribution thereof or with any intention
of offering or selling any of the Senior Subordinated Notes in a transaction
that would violate the Securities Act or the securities laws of any state of the
United States or any other applicable jurisdiction and (B) will be reoffering
and reselling the Senior Subordinated Notes only to (x) QIBs in reliance on the
exemption from the registration requirements of the Securities Act provided by
Rule 144A and (y) in offshore transactions in reliance upon Regulation S under
the Securities Act.
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Securities Act) has been or will be used by such Initial Purchaser or any of
its representatives in connection with the offer and sale of the Senior
Subordinated Notes pursuant hereto, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine or similar
medium or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with
Exempt Resales, such Initial Purchaser will solicit offers to buy the Senior
Subordinated Notes only from, and will offer to sell the Senior Subordinated
Notes only to, Eligible Purchasers. Each Initial Purchaser further agrees that
it will offer to sell the Senior Subordinated Notes only to, and will solicit
offers to buy the Senior Subordinated Notes only from (A) Eligible Purchasers
that the Initial Purchaser reasonably believes are QIBs and (B) Regulation S
Purchasers, in each case, that agree that (x) the Senior Subordinated Notes
purchased by them may be resold, pledged or otherwise transferred within the
time period referred to under Rule 144(k) (taking into account the provisions of
Rule 144(d) under the Securities Act, if applicable) under the Securities Act,
as in effect on the date of the transfer of such Senior Subordinated Notes, only
(I) to the Company or any of its subsidiaries, (II) to a person whom the seller
reasonably believes is a QIB purchasing for its own account or for the account
of a QIB in a transaction meeting the requirements of Rule 144A under the
Securities
20
Act, (III) in an offshore transaction (as defined in Rule 902 under the
Securities Act) meeting the requirements of Rule 904 of the Securities Act, (IV)
in a transaction meeting the requirements of Rule 144 under the Securities Act,
(V) to an Accredited Institution that, prior to such transfer, furnishes the
Trustee a signed letter containing certain representations and agreements
relating to the registration of transfer of such Senior Subordinated Note (the
form of which is substantially the same as set forth as an exhibit to the
Indenture) and, if such transfer is in respect of an aggregate principal amount
of Senior Subordinated Notes less than $250,000, an opinion of counsel
acceptable to the Company that such transfer is in compliance with the
Securities Act, (VI) in accordance with another exemption from the registration
requirements of the Securities Act (and based upon an opinion of counsel
acceptable to the Company) or (VII) pursuant to an effective registration
statement and, in each case, in accordance with the applicable securities laws
of any state of the United States or any other applicable jurisdiction and (y)
they will deliver to each person to whom such Senior Subordinated Notes or an
interest therein is transferred a notice substantially to the effect of the
foregoing.
(e) Neither such Initial Purchaser nor any of its affiliates
or any person acting on its or their behalf has engaged or will engage in any
directed selling efforts within the meaning of Regulation S with respect to the
Senior Subordinated Notes or the Subsidiary Guarantees.
(f) The Senior Subordinated Notes offered and sold by such
Initial Purchaser pursuant hereto in reliance on Regulation S have been and will
be offered and sold only in offshore transactions.
(g) The sale of the Senior Subordinated Notes offered and sold
by such Initial Purchaser pursuant hereto in reliance on Regulation S is not
part of a plan or scheme to evade the registration provisions of the Securities
Act.
(h) Such Initial Purchaser agrees that it has not offered or
sold and will not offer or sell the Senior Subordinated Notes in the United
States or to, or for the benefit or account of, a U.S. Person (other than a
distributor), in each case, as defined in Rule 902 under the Securities Act (i)
as part of its distribution at any time and (ii) otherwise until 40 days after
the later of the commencement of the offering of the Senior Subordinated Notes
pursuant hereto and the Closing Date, other than in accordance with Regulation S
of the Securities Act or another exemption from the registration requirements of
the Securities Act. Such Initial Purchaser agrees that, during such 40-day
distribution compliance period, it will not cause any advertisement with respect
to the Senior Subordinated Notes (including any "tombstone" advertisement) to be
published in any newspaper or periodical or posted in any public place and will
not issue any circular relating to the Senior Subordinated Notes, except such
advertisements as permitted by and include the statements required by Regulation
S.
(i) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Senior Subordinated Notes by it to any distributor,
dealer or person receiving a selling concession, fee or other remuneration
during the 40-day distribution compliance period referred to in Rule
21
903(c)(3) under the Securities Act, it will send to such distributor, dealer or
person receiving a selling concession, fee or other remuneration a confirmation
or notice to substantially the following effect:
"The 10 1/8% Senior Subordinated Notes due 2009 (the "Senior
Subordinated Notes") covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (the "Securities Act"),
and may not be offered and sold within the United States or to, or
for the account or benefit of, U.S. persons (i) as part of your
distribution at any time or (ii) otherwise until 40 days after the
later of the commencement of the offering of the Senior Subordinated
Notes and the date of closing related thereto, except in either case
in accordance with Regulation S under the Securities Act (or Rule
144A under the Securities Act or to an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) in transactions that are exempt from the
registration requirements of the Securities Act), and in connection
with any subsequent sale by you of the Senior Subordinated Notes
covered hereby in reliance on Regulation S during the period
referred to above to any distributor, dealer or person receiving a
selling concession, fee or other remuneration, you must deliver a
notice to substantially the foregoing effect. Terms used above have
the meanings assigned to them in Regulation S."
(j) Such Initial Purchaser agrees that the Senior Subordinated
Notes offered and sold in reliance on Regulation S will be represented upon
issuance by a global security that may not be exchanged for definitive
securities until the expiration of the 40-day restricted period referred to in
Rule 903(c)(3) of the Securities Act and only upon certification of beneficial
ownership of such Senior Subordinated Notes by non-U.S. persons or U.S. persons
who purchased such Senior Subordinated Notes in transactions that were exempt
from the registration requirements of the Securities Act.
Such Initial Purchaser acknowledges that the Issuers (or following
the Contributions and Mergers, the Issuers and the Subsidiary Guarantors) and,
for purposes of the opinions to be delivered to each Initial Purchaser pursuant
to Section 9 hereof, counsel to the Issuers and the Subsidiary Guarantors and
counsel to the Initial Purchasers, will rely upon the accuracy and truth of the
foregoing representations, and such Initial Purchaser hereby consents to such
reliance.
8. Indemnification.
(a) Each of the Issuers (or following the Contributions and
Mergers, each of the Issuers and each of the Subsidiary Guarantors) agree,
jointly and severally, to indemnify and hold harmless each Initial Purchaser,
its directors, its officers and each person, if any, who controls such
22
Initial Purchaser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, any legal or
other expenses incurred in connection with investigating or defending any
matter, including any action, that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Offering Memorandum (or any
amendment or supplement thereto), any Rule 144A Information provided by either
Issuer or any Subsidiary Guarantor to any holder of Senior Subordinated Notes
pursuant to Section 5(h) or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are (i) caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to the Initial Purchaser furnished in writing to the Issuers by such Initial
Purchaser, provided, however, that the foregoing indemnity agreement with
respect to any Preliminary Offering Memorandum shall not inure to the benefit of
any Initial Purchaser who failed to deliver an Offering Memorandum, as then
amended or supplemented, (so long as the Offering Memorandum and any amendment
or supplement thereto was provided by the Issuers to the several Initial
Purchasers in the requisite quantity and on a timely basis to permit proper
delivery on or prior to the Closing Date) to the person asserting any losses,
claims, damages, liabilities or judgments caused by any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Offering Memorandum, or (ii) caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, if such material misstatement or omission or
alleged material misstatement or omission was cured in the Offering Memorandum.
(b) The Initial Purchasers agree, severally and not jointly,
to indemnify and hold harmless the Issuers (or following the Contributions and
Mergers, the Issuers and the Subsidiary Guarantors), and their respective
directors, managers (or Management Committee members) and officers and each
person, if any, who controls (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) the Issuers (or following the
Contributions and Mergers, the Issuers or any Subsidiary Guarantors), to the
same extent as the foregoing indemnity from the Issuers (or following the
Contributions and Mergers, the Issuers and the Subsidiary Guarantors) to each
Initial Purchaser but only with reference to information relating to an Initial
Purchaser furnished in writing to the Issuers by any Initial Purchaser expressly
for use in the Preliminary Offering Memorandum or the Offering Memorandum.
(c) In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b)
(the "indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), the Initial Purchasers shall not
be required to assume the defense of such action pursuant to this Section 8(c),
23
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at the
expense of the Initial Purchasers). Any indemnified party shall have the right
to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by Donaldson, Lufkin & Jenrette Securities
Corporation, in the case of the parties indemnified pursuant to Section 8(a),
and by the Issuers, in the case of parties indemnified pursuant to Section 8(b).
