Exhibit 4.2
EXECUTION COPY
TEKNI-PLEX, INC.
$275,000,000
8 3/4% Senior Secured Notes due 2013
Purchase Agreement
November 12, 2003
▇▇▇▇▇▇ BROTHERS INC.
CITIGROUP GLOBAL MARKETS INC.
c/▇ ▇▇▇▇▇▇ Brothers, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Tekni-Plex, Inc., a corporation formed under the laws of Delaware (the
"Company"), proposes to issue and sell (the "Offering") to ▇▇▇▇▇▇ Brothers Inc.
("▇▇▇▇▇▇ Brothers") and Citigroup Global Markets Inc. (the "Initial
Purchasers") $275,000,000 aggregate principal amount of its 8 3/4% Senior
Secured Notes due 2013 (the "Notes"). The Notes will be issued pursuant to the
provisions of an Indenture to be dated as of the Closing Date (as defined
below) (the "Indenture") among the Company, the Guarantors (as defined below)
and HSBC Bank USA, as trustee (the "Trustee"). The Notes will be guaranteed
(the "Guarantee" and, collectively with the Notes, the "Securities") on a
senior secured basis by each of the domestic subsidiaries of the Company listed
on Schedule A attached hereto (collectively, the "Guarantors").
The sale of the Securities to the Initial Purchasers will be made
without registration of the Securities under the Securities Act of 1933, as
amended (the "Act" or the "Securities Act"), in reliance upon the exemption
therefrom provided by Section 4(2) of the Act.
The Company and the Guarantors have agreed to secure, equally and
ratably, the Securities by granting to the Trustee, for the benefit of the
holders of the Securities (collectively, the "Secured Parties"), a security
interest (subject to Priority Liens, as such term is defined in the Description
of Notes section of the Offering Memorandum (as defined below)) on assets of
the Company and each of the Guarantors as described in the Offering Memorandum
under the caption "Description of Notes-Security" (the "Collateral"), as
evidenced by one or more Pledge Agreements among the Company, the Guarantors
and the Trustee dated as of the Closing Date (the "Pledge Agreement"), a
Security Agreement among the Company, the Guarantors and the Trustee dated as
of the Closing Date (the "Security Agreement"), certain mortgages or deeds of
trust (the "Mortgages") encumbering all of the real property set forth on
Schedule A hereto (the "Real Property"), and one or more Trademark, Patent and
Copyright Security Agreements among the Company, the Guarantors and the Trustee
dated as of the Closing Date (the "Intellectual Property Security Agreement,"
and together with the Pledge Agreement, the Security Agreement, the Mortgages,
the "Security Documents").
Holders of the Securities will have the benefits of a Registration
Rights Agreement to be dated as of the Closing Date by and among the Company,
the Guarantors and the Initial Purchasers, substantially in the form attached
hereto as Annex II (the "Registration Rights Agreement") pursuant to which the
Issuers will agree to file with the Securities and Exchange Commission (the
"Commission") (i) a registration statement under the Securities Act (the
"Exchange Registration Statement") registering an issue of senior secured notes
of the Company which are identical in all material respects to the Securities
(except that the Exchange Notes will not contain terms with respect to transfer
restrictions or liquidated damages) (such notes, together with any Private
Exchange Securities (as defined in the Registration Rights Agreement), are
referred to herein as the "Exchange Notes") and (ii) under certain limited
circumstances, a shelf registration statement with respect to the resale of the
Securities pursuant to Rule 415 under the Securities Act (the "Shelf
Registration Statement"). This Agreement, the Indenture, the Notes, the
Exchange Notes, the Registration Rights Agreement, the Guarantees and the
Security Documents are collectively referred to herein as the "Offering
Agreements."
The Company and the Guarantors hereby agree, jointly and severally,
with the several Initial Purchasers as follows:
1. The Company agrees to issue and sell the Notes and the Guarantors
agree to issue the Guarantees to the Initial Purchasers as hereinafter
provided, and the Initial Purchasers, upon the basis of the representations,
warranties and agreements herein contained, but subject to the conditions
hereinafter stated, agree, severally and not jointly, to purchase from the
Company the respective principal amount of Securities set forth next to its
name in Schedule C hereto, at a purchase price of 97.25% of the principal
amount of $275.0 million of the Securities. No additional consideration shall
be paid by the Initial Purchasers for the Guarantees.
2. The Company and the Guarantors understand that the Initial
Purchasers intend (x) to offer privately the Securities as soon after this
Agreement has become effective as in the judgment of the several Initial
Purchasers is advisable and (y) initially to offer the Securities upon the
terms set forth in the Offering Memorandum (as defined below):
The Company and the Guarantors confirm that they have authorized the
Initial Purchasers, subject to the restrictions set forth below, to distribute
copies of the Offering Memorandum in connection with the offering of the
Securities. Each of the Initial Purchasers hereby severally, and not jointly,
makes to the Company and the Guarantors the following representations,
warranties and agreements
(i) it is a "qualified institutional buyer" within the
meaning of Rule 144A under the Act;
(ii) (A) it will not solicit offers for, or offer to sell,
the Securities 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, (B) it will solicit offers for the Securities
only from, and will offer, sell or deliver the Securities only to, (1)
persons whom it reasonably believes to be "qualified institutional
buyers" within the meaning of Rule 144A under the Act to whom notice
has been given that such offer, sale or delivery is being made in
reliance on Rule 144A or (2) persons upon the terms and conditions set
forth in Annex I to this Agreement, and (C) it is not purchasing with
a view to or for offer or sale in connection with any distribution
that would be in violation of federal or state law. Those persons
specified in clause (B) are referred to herein as the "Eligible
Purchasers."
(iii) (A) it has not offered or sold, and will not offer or
sell, any Securities in the United Kingdom by means of any document
other than to persons whose ordinary business is to
2
buy, hold, manage or dispose of investments, whether as principal or
agent, for purposes of their businesses or otherwise in circumstances
that do not constitute an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations
1995, (B) it has complied and will comply with all applicable
provisions of the Financial Services Act 1986 of the United Kingdom
with respect to anything done by it in relation to the Securities in,
from or otherwise involving the United Kingdom and (C) it has only
issued or passed on and will only issue or pass on, to any person in
the United Kingdom, any document received by it in connection with
the issue of the Securities, if that person is of a kind described in
Article 11(3) of the Financial Services Act of 1986 (Investment
Advertisements) (Exemptions) order 1996 or is a person to whom the
document may otherwise lawfully be issued or passed on.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds, to the account specified by the Company to the
Initial Purchasers no later than noon on the Business Day (as defined below)
prior to the Closing Date (as defined below), on November 21, 2003, or at such
other time on the same or such other date, not later than the fifth Business
Day thereafter, as the several Initial Purchasers and the Company may agree
upon in writing. The time and date of such payment are referred to herein as
the "Closing Date." As used herein, the term "Business Day" means any day other
than a day on which banks are permitted or required to be closed in New York
City.
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the account of the Initial
Purchasers of one or more global notes representing the Securities
(collectively, the "Global Notes"), with any transfer taxes payable in
connection with the transfer to the Initial Purchasers of the Securities duly
paid by the Company. The Global Notes will be made available for inspection by
the Initial Purchasers at the office of ▇▇▇▇▇▇ Brothers at the address set
forth above, or at such other location as the Company and ▇▇▇▇▇▇ Brothers
agree, not later than 1:00 P.M., New York City time, on the Business Day prior
to the Closing Date.
