1
▇▇▇▇▇▇▇ Container Corporation
$225,000,000
9-3/4% Senior Notes due 2007
PURCHASE AGREEMENT
June 5, 1997
BT SECURITIES CORPORATION
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
SALOMON BROTHERS INC
c/o BT Securities Corporation
Bankers Trust Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ Container Corporation, a Delaware corporation (the "Company"),
hereby confirms its agreement with you (the "Initial Purchasers"), as set forth
below.
1. The Securities. Subject to the terms and conditions herein contained,
the Company proposes to issue and sell to the Initial Purchasers $225,000,000
aggregate principal amount of its 9-3/4% Senior Notes due 2007, Series A (the
"Notes"). The Notes are to be issued under an indenture (the "Indenture") to
be dated as of June 12, 1997 by and between the Company and Fleet National
Bank, as trustee (the "Trustee").
The Notes will be offered and sold to the Initial Purchasers without being
registered under the Securities Act of 1933, as amended (the "Act"), in
reliance on exemptions therefrom.
In connection with the sale of the Notes, the Company has prepared a final
offering memorandum dated June 5, 1997 (the "Memorandum") setting forth or
including a description of the terms of the Notes, the terms of the offering of
the Notes, a description of the Company and any material developments re-
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relating to the Company occurring after the date of the most recent historical
financial statements included therein.
The Initial Purchasers and their direct and indirect transferees of the
Notes will be entitled to the benefits of the Registration Rights Agreement,
substantially in the form attached hereto as Exhibit A (the "Registration
Rights Agreement"), pursuant to which the Company has agreed, among other
things, to file with the Securities and Exchange Commission (the "Commission")
under the circumstances set forth therein (i) a registration statement (the
"Registration Statement") under the Act relating to the Company's 9-3/4% Senior
Notes due 2007, Series B (the "Exchange Notes"), to be offered in exchange for
the Notes or (ii) a shelf registration statement pursuant to Rule 415 under the
Act relating to the resale of the Notes by holders thereof or, if applicable,
relating to the resale of debt securities of the Company substantially
identical to the Notes (the "Private Exchange Notes") by the Initial Purchasers
pursuant to an exchange of the Notes for Private Exchange Notes.
2. Representations and Warranties. The Company represents and warrants to
and agrees with the Initial Purchasers that:
(a) Neither the Memorandum nor any amendment or supplement thereto
as of the date thereof and at all times subsequent thereto up to the
Closing Date (as defined in Section 3 below) contained or contains any
untrue statement of a material fact or omitted or omits to state a
material fact 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 set forth in this Section 2(a) do not
apply to statements or omissions made in reliance upon and in conformity
with information relating to any of the Initial Purchasers furnished to
the Company in writing by such Initial Purchasers expressly for use in
the Memorandum or any amendment or supplement thereto.
(b) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing and is in good standing as a
corporation under the laws of its jurisdiction of incorporation, with all
requisite corporate power and authority to own its properties and
conduct its businesses as now conducted as described in the Memorandum,
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and is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions where the ownership or leasing of its
properties or the conduct of its businesses requires such qualification,
except where the failure to be so qualified would not have a material
adverse effect on the business, condition (financial or other) or results
of operations of the Company and its subsidiaries, taken as a whole (any
such event, a "Material Adverse Effect"); as of the Closing Date the
Company will have the authorized, issued and outstanding capitalization
set forth in the Memorandum; the outstanding shares of capital stock of
the Company and each of its subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and were not issued in
violation of any preemptive or similar rights; and except as disclosed in
the Memorandum, all of the outstanding shares of capital stock of each of
its subsidiaries are owned free and clear of all liens, encumbrances,
equities and claims or restrictions on transferability (other than those
imposed by the Act and the securities or "Blue Sky" laws of certain
jurisdictions) or voting. The Company does not own, directly or
indirectly, any shares of stock or any other equity or long-term debt
securities or have any equity interest in any firm, partnership, joint
venture or other entity other than interests in its Subsidiaries or as
described in the Memorandum or as have been acquired in the ordinary
course of business in exchange for bad debts and nominal amounts of
publicly traded securities, which amounts do not exceed 1/2 of 1% of such
class of securities.
(c) No holder of securities of the Company will be entitled to have
such securities registered under the registration statements required to
be filed by the Company pursuant to the Registration Rights Agreement,
other than as expressly permitted thereby.
(d) The Company has all requisite corporate power and authority to
execute, deliver and perform each of its obligations under the Notes, the
Exchange Notes and the Private Exchange Notes. The Notes, when issued,
will be in the form contemplated by the Indenture. The Notes, the
Exchange Notes and the Private Exchange Notes have each been duly
authorized by the Company and, when executed by the Company and
authenticated by the Trustee in accordance with the provisions of the
Indenture and, in the case of
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the Notes, delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement, will be entitled to the
benefits of the Indenture and will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought. The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Indenture; the
Indenture has been duly authorized by the Company and, when executed and
delivered by the Company (assuming the due authorization, execution and
delivery by the Trustee), will constitute a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity and the discretion
of the court before which any proceeding therefor may be brought.
(e) The Company has all requisite corporate power and authority to
enter into this Agreement, to issue and deliver the Notes and to
consummate the transactions contemplated hereby. This Agreement has been
duly authorized, executed and delivered by the Company. No consent,
approval, authorization or order of any court or governmental agency or
body is required for the performance of this Agreement or the
consummation by the Company of the transactions contemplated hereby,
except such as have been obtained and such as may be required under state
securities or "Blue Sky" laws in connection with the purchase and resale
of the Notes by the Initial Purchasers. None of the Company or any of its
subsidiaries is (i) in violation of its certificate of incorporation or
bylaws (or similar organizational document), (ii) in violation of any
statute, judgment, decree, order, rule or regulation applicable to the
Company or any of its subsidiaries, which violation would have a Material
Adverse Effect, or (iii) in default in the performance or observance of
any
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obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, note, lease, license, franchise
agreement, permit, certificate, material contract or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
to which the Company or any of its subsidiaries is subject, which
violation or default would have a Material Adverse Effect.
