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EXHIBIT 99.7
Note Purchase Agreement, dated as of August 15, 1996, by and between Printpack,
Inc. and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation relating to the
9-7/8% Senior Notes due 2004 and the 10-7/8% Senior Subordinated Notes due
2006.
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EXECUTION COPY
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PURCHASE AGREEMENT
$300,000,000
9 7/8% Series A Senior Notes due 2004
10 5/8% Series A Senior Subordinated Notes due 2006
of
PRINTPACK, INC.
August 15, 1996
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
================================================================================
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PRINTPACK, INC.
$100,000,000
9-7/8% Series A Senior Notes due 2004
and
$200,000,000
10 5/8% Series A Senior Subordinated Notes due 2006
of
Printpack, Inc.
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PURCHASE AGREEMENT
August 15, 1996
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
0000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Ladies and Gentlemen:
Printpack, Inc., a Georgia corporation (the "Company"), agrees with you as
follows:
1. ISSUANCE OF SECURITIES. The Company proposes to issue and sell to
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation (the "INITIAL PURCHASER")
$100,000,000 in aggregate principal amount of 9 7/8% Series A Senior Notes due
2004 (the "SERIES A SENIOR NOTES") and $200,000,000 in aggregate principal
amount of 10 5/8% Series A Senior Subordinated Notes due 2006 (the "SERIES A
SENIOR SUBORDINATED NOTES" and, together with the Series A Senior Notes, the
"SERIES A NOTES"). The Series A Senior Notes are to be issued pursuant to the
provisions of an indenture (the "SENIOR NOTE INDENTURE") to be dated August 22,
1996, between the Company and Fleet National Bank, as trustee (the "TRUSTEE").
The Series A Senior Subordinated Notes are to be issued pursuant to the
provisions of an indenture (the "SENIOR SUBORDINATED NOTE INDENTURE") to be
dated August 22, 1996, between the Company and the Trustee (the "SENIOR
SUBORDINATED NOTE INDENTURE" and, together with the Senior Note Indenture, the
"INDENTURES"). Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Indentures.
The Series A Notes will be offered and sold to you pursuant to an
exemption from the registration requirements under the Securities Act of 1933,
as amended (the "ACT"). The Company has prepared a preliminary offering
memorandum, dated July 30, 1996 (the "PRELIMINARY OFFERING MEMORANDUM") and a
final offering memorandum, dated August 15, 1996 (the "OFFERING MEMORANDUM"),
relating to the Company and the Series A Notes. The Series A Notes will be
offered and sold to you in connection with the Offering Memorandum pursuant to
an exemption from the registration requirements under the Act.
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Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Act, the Series A
Notes (and all securities issued in exchange therefor or in substitution
thereof shall bear the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX
XXXXXX XXXXXX SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS
HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED STATES TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 OR (c) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
You have advised the Company that you will make offers (the "EXEMPT
RESALES") of the Series A Notes purchased by you hereunder on the terms set
forth in the Offering Memorandum, as amended or supplemented, solely to (i)
persons (each, a "144A PURCHASER") whom you reasonably believe to be "qualified
institutional buyers", as defined in Rule 144A under the Act ("QIBS"), and (ii)
a limited number of other "accredited investors," as defined in Rule 501(a)
(1), (2), (3) or (7) under the Act, that make certain representations and
agreements to the Company (each, an "ACCREDITED
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INVESTOR") (such persons specified in clauses (i) and (ii) being referred to
herein as the "ELIGIBLE PURCHASERS").
Holders (including subsequent transferees) of the Series A Notes will have
the registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date, in
substantially the form of Exhibit A hereto, for so long as such Series A Notes
constitute "TRANSFER RESTRICTED SECURITIES" (as defined in the Registration
Rights Agreement). Pursuant to the Registration Rights Agreement, the Company
will agree to file with the Securities and Exchange Commission (the
"COMMISSION") (i) within 60 days of the Closing Date and under the
circumstances set forth therein, a registration statement under the Act (the
"EXCHANGE OFFER REGISTRATION STATEMENT") relating to (A) the Company's 9 7/8%
Series B Senior Notes due 2004 (the "SERIES B SENIOR NOTES" and, together with
the Series A Senior Notes, the "SENIOR NOTES") to be offered in exchange for
the Series A Senior Notes and (B) the Company's 10 5/8% Series B Senior
Subordinated Notes due 2006 (the "SERIES B SENIOR SUBORDINATED NOTES" and,
together with the Series A Senior Subordinated Notes, the "SENIOR SUBORDINATED
NOTES") to be offered in exchange for the Series A Senior Subordinated Notes,
(the Senior Notes and the Senior Subordinated Notes, together, the "NOTES")
(such offer to exchange being referred to as the "REGISTERED EXCHANGE OFFER")
and (ii) under the circumstances set forth in the Registration Rights
Agreement, a shelf registration statement pursuant to Rule 415 under the Act
(the "SHELF REGISTRATION STATEMENT") relating to the resale by certain holders
of the Series A Notes, and to use all commercially reasonable efforts to cause
such Registration Statements to be declared effective in accordance with the
terms of the Registration Rights Agreement. This Agreement, the Indentures and
the Registration Rights Agreement are hereinafter referred to collectively as
the "OPERATIVE DOCUMENTS." Herein the Series B Senior Notes and the Series B
Senior Subordinated Notes are sometimes collectively referred to as the "Series
B Notes".