4. Each of the Company and each Guarantor represents and warrants to
the several Initial Purchasers that:
(a) a preliminary offering memorandum, dated November 3, 2003
(the "Preliminary Offering Memorandum") and an offering memorandum,
dated November 12, 2003 (the "Offering Memorandum") have been
prepared in connection with the offering of the Securities. Any
reference to the Preliminary Offering Memorandum and/or the Offering
Memorandum shall be deemed to refer to and include (i) any Rule
144A(d)(4) Information (as defined in Section 5(m)) furnished by the
Company prior to the completion of the distribution of the Securities
and (ii) the Company's most recent Annual Report on Form 10-K and all
subsequent documents filed with the Commission pursuant to Section
13(a), 13(c) or 15(d) of the United States Securities Exchange Act of
1934, as amended (the "Exchange Act") on or prior to the date of the
Offering Memorandum. Any reference to the Offering Memorandum, as
amended or supplemented, as of any specified date, shall be deemed to
refer to and include any documents filed with the Commission pursuant
to the Exchange Act after the date of the Offering Memorandum and
prior to such specified date. All documents filed under the Exchange
Act and so deemed to be included in the Offering Memorandum or any
amendment or supplement thereto are hereinafter referred to as the
"Incorporated Documents." The Offering Memorandum and any amendments
or supplements thereto did not and will not, as of their respective
dates, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided that this representation and warranty
does not apply to statements or omissions made in reliance
upon and in conformity with information furnished in writing by an
Initial Purchaser
3
relating to such Initial Purchaser to the Company expressly for use in
the Offering Memorandum or any amendment or supplement thereto;
(b) the financial statements, and the related notes thereto,
included in the Offering Memorandum present fairly the consolidated
financial position of each of the Company and its consolidated
subsidiaries, as of the dates indicated and the results of their
operations and the changes in their consolidated cash flows for the
periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles and practices
applied on a consistent basis; and the pro forma financial information,
and the related notes thereto, included in the Offering Memorandum are
based upon good faith estimates and assumptions believed by the Company
to be reasonable;
(c) since the respective dates as of which information is given in
the Offering Memorandum, except as otherwise stated therein, there has
not been any material change in the capital stock or long-term debt of
the Company or the Subsidiaries (as defined below), or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the business, condition (financial or
other), results of operations or prospects of the Company and the
Subsidiaries, taken as a whole (a "Material Adverse Change" or
"Prospective Material Adverse Change", respectively), otherwise than as
set forth or contemplated in the Offering Memorandum; and except as set
forth or contemplated in the Offering Memorandum, neither the Company,
nor any of the Subsidiaries, has entered into any transaction or
agreement (whether or not in the ordinary course of business) material
to the Company and the Subsidiaries, taken as a whole;
(d) the Company has been duly incorporated and is validly existing
as a corporation under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct
its business as described in the Offering Memorandum, and has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse effect
on the business, condition (financial or other), results of operations
or prospects of the Company and the Subsidiaries, taken as a whole (a
"Material Adverse Effect"); the authorized, issued and outstanding
capital stock of the Company, as set forth in the Offering Memorandum,
is owned by the persons and in the amounts as set forth therein; the
shares of issued and outstanding capital stock of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company was issued in violation of any preemptive or other similar
rights;
(e) the Company has no subsidiaries other than those set forth on
Schedule B attached hereto (each a "Subsidiary" and together, the
"Subsidiaries"); each of the Subsidiaries has been duly incorporated
and, unless otherwise indicated on Schedule B, is validly existing as a
corporation under the laws of its jurisdiction of incorporation, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Memorandum, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction in
which its owns or leases properties or conducts any business, so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not have a Material Adverse Effect;
and all the outstanding shares of capital stock of the Subsidiaries has
been duly authorized and validly issued, are fully-paid and
non-assessable under the corporate laws of the jurisdiction of
incorporation, and (except
4
as described in the Offering Memorandum) owned by the Company free and
clear of all liens, encumbrances, security interests and claims;
(f) this Agreement has been duly authorized, executed and delivered
by the Company and the Guarantors; (g) the Registration Rights
Agreement has been duly authorized by each of the Company and the
Guarantors, and when executed and delivered by them and (assuming the
due authorization, execution and delivery by each of the Initial
Purchasers) will constitute a valid agreement of the Company and the
Guarantors and, subject to (i) the effect of applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other
laws affecting creditors' rights generally, (ii) general principles of
equity and (iii) principles of public policy limiting the rights to
enforce indemnification provisions (clauses (i), (ii) and (iii) being
referred to collectively herein as the "Creditors' Rights
Limitations"), will be binding and will be enforceable in accordance
with its terms; and the Registration Rights Agreement will conform, in
all material respects, to the description thereof in the Offering
Memorandum;
(h) the Notes and the Exchange Notes have been duly authorized by
the Company, and when issued and delivered pursuant to this Agreement
(and the Registration Rights Agreement in the case of the Exchange
Notes), will have been duly executed, issued and delivered and, when
the Notes and the Exchange Notes are authenticated by the Trustee in
accordance with the terms of the Indenture (assuming the due
authorization, execution and delivery by the Trustee) and are delivered
to and paid for by the Initial Purchasers in accordance with the terms
of this Agreement (and the Registration Rights Agreement in the case of
the Exchange Notes), will constitute valid obligations of the Company
entitled to the benefits provided by the Indenture and, subject to the
Creditors' Rights Limitations, will be binding and will be enforceable
in accordance with their terms; and the Securities will conform, in all
material respects, to the descriptions thereof in the Offering
Memorandum;
(i) the Guarantees have been duly authorized by the Guarantors, and
when the Notes or Exchange Notes, as the case may be, are issued and
delivered pursuant to this Agreement (and the Registration Rights
Agreement in the case of the Exchange Notes), will have been duly
executed and delivered and, when the Notes or Exchange Notes, as the
case may be, are authenticated by the Trustee in accordance with the
terms of the Indenture (assuming the due authorization, execution and
delivery by the Trustee) and are delivered to and paid for by the
Initial Purchasers in accordance with the terms of this Agreement (and
the Registration Rights Agreement in the case of the Exchange Notes),
will constitute a valid obligation of the Guarantors and, subject to
the Creditors' Rights Limitations, will be binding and will be
enforceable in accordance with its terms;
(j) the Indenture has been duly authorized by the Company and the
Guarantors and, when executed and delivered by each of the Company and
the Guarantors (assuming the due authorization, execution and delivery
by the Trustee), the Indenture will constitute a valid instrument of
the Company and each such Guarantor and, subject to the Creditors'
Rights Limitations, will be binding and will be enforceable in
accordance with its terms; and the Indenture will conform, in all
material respects, to the description thereof in the Offering
Memorandum;
(k) the Security Documents have been duly authorized by the Company
and the Guarantors party thereto and, when executed and delivered by
each of the Company and such Guarantors, will constitute valid and
legally binding obligations of the Company and such
5
Guarantors and, subject to the Creditors' Rights Limitations, will
be binding and will be enforceable in accordance with their terms;
and the Security Documents will conform, in all material respects,
to the descriptions thereof in the Offering Memorandum;
(l) when executed and delivered by the Company and the Guarantors,
the Security Documents will create, in favor of the Trustee for the
benefit of the Secured Parties as security for all of the Secured
Obligations, a valid and continuing security interest in the
Collateral, and when the filings referred to in Section 4(e)(i) are
made, such security interests will be perfected second priority
security interests (subject to Priority Liens) to the extent that a
security interest in such Collateral may be perfected by such filings.