(f) The Company has all requisite corporate power and authority to
enter into the Registration Rights Agreement. The Registration Rights
Agreement has been duly authorized by the Company and, when executed and
delivered by the Company, will constitute a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except that (A) the enforcement thereof may be subject to
(i) bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought and (B) any rights to indemnity or contribution thereunder may be
limited by federal and state securities laws and public policy
considerations.
(g) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Registration Rights Agreement and the
consummation by the Company of the transactions contemplated hereby and
thereby will not conflict with or constitute or result in a breach or
violation by the Company of any of (i) the terms or provisions of, or
constitute a default by the Company or any of its subsidiaries under, any
contract, indenture, mortgage, deed of trust, loan agreement, note,
lease, license, franchise agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or to which any
of them or their respective properties is subject (each a "Contract" or
collectively, the "Contracts"), which conflict, breach, violation or
default would have a Material Adverse Effect, (ii) the certificate of
incorporation or bylaws (or similar organizational document) of the
Company or any of its subsidiaries or (iii) (assuming compliance with all
applicable state securities and "Blue Sky" laws and assuming the accuracy
of the representations and warranties of the Initial Purchasers in
Section 8
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hereof) any statute, judgment, decree, order, rule or regulation of any
court or governmental agency or other body applicable to the Company or
any of its subsidiaries or any of their properties, which conflict,
breach, violation or default would have a Material Adverse Effect.
(h) The audited consolidated financial statements of the Company and
its consolidated subsidiaries included in the Memorandum present fairly
in all material respects the consolidated financial position, results of
operations and cash flows of the Company and its consolidated
subsidiaries at the dates and for the periods to which they relate and
have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis, except as otherwise stated
therein. The unaudited consolidated financial statements and the related
notes included in the Memorandum present fairly in all material respects
the consolidated financial position, results of operations and cash flows
of the Company and its consolidated subsidiaries at the dates and for the
periods to which they relate, subject to year-end audit adjustments and
the more detailed note requirements for audited statements, and have been
prepared in accordance with generally accepted accounting principles
applied on a consistent basis, except as otherwise stated therein. To
the Company's knowledge, Deloitte & Touche LLP, which has examined
certain of such consolidated financial statements and schedules as set
forth in its reports included in the Memorandum is an independent public
accounting firm as required by the Act and the rules and regulations
promulgated thereunder.
(i) The pro forma consolidated financial information (including the
notes thereto) included in the Memorandum (A) comply as to form in all
material respects with the applicable requirements of Regulation S-X
promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and (B) have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements. The adjustments to the pro forma consolidated financial
information have been computed in a mathematically correct manner. The
assumptions used in the preparation of the pro forma financial information
included in the Memorandum are reasonable.
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(j) Except as described in the Memorandum, there is not pending or,
to the knowledge of the Company, threatened, any action, suit, proceeding,
inquiry or investigation to which the Company or any of its subsidiaries
is a party, or to which the property of the Company or any of its
subsidiaries is subject, before or brought by any court or governmental
agency or body, that would be reasonably likely to have a Material Adverse
Effect.
(k) The Company and each of its subsidiaries owns or possesses
licenses or other rights to use all patents, trademarks, service marks,
trade names, copyrights and know-how necessary to conduct the businesses
now or proposed to be operated by it as described in the Memorandum, and
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with (or knows of any such infringement of or
conflict with) asserted rights of others with respect to any patents,
trademarks, service marks, trade names, copyrights or know-how which, if
such assertion of infringement or conflict were sustained, would have a
Material Adverse Effect.
(l) The Company and its subsidiaries have obtained all licenses,
permits, franchises and other governmental authorizations necessary to
conduct the businesses now or proposed to be operated by it as described
in the Memorandum, the lack of which would have a Material Adverse
Effect.
(m) Subsequent to the respective dates as of which information is
given in the Memorandum and except as described therein or contemplated
thereby, (i) neither the Company nor any of its subsidiaries has incurred
any material liabilities or obligations, direct or contingent, or entered
into any material transactions, not in the ordinary course of business and
(ii) the Company has not purchased any of its outstanding capital stock,
nor declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock.
(n) Except as disclosed in the Memorandum, either the Company nor
any of its subsidiaries is in violation of any federal, state or local
law relating to occupational safety and health or to the storage,
handling or transportation of hazardous or toxic materials and the
Company or
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its subsidiaries have obtained all permits, licenses or other
approvals required under applicable federal and state occupational safety
and health and environmental laws and regulations to conduct its
businesses as described in the Memorandum, and the Company and its
subsidiaries are in compliance with all terms and conditions of any such
required permit, license or approval, except any such violation of law or
regulation, failure to receive required permits, licenses or other
approvals or failure to comply with the terms of such permits, licenses
or approvals which would not, singly or in the aggregate, have a Material
Adverse Effect.
(o) Except as described in the Memorandum, neither the Company nor
any of its subsidiaries is in default under any Contract, has received a
notice or claim of any such default or has knowledge of any breach of any
Contract by the other party or parties thereto, except such defaults or
breaches as would not have a Material Adverse Effect.
(p) The Company and each of its subsidiaries has filed all necessary
federal, state and foreign income and franchise tax returns, except where
the failure to so file such returns would not have a Material Adverse
Effect, and has paid all taxes shown as due thereon; and other than tax
deficiencies that the Company is contesting in good faith and for which
the Company reasonably believes that it has provided adequate reserves in
accordance with generally accepted accounting principles, there is no tax
deficiency that has been asserted against the Company or any of its
subsidiaries that would have a Material Adverse Effect.