The indemnifying party shall indemnify and hold harmless the indemnified party
from and against any and all losses, claims, damages, liabilities and judgments
by reason of any settlement of any action (i) effected with its written consent
or (ii) effected without its written consent if the settlement is entered into
more than twenty business days after the indemnifying party shall have received
a request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action 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 the indemnified party.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Issuers and the Subsidiary Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, from the offering of the Senior Subordinated
Notes or (ii) if the allocation provided by clause 8(d)(i) above is not
permitted by
24
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 8(d)(i) above but also the relative
fault of the Issuers and the Subsidiary Guarantors, on the one hand, and the
Initial Purchasers, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
benefits received by the Issuers and the Subsidiary Guarantors, on the one hand,
and the Initial Purchasers, on the other hand, shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Senior
Subordinated Notes (after underwriting discounts and commissions, but before
deducting expenses) received by the Issuers, and the total discounts and
commissions received by the Initial Purchasers bear to the total price to
investors of the Senior Subordinated Notes, in each case as set forth in
Schedule B hereto. The relative fault of the Issuers and the Subsidiary
Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
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 Issuers or the
Subsidiary Guarantors, on the one hand, or the Initial Purchasers, on the other
hand, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Issuers (or following the Contributions and Mergers, the Issuers
and the Subsidiary Guarantors) and the Initial Purchasers agree that it would
not be just and equitable if contribution pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Initial 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 in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
indemnified party in connection with investigating or defending any matter,
including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, the Initial Purchasers shall not be required to contribute any amount
in excess of the amount by which the total discounts and commissions received by
such Initial Purchasers exceeds the amount of any damages which the Initial
Purchasers have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Initial Purchasers'
obligation to contribute pursuant to this Section 8(d) are several in proportion
to the respective principal amount of Senior Subordinated Notes purchased by
each of the Initial Purchasers hereunder and not joint.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
25
9. Conditions of Initial Purchasers' Obligations. The obligations of
the Initial Purchasers to purchase the Senior Subordinated Notes under this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Issuers (or
following the Contributions and Mergers, the Issuers and the Subsidiary
Guarantors) contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have
occurred any downgrading, suspension or withdrawal of, nor shall any notice have
been given of any potential or intended downgrading, suspension or withdrawal
of, or of any review (or of any potential or intended review) for a possible
change that does not indicate the direction of the possible change in, any
rating of either Issuer or any Subsidiary Guarantor or any securities of either
Issuer or any Subsidiary Guarantor (including, without limitation, the placing
of any of the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any "nationally
recognized statistical rating organization" as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred
any change, nor shall notice have been given of any potential or intended
change, in the outlook for any rating of either Issuer or any Subsidiary
Guarantor or any securities of the Issuers or any Subsidiary Guarantor by any
such rating organization and (iii) no such rating organization shall have given
notice that it has assigned (or is considering assigning) a lower rating to the
Senior Subordinated Notes than that on which the Senior Subordinated Notes were
marketed.
(c) Since the respective dates as of which information is
given in the Offering Memorandum, other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there shall not have occurred any change or any
development involving a prospective change in the condition, financial or
otherwise, or the earnings, business, management or operations of the Company
and its subsidiaries, taken as a whole, (ii) there shall not have been any
change or any development involving a prospective change in the capital stock or
in the long-term debt of the Company or any of its subsidiaries (except with
respect to the consent solicitation and tender offer for the 10% Senior Secured
Notes due 2006 of Plastic Containers LLC) and (iii) neither the Company nor
any of its subsidiaries shall have incurred any liability or obligation, direct
or contingent, the effect of which, in any such case described in clause
9(c)(i), 9(c)(ii) or 9(c)(iii), in your judgment, is material and adverse and,
in your judgment, makes it impracticable to market the Senior Subordinated Notes
on the terms and in the manner contemplated in the Offering Memorandum.
(d) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by the Presidents and the Chief Financial
Officers of the Issuers, confirming the matters set forth in Sections 6(dd),
9(a) and 9(b) and stating that each of the Issuers and the Subsidiary Guarantors
has complied with all the agreements and satisfied all of the conditions herein
contained and required to be complied with or satisfied on or prior to the
Closing Date.
26
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchasers), dated the Closing
Date, of Simpson Thacher & Bartlett, counsel for the Issuers and the Subsidiary
Guarantors, substantially to the effect as that provided in Exhibit C.
(f) The Initial Purchasers shall have received on the Closing
Date an opinion, dated the Closing Date, of Latham & Watkins, counsel for the
Initial Purchasers, in form and substance reasonably satisfactory to the Initial
Purchasers.
(g) The Initial Purchasers shall have received, at the time
this Agreement is executed and at the Closing Date, letters dated the date
hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchasers each of (i) Deloitte & Touche LLP, (ii)
PricewaterhouseCoopers LLP, (iii) KPMG LLP and (iv) Ernst & Young LLP, all of
which are independent public accountants, containing the information and
statements of the type ordinarily included in accountants' "comfort letters" to
the Initial Purchasers with respect to the financial statements and certain
financial information contained in the Offering Memorandum.
(h) The Senior Subordinated Notes shall have been designated
for trading on PORTAL.
(i) The Initial Purchasers shall have received a counterpart,
conformed as executed, of the Indenture which shall have been entered into by
the Issuers, the Subsidiary Guarantors and the Trustee.
(j) The Issuers and the Subsidiary Guarantors shall have
executed the Registration Rights Agreement and the Initial Purchasers shall have
received an original copy thereof, duly executed by the Issuers and the
Subsidiary Guarantors.
(k) The Senior Credit Facility shall have been entered into by
the parties thereto, and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof and of all other documents and
agreements entered into in connection therewith. Each condition to the closing
contemplated by the Senior Credit Facility shall have been satisfied or waived
thereunder. There shall exist at and as of the Closing Date (after giving effect
to the transactions contemplated by this Agreement and the Contribution and
Merger Documents) no conditions that would constitute a material default (or an
event that, with notice or the lapse of time or both, would constitute a
material default) under the Senior Credit Facility. On the Closing Date, the
closing under the Senior Credit Facility shall have been consummated on terms
that conform in all material respects to the description thereof in the Offering
Memorandum.
(l) All Contribution and Merger Documents (other than the
Equity Registration Rights Agreement) shall have been entered into by the
parties thereto, and the Initial Purchasers shall have received counterparts,
conformed as executed, thereof and of all other documents and agreements entered
into in connection therewith. Each condition to the closing of
27
the Contributions and Mergers contemplated by the Contribution and Merger
Documents shall have been satisfied or waived by the parties thereto. The
Initial Purchasers shall have been informed of all material waivers with respect
to the Contribution and Merger Documents. Prior to, or simultaneously with, the
closing of the Offering, the Contributions and Mergers shall have been
consummated on terms that conform in all material respects to the description
thereof in the Offering Memorandum. The Initial Purchasers shall have received
evidence satisfactory to the Initial Purchasers that the Contributions and
Mergers has been so consummated.
(m) The lenders of the indebtedness to be refinanced by the
Company and its subsidiaries as set forth in the Offering Memorandum under the
caption "Use of Proceeds" shall have delivered evidence satisfactory to the
Initial Purchasers in connection with the Company's repayment and termination of
such indebtedness, and the Company shall have delivered such letters or such
other evidence to the Initial Purchasers.
(n) On the Closing Date, the Subsidiary Guarantors shall have
approved, adopted, ratified and confirmed the execution, delivery and
performance of this Agreement by the Issuers, and the Initial Purchasers shall
have received a counterpart of this Agreement executed by each Subsidiary
Guarantor as parties hereto.
(o) The Issuers (or following the Contributions and Mergers,
the Issuers and Subsidiary Guarantors) shall not have failed at or prior to the
Closing Date to perform or comply with any of the agreements herein contained
and required to be performed or complied with by the Issuers or the Subsidiary
Guarantors, as the case may be, at or prior to the Closing Date.
(p) The Initial Purchasers shall have received, addressed to
the Initial Purchasers, a solvency certificate of the Chief Financial Officers
of the Issuers that is identical to the solvency certificate required to be
delivered to the lenders under the Senior Credit Facility.
10. Effectiveness of Agreement and Termination. This Agreement shall
become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the
Closing Date by the Initial Purchasers by written notice to the Issuers if any
of the following has occurred: (i) any outbreak or escalation of hostilities or
other national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States or elsewhere that,
in the Initial Purchasers' judgment, is material and adverse and, in the Initial
Purchasers' judgment, makes it impracticable to market the Senior Subordinated
Notes on the terms and in the manner contemplated in the Offering Memorandum,
(ii) the suspension or material limitation of trading in securities or other
instruments on the New York Stock Exchange, the American Stock Exchange, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the Chicago
Board of Trade or the Nasdaq National Market or limitation on prices for
securities or other instruments on any such exchange or the Nasdaq National
Market, (iii) the suspension of trading of any securities of the Issuers or any
Subsidiary Guarantor on any exchange or in the over-the-counter market, (iv) the
28
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental authority
which in your opinion materially and adversely affects, or will materially and
adversely affect, the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, (v) the
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
opinion has a material adverse effect on the financial markets in the United
States.