Each of the Issuers is a "registered organization" (as defined in
Article 9 of the Uniform Commercial Code) under the law of the state in
which it is identified in the Indenture as being organized;
(m) the Mortgages have each been duly authorized by the Company and
the Guarantors party thereto and, when executed and delivered by the
Company and such Guarantors, will constitute valid and legally binding
obligations of the Company and such Guarantors, and will be binding and
will be enforceable in accordance with their terms. When delivered at
the Closing Date, each Mortgage will be delivered, duly acknowledged
and attested and otherwise will be in recordable form, and when such
Mortgage is filed for record and recorded in the filing office
identified therein, the security interest described therein will
constitute a duly perfected second priority security interest in favor
of the Trustee for the benefit of the Secured Parties;
(n) as of the Closing Date, the representations and warranties
contained in the Security Documents will be true and correct in all
material respects;
(o) except for Priority Liens, the Collateral is not under the
control or in the possession of any holder of a lien on such
Collateral;
(p) the Company and the Guarantors own the Collateral free and
clear of all Liens (other than Permitted Liens, as such term is
defined in the Description of Notes section of the Offering
Memorandum), and no Financing Statements (as defined below) in respect
of any property or assets of the Company or any Guarantor will be on
file in favor of any person other than those in respect of Permitted
Liens; the Issuers have not authorized the filing of any Financing
Statements except for those relating to Permitted Liens;
(q) none of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale
of the Securities) will violate or result in a violation of Section 7
of the Exchange Act, or any regulation promulgated thereunder,
including, without limitation, Regulations T, U, and X of the Board of
Governors of the Federal Reserve System;
(r) neither the Company nor any Subsidiary is, or with the giving
of notice or lapse of time or both would be, in violation of or in
default under its Certificate of Incorporation or By-Laws (or similar
organizational documents) or any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a party
or by which it or any of its properties is bound, except for
violations and defaults which individually and in the aggregate would
not have a Material Adverse Effect or are not material to the holders
of the Securities as such; the issue and sale of the Securities and
the performance by each of the Company and the Guarantors of all of
the provisions of their obligations under the Offering Agreements and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
6
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any Guarantor is a party or by
which the Company or any Guarantor is bound or to which any of the
property or assets of the Company or any Guarantor is subject,
except such as would not have a Material Adverse Effect, nor will
any such action result in any violation of the provisions of the
Certificate of Incorporation or By-Laws of the Company or any
Guarantor or (assuming the accuracy of the representations by, and
compliance with the agreements of, the several Initial Purchasers
set forth in paragraph 2 of this Agreement) any applicable law or
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company,
any Guarantor or any of their respective properties; and no consent,
approval, authorization, order, license, registration, filing with
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Securities or the
consummation by the Company or any Guarantor of the transactions
contemplated by the Offering Agreements, except for: (i) such
filings with respect to the perfection of the Trustee's security
interests in the Collateral and the Real Property granted pursuant
to the Security Documents; (ii) such consents, approvals,
authorizations, registrations or qualifications as may be required
under any state securities or Blue Sky Laws in connection with the
purchase and distribution of the Securities by the Initial
Purchasers and (iii) those that would not have a Material Adverse
Effect;
(s) other than as set forth or contemplated in the Offering
Memorandum, there are no legal or governmental investigations,
actions, suits or proceedings pending or, to the knowledge of the
Company, threatened against or affecting the Company or any Subsidiary
or any of their respective properties or to which the Company or any
Subsidiary is or may be a party or to which any property of the
Company or any Subsidiary is or may be the subject which could
individually or in the aggregate have, or reasonably be expected to
have, a Material Adverse Effect and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(t) neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D under the Act ("Regulation D")) of the Company
has directly, or through any agent, sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any security (as
defined in the Act) which is or will be integrated with the sale of
the Securities in a manner that would require the registration under
the Act of the offering contemplated by the Offering Memorandum;
(u) neither the Company, the Guarantors nor any person (other than
the Initial Purchasers, as to which the Company makes no
representation) acting on their behalf has offered or sold the
Securities by means of any general solicitation or general advertising
within the meaning of Rule 502(c) of Regulation D under the Act or,
with respect to Securities sold outside the United States to non-U.S.
persons (as defined in Rule 902 under the Act), by means of any
directed selling efforts within the meaning of Rule 902 under the Act
and the Company, the Guarantors and any of their affiliates and any
person (other than the Initial Purchasers) acting on their behalf has
complied with and will implement the "offering restrictions" within
the meaning of such Rule 902 under the Act;
(v) neither the Company nor any of the Guarantors is, or will be
after giving effect to the offering and sale of the Securities to be
sold and the application of the proceeds from such sale (as described
in the Offering Memorandum under the caption "Use of Proceeds"),
required to register as an "investment company" within the meaning of
the Investment Company Act of 1940, as amended;
7
(w) assuming that the representations of the several Initial
Purchasers set forth in Section 2 of this Agreement are true, correct
and complete and assuming compliance by the several Initial Purchasers
with its agreements in Section 2 of this Agreement, it is not
necessary in connection with the offer, sale and delivery of the
Securities in the manner contemplated by this Agreement to register
the Securities under the Act or to qualify an indenture under the
Trust Indenture Act of 1939, as amended (the "TIA");
(x) the Securities satisfy the requirements set forth in Rule
144A(d)(3) under the Act;
(y) BDO ▇▇▇▇▇▇▇, LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act;
(z) the Company and the Subsidiaries have good and marketable title
in fee simple to all material items of real property and good and
marketable title to all material personal property owned by them, in
each case free and clear of all liens, encumbrances and defects except
Permitted Liens; and any real property and buildings held under lease
by the Company or the Subsidiaries are held by them under valid,
existing and enforceable leases (subject to the Creditors' Rights
Limitations) with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property by
the Company or the Subsidiaries. The Company and the Subsidiaries own
or possess, or have no reason to believe they cannot acquire on
reasonable terms, adequate 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 them as described in the Offering Memorandum, except where
the failure to own, possess or have the ability to acquire any such
licenses or other rights could not, individually or in the aggregate,
be reasonably expected to have a Material Adverse Effect, and neither
the Company nor any Subsidiary has received any written or, to the
best knowledge of the Company, oral notice of 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;
(aa) the Company and the Subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be
filed and have paid all taxes shown thereon and all assessments
received by them or any of them to the extent that such taxes have
become due and are not being contested in good faith except in any
case where the failure to file or pay would not individually or in the
aggregate have a Material Adverse Effect, and, except as disclosed in
the Offering Memorandum, the Company has no knowledge of any material
tax deficiency which has been or might reasonably be expected to be
asserted or threatened against the Company;
(bb) each of the Company and each Subsidiary owns, possesses or has
obtained all material licenses, permits, certificates, consents,
orders, approvals and other authorizations from, and has made all
declarations and filings with, all federal, state, local and other
governmental authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case may be,
and to operate its properties and to carry on its business as
conducted as of the date hereof, except to the extent that the failure
to so obtain or file, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect, and neither
the Company nor any Subsidiary has received any actual notice, or is
not aware, of any proceeding relating to revocation or modification of
any such license, permit, certificate, consent, order, approval or
other authorization, except as described in the Offering Memorandum;
and each of the Company and each Subsidiary is in compliance with all
laws and regulations relating to the conduct of its business as of the
date hereof;
8
(cc) there are no existing or, to the best knowledge of the
Company, threatened labor disputes with the employees of the Company
and the Subsidiaries which are likely to have a Material Adverse
Effect;
(dd) each of the Company and each Subsidiary (i) is in compliance
with any and all applicable federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) has received all permits,
licenses or other approvals required of it under applicable
Environmental Laws to conduct its business and (iii) is in compliance
or is in the process of complying with all terms and conditions of any
such permit, license or approval, except in each of clauses (i), (ii)
and (iii) above, where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; associated
costs and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
(ee) each employee benefit plan, within the meaning of Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), that is maintained, administered or contributed to by the
Company or any affiliates of the Company for employees or former
employees of the Company and its affiliates has been maintained, in
all material respects, in compliance with its terms and the
requirements of any applicable statutes, orders, rules and
regulations, including but not limited to ERISA and the Internal
Revenue Code of 1986, as amended (the "Code"); no prohibited
transaction, within the meaning of Section 406 of ERISA or Section
4975 of the Code has occurred with respect to any such plan excluding
transactions effected pursuant to a statutory or administrative
exemption and excluding transactions which would not have a Material
Adverse Effect; and for each such plan which is subject to the funding
rules of Section 412 of the Code or Section 302 of ERISA no
"accumulated funding deficiency" as defined in Section 412 of the Code
has been incurred, whether or not waived, and the fair market value of
the assets of each such plan which is subject to Title IV of ERISA
(excluding for these purposes accrued but unpaid contributions)
exceeded the present value of all benefits accrued under such plan as
determined using reasonable actuarial assumptions; and
(ff) The Incorporated Documents, when they were or are filed with
the Commission, conformed or will conform in all material respects to
the applicable requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder.