(q) Neither the Company nor any agent acting on its behalf has taken
or will take any action that is likely to cause this Agreement or the
sale of the Notes to violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System, in each case as in effect, or as
the same may hereafter be in effect, on the Closing Date.
(r) The Company and each of its subsidiaries has good and marketable
title to all real property and good title to all personal property
described in the Memorandum as being owned by it and good and marketable
title to a leasehold estate in the real and personal property de-
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scribed in the Memorandum as being leased by it (except for those leases
of real property in which the Company has good title and that would be
marketable but for the requirement that the landlord consent to an
assignment or sublease of the lease), free and clear of all liens,
charges, encumbrances or restrictions, except, in each case, as described
in the Memorandum or to the extent the failure to have such title or the
existence of such liens, charges, encumbrances or restrictions would not
have a Material Adverse Effect. All leases, contracts and agreements to
which the Company or any of its subsidiaries is a party or by which any of
them is bound are (i) valid and enforceable against the Company or any
such subsidiary and (ii) to the knowledge of the Company, valid and
enforceable against the other party or parties thereto and are in full
force and effect with only such exceptions as would not, individually or
in the aggregate, have a Material Adverse Effect.
(s) Neither the Company nor any of its subsidiaries has violated any
provisions of the Employee Retirement Income Security Act of 1974
("ERISA") or the rules and regulations promulgated thereunder, that might
result, individually or in the aggregate, in a Material Adverse Effect.
There is no organized strike, labor dispute, slowdown or stoppage pending
against the Company or any of its subsidiaries or, to the best knowledge
of the Company, threatened against the Company, or any of its
subsidiaries, except with respect to any matter specified above,
individually or in the aggregate) such as are not expected to have a
Material Adverse Effect.
(t) The Company and each subsidiary maintain insurance (including
self insurance) covering their properties, operations, personnel and
businesses. Such insurance insures against such losses and risks as are
adequate in accordance with customary industry practice to protect the
Company and its subsidiaries and their businesses. Neither the Company
nor any subsidiary has received notice from any insurer or agent of such
insurer that substantial capital improvements or other expenditures will
have to be made in order to continue such insurance. All such insurance
is outstanding and duly in force on the date hereof and will be
outstanding and duly in force on the Closing Date, except as disclosed in
the Memorandum.
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(u) The Company is not an "investment company" or an affiliated
person of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of
1940, as amended, and the rules and regulations thereunder.
(v) Neither the Company nor, to its knowledge, any of its
directors, officers or controlling persons has taken, directly or
indirectly, any action designed, or that might reasonably be expected, to
cause or result, under the Act or otherwise, in, or that has constituted,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Notes.
(w) The Company has delivered a true and correct copy of its Credit
Agreement to you dated as of November 17, 1986, and amended and restated
as of June 30, 1995, among the Company and the financial institutions
signatory thereto, Bankers Trust Company, as agent and co-manager, as
amended through the date hereof and the Closing Date, together with all
schedules, exhibits and proposed amendments thereto (the "Credit
Agreement"), and of any waivers of the provisions thereof; and there
exists as of the Closing Date (after giving effect to the transactions
contemplated by this Agreement and the Indenture) no condition that would
constitute a Default or an Event of Default (each as defined in the
Credit Agreement) under the Credit Agreement.
(x) The Notes, the Exchange Notes, the Private Exchange Notes, the
Indenture and the Registration Rights Agreement will conform in all
material respects to the descriptions thereof in the Memorandum.
(y) None of the Company, its subsidiaries or any of their respective
Affiliates (as defined in Rule 501(b) of Regulation D under the Act) has
directly, or through any agent, (i) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any "security" (as
defined in the Act) that is or could be integrated with the sale of the
Notes in a manner that would require the registration under the Act of
the Notes or (ii) engaged in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Notes or in any manner
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involving a public offering within the meaning of Section 4(2) of the Act.
Assuming the accuracy of the representations and warranties of the Initial
Purchasers in Section 8 hereof, the Company has not been informed by
counsel that it is necessary in connection with the offer, sale and
delivery of the Notes to the Initial Purchasers in the manner contemplated
by this Agreement to register any of the Notes under the Act or to qualify
the Indenture under the Trust Indenture Act of 1939, as amended (the
"TIA").
(z) No securities of the Company or any subsidiary are of the same
class (within the meaning of Rule 144A under the Act) as the Notes and
listed on a national securities exchange registered under Section 6 of
the Exchange Act, or quoted in a U.S. automated inter-dealer quotation
system.
(aa) The statistical and market-related data included in the
Memorandum are based on or derived from sources that the Company believes
to be reliable and accurate in all material respects.
Any certificate signed by any officer of the Company or any
subsidiary and delivered to any Initial Purchaser or to counsel for the Initial
Purchasers shall be deemed a representation and warranty by the Company to
each Initial Purchaser as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Initial Purchasers, and the Initial Purchasers, acting
severally and not jointly, agree to purchase from the Company the Notes in the
respective amounts set forth in Schedule I hereto at 98.0% of their principal
amount. One or more certificates in definitive form for the Notes that the
Initial Purchasers have agreed to purchase hereunder, and in such denomination
or denominations and registered in such name or names as the Initial Purchasers
request upon notice to the Company at least 36 hours prior to the Closing Date,
shall be delivered by or on behalf of the Company to the Initial Purchasers,
against payment by or on behalf of the Initial Purchasers of the purchase price
therefor by wire transfer (same day funds) to such account or accounts as the
Company shall specify prior to the Closing Date, or by such means as the parties
hereto shall
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agree prior to the Closing Date. Such delivery of and payment for the Notes
shall be made at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 9:00 A.M., Chicago time, on June 12, 1997, or at
such other place, time or date as the Initial Purchasers, on the one hand, and
the Company, on the other hand, may agree upon, such time and date of delivery
against payment being herein referred to as the "Closing Date." The Company
will make such certificate or certificates for the Notes available for checking
and packaging by the Initial Purchasers at the offices of BT Securities
Corporation in New York, New York, or at such other place as BT Securities
Corporation may designate, at least 24 hours prior to the Closing Date.