If on the Closing Date any one or more of the Initial Purchasers
shall fail or refuse to purchase the Senior Subordinated Notes which it or they
have agreed to purchase hereunder on such date and the aggregate principal
amount of the Senior Subordinated Notes which such defaulting Initial Purchaser
or Initial Purchasers, as the case may be, agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Senior Subordinated Notes to be purchased on such date by all Initial
Purchasers, each non-defaulting Initial Purchaser shall be obligated severally,
in the proportion which the principal amount of the Senior Subordinated Notes
set forth opposite its name in Schedule B bears to the aggregate principal
amount of the Senior Subordinated Notes which all the non-defaulting Initial
Purchasers, as the case may be, have agreed to purchase, or in such other
proportion as you may specify, to purchase the Senior Subordinated Notes which
such defaulting Initial Purchaser or Initial Purchasers, as the case may be,
agreed but failed or refused to purchase on such date; provided that in no event
shall the aggregate principal amount of the Senior Subordinated Notes which any
Initial Purchaser has agreed to purchase pursuant to Section 2 hereof be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of the Senior Subordinated Notes without the written
consent of such Initial Purchaser. If on the Closing Date any Initial Purchaser
or Initial Purchasers shall fail or refuse to purchase the Senior Subordinated
Notes and the aggregate principal amount of the Senior Subordinated Notes with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of the Senior Subordinated Notes to be purchased by all Initial
Purchasers and arrangements satisfactory to the Initial Purchasers and the
Issuers for purchase of such the Senior Subordinated Notes are not made within
48 hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Initial Purchaser and the Issuers.
In any such case which does not result in termination of this Agreement, either
you or the Issuers shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Offering Memorandum or any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting Initial
Purchaser from liability in respect of any default of any such Initial Purchaser
under this Agreement.
11. Initial Purchasers' Information. The Issuers and the Initial
Purchasers acknowledge and agree for all purposes under this Agreement that the
statements with respect to the offering of the Notes set forth in the third
paragraph, in the fourth sentence of the seventh paragraph, in the tenth,
eleventh and twelfth paragraph under the caption "Plan of Distribution" and set
forth in the third sentence of the first paragraph under the caption "Lack of
Public Market" in the section
29
entitled "Risk Factors," in the Offering Memorandum constitute the only
information furnished to the Issuers in writing by the Initial Purchasers
expressly for use in the Offering Memorandum.
12. Miscellaneous.
Notices given pursuant to any provision of this Agreement shall be
addressed as follows: (i) if to the Issuers or any Subsidiary Guarantor, to 2515
McKinney Avenue, Suite 850, Dallas, Texas 75201, Attention: Chief Financial
Officer and to Vestar Capital Partners III, L.P. and Reid Plastics, Inc., each
care of Vestar Capital Partners, Inc., Seventeenth Street Plaza, 1225 17th
Street, Suite 1660, Denver, Colorado 80202; and (ii) if to the Initial
Purchasers, Donaldson, Lufkin & Jenrette Securities Corporation, 277 Park
Avenue, New York, New York 10172, Attention: Syndicate Department, or in any
case to such other address as the person to be notified may have requested in
writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Issuers (or following
the Contributions and Mergers, the Issuers and the Subsidiary Guarantors) and
the Initial Purchasers set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Senior Subordinated Notes, regardless of (i) any investigation,
or statement as to the results thereof, made by or on behalf of the Initial
Purchasers, the officers, directors or managers (or Management Committee
members) of the Initial Purchasers, any person controlling the Initial
Purchasers, the Issuers (or following the Contributions and Mergers, the Issuers
and any Subsidiary Guarantor), the officers or directors of the Issuers (or
following the Contributions and Mergers, the Issuers or any Subsidiary
Guarantor), or any person controlling the Issuers (or following the
Contributions and Mergers, the Issuers or any Subsidiary Guarantor), (ii)
acceptance of the Senior Subordinated Notes and payment for them hereunder and
(iii) termination of this Agreement.
If for any reason the Senior Subordinated Notes are not delivered by
or on behalf of the Issuers as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 10), the Issuers (or following
the Contributions and Mergers, the Issuers and each Subsidiary Guarantor),
jointly and severally, agree to reimburse the Initial Purchasers for all
reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Issuers shall be liable for all reasonable expenses which it
has agreed to pay pursuant to Section 5(i) hereof. The Issuers (or following the
Contributions and Mergers, the Issuers and each Subsidiary Guarantor) also
agree, jointly and severally, to reimburse the Initial Purchasers and its
officers, directors and each person, if any, who controls such Initial
Purchasers within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act for any and all reasonable fees and expenses (including
without limitation the reasonable fees and expenses of counsel) incurred by them
in connection with enforcing their rights under this Agreement (including
without limitation its rights under Section 8).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Issuers (or following
the Contributions and Mergers, the
30
Issuers and the Subsidiary Guarantors), the Initial Purchasers, the Initial
Purchasers' directors and officers, any controlling persons referred to herein,
the directors or managers (or Management Committee members) of the Issuers (or
following the Contributions and Mergers, the Issuers and the Subsidiary
Guarantors) and their respective successors and assigns, all as and to the
extent provided in this Agreement, and no other person shall acquire or have any
right under or by virtue of this Agreement. The term "successors and assigns"
shall not include a purchaser of any of the Senior Subordinated Notes from the
Initial Purchasers merely because of such purchase.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
31
Please confirm that the foregoing correctly sets forth the agreement
between the Issuers and the Initial Purchasers.
Very truly yours,
CONSOLIDATED CONTAINER COMPANY LLC
By: CONSOLIDATED CONTAINER HOLDINGS LLC
as its sole member and manager
By: /s/ Steven M. Silver
----------------------------------
Name: Steven M. Silver
Title: Vice President
CONSOLIDATED CONTAINER CAPITAL, INC.
By: /s/ Steven M. Silver
----------------------------------
Name: Steven M. Silver
Title: Vice President
(Purchase Agreement)
The foregoing Purchase Agreement is hereby confirmed and accepted as of the date
first above written by Donaldson, Lufkin & Jenrette Securities Corporation on
behalf of the Initial Purchasers.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Howard S. Rimerman
----------------------------------
Name: Howard S. Rimerman
Title: Vice President
(Purchase Agreement)
SCHEDULE A
Subsidiary Guarantors
Reid Plastics Group LLC
Plastic Containers LLC
Continental Plastic Containers LLC
Continental Caribbean Containers, Inc.
SCHEDULE B
Contribution and Merger Documents
1. Limited Liability Company Agreement of Consolidated Container Holdings LLC
2. Consolidated Container Holdings LLC 1999 Unit Option Plan
3. Trademark License Agreement between Continental Can Company, Inc. and
Consolidated Container Holdings LLC and Consolidated Container Company LLC
4. Bill of Sale, Assignment and Assumption Agreement, dated April 29, 1999,
between Franklin Plastics, Inc. and the Purchaser
5. Assumption Agreement, dated April 29, 1999, among Reid Plastics Holdings,
Inc., Consolidated Container Holdings LLC and Consolidated Container
Company LLC
6. Bernon Side Letter between Suiza Foods Corporation and Peter M. Bernon,
dated April 29, 1999
7. Non-Competition Side Letter Agreement, dated April 29, 1999, between
Vestar Packaging LLC, Reid Plastics Holdings, Inc. and Suiza Foods
Corporation
8. Tender Offer Side Letter among Vestar Packaging LLC, Reid Plastics
Holdings, Inc., Franklin Plastics, Inc. and Suiza Foods Corporation
9. Supply Agreement between Suiza Foods Corporation and Consolidated
Container Holdings LLC; Supply Agreement-Side Letter Agreement #1; Supply
Agreement - Side Letter Agreement #2
10. Management Agreement, dated April 29, 1999, among Consolidated Container
Holdings LLC, Consolidated Container Company LLC and Vestar Capital
Partners
SCHEDULE C
Principal Amount of
Initial Purchaser Senior Subordinated Notes
- ----------------- -------------------------
Donaldson, Lufkin & Jenrette
Securities Corporation $111,000,000.00
Deutsche Bank Securities Inc. 24,666,666.67
J.P. Morgan Securities Inc. 24,666,666.67
Bear, Stearns & Co. Inc. 24,666,666.67
---------------
Total $185,000,000.00
===============
SCHEDULE D
Subsidiaries
Reid Plastics Group LLC
Plastic Containers LLC
Consolidated Container Capital, Inc.
Continental Plastic Containers LLC
Continental Caribbean Containers, Inc.
Reid Canada, Inc.
Reid Mexico, S.A. de C.V.
EXHIBIT A
Joinder of
the Subsidiary Guarantors
With respect to the Purchase Agreement, dated as of June 24, 1999,
as amended (the "Purchase Agreement") among Consolidated Container Company LLC,
Consolidated Container Capital, Inc. and Donaldson, Lufkin & Jenrette Securities
Corporation, Deutsche Bank Securities Inc., J.P. Morgan & Co. and Bear, Stearns
& Co. Inc., as Initial Purchasers, the undersigned hereby agrees to be bound by
such Purchase Agreement, and assume all of the rights and obligations of the
Subsidiary Guarantors thereunder, as of the effective time of the Contributions
and Mergers on July 2, 1999. Capitalized terms used but not defined in this
Joinder shall have the meanings given to such terms in the Purchase Agreement.