5. Each of the Company and each Guarantor, jointly and severally,
covenants and agrees with the several Initial Purchasers as follows:
(a) before distributing any amendment or supplement to the Offering
Memorandum, to furnish to the Initial Purchasers a copy of the
proposed amendment or supplement for review and not to distribute any
such proposed amendment or supplement to which the Initial Purchasers
reasonably object;
(b) if, at any time prior to the completion of the initial
placement of the Securities, any event shall occur as a result of
which it is necessary to amend or supplement the Offering Memorandum
in order that the Offering Memorandum does not contain an untrue
statement of a
9
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances when
the Offering Memorandum is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement the Offering Memorandum
to comply with law, forthwith to prepare and furnish, at the expense
of the Company, to the Initial Purchasers and to the dealers (whose
names and addresses the Initial Purchasers will furnish to the
Company) to which Securities may have been sold by an Initial
Purchaser on behalf of such Initial Purchaser and to any other
dealers upon request, such amendments or supplements to the Offering
Memorandum as may be necessary so that the Offering Memorandum as so
amended or supplemented will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances when
the Offering Memorandum is delivered to a purchaser, not misleading
or so that the Offering Memorandum will comply with law;
(c) to cooperate with the Initial Purchasers and their counsel in
connection with the registration or qualification of the Securities
for offering and sale by the Initial Purchasers and by dealers under
the securities or Blue Sky laws of such jurisdictions as you may
designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such
registration or qualification; provided that in no event shall the
Company or the Guarantors be obligated to qualify to do business in
any jurisdiction where it is not now so qualified or to take any
action that would subject it to taxation or service of process in
suits, other than those arising out of the Offering or sale of the
Securities, in any jurisdiction where it is not now so subject;
(d) so long as the Securities are outstanding, to furnish to the
Initial Purchasers copies of all reports or other communications
(financial or other) furnished to holders of Securities, and copies of
any reports and financial statements furnished to or filed with the
Commission or any national securities exchange;
(e) during the period beginning on the date hereof and continuing
to and including 90 days following the Closing Date, not to offer,
sell, contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities
substantially similar to the Securities or securities convertible into
such debt securities issued or governed by the Company and our
wholly-owned Subsidiaries without the prior written consent of ▇▇▇▇▇▇
Brothers;
(f) to use the net proceeds received by the Company from the sale
of the Securities pursuant to this Agreement in the manner specified
in the Offering Memorandum under the caption "Use of Proceeds";
provided, however, that the allocation between prepayment of the Term
Loan A and Term Loan B (as listed under the caption "Use of Proceeds"
in the Offering Memorandum) may change so long as (1) such change is
in accordance with the Credit Agreement (as defined in the Indenture)
and (2) the total net proceeds used to prepay the Term Loan A and the
Term Loan B remains the same;
(g) to use its best efforts to cause such Securities to be eligible
for the PORTAL trading system of the National Association of
Securities Dealer, Inc.;
(h) to furnish to the holders of the Securities as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders'
equity and cash flows of the Company and its wholly-owned Subsidiaries
certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the date
of the
10
Offering Memorandum), consolidated summary financial information of
the Company and its wholly-owned Subsidiaries of such quarter in
reasonable detail;
(i) during the period of two years after the Closing Date, not to,
and to use its best efforts not to permit any of its "affiliates" (as
defined in Rule 144 under the Act) to, resell any of the Securities
which constitute "restricted securities" under Rule 144 that have been
reacquired by any of them;
(j) whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated and in addition to any
obligations they may have under any other agreements with the Initial
Purchasers and/or their affiliates, to pay or cause to be paid all
costs and expenses incident to the performance of their obligations
hereunder, including without limiting the generality of the foregoing,
all costs and expenses (i) incident to the preparation, issuance,
execution, authentication and delivery of the Securities, including
any expenses of the Trustee, (ii) incident to the preparation,
printing and distribution of the Offering Memorandum and any
preliminary offering memorandum (including in each case all exhibits,
amendments and supplements thereto), (iii) incurred in connection with
the registration or qualification and determination of eligibility for
investment of the Securities under the laws of such jurisdictions as
the Initial Purchasers may designate (including fees of counsel for
the Initial Purchasers and their disbursements), (iv) in connection
with the application for eligibility for trading of the Securities in
the PORTAL trading system, (v) in connection with the printing
(including word processing and duplication costs) and delivery of this
Agreement, the Indenture, the Registration Rights Agreement, all Blue
Sky Memoranda, if any, and the furnishing to the Initial Purchasers
and dealers of copies of the Offering Memorandum, including mailing
and shipping, as herein provided, (vi) payable to rating agencies in
connection with the rating of the Securities, and (vii) incurred by
the Company in connection with a "road show" presentation to potential
investors;
(k) to take all reasonable action that is appropriate or necessary
to assure that its offerings of other securities will not be
integrated for purposes of the Act with the offerings contemplated
hereby;
(l) not to solicit any offer to buy or offer to sell Securities by
means of any form of general solicitation or general advertising
within the meaning of Rule 502(c) of Regulation D under the Act;
(m) while the Securities remain outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act, during
any period in which it is not subject to Section 13 or 15(d) under the
Exchange Act, to make available to the Initial Purchasers and any
holder of Securities in connection with any sale thereof and any
prospective purchaser of Securities, in each case upon request, the
information specified in, and meeting the requirements of, Rule
144A(d)(4) ("Rule 144A(d)(4) Information") under the Act (or any
successor thereto); and
(n) not to take any action prohibited by Regulation M under the
Exchange Act (or any successor provision) in connection with the
distribution of the Securities contemplated hereby.
11
6. The respective obligations of the Initial Purchasers hereunder to
purchase the Securities on the Closing Date are subject to the performance, in
all material respects, by each of the Company and the Guarantors of their
obligations hereunder and to the following additional conditions:
(a) the representations and warranties of each of the Company and
the Guarantors contained herein are true and correct on and as of the
Closing Date as if made on and as of the Closing Date and each of the
Company and the Guarantors shall have complied, in all material
respects, with all agreements and all conditions on its part to be
performed or satisfied hereunder, or under the Security Documents, at
or prior to the Closing Date;
(b) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (iii) any
review or possible change that does not indicate an improvement, in
the rating accorded any securities of or guaranteed by the Company by
any "nationally recognized statistical rating organization", as such
term is defined for purposes of Rule 436(g)(2) under the Act;
(c) subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, the Nasdaq
National Market or the American Stock Exchange or in the
over-the-counter market, or trading in any securities of the Company
on any exchange or in the over-the-counter market, has been suspended
or minimum prices shall have been established on any such exchange or
such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction; (ii) a
material disruption in securities settlement, payment or clearance
services in the United States; (iii) a banking moratorium has been
declared by Federal or state authorities; (iv) any attack on, outbreak
or escalation of hostilities or act of terrorism involving the United
States, any declaration of war by Congress or any other national or
international calamity, crisis or emergency if, in the judgment of the
Initial Purchasers, the effect of any such attack, outbreak,
escalation, act, declaration, calamity, crisis or emergency makes it
impractical or inadvisable to proceed with completion of the offering
or sale of and payment for the Securities; or (v) the occurrence of
any other calamity, crisis (including without limitation as a result
of terrorist activities), or material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of ▇▇▇▇▇▇ Brothers,
impracticable or inadvisable to proceed with offering or delivery of
the Securities being delivered on the Closing Date or that, in the
judgment of ▇▇▇▇▇▇ Brothers, would materially and adversely affect the
financial markets or the markets for the Securities and other debt
securities.