4. Offering by the Initial Purchasers. The Initial Purchasers
propose to make an offering of the Notes at the price and upon the terms set
forth in the Memorandum, as soon as practicable after this Agreement is entered
into and as in the judgment of the Initial Purchasers is advisable.
5. Covenants of the Company. The Company covenants and agrees with
the Initial Purchasers that:
(a) The Company will not amend or supplement the Memorandum or any
amendment or supplement thereto of which the Initial Purchasers shall not
previously have been advised and furnished a copy for a reasonable period
of time prior to the proposed amendment or supplement and as to which the
Initial Purchasers shall not have given its consent, which will not be
unreasonably withheld. The Company will promptly, upon the reasonable
request of the Initial Purchasers or counsel for the Initial Purchasers,
make any amendments or supplements to the Memorandum that may be necessary
or advisable in connection with the resale of the Notes by the Initial
Purchasers.
(b) The Company will cooperate with the Initial Purchasers in
arranging for the qualification of the Notes for offering and sale under
the securities or "Blue Sky" laws of which jurisdictions as the Initial
Purchasers may designate and will continue such qualifications in effect
for as long as may be necessary to complete the resale of the Notes;
provided, however, that in connection therewith, the Company shall not be
required to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction or subject itself
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to taxation in excess of a minimal dollar amount in any such jurisdiction
where it is not so subject.
(c) If, at any time prior to the completion of the distribution by
the Initial Purchasers of the Notes or the Private Exchange Notes, any
event occurs or information becomes known as a result of which the
Memorandum as then amended or supplemented would include any untrue
statement of a material fact, or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if for any other reason it is
necessary at any time to amend or supplement the Memorandum to comply
with applicable law, the Company will promptly notify the Initial
Purchasers thereof and will prepare, at the expense of the Company, an
amendment or supplement to the Memorandum that corrects such statement or
omission or effects such compliance.
(d) The Company will, without charge, provide to the Initial
Purchasers and to counsel for the Initial Purchasers as many copies of
the Memorandum or any amendment or supplement thereto as the Initial
Purchasers may reasonably request.
(e) The Company will apply the net proceeds from the sale of the
Notes as set forth under "Use of Proceeds" in the Memorandum.
(f) For so long as the Notes remain outstanding, the Company will
furnish to the Initial Purchasers copies of all reports and other
communications (financial or otherwise) furnished by the Company to the
Trustee or to the holders of the Notes and, as soon as available, copies
of any reports or financial statements furnished to or filed by the
Company with the Commission or any national securities exchange on which
any class of securities of the Company may be listed.
(g) Prior to the Closing Date, the Company will furnish to the
Initial Purchasers, as soon as they have been prepared, a copy of any
unaudited interim financial statements of the Company for any period
subsequent to the period covered by the most recent financial statements
appearing in the Memorandum.
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(h) None of the Company or any of its Affiliates will sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect of
any "security" (as defined in the Act) that could be integrated with the
sale of the Notes in a manner which would require the registration under
the Act of the Notes.
(i) The Company will not, and will not permit any of the
Subsidiaries to, engage in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Notes or in any manner involving a
public offering within the meaning of Section 4(2) of the Act.
(j) The Company will use its best efforts to (i) assist the Initial
Purchasers in permitting the Notes to be designated PORTAL securities in
accordance with the rules and regulations adopted by the NASD relating to
trading in the Private Offerings, Resales and Trading through Automated
Linkages market (the "PORTAL Market") and (ii) permit the Notes to be
eligible for clearance and settlement through The Depository Trust
Company.
6. Expenses. The Company agrees to pay all costs and expenses
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 11 hereof, including all costs and expenses
incident to (i) the printing, word processing or other production of documents
with respect to the transactions contemplated hereby, including any costs of
printing the Memorandum and any amendment or supplement thereto, and any "Blue
Sky" memoranda, (ii) all arrangements relating to the delivery to the Initial
Purchasers of copies of the foregoing documents, (iii) the fees and
disbursements of the counsel, the accountants and any other experts or advisors
retained by the Company, (iv) preparation (including printing), issuance and
delivery to the Initial Purchasers of the Notes, (v) the qualification of the
Notes under state securities and "Blue Sky" laws, including filing fees and fees
and disbursements of counsel for the Initial Purchasers relating thereto, (vi)
fees and expenses of the Trustee including fees and expenses of counsel and
(vii) all expenses and listing fees incurred in connection with the application
for quotation of the Notes on the PORTAL Market. If the sale of the Notes
provided for herein is not consummated because any condition to the obligations
of the Initial Purchasers set
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forth in Section 7 hereof is not satisfied, because this Agreement is terminated
or because of any failure, refusal or inability on the part of the Company to
perform all obligations and satisfy all conditions on its part to be performed
or satisfied hereunder (other than solely by reason of a default by the Initial
Purchasers of their obligations hereunder after all conditions hereunder have
been satisfied in accordance herewith), the Company agrees to promptly reimburse
the Initial Purchasers upon demand for all out-of-pocket expenses (including
fees, disbursements and charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Initial Purchasers) that shall have been incurred by the Initial Purchasers in
connection with the proposed purchase and sale of the Notes.
7. Conditions of the Initial Purchasers' Obligations. The
obligation of the Initial Purchasers to purchase and pay for the Notes shall, in
their sole discretion, be subject to the following conditions on or prior to the
Closing Date:
(a) The Initial Purchasers shall have received an opinion in form
and substance satisfactory to the Initial Purchasers, dated the Closing
Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, substantially in the
form of Exhibit B hereto. In rendering such opinion, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
shall have received and may rely upon such certificates and other
documents and information as they may reasonably request to pass on such
matters. In addition, in rendering their opinion, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ may
state that their opinion is limited to matters of Illinois, New York,
Delaware corporate and federal law. Such opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
shall be rendered to the Initial Purchasers at the request of the Company
and shall so state therein.