Very truly yours,
REID PLASTICS GROUP LLC
By: CONSOLIDATED CONTAINER COMPANY LLC,
as its Sole Member and Manager
By: CONSOLIDATED CONTAINER HOLDINGS LLC,
as its Sole Member and Manager
By: _______________________________
Name:
Title:
PLASTIC CONTAINERS LLC
By: CONSOLIDATED CONTAINER COMPANY LLC,
as its Sole Member and Manager
By: CONSOLIDATED CONTAINER HOLDINGS LLC,
as its Sole Member and Manager
By: _______________________________
Name:
Title:
J-1
CONTINENTAL PLASTIC CONTAINERS LLC
By: PLASTIC CONTAINERS LLC,
as its Sole Member and Manager
By: CONSOLIDATED CONTAINER COMPANY LLC,
as its Sole Member and Manager
By: CONSOLIDATED CONTAINER HOLDINGS LLC,
as its Sole Member and Manager
By: _______________________________
Name:
Title:
CONTINENTAL CARIBBEAN CONTAINERS INC.
By:______________________________________
Name:
Title:
J-2
JOINDER OF
THE SUBSIDIARY GUARANTORS
With respect to the Purchase Agreement, dated as of June 24, 1999,
among Consolidated Container Company LLC, Consolidated Container Capital, Inc.
and Donaldson, Lufkin & Jenrette Securities Corporation, BT Alex. Brown, J.P.
Morgan & Co. and Bear, Stearns & Co. Inc., as Initial Purchasers (the "Purchase
Agreement"), the undersigned hereby agrees to be bound by such Purchase
Agreement, and assume all of the rights and obligations of the Subsidiary
Guarantors thereunder, as of the effective time of the Contributions and Mergers
on July 1, 1999. Capitalized terms used but not defined in this Joinder shall
have the meanings given to such terms in the Purchase Agreement.
Very truly yours,
REID PLASTICS GROUP LLC
By: CONSOLIDATED CONTAINER COMPANY LLC,
as its Sole Member and Manager
By: CONSOLIDATED CONTAINER HOLDINGS LLC,
as its Sole Member and Manager
By: /s/ Steven M. Silver
----------------------------------
Name: Steven M. Silver
Title: Vice President
PLASTIC CONTAINERS LLC
By: CONSOLIDATED CONTAINER COMPANY LLC,
as its Sole Member and Manager
By: CONSOLIDATED CONTAINER HOLDINGS LLC,
as its Sole Member and Manager
By: /s/ Steven M. Silver
----------------------------------
Name: Steven M. Silver
Title: Vice President
CONTINENTAL PLASTIC CONTAINERS LLC
By: PLASTIC CONTAINERS LLC,
as its Sole Member and Manager
By: CONSOLIDATED CONTAINER COMPANY LLC,
as its Sole Member and Manager
By: CONSOLIDATED CONTAINER HOLDINGS LLC,
as its Sole Member and Manager
By: /s/ Steven M. Silver
----------------------------------
Name: Steven M. Silver
Title: Vice President
CONTINENTAL CARIBBEAN CONTAINERS INC.
By: /s/ Steven M. Silver
----------------------------------
Name: Steven M. Silver
Title: Vice President
Amendment No. 1 to the Purchase Agreement
Pursuant to Section 4(a) of the Purchase Agreement, dated June 24,
1999 (the "Purchase Agreement"), by and among Consolidated Container Company LLC
and Consolidated Container Capital, Inc. (together, the "Issuers"), the
Subsidiary Guarantors named therein and Donaldson, Lufkin & Jenrette Securities
Corporation, Bear, Stearns & Co., Inc., Deutsche Bank Securities Inc. and J.P.
Morgan Securities Inc. (collectively, the "Initial Purchasers"), the undersigned
hereby agree as of July 1, 1999 that the delivery and payment for the Senior
Subordinated Notes, as defined in the Purchase Agreement, shall be made at 9:00
a.m. New York City time, on July 2, 1999, at the offices of Simpson Thacher &
Bartlett, 425 Lexington Avenue, New York, New York 10017. All other terms,
conditions and provisions of the Purchase Agreement shall remain in full force
and effect.
Please confirm that the foregoing correctly sets forth the agreement
between the Issuers and the Initial Purchasers.
Very truly yours,
CONSOLIDATED CONTAINER COMPANY LLC
By: CONSOLIDATED CONTAINER HOLDINGS LLC
as its sole member and manager
By: /s/ Steven M. Silver
----------------------------------
Name: Steven M. Silver
Title: Vice President
CONSOLIDATED CONTAINER CAPITAL, INC.
By: /s/ Steven M. Silver
----------------------------------
Name: Steven M. Silver
Title: Vice President
The foregoing Amendment No. 1 to the Purchase Agreement is hereby confirmed and
accepted as of the date first above written by Donaldson, Lufkin & Jenrette
Securities Corporation on behalf of the Initial Purchasers.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Howard S. Rimerman
-------------------------------------
Name: Howard S. Rimerman
Title: Vice President
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JULY 1, 1999
BY AND AMONG
CONSOLIDATED CONTAINER COMPANY LLC
CONSOLIDATED CONTAINER CAPITAL, INC.
AND
THE SUBSIDIARY GUARANTORS NAMED HEREIN
AND
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
BEAR, STEARNS & CO. INC.
DEUTSCHE BANK SECURITIES INC.
J.P. MORGAN SECURITIES INC.
2
This Registration Rights Agreement (this "AGREEMENT") is made and entered
into as of July 1, 1999, by and among Consolidated Container Company LLC, a
Delaware limited liability company (the "COMPANY"), Consolidated Container
Capital, Inc., a Delaware corporation ("CAPITAL" and, together with the Company,
the "ISSUERS"), the subsidiary guarantors set forth on the signature pages
hereto (the "SUBSIDIARY GUARANTORS") and Donaldson, Lufkin & Jenrette Securities
Corporation, Bear, Stearns & Co. Inc., Deutsche Bank Securities Inc., J.P.
Morgan Securities Inc. (each an "INITIAL PURCHASER" and, collectively, the
"INITIAL PURCHASERS"), each of whom has agreed to purchase the Issuers' 10 1/8%
Senior Subordinated Notes due 2009 (the "SENIOR SUBORDINATED NOTES") pursuant to
the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated June 24,
1999 and amended as of July 1, 1999 (the "PURCHASE AGREEMENT"), by and among the
Issuers, the Subsidiary Guarantors and the Initial Purchasers. In order to
induce the Initial Purchasers to purchase the Senior Subordinated Notes, the
Issuers have agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Initial Purchasers set forth in Section 2 of the Purchase
Agreement. Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them the Indenture, dated as of July 1, 1999, among the
Issuers, the Subsidiary Guarantors and The Bank of New York, as Trustee,
relating to the Senior Subordinated Notes and the New Senior Subordinated Notes
(the "INDENTURE").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
CERTIFICATED SECURITIES: Definitive Notes, as defined in the Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the New Senior Subordinated Notes to be issued in the Exchange
Offer, (b) the maintenance of such Exchange Offer Registration Statement
continuously effective and the keeping of the Exchange Offer open for a
period not less than the
3
period required pursuant to Section 3(b) hereof and (c) the delivery by the
Issuers to the Registrar under the Indenture of New Senior Subordinated Notes
in the same aggregate principal amount as the aggregate principal amount of
Senior Subordinated Notes tendered by Holders thereof pursuant to the
Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The exchange and issuance by the Issuers of a principal
amount of New Senior Subordinated Notes (which shall be registered pursuant to
the Exchange Offer Registration Statement) equal to the outstanding principal
amount of Senior Subordinated Notes that are tendered by such Holders in
connection with such exchange and issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchasers propose
to sell the Senior Subordinated Notes to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act and in certain
offshore transactions as defined under and pursuant to Regulation S under the
Act.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
NEW SENIOR SUBORDINATED NOTES: The Issuers' new 10 1/8% Senior
Subordinated Notes due 2009 to be issued pursuant to the Indenture: (i) in the
Exchange Offer or (ii) as contemplated by Section 4 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Issuers and
the Subsidiary Guarantors relating to (a) an offering of New Senior
Subordinated Notes pursuant to an Exchange Offer or (b) the registration for
resale of Transfer Restricted Securities pursuant to the Shelf Registration
Statement, in each case, (i) that is filed pursuant to the provisions of this
4
Agreement and (ii) including the Prospectus included therein, all amendments
and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
REGULATION S: Regulation S promulgated under the Act.