(d) the Initial Purchasers shall have received on and as of the
Closing Date a certificate of the Company signed for the Company by an
executive officer of the Company with specific knowledge about the
Company's and Guarantors' financial matters, satisfactory to the
Initial Purchasers to the effect set forth in subsections (a) and (b)
of this Section and to the further effect that there has not occurred
any Material Adverse Change, or any development involving a
Prospective Material Adverse Change, from those set forth or
contemplated in the Offering Memorandum;
(e) the Trustee shall have received (with a copy for the Initial
Purchasers) at the Closing Date:
(i) appropriately completed copies, which have been duly
authorized for filing by the appropriate Person, of Uniform
Commercial Code Financing Statements
12
naming the Company and each Guarantor as debtors and the
Trustee as the secured party, or other similar instruments or
documents to be filed under the UCC of all jurisdictions as may
be necessary or, in the reasonable opinion of the Trustee and
its counsel, desirable to perfect the security interests of the
Trustee pursuant to the Security Documents;
(ii) appropriately completed copies, which have been duly
authorized for filing by the appropriate Person, of Uniform
Commercial Code Form UCC-3 termination statements, if any,
necessary to release all Liens (other than Permitted Liens) of any
Person in any Collateral described in the Security Documents
previously granted by any Person;
(iii) certified copies of Uniform Commercial Code Requests
for Information or Copies (Form UCC-11), or a similar search
report certified by a party acceptable to the Trustee, dated a
date reasonably satisfactory to the Initial Purchasers, listing
all effective financing statements which name the Company or any
Guarantor (under its present name and any previous names) as the
debtor, together with copies of such financing statements;
(iv) confirmation reasonably satisfactory to the Initial
Purchasers that the Mortgages have been duly filed and recorded in
the appropriate offices for each of the Real Properties or
arrangements reasonably satisfactory to the Trustee have been made
therefor; and
(v) such other approvals, opinions or documents as the
Initial Purchasers, the Trustee may reasonably request in form and
substance satisfactory to each of them;
(f) all Uniform Commercial Code Financing Statements or other
similar financing statements and Uniform Commercial Code Form UCC-3
termination statements required pursuant to clause (e)(i) above or to
terminate any financing statements (other than with respect to
Permitted Liens) which are listed in the search reports referred to in
clause (e)(ii) above shall have been delivered to CT Corporation
System or another similar filing service company acceptable to the
Trustee (the "Filing Agent"). The Filing Agent shall have acknowledged
in a writing reasonably satisfactory to the Trustee and its counsel
(i) the Filing Agent's receipt of all financing statements, (ii) that
the financing statements have either been submitted for filing in the
appropriate filing offices or will be submitted for filing in the
appropriate offices within ten days following the Closing Date and
(iii) that the Filing Agent will notify the Trustee and its counsel of
the results of such submissions within 30 days following the Closing
Date;
(g) the amendment to the existing Credit Agreement dated as of June
21, 2000, amending the credit facility thereunder, substantially on
the terms set forth in the Offering Memorandum, shall have become
effective prior to or on the Closing Date on substantially the terms
described in the Offering Memorandum; upon the effectiveness of such
amendment the consummation of the transactions contemplated by this
Agreement shall not conflict with the Company's Credit Agreement as
then in effect; and the Initial Purchasers shall have received
counterparts, conformed as executed, of such amendment to the Credit
Agreement and such other documentation as they deem necessary to
evidence the consummation thereof;
(h) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, Counsel for the Company, shall have
furnished to the Initial Purchasers their written opinion, dated the
Closing Date in form and substance satisfactory to the Initial
Purchasers, to the effect that:
13
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
Delaware with the corporate power and authority to own its
properties and conduct its business as described in the Offering
Memorandum;
(ii) each Guarantor organized under the laws of the State of
Delaware or New York is a corporation validly existing under the
laws of its jurisdiction of incorporation with power and authority
to enter into the Offering Agreements;
(iii) to such counsel's knowledge, other than as set forth or
contemplated in the Offering Memorandum, there are no legal or
governmental investigations, actions, suits or proceedings (i)
pending or threatened against or affecting the Company or the
Subsidiaries or any of their respective properties or to which the
Company or any Subsidiary is or may be a party or to which any
property of the Company or any Subsidiary is or may be the subject
which, if determined adversely to the Company or such Subsidiary,
could individually or in the aggregate have, or reasonably be
expected to have, a Material Adverse Effect or (ii) which seek to
restrain, enjoin, prevent the consummation of or otherwise
challenge the issuance or sale of the Securities in the manner
contemplated by the Offering Memorandum or the consummation of the
Offering or the Transactions; to such counsel's knowledge, no such
proceedings are threatened by governmental authorities or by
others;
(iv) this Agreement has been duly authorized, executed and
delivered by each of the Company and each Guarantor organized
under the laws of the State of Delaware or New York;
(v) the Registration Rights Agreement has been duly
authorized, executed and delivered by each of the Company and each
Guarantor organized under the laws of the State of Delaware or New
York and is a valid agreement of each of the Company and each such
Guarantor and, subject to the Creditors' Rights Limitations, is
binding and is enforceable against the Company and such Guarantor
in accordance with its terms;
(vi) the Guarantee has been duly authorized, executed and
delivered by each Guarantor organized under the laws of the State
of Delaware or New York and, and upon delivery to and payment for
the Notes by the Initial Purchasers in accordance with the terms
of this Agreement, will constitute a valid obligation of each such
Guarantor and, subject to the Creditors' Rights Limitations, is
binding and is enforceable against each such Guarantor in
accordance with its terms;
(vii) the Notes have been duly authorized, executed and
delivered by the Company and, when duly authenticated in
accordance with the terms of the Indenture and delivered to and
paid for by the Initial Purchasers in accordance with the terms of
this Agreement, will constitute valid obligations of the Company
entitled to the benefits provided by the Indenture and, subject to
14
the Creditors' Rights Limitations, are binding and are enforceable
against the Company in accordance with their terms;
(viii) the Indenture has been duly authorized, executed and
delivered by the Company and each Guarantor organized under the
laws of the State of Delaware or New York and (assuming the due
authorization, execution and delivery by the Trustee) constitutes
a valid agreement of the Company and each such Guarantor and,
subject to the Creditors' Rights Limitations, is binding and is
enforceable against the Company and each such Guarantor,
respectively, in accordance with its terms;
(ix) each of the Security Documents has been duly authorized,
executed and delivered by the Company and each of the Guarantors
party thereto and each Security Document (other than the
Mortgages) constitutes a valid agreement of the Company and each
such Guarantor and, subject to the Creditors' Rights Limitations,
is binding and is enforceable against the Company and each such
Guarantor, respectively, in accordance with its terms;
(x) each of the Security Agreement and the Pledge Agreement
is effective to create, in favor of the Trustee for the benefit of
the holders of the Securities, as security for the Secured
Obligations, a valid security interest (the "Article 9 Security
Interest") in the Company's and the Guarantors' right, title and
interest in that portion of the Collateral, described therein in
which a security interest may be created pursuant to Article 9 of
the Uniform Commercial Code as in effect in the State of New York
on the date hereof (the "UCC");
(xi) to the extent that the filing of a Uniform Commercial
Code financing statement in the filing office of the jurisdiction
of organization of the Company or a Guarantor, as the case may be,
is effective under the UCC of such jurisdiction to perfect a
security interest in the Collateral of the Company or such
Guarantor, as the case may be, the Article 9 Security Interest in
the Collateral will be perfected upon the filing of Uniform
Commercial Code financing statements;
(xii) intentionally omitted;
(xiii) other than the subject matter of subparagraphs (xv)
and (xix), the issue and sale of the Securities and the
performance by the Company and the Guarantors of their obligations
under the Securities, the execution and delivery of the Offering
Agreements and the consummation by the Company and the Guarantors
of the transactions contemplated hereby and thereby will not
conflict with or constitute or result in a breach or a default
under or violation of any of (i) the terms or provisions of any
agreement or instrument listed on Exhibit D to this Agreement,
except that with respect to which a waiver or consent has been
received as identified on Exhibit D (ii) the Certificate of
Incorporation or By-Laws of the Company or such Guarantor, or
(iii) any applicable United States federal or New York State
statute or to the best of our knowledge, any United States federal
or New York State order, decree, rule or regulation of any federal
or New York State governmental agency or body or Delaware General
Corporation Law, in each case that in such counsel's experience is
normally applicable to general business corporations in relation
to transactions of the type contemplated by this Agreement;
(xiv) other than the subject matter of paragraphs (xi) and
(xv), to their knowledge, no consent, approval, authorization,
order, license, registration, filing with or qualification of or
with any court or governmental agency or body is required for the
issue and sale of the Securities or the consummation of the other