(b) The Initial Purchasers shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial
Purchasers, with respect to certain legal matters relating to this
Agreement, and such other related matters as the Initial Purchasers may
require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have
received and may rely upon such certificates and other documents and
information as they may reasonably request to pass upon such matters. In
addition, in rendering their opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may state
16
-16-
that their opinion is limited to matters of New York, Delaware corporate
and federal law.
(c) The Initial Purchasers shall have received from Deloitte &
Touche LLP a comfort letter or letters dated, respectively, on or about
the date hereof and the Closing Date, in form and substance satisfactory
to the Initial Purchasers and counsel for the Initial Purchasers.
(d) The representations and warranties of the Company contained in
this Agreement shall be true and correct in all material respects as of
the date hereof and as of the Closing Date; the Company shall have
complied in all material respects with all covenants and agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date; and subsequent to the date of
the most recent financial statements in the Final Memorandum, there shall
have been no material adverse change in the business, condition
(financial or other), results of operations or prospects of the Company
and its subsidiaries, taken as a whole, except as set forth in, or
contemplated by, the Final Memorandum.
(e) The sale of the Notes by the Company hereunder shall not be
enjoined (temporarily or permanently) on the Closing Date.
(f) Subsequent to the date as of which information is given in the
Memorandum, except as described in or as contemplated by the Memorandum,
none of the Company or any of its subsidiaries shall have incurred any
liabilities or obligations, direct or contingent (other than in the
ordinary course of business) that are material to the Company and its
subsidiaries, taken as a whole, or entered into any transactions not in
the ordinary course of business that are material to the business,
condition (financial or other), results of operations or prospects of the
Company and its subsidiaries, taken as a whole, and, other than as
contemplated by the Memorandum, there shall not have been any change in
the capital stock or long-term indebtedness of the Company or its
subsidiaries that is material to the business, condition (financial or
other), results of operations or prospects of the Company and its
subsidiaries, taken as a whole.
17
-17-
(g) Subsequent to the date as of which information is given in the
Memorandum, the conduct of the business and operations of the Company or
any of its subsidiaries has not been interfered with by strike, fire,
flood, hurricane, accident or other calamity (whether or not insured) or
by any court or governmental action, order or decree, and, except as
otherwise stated therein, the properties of the Company or any of its
subsidiaries have not sustained any loss or damage (whether or not
insured) as a result of any such occurrence, except any such
interference, loss or damage which would not have a Material Adverse
Effect.
(h) The Initial Purchasers shall have received a certificate of the
Company, dated the Closing Date, signed on behalf of the Company by any
two of the Chairman of the Board of Directors, the President, an
Executive Vice President, a Vice President or the Treasurer of the
Company, to the effect that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects as if made
on and as of the Closing Date, and the Company has performed in all
material respects all covenants and agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) At the Closing Date, since the date hereof or since the
date of the most recent financial statement in the Memorandum, no
event or events have occurred, nor has any information become known
that individually or in the aggregate would have a Material Adverse
Effect; and
(iii) The sale of the Notes by the Company hereunder has not
been enjoined (temporarily or permanently).
(i) On the Closing Date, the Initial Purchasers shall have received
the Registration Rights Agreement executed by the Company and such
agreement shall be in full force and effect on the Closing Date.
On or before the Closing Date, the Initial Purchasers and counsel
for the Initial Purchasers shall have received such
18
-18-
further documents, opinions, certificates and schedules or instruments relating
to the business, corporate, legal and financial affairs of the Company as they
shall have heretofore reasonably requested from the Company.
All such opinions, certificates, letters, schedules, documents or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchasers and counsel for the Initial Purchasers. The Company shall
furnish to the Initial Purchasers such conformed copies of such opinions,
certificates, letters, schedules, documents and instruments in such quantities
as the Initial Purchasers shall reasonably request.
8. Offering of Notes; Restrictions on Transfer. (a) Each of the
Initial Purchasers represents and warrants that it is a QIB. Each of the
Initial Purchasers agrees with the Company that (i) it has not and will not
solicit offers for, or offer or sell, the Notes by any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Act; and (ii) it has and will solicit offers for the
Notes only from, and will offer the Notes only to (A) in the case of offers
inside the United States, (x) persons whom it reasonably believes to be QIBs or,
if any such person is buying for one or more institutional accounts for which
such person is acting as fiduciary or agent, only when such person has
represented to it that each such account is a QIB, to whom notice has been given
that such sale or delivery is being made in reliance on Rule 144A, and, in each
case, in transactions under Rule 144A or (y) a limited number of other
institutional investors reasonably believed by it to be Accredited Investors
that, prior to their purchase of the Notes, deliver to it a letter containing
the representations and agreements set forth in Annex A to the Memorandum and
(B) in the case of offers outside the United States, to persons other than U.S.
persons ("foreign purchasers," which term shall include dealers or other
professional fiduciaries in the United States acting on a discretionary basis
for foreign beneficial owners (other than an estate or trust)); provided,
however, that, in the case of this clause (B), in purchasing such Notes such
persons are deemed to have represented and agreed as provided under the caption
"Transfer Restrictions" contained in the Memorandum.