RULE 144: Rule 144 promulgated under the Act.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
SUSPENSION PERIOD: As defined in Section 4(a) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each (A) Senior Subordinated Note, until
the earliest to occur of (i) the date on which such Senior Subordinated Note is
exchanged in the Exchange Offer for a New Senior Subordinated Note which is
entitled to be resold to the public by the Holder thereof without complying with
the prospectus delivery requirements of the Act, (ii) the date on which such
Senior Subordinated Note has been disposed of in accordance with a Shelf
Registration Statement (and the purchasers thereof have been issued New Senior
Subordinated Notes), or (iii) the date on which such Senior Subordinated Note is
distributed to the public pursuant to Rule 144 under the Act and each (B) New
Senior Subordinated Note held by a Broker Dealer until the date on which such
New Senior Subordinated Note is disposed of by a Broker-Dealer pursuant to the
"Plan of Distribution" or similarly titled caption contemplated by the
Prospectus contained in the Exchange Offer Registration Statement (including the
delivery of the Prospectus contained therein).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "HOLDER") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law or Commission policy (after the procedures set forth in Section
6(a)(i) below have been complied with), the Issuers and the Subsidiary
Guarantors shall (i) cause the Exchange Offer Registration Statement to be
filed with the Commission as soon as practicable after the Closing Date, but
in no event later than 90 days after the Closing Date (such 90th day being
the "FILING DEADLINE"), (ii) use their best efforts to cause such Exchange
Offer Registration Statement to become effective at the earliest possible
time, but in no event later than 180 days after the Closing Date (such 180th
day being the "EFFECTIVENESS DEADLINE"), (iii) in connection with the
foregoing,
5
(A) file all pre-effective amendments to such Exchange Offer Registration
Statement as may be necessary in order to cause it to become effective, (B)
file, if applicable, a post-effective amendment to such Exchange Offer
Registration Statement pursuant to Rule 430A under the Act and (C) cause all
necessary filings, if any, in connection with the registration and
qualification of the New Senior Subordinated Notes to be made under the Blue
Sky laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and (iv) upon the effectiveness of such Exchange Offer
Registration Statement, commence and Consummate the Exchange Offer. The
Exchange Offer shall be on the appropriate form permitting (i) registration
of the New Senior Subordinated Notes to be offered in exchange for the Senior
Subordinated Notes that are Transfer Restricted Securities and (ii) resales
of New Senior Subordinated Notes by Broker-Dealers that tendered into the
Exchange Offer Senior Subordinated Notes that such Broker-Dealer acquired for
its own account as a result of market making activities or other trading
activities (other than Senior Subordinated Notes acquired directly from the
Issuers or any of their respective Affiliates) as contemplated by Section
3(c) below.
(b) The Issuers and the Subsidiary Guarantors shall use their respective
best efforts to cause the Exchange Offer Registration Statement to be effective
continuously, and shall keep the Exchange Offer open for a period of 30 Business
Days, or longer, if required under applicable federal and state securities laws
to Consummate the Exchange Offer. The Issuers and the Subsidiary Guarantors
shall cause the Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the New Senior Subordinated Notes
shall be included in the Exchange Offer Registration Statement. The Issuers and
the Subsidiary Guarantors shall use their respective best efforts to cause the
Exchange Offer to be Consummated on the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in no event
later than 30 business days thereafter (such 30th day being the "CONSUMMATION
DEADLINE").
(c) The Issuers shall include a "Plan of Distribution" (or similarly
titled caption) section in the Prospectus contained in the Exchange Offer
Registration Statement and indicate therein that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for the account of such
Broker-Dealer as a result of market-making activities or other trading
activities (other than Senior Subordinated Notes acquired directly from the
Issuers or any Affiliate of the Issuers), may exchange such Transfer Restricted
Securities pursuant to the Exchange Offer. Such "Plan of Distribution" (or
similarly titled caption) section shall also contain all other information with
respect to such exchanges by such Broker-Dealers that the Commission may require
in order to permit such exchanges pursuant thereto, but such "Plan of
Distribution" or similarly titled caption shall not name any such Broker-Dealer
or disclose the amount of Transfer Restricted Securities held by any such
Broker-Dealer, except to the extent required by the Commission as a result of a
change in policy, rules or regulations after the date of this Agreement. See the
Shearman & Sterling no-action letter (available July 2, 1993).
Because such Broker-Dealer may be deemed to be an "underwriter" within
the meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any New Senior
Subordinated Notes received by such Broker-Dealer in the Exchange Offer, the
Issuers and the Subsidiary Guarantors shall permit the use of
6
the Prospectus contained in the Exchange Offer Registration Statement by such
Broker-Dealer to satisfy such prospectus delivery requirement. To the extent
necessary to ensure that the Prospectus contained in the Exchange Offer
Registration Statement is available for sales of New Senior Subordinated
Notes by Broker-Dealers, the Issuers and the Subsidiary Guarantors agree to
use their respective best efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented, amended and current as
required by and subject to the provisions of Section 6(a) and (c) hereof and
in conformity with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period beginning when such New Senior Subordinated Securities are
first issued in the Exchange Offer and ending upon the earlier of the
expiration of the 180th day after the Exchange Offer has been completed or
such time as such Broker-Dealers no longer own any New Subordinated Notes.
The Issuers and the Subsidiary Guarantors shall provide sufficient copies of
the latest version of such Prospectus to such Broker-Dealers, promptly upon
request, and in no event later than one day after such request, at any time
during such period.
SECTION 4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Exchange Offer is not permitted by
applicable law (after the Issuers and the Subsidiary Guarantors have complied
with the procedures set forth in Section 6(a)(i) below) or (ii) if any Holder of
Transfer Restricted Securities shall notify the Issuers within 20 Business Days
following the Consummation Deadline that (A) such Holder was prohibited by law
or Commission policy from participating in the Exchange Offer or (B) such Holder
may not resell the New Senior Subordinated Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and the Prospectus contained
in the Exchange Offer Registration Statement is not appropriate or available for
such resales by such Holder or (C) such Holder is a Broker-Dealer and holds
Senior Subordinated Notes acquired directly from the Issuers or any of their
respective Affiliates, then the Issuers and the Subsidiary Guarantors shall:
(x) use their best efforts to cause to be filed, on or prior to 90 days
after the earlier of (i) the date on which the Issuers determine that the
Exchange Offer Registration Statement cannot be filed as a result of clause
(a)(i) above and (ii) the date on which the Issuers receive the notice specified
in clause (a)(ii) above, (such earlier date, the "FILING DEADLINE"), a shelf
registration statement pursuant to Rule 415 under the Act (which may be an
amendment to the Exchange Offer Registration Statement (the "SHELF REGISTRATION
STATEMENT")), relating to all Transfer Restricted Securities, and
(y) shall use their respective best efforts to cause such Shelf
Registration Statement to become effective on or prior to 180 days after the
Filing Deadline for the Shelf Registration Statement (such 180th day the
"EFFECTIVENESS DEADLINE").