transactions contemplated by this Agreement or the Indenture,
except as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Securities
or the Exchange Notes or the federal securities laws with respect
to the Exchange Notes;
15
(xv) no registration under the Act of the Securities is
required in connection with the sale of the Securities to the
Initial Purchasers as contemplated by this Agreement and the
Offering Memorandum or in connection with the initial resale of
the Securities by the Initial Purchasers in accordance with
Section 2 (including Annex I) of this Agreement, 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 the Securities in the initial resales are
qualified institutional buyers (as defined in Rule 144A under the
Act) or non-U.S. Persons (as defined in Rule 902 under the Act)
and (ii) the accuracy of the several Initial Purchasers'
representations and those of the Company and the Guarantors
contained in this Agreement regarding the absence of a general
solicitation in connection with the sale of the Securities to the
Initial Purchasers and the initial resales thereof (it being
understood that such counsel need express no opinion as to any
subsequent resale of any Notes);
(xvi) the Securities satisfy the requirements set forth in
Rule 144A(d)(3) under the Act;
(xvii) the statements in the Offering Memorandum under
"Description of Notes," insofar as such statements constitute a
description of the legal matters, documents or proceedings
referred to therein, fairly present the information called for
with respect to such legal matters, documents or proceedings;
(xviii) on the basis stated below, no facts have come to the
attention of such counsel that lead such counsel to believe,
except for the financial statements, related financial statement
schedules, and other financial information contained in the
Offering Memorandum as to which such counsel expresses no belief,
that the Offering Memorandum, as of its date of issuance and, as
amended or supplemented, if applicable, as of the Closing Date,
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and
(xix) the Company is not and, after giving effect to the
offering and sale of the Securities to be sold and the application
of the proceeds from such sale (as described in the Offering
Memorandum under the caption "Use of Proceeds") will not be
required to registered as an "investment company" as defined in
the Investment Company Act of 1940, as amended.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the federal laws
of the United States, the corporate law of the State of Delaware and
the laws of the State of New York, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon
an opinion or opinions (reasonably satisfactory to the Initial
Purchasers' counsel) of other counsel, reasonably acceptable to the
Initial Purchasers' counsel, familiar with the applicable laws; and
(B) as to matters of fact, to the extent such counsel deems proper,
on the representations and warranties made by the Company and the
Guarantors herein, and certificates and statements of public
officials and officers and other representatives of the Company and
the Guarantors (and such counsel has not independently verified or
investigated, nor does such counsel assume any responsibility for,
the factual accuracy or completeness of such representations and
warranties or certificates or of such factual statements). The
opinion of such counsel for the Company shall state that the opinion
of any such other counsel upon which they relied is in form
satisfactory to such counsel and, in such
16
counsel's opinion, the Initial Purchasers and they are justified in
relying thereon. With respect to matters covered in subparagraph (xi)
above, the opinion of such counsel shall opine only with respect to
the laws of the State of New York, it being understood by the Initial
Purchasers that local counsel, in the State of Delaware will furnish
to the Initial Purchasers a written opinion meeting the requirements
of this subsection with respect to matters covered in subparagraph
(xi) involving the laws of the State of Delaware not later than 45
days after the Closing Date. With respect to the matters to be
covered in subparagraph (xviii) above counsel may state that their
opinion and belief is based upon their participation in the
preparation of the Offering Memorandum and any amendment or
supplement thereto, and that since such counsel has not conducted any
independent investigation with regard to the information set forth in
the Offering Memorandum and any amendment or supplement thereto, such
counsel is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the statements
contained therein except with respect to the opinions set forth in
subparagraph (xvii) above.
The opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ described above shall
be rendered to the Initial Purchasers at the request of the Company
and shall so state therein.
(i) the Company shall have furnished to the Initial
Purchasers a solvency certificate dated the Closing Date in form and
substance satisfactory to the Initial Purchasers;
(j) on the date of the issuance of the Offering Memorandum
and also on the Closing Date, BDO ▇▇▇▇▇▇▇, LLP shall have furnished
to the Initial Purchasers letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to the Initial
Purchasers, containing statements and information of the type
customarily included in accountants "comfort letters" to the Initial
Purchasers with respect to the financial statements and certain
financial information contained in or incorporated by reference into
the Offering Memorandum;
(k) the Offering Agreements shall have been executed and
delivered by the Company and the Guarantors to the extent that each
is a party thereto, the Registration Rights Agreement being
substantially in the form attached hereto as Annex II;
(l) the Initial Purchasers shall have received on and as of
the Closing Date an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the
Initial Purchasers, with respect to the validity of the Indenture and
the Securities, and such other related matters as the Initial
Purchasers may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(m) the Trustee shall have received evidence reasonably
satisfactory to the Trustee that the Trustee shall have "control"
(within the meaning of Section 9-104 of the Uniform Commercial Code)
over any deposit accounts included in the Collateral (subject to the
Permitted Liens);
(n) the Initial Purchasers shall have received copies of the
security documents creating the Priority Liens in form and substance
satisfactory to the Initial Purchasers and their counsel; and
(o) on or prior to the Closing Date, the Company shall have
furnished to the Initial Purchasers such further certificates and
documents as the Initial Purchasers shall reasonably request.
7. Indemnification and Contribution
17
(a) The Company and each Guarantor, hereby agree, jointly
and severally, to indemnify and hold harmless each Initial Purchaser,
its directors, officers and employees and each person, if any, who
controls any Initial Purchaser within the meaning of the Act, from
and against any loss, claim, damage or liability, joint or several,
or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and
sales of Securities), to which that Initial Purchaser, director,
officer, employee or controlling person may become subject, under the
Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any
Preliminary Offering Memorandum or the Offering Memorandum or in any
amendment or supplement thereto or (B) in any materials or
information provided to investors by, or with the approval of, the
Company in connection with the marketing of the offering of the
Securities ("Marketing Materials"), including any roadshow or
investor presentations made to investors by the Company (whether in
person or electronically, (ii) the omission or alleged omission to
state in any Preliminary Offering Memorandum or the Offering
Memorandum, or in any amendment or supplement thereto, or in any
Marketing Materials, any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading or (iii) any
act or failure to act or any alleged act or failure to act by any
Initial Purchaser in connection with, or relating in any manner to,
the Securities or the offering contemplated hereby, and that is
included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by
clause (i) or (ii) above (provided that the Company and the
Guarantors shall not be liable under this clause (iii) to the extent
that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action
resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such Initial Purchaser through its gross
negligence or willful misconduct), and shall reimburse each Initial
Purchaser and each such director, officer, employee or controlling
person promptly upon demand for any legal or other expenses
reasonably incurred by that Initial Purchaser, director, officer,
employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that the Company and the Guarantors shall not be liable in
any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Offering Memorandum or Offering Memorandum,
or in any such amendment or supplement thereto, or in any Marketing
Materials, in reliance upon and in conformity with written
information concerning such Initial Purchaser furnished to the
Company through the Initial Purchasers by or on behalf of any Initial
Purchaser specifically for inclusion therein and; provided, further
that with respect to any such untrue statement in or omission from
any Preliminary Offering Memorandum, the indemnity agreement
contained in this Section 7(a) shall not inure to the benefit of any
Initial Purchaser to the extent that the sale to the person asserting
any such loss, claim, damage or liability was an initial exempt
resale by such Initial Purchaser and any such loss, claim, damage or
liability of or with respect to such Initial Purchaser results from
the fact that both (i) to the extent required by applicable law, a
copy of the offering Memorandum was not sent or given to such person
and (ii) the untrue statement in or omission from such Preliminary
Offering Memorandum was corrected in the Offering Memorandum unless,
in either case, such failure to deliver the Offering Memorandum was a
result of the Company's or the Guarantors' failure to provide the
Initial Purchasers sufficient quantities of the Offering Memorandum
within a reasonable amount of time prior to such sale or such
confirmation.. The foregoing indemnity agreement is in addition to
any liability that the Company or the Guarantors may otherwise have
to any Initial Purchaser or to any director, officer, employee or
controlling person of that Initial Purchaser.