19
-19-
(b) Each of the Initial Purchasers represents and warrants (as to
itself only) with respect to offers and sales outside the United States that (i)
it has complied and will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Notes or has in its
possession or distributes the Memorandum or any such other material, in all
cases at its own expense; (ii) the Notes have not been and will not be offered
or sold within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S under the Act or pursuant to an
exemption from the registration requirements of the Act; (iii) it has offered
the Notes and will offer and sell the Notes (A) as part of its distribution at
any time and (B) otherwise until 40 days after the later of the commencement of
the offering and the Closing Date, only in accordance with Rule 903 of
Regulation S and, accordingly, neither it nor any persons acting on its behalf
have engaged or will engage in any directed selling efforts (within the meaning
of Regulation S) with respect to the Notes, and any such persons have complied
and will comply with the offering restrictions requirement of Regulation S; and
(iv) it agrees that, at or prior to confirmation of sales of the Notes, it will
have sent to each distributor, dealer or person receiving a selling concession,
fee or other remuneration that purchases Notes from it during the restricted
period a confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
United States Securities Act of 1933 (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 the
distribution of the Securities at any time or (ii) otherwise until
40 days after the later of the commencement of the offering and
the closing date of the offering, except in either case in
accordance with Regulation S (or Rule 144A if available) under the
Securities Act. Terms used above have the meaning given to them
in Regulation S."
Terms used in this Section 8(b) and not defined in this Agreement have the
meanings given to them in Regulation S.
(c) Each of the Initial Purchasers represents and warrants (as to
itself only) that the source of funds being used by it to acquire the Notes does
not include the assets of
20
-20-
any "employee benefit plan" (within the meaning of Section 3 of ERISA) or any
"plan" (within the meaning of Section 4975 of the Code).
9. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Initial Purchaser, and each person, if any,
who controls any Initial Purchaser within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, against any losses, claims, damages or
liabilities to which any Initial Purchaser or such controlling person may become
subject under the Act, the Exchange Act or otherwise, insofar as any such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Memorandum or any amendment or
supplement thereto or any application or other document, or any
amendment or supplement thereto, executed by the Company or based
upon written information furnished by or on behalf of the Company
filed in any jurisdiction in order to qualify the Notes under the
securities or "Blue Sky" laws thereof or filed with any securities
association or securities exchange (each an "Application"); or
(ii) the omission or alleged omission to state, in the
Memorandum or any amendment or supplement thereto or any
Application, a material fact required to be stated therein or
necessary to make the statements therein not misleading,
and will reimburse, as incurred, the Initial Purchasers and each such
controlling person for any legal or other expenses incurred by the Initial
Purchasers or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, the Company
will not be liable in any such case to the extent that any such loss, claim,
damage, or liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in the Memorandum
or any amendment or supplement thereto or any Application in reliance upon and
in conformity with written information concerning the Initial Purchasers
furnished to the Company by the Initial Purchasers specifically for use therein.
This indemnity agreement
21
-21-
will be in addition to any liability that the Company may otherwise have to the
indemnified parties. The Company shall not be liable under this Section 9 for
any settlement of any claim or action effected without its prior written
consent, which shall not be unreasonably withheld.
The Initial Purchasers shall not, without the prior written consent
of the Company, effect any settlement or compromise of any pending or threatened
proceeding in respect of which the Company is or could have been a party, or
indemnity could have been sought hereunder by the Company, unless such
settlement (A) includes an unconditional written release of the Company, in form
and substance reasonably satisfactory to the Company, from all liability on
claims that are the subject matter of such proceeding and (B) does not include
any statement as to an admission of fault, culpability or failure to act by or
on behalf of the Company.
(b) Each of the Initial Purchasers agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its officers
and each person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act against any losses, claims,
damages or liabilities to which the Company or any such director, officer or
controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any Memorandum or any
amendment or supplement thereto or any Application, or (ii) the omission or the
alleged omission to state therein a material fact required to be stated in any
Memorandum or any amendment or supplement thereto or any Application, or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Initial Purchaser, furnished
to the Company by such Initial Purchaser specifically for use therein; and
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses incurred by the Company or
any such director, officer or controlling person in connection with
investigating or defending against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action in respect
thereof. This indemnity agreement
22
-22-
will be in addition to any liability that the Initial Purchasers may otherwise
have to the indemnified parties. The Initial Purchasers shall not be liable
under this Section 9 for any settlement of any claim or action effected without
its consent, which shall not be unreasonably withheld. The Company shall not,
without the prior written consent of the Initial Purchasers, effect any
settlement or compromise of any pending or threatened proceeding in respect of
which any Initial Purchaser is or could have been a party, or indemnity could
have been sought hereunder by any Initial Purchaser, unless such settlement (A)
includes an unconditional written release of the Initial Purchasers, in form and
substance reasonably satisfactory to the Initial Purchasers, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of any Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 9, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraphs (a) and (b)
above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party or (iii) the
indemnifying party
23
-23-
shall not have employed counsel reasonably satisfactory to the indemnified party
to represent the indemnified party within a reasonable time after receipt by the
indemnifying party of notice of the institution of such action, then, in each
such case, the indemnifying party shall not have the right to direct the defense
of such action on behalf of such indemnified party or parties and such
indemnified party or parties shall have the right to select separate counsel to
defend such action on behalf of such indemnified party or parties. After notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and approval by such indemnified party of counsel
appointed to defend such action, the indemnifying party will not be liable to
such indemnified party under this Section 9 for any legal or other expenses,
other than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that in connection with such action the indemnifying party shall not be liable
for the expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations or circumstances,
designated by the Initial Purchasers in the case of paragraph (a) of this
Section 9 or the Company in the case of paragraph (b) of this Section 9,
representing the indemnified parties under such paragraph (a) or paragraph (b),
as the case may be, who are parties to such action or actions) or (ii) the
indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party. After such notice
from the indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the prior written consent of the
indemnifying party (which consent shall not be unreasonably withheld), unless
such indemnified party waived in writing its rights under this Section 9, in
which case the indemnified party may effect such a settlement without such
consent.