If, after the Issuers have filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above, the Issuers
are required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer is not permitted under applicable federal law
(i.e., clause (a)(i) above), then the filing of the Exchange Offer
Registration Statement shall be deemed to satisfy the requirements of clause
(x) above; PROVIDED that, in such
7
event, the Issuers shall remain obligated to meet the Effectiveness Deadline
set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration Statement is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Issuers and
the Subsidiary Guarantors shall use their respective best efforts to keep any
Shelf Registration Statement required by this Section 4(a) continuously
effective, supplemented, amended and current (except during a Suspension Period)
as required by and subject to the provisions of Sections 6(b) and (c) hereof and
in conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of at least two years (as extended pursuant to Section 6(c)(i)) following
the Closing Date, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Shelf Registration Statement have been
sold pursuant thereto. Notwithstanding the foregoing, the Issuers and the
Subsidiary Guarantors shall not be required to amend or supplement a
Registration Statement, any related Prospectus or any document incorporated
therein by reference, in the event that, and for a period not to exceed an
aggregate of 60 days in any calendar year (a "SUSPENSION PERIOD") if, (i) an
event occurs and is continuing as a result of which the Shelf Registration would
in the Issuers' good faith judgment, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and (ii) (a) the Issuers determine in good faith judgment that the
disclosure of such event at such time would have a material adverse effect on
the business, operations or prospects of the Issuers or (b) the disclosure
otherwise related to a pending material business transaction that has not yet
been publicly disclosed.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH THE
SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Issuers in writing, within 20 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Issuers by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing Deadline, (ii)
any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated on or prior to the Consummation
Deadline or (iv) any Registration Statement required by this Agreement is
filed and declared
8
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose (other than as a result of a Suspension Period) without
being succeeded immediately by a post-effective amendment to such
Registration Statement that cures such failure and that is itself declared
effective immediately (each such event referred to in clauses (i) through
(iv), a "REGISTRATION DEFAULT"), then the Issuers and the Subsidiary
Guarantors hereby jointly and severally agree to pay to each Holder of
Transfer Restricted Securities affected thereby liquidated damages in an
amount equal to $.05 per week per $1,000 in principal amount of Transfer
Restricted Securities held by such Holder for each week or portion thereof
that the Registration Default continues for the first 90-day period
immediately following the occurrence of such Registration Default. The amount
of the liquidated damages shall increase by an additional $.05 per week per
$1,000 in principal amount of Transfer Restricted Securities with respect to
each subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum amount of liquidated damages of $.50 per week per
$1,000 in principal amount of Transfer Restricted Securities; PROVIDED that
the Issuers and the Subsidiary Guarantors shall in no event be required to
pay liquidated damages for more than one Registration Default at any given
time. Notwithstanding anything to the contrary set forth herein, (1) upon
filing of the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement), in the case of (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (ii) above, (3)
upon Consummation of the Exchange Offer, in the case of (iii) above, or (4)
upon the filing of a post-effective amendment to the Registration Statement
or an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement) to again be declared effective or made usable in the case of (iv)
above, the liquidated damages payable with respect to the Transfer Restricted
Securities as a result of such clause (i), (ii), (iii) or (iv), as
applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture, on
each Interest Payment Date, as more fully set forth in the Indenture and the
Notes. Notwithstanding the fact that any securities for which liquidated damages
are due cease to be Transfer Restricted Securities, all obligations of the
Issuers and the Subsidiary Guarantors to pay liquidated damages with respect to
securities shall survive until such time as such obligations with respect to
such securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the
Exchange Offer, the Issuers and the Subsidiary Guarantors shall (x) comply
with all applicable provisions of Section 6(c) below, (y) use their
respective best efforts to effect such exchange and to permit (subject to any
Prospectus delivery requirements) the resale of New Senior Subordinated Notes
by Broker-Dealers that tendered in the Exchange Offer Senior Subordinated
Notes that such Broker-Dealer acquired for its own account as a result of its
market making activities or other trading activities (other than Senior
Subordinated Notes acquired directly from the Issuers or any of their
respective Affiliates) being sold in accordance with the intended method or
methods of distribution thereof, and (z) comply with all of the following
provisions:
9
(i) If, following the date hereof there has been announced a change
in Commission policy with respect to exchange offers such as the Exchange
Offer, that in the reasonable opinion of counsel to the Issuers raises a
substantial question as to whether the Exchange Offer is permitted by
applicable federal law, the Issuers and the Subsidiary Guarantors hereby
agree to seek a no-action letter or other favorable decision from the
Commission allowing the Issuers and the Subsidiary Guarantors to
Consummate an Exchange Offer for such Transfer Restricted Securities. The
Issuers and the Subsidiary Guarantors hereby agree to pursue the issuance
of such a decision to the Commission staff level. In connection with the
foregoing, the Issuers and the Subsidiary Guarantors hereby agree to take
all such other actions as may be requested by the Commission or otherwise
required in connection with the issuance of such decision, including
without limitation (A) participating in telephonic conferences with the
Commission, (B) delivering to the Commission staff an analysis prepared by
counsel to the Issuers setting forth the legal bases, if any, upon which
such counsel has concluded that such an Exchange Offer should be permitted
and (C) diligently pursuing a resolution (which need not be favorable) by
the Commission staff.
(ii) As a condition to its participation in the Exchange Offer, each
Holder of Transfer Restricted Securities (including, without limitation,
any Holder who is a Broker Dealer) shall furnish, upon the request of the
Issuers, prior to the Consummation of the Exchange Offer, a written
representation to the Issuers and the Subsidiary Guarantors (which may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an Affiliate of
the Issuers, (B) it is not engaged in, and does not intend to engage in,
and has no arrangement or understanding with any person to participate in,
a distribution of the New Senior Subordinated Notes to be issued in the
Exchange Offer and (C) it is acquiring the New Senior Subordinated Notes
in its ordinary course of business. As a condition to its participation in
the Exchange Offer each Holder using the Exchange Offer to participate in
a distribution of the New Senior Subordinated Notes shall acknowledge and
agree that, if the resales are of New Senior Subordinated Notes obtained
by such Holder in exchange for Senior Subordinated Notes acquired directly
from the Issuers or an Affiliate thereof, it (1) could not, under
Commission policy as in effect on the date of this Agreement, rely
on the position of the Commission enunciated in MORGAN STANLEY AND CO.,
INC. (available June 5, 1991) and EXXON CAPITAL HOLDINGS CORPORATION
(available May 13, 1988), as interpreted in the Commission's letter to
SHEARMAN & STERLING dated July 2, 1993, and similar no-action letters
(including, if applicable, any no-action letter obtained pursuant to
clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection with a secondary
resale transaction and that such a secondary resale transaction must be
covered by an effective registration statement containing the selling
security holder information required by Item 507 or 508, as applicable, of
Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Issuers and the Subsidiary Guarantors shall provide a
supplemental letter to the Commission (A) stating that the
10
Issuers and the Subsidiary Guarantors are registering the Exchange Offer
in reliance on the position of the Commission enunciated in EXXON CAPITAL
HOLDINGS CORPORATION (available May 13, 1988), MORGAN STANLEY AND CO.,
INC. (available June 5, 1991) as interpreted in the Commission's letter to
SHEARMAN & STERLING dated July 2, 1993, and, if applicable, any no-action
letter obtained pursuant to clause (i) above, (B) including a
representation that neither Issuer nor any Subsidiary Guarantor has
entered into any arrangement or understanding with any Person to
distribute the New Senior Subordinated Notes to be received in the
Exchange Offer and that, to the best of the Issuers' and each Subsidiary
Guarantors' information and belief, each Holder participating in the
Exchange Offer is acquiring the New Senior Subordinated Notes in its
ordinary course of business and has no arrangement or understanding with
any Person to participate in the distribution of the New Senior
Subordinated Notes received in the Exchange Offer and (C) any other
undertaking or representation required by the Commission as set forth in
any no-action letter obtained pursuant to clause (i) above, if applicable.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, the Issuers and the Subsidiary Guarantors shall:
(i) comply with all the provisions of Section 6(c) below and use
their respective best efforts to effect such registration to permit the
sale of the Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof (as indicated in
the information furnished to the Issuer pursuant to Section 4(b) hereof),
and pursuant thereto the Issuers and the Subsidiary Guarantors will
prepare and file with the Commission a Shelf Registration Statement
relating to the registration on any appropriate form under the Act, which
form shall be available for the sale of the Transfer Restricted Securities
in accordance with the intended method or methods of distribution thereof
within the time periods and otherwise in accordance with the provisions
hereof;
(ii) issue, upon the request of any Holder or purchaser of Senior
Subordinated Notes covered by any Shelf Registration Statement
contemplated by this Agreement, New Senior Subordinated Notes having an
aggregate principal amount equal to the aggregate principal amount of
Senior Subordinated Notes sold pursuant to the Shelf Registration
Statement and surrendered to the Issuer for cancellation pursuant to
the Indenture; the Issuer shall register New Senior Subordinated Notes
on the Shelf Registration Statement for this purpose and issue the New
Senior Subordinated Notes to the purchaser(s) of securities subject to
the Shelf Registration Statement in the names as such purchaser(s)
shall designate pursuant to the Indenture;
(iii) make the Issuers' and the Subsidiary Guarantors'
representatives available for discussion of any document that is to be
incorporated by reference into a Shelf Registration Statement or
Prospectus and other customary due diligence matters, and include such
information in such document prior to the filing thereof as such selling
Holders may reasonably request;
11
(iv) make available, at reasonable times, for inspection by
representatives of the selling Holders of a majority of the aggregate
principal amount of Notes outstanding and any attorney or accountant
retained by such representatives on behalf of the selling Holders that
enters into a customary confidentiality agreement with the Issuers, all
financial and other records, pertinent corporate documents of the Issuers
and the Subsidiary Guarantors and cause the Issuers' and the Subsidiary
Guarantors' officers, directors and employees to supply all information
reasonably requested by representatives of any such Holder, attorney or
accountant in connection with such Registration Statement or any
post-effective amendment thereto subsequent to the filing thereof and
prior to its effectiveness;
(v) if requested by any selling Holders in connection with such
sale, promptly include in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such Holders may reasonably request to have included
therein, including, without limitation, information relating to the "Plan
of Distribution" (or similarly titled caption) of the Transfer Restricted
Securities; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Issuers are
notified of the matters to be included in such Prospectus supplement or
post-effective amendment;
(vi) deliver to each Holder without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Issuers and
the Subsidiary Guarantors hereby consent to the use (in accordance with
law) of the Prospectus and any amendment or supplement thereto by each
selling Holder in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment
or supplement thereto; and
(vii) upon the request of the representative of the selling Holders
of a majority of the aggregate principal amount of the outstanding Notes,
enter into such agreements (including underwriting agreements) and make
such representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any applicable Registration
Statement contemplated by this Agreement as may be reasonably requested by
such representative in connection with any sale or resale pursuant to any
applicable Registration Statement. In such connection, the Issuers and the
Subsidiary Guarantors shall:
(A) upon request of the representative of the selling Holders
of a majority of the aggregate principal amount of the outstanding
Notes, furnish (or in the case of paragraphs (2) and (3), use its
best efforts to cause to be furnished) to each such Holder, upon the
effectiveness of the Shelf Registration Statement:
(1) a certificate, dated such date, signed by the
Presidents and the Chief Financial Officers of the Issuers,
12
confirming, as of the date thereof, the matters set forth in
Sections 6(dd), 9(a) and 9(b) of the Purchase Agreement and
such other similar matters as such Holders may reasonably
request;
(2) an opinion, dated the date of effectiveness of the
Shelf Registration Statement, of counsel for the Issuers and
the Subsidiary Guarantors covering matters similar to those
set forth Exhibit C of the Purchase Agreement and such other
matter as such Holder may reasonably request and are customary
and appropriate for transactions of this kind, and in any
event including a statement to the effect that such counsel
(a) has not independently verified the accuracy, completeness
or fairness of the statements made or included in the
Registration Statement or the Prospectus and take no
responsibility therefor, except as and to the extent set forth
in the paragraph regarding the "Description of Notes"
contained elsewhere in the opinion, and (b) in the course of
the preparation by the Issuers and the Subsidiary Guarantors
of the Registration Statement and the Prospectus, has
participated in conferences with certain officers and
employees of the Issuers and the Subsidiary Guarantors, with
representatives of auditors and with counsel to the Issuers
and the Subsidiary Guarantors, and based upon such counsel's
examination of the Registration Statement and the Prospectus,
such counsel's investigation made in connection with
preparation of the Registration Statement and the Prospectus,
and such counsel's participation in the conferences referred
to above, (i) such counsel is of the opinion that the
Registration Statement, as of its effective date, and the
Prospectus, as of the closing date, complied as to form in all
material respects with the requirements of the Act, the Trust
Indenture Act and the applicable rules and regulations of the
Commission thereunder, except that in each case such counsel
may state that it expresses no opinion with respect to the
financial statements or other financial data contained or
incorporated by reference in the Registration Statement and
the Prospectus, and (ii) it has no reason to believe that the
Registration Statement, as of its effective date, contained
any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary
in
13
order to make the statements therein not misleading, or that
the Prospectus contains any untrue statement of a material
fact or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that in
each case such counsel may state that it expresses no belief
with respect to the financial statements or other financial
data contained or incorporated by reference in the
Registration Statement or the Prospectus; and
(3) a customary comfort letter, dated the date of
effectiveness of the Shelf Registration Statement, from the
Company's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters to underwriters in connection with underwritten
offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 9(g) of the Purchase
Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by such representative to evidence compliance
with the matters covered in clause (A) above and with any customary
conditions contained in the any agreement entered into by the
Issuers and the Subsidiary Guarantors pursuant to this clause (vii).