18
(b) Each Initial Purchaser, severally and not jointly,
hereby agrees to indemnify and hold harmless the Company, each
Guarantor, their respective officers and employees, each of their
respective directors, and each person, if any, who controls the
Company or any Guarantor within the meaning of the Act, from and
against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which the Company, any Guarantor or
any such director, officer, employee or controlling person may become
subject, under the Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Offering Memorandum or the Offering
Memorandum or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state in any Preliminary Offering
Memorandum or the Offering Memorandum, or in any amendment or
supplement thereto any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each
case only to the extent that the 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 or on behalf of that Initial
Purchaser specifically for inclusion therein, and shall reimburse the
Company, any Guarantor and any such director, officer, employee or
controlling person for any legal or other expenses reasonably
incurred by the Company, any Guarantor or any such director, officer,
employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability that
any Initial Purchaser may otherwise have to the Company, any
Guarantor or any such director, officer, employee or controlling
person.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under this Section 7,
notify the indemnifying party in writing of the claim or the
commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability
that it may have under this Section 7 except to the extent it has
been materially prejudiced by such failure and; provided, further,
that the failure to notify the indemnifying party shall not relieve
it from any liability that it may have to an indemnified party
otherwise than under this Section 7. If any such claim or action
shall be brought against an indemnified party, and it shall notify
the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to
the indemnified party. After notice from the indemnifying party to
the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of
investigation; provided, however, that the Initial Purchasers shall
have the right to employ counsel to represent jointly the Initial
Purchasers and those Initial Purchasers and their respective
directors, officers, employees and controlling persons who may be
subject to liability arising out of any claim in respect of which
indemnity may be sought by the Initial Purchasers against the Company
or any Guarantor under this Section 7 if, in the reasonable judgment
of the Initial Purchasers, it is advisable for the Initial Purchasers
and those directors, officers, employees and controlling persons to
be jointly represented by separate counsel, and in that event the
fees and expenses of such separate counsel shall be paid by the
Company or any Guarantor. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent shall
not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action)
19
unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld),
but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 7(a) or 7(b) in respect
of any loss, claim, damage or liability, or any action in respect
thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Guarantors on the one hand and the
Initial Purchasers on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Guarantors,
on the one hand, and the Initial Purchasers on the other with respect
to the statements or omissions that resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits
received by the Company and the Guarantors, on the one hand, and the
Initial Purchasers on the other with respect to such offering shall
be deemed to be in the same proportion as the total net proceeds from
the offering of the Securities purchased under this Agreement (before
deducting expenses) received by the Company and the Guarantors on the
one hand, and the total underwriting discounts and commissions
received by the Initial Purchasers with respect to the Securities
purchased under this Agreement, on the other hand, bear to the total
gross proceeds from the offering of the Securities under this
Agreement as set forth on the cover page of the Offering Memorandum.
The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information
supplied by the Company, the Guarantors or the Initial Purchasers,
the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or
omission. For purposes of the preceding two sentences, the net
proceeds deemed to be received by the Company shall be deemed to be
also for the benefit of the Guarantors and information supplied by
the Company shall also be deemed to have been supplied by the
Guarantors. The Company, the Guarantors, and the Initial Purchasers
agree that it would not be just and equitable if contributions
pursuant to this Section 7(d) were to be 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 that does not
take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 7(d) shall be deemed to include,
for purposes of this Section 7(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 7(d), no Initial Purchaser shall be
required to contribute any amount in excess of the amount by which
the total price at which the Securities initially purchased by it
were offered to the Eligible Purchasers exceeds the amount of any
damages that such Initial Purchaser has otherwise paid or become
liable to pay by reason of any 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
20
Initial Purchasers' obligations to contribute as provided in this
Section 7(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) Each of the Initial Purchasers severally confirms and
the Company and each of the Guarantors, acknowledges that the
information set forth in the 3rd paragraph, the 5th sentence of the
6th paragraph, 7th paragraph and 10th paragraph under the caption
"Plan of Distribution" in the Offering Memorandum constitute the only
information concerning the Initial Purchasers furnished in writing to
the Company by or on behalf of the several Initial Purchasers
specifically for inclusion in the Offering Memorandum.
8. Defaulting Initial Purchasers
(a) If, on the Closing Date, any Initial Purchaser defaults
in the performance of its obligations under this Agreement, the
remaining non-defaulting Initial Purchaser shall be obligated to
purchase the Securities that the defaulting Initial Purchaser agreed
but failed to purchase on the Closing Date in the respective
proportions that the number of Securities set opposite the name of
each remaining non-defaulting Initial Purchaser in Schedule C hereto
bears to the total number of Securities set opposite the names of all
the remaining non-defaulting Initial Purchasers in Schedule C hereto;
provided, however, that the remaining non-defaulting Initial
Purchaser shall not be obligated to purchase any of the Securities on
the Closing Date if the total number of Securities that the
defaulting Initial Purchaser agreed but failed to purchase on such
date exceeds 9.09% of the total number of Securities to be purchased
on the Closing Date, and any remaining non-defaulting Initial
Purchaser shall not be obligated to purchase more than 110% of the
number of Securities that it agreed to purchase on the Closing Date
pursuant to the terms of Section 3. If the foregoing maximums are
exceeded, the remaining non-defaulting Initial Purchaser, or those
other Initial Purchasers satisfactory to the Initial Purchasers who
so agree, shall have the right, but shall not be obligated, to
purchase, in such proportion as may be agreed upon among them, all
the Securities to be purchased on the Closing Date. If the remaining
Initial Purchaser or other Initial Purchasers satisfactory to the
Initial Purchasers do not elect to purchase the Securities that the
defaulting Initial Purchaser agreed but failed to purchase on the
Closing Date, this Agreement shall terminate without liability on the
part of any non-defaulting Initial Purchaser or the Company or the
Guarantors, except that the Company and the Guarantors will continue
to be liable for the payment of expenses to the extent set forth in
Sections 6 and 11.
(b) Nothing contained herein shall relieve a defaulting
Initial Purchaser of any liability it may have to the Company or any
Guarantor for damages caused by its default. If other Initial
Purchasers are obligated or agree to purchase the Securities of a
defaulting or withdrawing Initial Purchaser, either the remaining
Initial Purchaser or the Company may postpone the Closing Date for up
to seven full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Initial
Purchasers may be necessary in the Offering Memorandum or in any
other document or arrangement.
9. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Initial Purchasers, by notice
given to the Company, if after the execution and delivery of this Agreement
(i) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange, the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or in the over-the-counter market, or trading of any
securities of or guaranteed by the Company on any exchange or in the
over-the-counter market, shall have been suspended or the settlement of such
trading generally shall have been materially disrupted or minimum prices shall
have been established on any such exchange or such market by the Commission,
by such exchange or by any other regulatory body or governmental authority
having jurisdiction, (ii) a banking moratorium shall have been declared by
either
21
Federal or state authorities or (iii) there shall have occurred (A)
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial markets
in the United States shall be such), including, without limitation, as a
result of terrorist activities, (B) an engagement of the United States in
hostilities (other than in Iraq or Afghanistan), (C) an escalation in
hostilities involving the United States, (D) a declaration of a national
emergency or war by the United States or (E) any calamity or crisis, after the
date hereof, as to make it, in the judgment of the Initial Purchasers,
impracticable or inadvisable to market the Securities on the terms and in the
manner contemplated in the Offering Memorandum.
10. This Agreement shall become effective upon the execution and
delivery hereof by the parties hereto.
11. If this Agreement shall be terminated by the Initial Purchasers,
because of any failure or refusal on the part of any of the Issuers to comply
with the terms or to fulfill any of the conditions of this Agreement, or if
for any reason any of the Issuers shall be unable to perform its obligations
under this Agreement or any condition of the Initial Purchasers' obligations
cannot be fulfilled other than solely by reason of a default by the Initial
Purchasers in payment for the Securities on the Closing Date, the Company
agrees to reimburse each Initial Purchaser for all out-of-pocket expenses
(including the fees and expenses of its counsel) reasonably incurred by such
Initial Purchaser in connection with this Agreement or the offering
contemplated hereunder.
12. This Agreement shall inure to the benefit of and be binding upon
the Company, the several Initial Purchasers, any controlling persons referred
to herein and their respective successors and assigns. Nothing in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. No purchaser of
Securities from the Initial Purchasers shall be deemed to be a successor by
reason merely of such purchase.
13. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Initial Purchasers
shall be given to them at the following address: ▇▇▇▇▇▇ Brothers Inc., ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇; Attention: Syndicate Department,
(Fax: (▇▇▇) ▇▇▇-▇▇▇▇). Notices to the Company shall be given to them at the
following address: Tekni-Plex, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇; Attention: Dr. ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇; with a copy to ▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Esq.
14. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
15. Pursuant to Section 5-1401 of the General Obligations Laws of the
State of New York, this Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
any other conflicts of laws provisions.
22
If the foregoing is in accordance with your understanding, please sign
and return four counterparts hereof.
Very truly yours,
TEKNI-PLEX, INC.
By: /s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
Accepted: November 12, 2003
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
Accepted: November 12, 2003
CITIGROUP GLOBAL MARKETS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Each of the undersigned by its execution hereof agrees to become a
party to this Agreement as a Guarantor as of the date set forth above:
PURETEC CORPORATION
PLASTIC SPECIALTIES AND TECHNOLOGIES, INC.