(d) In circumstances in which the indemnity agreement provided for
in the preceding paragraphs of this Section 9 is unavailable to, or insufficient
to hold harmless, an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof), each indemnifying party, in
order to provide for just and equitable contribution,
24
-24-
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Company on
the one hand and the Initial Purchasers on the other shall be deemed to be in
the same proportion as the total proceeds from the offering (before deducting
expenses) received by the Company bear to the total discounts and commissions
received by the Initial Purchasers. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand,
or the Initial Purchasers on the other, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company and the Initial
Purchasers agree that it would not be just and equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), the Initial
Purchasers shall not be obligated to make contributions hereunder that in the
aggregate exceed the total discounts, commissions and other compensation
received by the Initial Purchasers under this Agreement, less the aggregate
amount of any damages that the Initial Purchasers has otherwise been required to
pay by reason of the untrue or alleged untrue statements or the omissions or
alleged omissions to state a material fact, and 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. For purposes of this paragraph (d), each person, if any, who
controls the Initial Purchasers within the meaning of
25
-25-
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Initial Purchasers, and each director of the
Company, each officer of the Company and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as the Company.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, its
officers and the Initial Purchasers set forth in this Agreement or made by or on
behalf of them pursuant to this Agreement shall remain in full force and effect,
regardless of (a) any investigation made by or on behalf of the Company, any of
its officers or directors, the Initial Purchasers or any controlling person
referred to in Section 9 hereof and (b) delivery of and payment for the Notes.
The respective agreements, covenants, indemnities and other statements set forth
in Sections 6, 9 and 15 hereof shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated in the sole
discretion of the Initial Purchasers by notice to the Company given prior to the
Closing Date in the event that the Company shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto or, if at or prior to the
Closing Date:
(i) the Company shall have sustained any loss or interference with
respect to its businesses or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or from
any strike, labor dispute, slow down or work stoppage or any legal or
governmental proceeding, which loss or interference, in the sole judgment
of the Initial Purchasers, has had or has a Material Adverse Effect, or
there shall have been, in the sole judgment of the Initial Purchasers, any
event or development that, individually or in the aggregate, has or could
be reasonably likely to have a Material Adverse Effect, except in each
case as described in the Memorandum (exclusive of any amendment or
supplement thereto);
(ii) trading in securities of the Company or in securities generally
on the New York Stock Exchange, American Stock Exchange or the Nasdaq
National Market shall have
26
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been suspended or minimum or maximum prices shall have been established on
any such exchange or market;
(iii) a banking moratorium shall have been declared by New York or
United States authorities;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international
calamity or emergency or (C) any material change in the financial markets
of the United States that, in the case of (A), (B) or (C) above and in the
sole judgment of the Initial Purchasers, makes it impracticable or
inadvisable to proceed with the offering or the delivery of the Notes as
contemplated by the Memorandum; or
(v) any securities of the Company shall have been downgraded or
placed on any "watch list" for possible downgrading by any nationally
recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 11 shall
be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by the Initial Purchasers. The statements
set forth in the last paragraph on the front cover page and in the third, sixth
and seventh sentences of the third paragraph under the heading "Private
Placement" in the Memorandum (to the extent such statements relate to the
Initial Purchasers) constitute the only information furnished by the Initial
Purchasers to the Company for the purposes of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing and,
if sent to the Initial Purchasers, shall be mailed, delivered or telecopied to
(i) BT Securities Corporation, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Finance Department, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq., Telecopier Number: (▇▇▇) ▇▇▇-▇▇▇▇; if sent to the Company, shall
be mailed or delivered to the Company at ▇▇▇▇▇▇▇ Container Corporation, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. Ta-
27
-27-
naka, Esq., with a copy to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ Berkshire, Esq., Telecopier Number:
(▇▇▇) ▇▇▇-▇▇▇▇.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; and one business
day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by addressee, if telecopied.
14. Successors. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchasers, the Company and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained; this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the indemnities
of the Company contained in Section 9 of this Agreement shall also be for the
benefit of any person or persons who control the Initial Purchasers within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Initial Purchasers contained in Section 9 of this Agreement
shall also be for the benefit of the directors of the Company, its officers and
any person or persons who control the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act. No purchaser of Notes from the
Initial Purchasers will be deemed a successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
28
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If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company
and the Initial Purchasers.
Very truly yours,
▇▇▇▇▇▇▇ CONTAINER CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. Park
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. Park
Title: Vice President - Corporate Controller
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BT SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Managing Director
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: SMD
SALOMON BROTHERS INC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
29
SCHEDULE 1
Initial Purchasers Principal Amount of Notes
BT Securities Corporation $115,000,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. 80,000,000
Salomon Brothers Inc 30,000,000
Total $225,000,000
30
EXHIBIT A
[REGISTRATION RIGHTS AGREEMENT]
31
EXHIBIT B
[▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ FORM OF OPINION]
(i) The Issuer is a corporation existing and in good standing under
the General Corporation Law of the State of Delaware. The Issuer is
qualified as a foreign corporation in good standing in each of the
jurisdictions set forth on a Schedule to such counsel's opinion.
(ii) As of March 31, 1997, the Issuer had the authorized equity
capitalization set forth in the Memorandum under Capitalization. To such
counsel's actual knowledge, there are no (A) options, warrants or other
rights to purchase, (B) agreements or other obligations of the Issuer to
issue or (C) other rights to convert any obligation into, or exchange any
securities for, shares of capital stock of or ownership interests in any
of the Subsidiaries outstanding.
(iii) The Issuer has the corporate power to enter into and perform
its obligations under the Operative Agreements to which it is a party,
including without limitation the corporate power to issue, sell and
deliver the Notes as contemplated by the Purchase Agreement.
(iv) The Issuer's Board of Directors has adopted by requisite vote
the resolutions necessary to authorize the Issuer's execution, delivery
and performance of the Operative Agreements to which it is a party and the
Issuer's Board of Directors has approved by requisite vote the price and
interest rate set forth therein.
(v) The Issuer has duly executed and delivered this Agreement, the
Indenture and the Registration Rights Agreement.
(vi) Each of this Agreement, the Indenture and the Registration
Rights Agreement is a valid and binding obligation of the Issuer and
(assuming the due authorization, execution and delivery thereof by the
other parties thereto) is enforceable against the Issuer in accordance
with its terms.