(c) GENERAL PROVISIONS. In connection with any Registration Statement and
any related Prospectus required by this Agreement, the Issuers and the
Subsidiary Guarantors shall:
(i) use their respective best efforts to keep such Registration
Statement continuously effective (except, in the case of a Shelf
Registration Statement, during a Suspension Period) and provide all
requisite financial statements for the period specified in Section 3
or 4 of this Agreement, as applicable. Upon the occurrence of any
event (A) that makes any statement of a material fact made in any
such Registration Statement or the Prospectus contained therein
untrue, or that requires the making of any additions to or changes
in the Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes in
the Prospectus in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading or (B) that
would cause any such Registration Statement or the Prospectus contained
therein not to be effective and usuable for its intended purpose for
resale of Transfer Restricted Securities during the period required by
this Agreement, the Issuers and the Subsidiary Guarantors shall file
promptly an appropriate amendment to such Registration Statement curing
such defect, and, if Commission review is required, use their respective
best efforts to cause such amendment to be declared effective as soon as
practicable;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as may
be necessary to keep such
14
Registration Statement effective for the applicable period set forth
in Section 3 or 4 hereof, as the case may be; cause the Prospectus
to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with Rules 424, 430A and 462, as applicable, under the
Act in a timely manner; and comply with the provisions of the Act
with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set
forth in such Registration Statement or supplement to the Prospectus;
(iii) advise each Holder promptly and, if requested by such Holder,
confirm such advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect
to any applicable Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Act
or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or sale
in any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening of
any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Registration
Statement in order to make the statements therein not misleading, or that
requires the making of any additions to or changes in the Prospectus in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Issuers and the Subsidiary
Guarantors shall use their respective best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) except, in the case of a Shelf Registration Statement, during a
Suspension Period and subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(v) furnish to each selling Holder in connection with such exchange
or sale, if any, before filing with the Commission, copies of any
Registration Statement or any
15
Prospectus included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents incorporated
by reference after the initial filing of such Registration Statement),
which documents will be subject to the review of such selling Holders in
connection with such sale, if any, for a period of at least five Business
Days, and the Issuer will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by
reference) to which the representative of a majority of such selling
Holders shall reasonably object on behalf of the selling Holders within
five Business Days after the receipt thereof. If such representative made
an objection as set forth in the immediately preceding sentence, a
selling Holder shall be deemed to have reasonably objected to such filing
if such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains an untrue statement of a
material fact or omits to state any material fact necessary to make the
statements therein, in the case of any Prospectus, in the light of the
circumstances under which they were made, not misleading or fails to
comply with the applicable requirements of the Act;
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to each selling Holder in connection with
such exchange or sale, if any;
(vii) furnish to each Initial Purchaser and each Holder who requests
in connection with such exchange or sale, without charge, at least one
copy of the Registration Statement, as first filed with the Commission,
and of each amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits incorporated
therein by reference);
(viii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may reasonably request and do any and
all other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; PROVIDED, HOWEVER, that neither Issuer
nor any Subsidiary Guarantor shall be required to register or qualify as a
foreign corporation where it is not now so qualified or to take any action
that would subject it to the service of process in suits or to taxation,
other than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(ix) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and to
register such Transfer Restricted Securities in such denominations and
such names as the selling
16
Holders may request at least two Business Days prior to such sale of
Transfer Restricted Securities;
(x) use their respective best efforts to cause the disposition of
the Transfer Restricted Securities covered by the Registration Statement
to be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities, subject
to the proviso contained in clause (ix) above;
(xi) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of a Registration Statement covering
such Transfer Restricted Securities and provide the Trustee under the
Indenture with printed certificates for the Transfer Restricted Securities
which are in a form eligible for deposit with The Depository Trust
Company;
(xii) otherwise use their respective best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited)
covering a twelve-month period beginning after the effective date of the
Registration Statement (as such term is defined in paragraph (c) of Rule
158 under the Act);
(xiii) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement and, in connection therewith, cooperate with the Trustee
and the Holders to effect such changes to the Indenture as may be required
for such Indenture to be so qualified in accordance with the terms of the
TIA; and execute and use their best efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and all
other forms and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner; and
(xiv) provide promptly to each Holder, upon request, each document
filed with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act.
(d) RESTRICTIONS ON HOLDERS. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(iii)(C) or any notice from the Issuers of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof (in each case, a
"SUSPENSION NOTICE"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is
advised in writing by the Issuers that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the "RECOMMENCEMENT
DATE"). Each Holder receiving a Suspension Notice hereby agrees that it will
either (i) destroy
17
any Prospectuses, other than permanent file copies, then in such Holder's
possession which have been replaced by the Issuers with more recently dated
Prospectuses or (ii) deliver to the Issuers (at the Issuers' expense) all
copies, other than permanent file copies, then in such Holder's possession of
the Prospectus covering such Transfer Restricted Securities that was current
at the time of receipt of the Suspension Notice. The time period regarding
the effectiveness of such Registration Statement set forth in Section 3 or 4
hereof, as applicable, shall be extended by a number of days equal to the
number of days in the period from and including the date of delivery of the
Suspension Notice to the date of delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Issuers' and the Subsidiary Guarantors'
performance of or compliance with this Agreement will be borne by the Issuers,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses; (ii) all
fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates
for the New Senior Subordinated Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Issuers, the Subsidiary Guarantors
and the Holders of Transfer Restricted Securities; (v) all application and
filing fees in connection with listing the New Senior Subordinated Notes on an
automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the
Issuers and the Subsidiary Guarantors (including the expenses of any special
audit and comfort letters required by or incident to such performance).
The Issuers will, in any event, bear their and the Subsidiary Guarantors'
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including special
experts, retained by the Issuers or the Subsidiary Guarantors.
(b) In connection with any Shelf Registration Statement required by this
Agreement, the Issuers and the Subsidiary Guarantors will reimburse the Initial
Purchasers and the Holders of Transfer Restricted Securities who are selling or
reselling Senior Subordinated Notes or New Senior Subordinated Notes pursuant to
the "Plan of Distribution" or similarly titled caption contained in the Shelf
Registration Statement for the reasonable fees and disbursements of not more
than one counsel, who shall be Latham & Watkins, unless another firm shall be
chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Shelf Registration Statement is
being prepared.