PLASTIC SPECIALTIES AND TECHNOLOGIES INVESTMENTS, INC.
BURLINGTON RESINS, INC.
DISTRIBUTORS RECYCLING, INC.
REI DISTRIBUTORS, INC.
ALUMET SMELTING CORP
▇▇▇▇▇▇ HOLDINGS, INC
TRI-SEAL HOLDINGS, INC
TP-ELM ACQUISITION SUBSIDIARY, INC.
TPI Acquisition Subsidiary, Inc.
collectively, the Guarantors
By: /s/ ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Title: President and Chief Operating Officer
ANNEX I
(A) In addition to offers pursuant to clause (B)(1) of
paragraph 2(ii) of the Agreement, the Initial Purchasers intend to
offer and sell the Securities in accordance with Regulation S under
the Act. Accordingly, each of the Initial Purchasers severally agrees
that neither it, its affiliates nor any persons acting on its or their
behalf has engaged or will engage in any directed selling efforts
within the meaning of Rule 902 under the Act with respect to the
Securities and it and they have complied and will comply with the
offering restrictions requirement of Regulation S. Each of the Initial
Purchasers severally agrees that, at or prior to confirmation of sale
of Securities (other than a sale pursuant to and in accordance with
paragraph 2(ii) of the Agreement to purchasers described in clause
(B)(1) thereof), it will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that
purchases Securities 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, as
amended (the "Act"), and may not be offered, sold or
delivered within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of their distribution
at any time or (ii) otherwise until 40 days after the later
of the commencement of the offering and the closing date,
except in either case in accordance with Regulation S (or
Rule 144A if available) under the Act. Terms used above have
the meaning given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by
Regulation S.
Each of the Initial Purchasers severally agrees that it has
not entered and will not enter into any contractual arrangement with
respect to the distribution or delivery of the Securities in
accordance with this paragraph (A), except with its affiliates or with
the prior written consent of the Company.
(B) Each of the Initial Purchasers severally represents and
agrees that (i) it has not offered or sold, and prior to the date six
months after the Closing Date will not offer or sell any Securities to
persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within
the meaning of the Public Offers of Securities Regulations 1995, (ii)
it has complied, and will comply, with all applicable provisions of
the Financial Services Act 1986 with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United
Kingdom, and (iii) it has only issued or passed on, and will only
issue or pass on, in the United Kingdom, any document received by it
in connection with the issuance of the Securities to a person who -is
of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisements) (Exemptions) Order 1996 or is a
person to whom such document may otherwise lawfully be issued or
passed on.
(C) Each of the Initial Purchasers severally agrees that it
will not directly or indirectly offer, sell or deliver any of the
Securities or distribute any offering memorandum, prospectus or other
document or information in any jurisdiction outside the United States
except under circumstances that will result in compliance with the
applicable laws thereof, and that it will take at its own expense
whatever action is required to permit its purchase and resale of the
Securities in such jurisdictions. The Initial Purchasers understand
that no action has been taken
A-I-1
by the Company to permit a public offering in any jurisdiction
outside the United States where action would be required for such
purposes. Each of the Initial Purchasers severally agrees not to
cause any advertisement of the Securities to be published in any
newspaper or periodical or posted in any public place and not to
issue any circular relating to the Securities in any jurisdiction
outside of the United States. Without prejudice to the generality of
the foregoing, the Initial Purchasers are not authorized to give any
information or to make any representation in connection with the
offering or sale of the Securities other than those contained in the
Offering Memorandum.
A-I-2
ANNEX II
[Form of Registration Rights Agreement]
A-II-1
SCHEDULE A
Schedule of Real Property to be Mortgaged
1. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: Gwinnett
2. ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇▇▇▇
3. 9509 and ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇: Cook
4. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇▇▇
5. ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: Burlington
6. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: Hunterdon
7. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: Bergen
8. ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇▇▇▇
9. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: Somerset
10. ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇
11. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇▇▇▇▇
12. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: McLennan
13. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: Chelan
S-A-1
14. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇▇▇▇
15. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇
▇-▇-2
SCHEDULE B
Domestic Subsidiaries
PureTec Corporation (Delaware)
Plastic Specialties and Technologies. Inc. (Delaware)
Plastic Specialties and Technologies Investments, Inc. (Delaware)
Burlington Resins, Inc. (Delaware)
Distributors Recycling, Inc. (New Jersey)
REI Distributors Inc. (New Jersey)
Alumet Smelting Corporation (New Jersey)*
▇▇▇▇▇▇ Holdings, Inc. (Delaware)
Tri-Seal Holdings, Inc. (Delaware)
TP-Elm Acquisition Subsidiary, Inc. (Delaware)
TPI Acquisition Subsidiary, Inc. (Delaware)
Pure Tech APR, Inc. (New York)*
Coast Recycling North, Inc. (California)*
Pure Tech Recycling of California (California)*
Foreign Subsidiaries
PurePlast Acquisition Limited (Nova Scotia)
PurePlast Inc. (Ontario)
Tekni-Plex Europe, N.V. (Belgium)
Action Technology Italia S.p.A (Italy)
Colorite Europe, Ltd. (Northern Ireland)
Colorite Plastics Canada Ltd. (Ontario)
Tekni-Plex Holdings (Canada) Ltd. (Nova Scotia)
Tekni-Plex Argentina, S.A. (Argentina)
Tekni-Plex, Inc. (Singapore)
___________________________
* De minimus Subsidiary
S-B
SCHEDULE C
Principal Amount
Initial Purchasers of Notes
------------------ -----------------
▇▇▇▇▇▇ Brothers. Inc................................. $165,000,000
Citigroup Global Markets Inc......................... $110,000,000
Total................................................ $275,000,000
S-C
SCHEDULE D
1. Credit Agreement dated as of June 21, 2000 among
Tekni-Plex, Inc., the Guarantors party thereto, the Lendors party
thereto, the LC Issuing Banks referred to therein and ▇▇▇▇▇▇ Guaranty
Trust Company of New York, as Agent, as amended thereafter.
2. Security Agreement dated as of June 21, 2000 between
Tekni-Plex, Inc., and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Agent.
3. Pledge Agreement dated as of June 21, 2000 between
Tekni-Plex, Inc. and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as
Agent.
4. The Mortgages, as defined in the Credit Agreement dated as
of June 21, 2000 among Tekni-Plex, Inc., the Guarantors party thereto,
the Lendors party thereto, the LC Issuing Banks referred to therein
and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Agent.
5. The Indenture dated as of June 21, 2000 among Tekni-Plex,
Inc., the Guarantors party thereto and HSBC Bank USA, as Trustee.
6. The Supplemental Indenture dated as of May 6, 2002 among
Tekni-Plex, Inc., TPI Acquisition Subsidiary, Inc. and HSBC Bank USA,
as Trustee.
7. The Second Supplemental Indenture dated as of August 22,
2002 among Tekni-Plex, Inc., TPI/Elm Acquisition Subsidiary and HSBC
Bank USA, as Trustee
8. Recapitalization Agreement dated as of April 12, 2000
among Tekni-Plex, Inc., Tekni-Plex Partners LLC, MST/TP Partners L.P.,
MST/TP Holding, Inc., MST Partners, L.P., MST Offshore Partners C.V.,
MST Management, L.P., MST Offshore Management N.V., Weston Presidio
Offshore Capital C.V., Weston Presidio Capital III L.P., WPC
Entrepreneur Fund L.P., SBIC Partners L.P., ▇.▇. ▇▇▇▇▇▇ Capital
Corporation, Tekni-Plex Management LLC, Dr. ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, and for certain
purposes, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
9. Investor Purchase Agreement dated as of April 12, 2000
among Tekni-Plex Partners LLC, ▇.▇. ▇▇▇▇▇▇ Capital Corporation, Weston
Presidio Capital III L.P., WPC Entrepreneur Fund L.P., Tekni-Plex
Management LLC, Dr. ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ and for purposes of Section 4(d), Tekni-Plex, Inc.
10. Investors' Agreement dated as of June 21, 2000 among
Tekni-Plex, Inc., Tekni-Plex Partners LLC, MST/TP Partners LLC, Dr. F.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Tekni-Plex Management LLC.
S-D