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(vii) The Notes have been duly executed and delivered by the Issuer
and, when paid for by the Initial Purchasers in accordance with the terms
of this Agreement (assuming the due authorization, execution and delivery
of the Indenture by the Trustee and due authentication and delivery of
the Notes by the Trustee in accordance with the Indenture), will
constitute the valid and binding obligations of the Issuer, entitled to
the benefits of the Indenture, and enforceable against the Issuer in
accordance with their terms.
(viii) When the Exchange Notes have been duly executed and delivered
by the Issuer in accordance with the terms of the Registration Rights
Agreement, the Exchange Offer and Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee and
due authentication and delivery of the Exchange Notes by the Trustee in
accordance with the Indenture), the Exchange Notes will constitute the
valid and binding obligations of the Issuer, entitled to the benefits of
the Indenture, and enforceable against the Issuer in accordance with their
terms.
(ix) The statements in the Memorandum under the headings "Description
of Notes" and "Exchange Offer and Registration Rights," insofar as such
statements purport to summarize certain provisions of the Indenture, the
Notes and the Registration Rights Agreement and subject to the limitations
contained in such statements, provide a fair and accurate summary in all
material respects of such provisions of such agreements.
(x) The execution and delivery of this Agreement, the Registration
Rights Agreement and the Indenture, and the consummation of the
transactions contemplated thereby (including, without limitation, the
issuance and sale of the Notes to the Initial Purchasers) do not and will
not conflict with or constitute or result in a breach or default under (or
an event which with notice or the passage of time or both would constitute
a default under) or violation of any of, (i) the certificate of
incorporation or bylaws of the Issuer, (ii) any statute or governmental
rule or regulation which, in the experience of such counsel, is normally
applicable both to general business corporations that are not engaged in
regulated business activities and to transactions of the type contemplated
by
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the Memorandum (but without such counsel having made any special
investigation as to other laws and provided that such counsel need express
no opinion with respect to (a) any laws, rules or regulations to which the
Issuer may be subject as a result of any of the Initial Purchasers' legal
or regulatory status or the involvement of any of the Initial Purchasers
in such transactions or (b) any laws, rules or regulations relating to
disclosure, misrepresentations or fraud), (iii) the terms or provisions of
any contract set forth on a Schedule to such counsel's opinion attached
hereto, except (in the case of clauses (ii) and (iii) above) for any such
conflict, breach, violation, default or event which would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(xi) To the actual knowledge of such counsel, no consent, waiver,
approval, authorization or order of any court or governmental authority is
required for the issuance and sale by the Issuer of the Notes to the
Initial Purchasers or the consummation by the Issuer of the other
transactions contemplated by the Operative Agreements, except such as may
be required under the Act, the Exchange Act, the TIA and the security or
Blue Sky laws of the various states (and the rules and regulations
thereunder), as to which such counsel need express no opinion in this
paragraph.
(xii) To the actual knowledge of such counsel, no legal or
governmental proceedings are pending to which the Issuer is a party or to
which the property or assets of the Issuer is subject which seek to
restrain, enjoin or prevent the consummation of or otherwise challenge the
issuance or sale of the Notes to be sold to the Initial Purchasers or the
consummation of the other transactions contemplated by the Operative
Documents.
(xiii) The Issuer is not, and immediately after the sale of the Notes
to the Initial Purchasers and application of the net proceeds therefrom as
described in the Memorandum under the caption "Use of Proceeds" will not
be, an "investment company" as such term is defined in the Investment
Issuer Act of 1940, as amended.
(xiv) No registration under the Act of the Notes is required in
connection with the sale of the Notes to the
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Initial Purchasers in the manner contemplated by this Agreement and
the Memorandum or in connection with the initial resale of the Notes by
the Initial Purchasers in accordance with Section 8 hereof, and prior to
the commencement of the Exchange Offer or the effectiveness of the Shelf
Registration Statement, the Indenture is not required to be qualified
under the TIA, in each case assuming (i) that the purchasers who buy such
Notes in the initial resale thereof are qualified institutional buyers as
defined in Rule 144A promulgated under the Act or accredited investors as
defined in Rule 501(a)(1), (2), (3) or (7) promulgated under the Act, (ii)
the accuracy and completeness of the Initial Purchasers' representations
in Section 8 hereof and those of the Issuer contained in the Purchase
Agreement regarding the absence of a general solicitation in connection
with the sale of such Notes to the Initial Purchasers and the initial
resale thereof, (iii) the due performance by the Initial Purchasers of the
agreements set forth in Section 8 hereof and (iv) the accuracy of the
representations made by each Accredited Investor who purchased Notes in
the initial resale as set forth in the Memorandum.
(xv) As of the date hereof, none of the Notes are of the same class
(within the meaning of Rule 144A under the Act) as securities of the
Issuer that are listed on a national securities exchange registered under
Section 6 of the Exchange Act or that are quoted in a United States
automated inter-dealer quotation system.
(xvi) Neither the sale, issuance, execution or delivery of the Notes
nor the application of the net proceeds therefrom as described in the
Memorandum under the caption "Use of Proceeds" will contravene Regulation
G (12 C.F.R. Part 207), 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.
At the time the foregoing opinion is delivered, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
shall additionally state that it has participated in conferences with officers
and other representatives of the Issuer, representatives of the independent
public accountants for the Issuer, representatives of the Initial Purchasers and
counsel for the Initial Purchasers, at which conferences the contents of the
Memorandum and related matters were discussed, and, although it has not
independently verified and is
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not passing upon and assumes no responsibility for the accuracy, completeness or
fairness of the statements contained in the Memorandum (except to the extent
specified in subsection (x), no facts have come to its attention which lead it
to believe that the Memorandum, on the date thereof or on the Closing Date,
contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such firm need express no opinion with respect to the financial statements
and related notes thereto and the other financial, statistical and accounting
data included in the Memorandum).