SECTION 8. INDEMNIFICATION
(a) Each of the Issuers and each of the Subsidiary Guarantors agree,
jointly and severally, to indemnify and hold harmless each Holder, its
directors, its officers and each person, if any, who controls such Holder
(within the meaning of Section 15 of the Act or Section 20 of the Exchange Act),
from and against any and all losses, claims, damages, liabilities and
18
judgments (including without limitation, any legal or other expenses incurred
in connection with investigating or defending any matter, including any
action that could give rise to any such losses, claims, damages, liabilities
or judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, preliminary prospectus
or Prospectus (or any amendment or supplement thereto) provided by either
Issuer or any Subsidiary Guarantor to any Holder or any prospective purchaser
of New Senior Subordinated Notes or registered Senior Subordinated Notes, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any of the Holders
furnished in writing to the Issuers by any of the Holders.
(b) Each Holder of Transfer Restricted agrees, severally and not jointly,
to indemnify and hold harmless the Issuers and the Subsidiary Guarantors, and
their respective directors, managers (or Management Committee members) and
officers and each person, if any, who controls (within the meaning of Section 15
of the Act or Section 20 of the Exchange Act) the Issuers, or any Subsidiary
Guarantors to the same extent as the foregoing indemnity from the Issuers and
the Subsidiary Guarantors set forth in section (a) above, but only with
reference to information relating to such Holder furnished in writing to the
Issuers by such Holder expressly for use in any Registration Statement. In no
event shall any Holder, its directors, officers or any Person who controls such
Holder be liable or responsible for any amount in excess of the total amount
received by such Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Registration Statement.
(c) In case any action shall be commenced involving any person in respect
of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 8(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of
19
the indemnified party). In any such case, the indemnifying party shall not,
in connection with any one action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by a majority of
the Holders, in the case of the parties indemnified pursuant to Section 8(a),
and by the Issuers, in the case of parties indemnified pursuant to Section
8(b). The indemnifying party shall indemnify and hold harmless the
indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written
consent if the settlement is entered into more than twenty business days
after the indemnifying party shall have received a request from the
indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party) and, prior to the date of such settlement, the indemnifying party
shall have failed to comply with such reimbursement request. No indemnifying
party shall, without the prior written consent of the indemnified party,
effect any settlement or compromise of, or consent to the entry of judgment
with respect to, any pending or threatened action in respect of which the
indemnified party is or could have been a party and indemnity or contribution
may be or could have been sought hereunder by the indemnified party, unless
such settlement, compromise or judgment (i) includes an unconditional release
of the indemnified party from all liability on claims that are or could have
been the subject matter of such action 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 the indemnified party.
(d) To the extent that the indemnification provided for in this Section 8
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Issuers and
the Subsidiary Guarantors, on the one hand, and the Holders, on the other hand,
from their sale of Transfer Restricted Securities or (ii) if the allocation
provided by clause 8(d)(i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(d)(i) above but also the relative fault of the Issuers and the
Subsidiary Guarantors, on the one hand, and of the Holder, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Issuers and the Subsidiary
Guarantors, on the one hand, and of the Holder, on the other hand, 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 such Issuer or such
Subsidiary Guarantor, on the one hand, or by the Holder, on the other hand, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities and judgments
referred to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 8(a), any legal or other fees or
expenses
20
reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Issuers, the Subsidiary Guarantors and each Holder agree that it
would not be just and equitable if contribution pursuant to this Section 8(d)
were determined by pro rata allocation (even if the Holders 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 in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any matter, including any action that could have
given rise to such losses, claims, damages, liabilities or judgments.
Notwithstanding the provisions of this Section 8, no Holder, its directors,
its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount
by which the total received by such Holder with respect to the sale of
Transfer Restricted Securities pursuant to a Registration Statement exceeds
(i) the amount paid by such Holder for such Transfer Restricted Securities
and (ii) the amount of any damages which such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant
to this Section 8(c) are several in proportion to the respective principal
amount of Transfer Restricted Securities held by each Holder hereunder and
not joint.
The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
SECTION 9. RULE 144A AND RULE 144
Each Issuer and each Subsidiary Guarantor agrees with each Holder, for
so long as any Transfer Restricted Securities remain outstanding and during
any period in which such Issuer or such Guarantor (i) is not subject to
Section 13 or 15(d) of the Exchange Act, to make available, upon request of
any Holder, to such Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective purchaser
of such Transfer Restricted Securities designated by such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the Act
in order to permit resales of such Transfer Restricted Securities pursuant to
Rule 144A, and (ii) is subject to Section 13 or 15 (d) of the Exchange Act,
to make all filings required thereby in a timely manner in order to permit
resales of such Transfer Restricted Securities pursuant to Rule 144.
SECTION 10. MISCELLANEOUS
(a) REMEDIES. The Issuers and the Subsidiary Guarantors acknowledge and
agree that any failure by the Issuers and/or the Subsidiary Guarantors to comply
with their respective
21
obligations under Sections 3 and 4 hereof may result in material irreparable
injury to the Initial Purchasers or the Holders for which there is no
adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the
Initial Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Issuers' and the Subsidiary Guarantors' obligations
under Sections 3 and 4 hereof. The Issuers and the Subsidiary Guarantors
further agree to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. Neither Issuer nor any Subsidiary
Guarantor will, on or after the date of this Agreement, enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise violate with the
provisions hereof. Neither Issuer nor any Subsidiary Guarantor has previously
entered into any agreement granting any registration rights with respect to
its securities to any Person. The rights granted to the Holders hereunder do
not in any way violate with and are not inconsistent with the rights granted
to the holders of the Issuers' and the Subsidiary Guarantors' securities
under any agreement in effect on the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section
5 hereof and this Section 10(c)(i), the Issuers have obtained the written
consent of Holders of all outstanding Transfer Restricted Securities and (ii)
in the case of all other provisions hereof, the Issuers have obtained the
written consent of Holders of a majority of the outstanding principal amount
of Transfer Restricted Securities (excluding Transfer Restricted Securities
held by the Issuers or their respective Affiliates). Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose Transfer Restricted
Securities are being tendered pursuant to the Exchange Offer, and that does
not affect directly or indirectly the rights of other Holders whose Transfer
Restricted Securities are not being tendered pursuant to such Exchange Offer,
may be given by the Holders of a majority of the outstanding principal amount
of Transfer Restricted Securities subject to such Exchange Offer.
(d) THIRD PARTY BENEFICIARY. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuers and the
Subsidiary Guarantors, on the one hand, and the Initial Purchasers, on the
other hand, and shall have the right to enforce such agreements directly to
the extent they may deem such enforcement necessary or advisable to protect
their rights or the rights of Holders hereunder.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex, telecopier,
or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Issuers or the Subsidiary Guarantors:
22
2515 McKinney Avenue, Suite 850
Dallas, Texas 75201
Attention: Chief Financial Officer
with a copy to
Vestar Capital Partners III, L.P.
and Reid Plastics Holdings, Inc.
c/o Vestar Capital Partners, Inc.,
Seventeenth Street Plaza
1225 17th Street, Suite 1660
Denver, Colorado 80202
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders; provided, that nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Transfer Restricted Securities in violation of
the terms hereof or of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Transfer Restricted Securities in any
manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
23
(j) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CONSOLIDATED CONTAINER COMPANY LLC
By: Consolidated Container Holdings LLC,
as its Sole Member and Manager
By: /s/ Steven M. Silver
--------------------------------
Name: Steven M. Silver
Title: Vice President
CONSOLIDATED CONTAINER CAPITAL, INC.
By: /s/ Steven M. Silver
--------------------------------------
Name: Steven M. Silver
Title: Vice President
25
REID PLASTICS GROUP LLC
By: Consolidated Container Company LLC, as its Sole
Member and Manager
By: Consolidated Container Holdings LLC, as its Sole
Member and Manager
By: /s/ Steven M. Silver
---------------------------------------------
Name: Steven M. Silver
Title: Vice President
PLASTIC CONTAINERS LLC
By: Consolidated Container Company LLC, as its Sole
Member and Manager
By: Consolidated Container Holdings LLC, as its Sole
Member and Manager
By: /s/ Steven M. Silver
---------------------------------------------
Name: Steven M. Silver
Title: Vice President
CONTINENTAL PLASTIC CONTAINERS LLC
By: Plastic Containers LLC, as its Sole Member and
Manager
By: Consolidated Container Company LLC, as its Sole
Member and Manager
By: Consolidated Container Holdings LLC, as its Sole
Member and Manager
By: /s/ Steven M. Silver
---------------------------------------------
Name: Steven M. Silver
Title: Vice President
CONTINENTAL CARIBBEAN CONTAINERS, INC.
By: /s/ Steven M. Silver
----------------------------------------------------
Name: Steven M. Silver
Title: Vice President
26
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
DEUTSCHE BANK SECURITIES INC.
J.P. MORGAN SECURITIES INC.
BEAR, STEARNS & CO. INC.
By: Donaldson, Lufkin & Jenrette
Securities Corporation
By: /s/ Howard S. Rimerman
----------------------------
Name: Howard S. Rimerman
Title: Vice President