The Offering of the Series A Notes is being made in connection with an
acquisition (the "ACQUISITION") of substantially all of the assets of the
Flexible Packaging Group of Xxxxx River Corporation of Virginia ("JR FLEXIBLE")
from Xxxxx River Corporation of Virginia ("XXXXX RIVER") pursuant to that
certain Asset Purchase Agreement and certain other agreements referred to
therein, dated April 10, 1996, between Xxxxx River and the Company, as amended
(the "ACQUISITION AGREEMENT"). In order to facilitate the Acquisition and the
financing thereof, the Company and its affiliate, Printpack Enterprises, Inc.,
were reorganized into a holding company structure (the "REORGANIZATION").
Concurrently with the Offering, the Company will enter into a credit agreement
with a syndicate of banks and other financial institutions, agented by The
First National Bank of Chicago, ("FIRST CHICAGO") providing for a revolving
credit facility and a term loan (collectively, the "NEW CREDIT FACILITY"). The
Company also expects to enter into an asset-backed accounts receivable
financing arrangement, through a new subsidiary, with First Chicago or an
entity sponsored by it (the "RECEIVABLES FACILITY").
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The Acquisition Agreement, the Operative Documents, the documentation effecting
the Reorganization, the New Credit Facility and the Receivables Facility are
hereinafter referred to collectively as the "TRANSACTION DOCUMENTS," and the
transactions contemplated by the Transaction Documents are hereinafter referred
to collectively as the "TRANSACTIONS." The consummation of the Transactions is
herein referred to as the "Closing."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the representations
and warranties contained in this Agreement, and subject to the terms and
conditions contained herein, the Company agrees to issue and sell to you, and
you agree to purchase from the Company, $100,000,000 in aggregate principal
amount of Series A Senior Notes at a purchase price equal to $1,000 per Series
A Senior Note and $200,000,000 in aggregate principal amount of Series A Senior
Subordinated Notes at a purchase price equal to $1,000 per Series A Senior
Subordinated Note (the purchase price of the Series A Senior Notes and the
Series A Senior Subordinated Notes is hereinafter referred to collectively as
the "PURCHASE PRICE").
3. DELIVERY AND PAYMENT. Delivery to you of and payment for the Series A
Notes shall be made at 9:00 A.M., New York City time, on August 22, 1996 (the
"CLOSING DATE") at the offices of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, or such other time or place as you shall reasonably designate.
One or more Series A Senior Notes in definitive form, registered in the
name of Cede & Co., as nominee of The Depository Trust Company ("DTC"), having
an aggregate amount corresponding to the aggregate amount of the Series A
Senior Notes sold pursuant to Exempt Resales to QIBs and Accredited Investors
(collectively, the "SENIOR GLOBAL NOTE") and one or more Series A Senior
Subordinated Notes in definitive form, registered in the name of Cede & Co., as
nominee of DTC, having an aggregate amount corresponding to the aggregate
amount of the Series A Senior Subordinated Notes sold pursuant to Exempt
Resales to QIBs and Accredited Investors (collectively, the "SENIOR
SUBORDINATED GLOBAL NOTE" and, together with the Senior Global Note, the
"GLOBAL NOTES"), registered in the name of Cede & Co., as nominee of DTC, shall
be delivered by the Company to the Initial Purchaser (or as the Initial
Purchaser directs), against payment by the Initial Purchaser of the Purchase
Price therefor, by wire transfer of immediately available funds to the
Company's account, provided that the Company shall give at least two business
days' prior written notice to the Initial Purchaser of the information required
to effect such wire transfers. The Global Notes shall be made available to the
Initial Purchaser for inspection not later than 9:30 A.M. on the business day
immediately preceding the Closing Date.
4. AGREEMENTS OF THE COMPANY. The Company hereby agrees with you as
follows:
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(a) To advise you promptly and, if requested by you, confirm such
advice in writing, (i) of the issuance by any state securities commission
of any stop order suspending the qualification or exemption from
qualification of any Series A Notes for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purpose by the
Commission or any state securities commission or other regulatory
authority, and (ii) of the happening of any event which makes any
statement of a material fact made in the Preliminary Offering Memorandum
or the Offering Memorandum untrue or which requires the making of any
additions to or changes in the Preliminary Offering Memorandum or the
Offering Memorandum in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The
Company shall use all reasonable efforts to prevent the issuance of any
stop order or order suspending the qualification or exemption of the
Series A Notes, under any state securities or Blue Sky laws, by any state
securities commission and the Company shall use every reasonable effort
to obtain the withdrawal or lifting of any such order at the earliest
possible time.
(b) To furnish to you without charge as many copies of the
Preliminary Offering Memorandum and Offering Memorandum, and any
amendments or supplements thereto, as you may reasonably request. The
Company consents to the use of the Preliminary Offering Memorandum and
the Offering Memorandum, and any amendments and supplements thereto,
required pursuant to this Agreement by you in connection with the Exempt
Resales.
(c) Not to amend or supplement the Offering Memorandum prior to the
Closing Date unless you shall previously have been advised of, and shall
not have reasonably objected to, such amendment or supplement within a
reasonable time, but in any event not longer than five business days
after being furnished with a copy of such amendment or supplement. The
Company shall promptly prepare, upon any reasonable request by you, any
amendment or supplement to the Offering Memorandum that may be necessary
or advisable in connection with Exempt Resales.
(d) If, in connection with any Exempt Resales or market making
transactions after the date of this Agreement and prior to the
consummation of the Registered Exchange Offer, any event shall occur
that, in the judgment of the Company or in the judgment of counsel to
you, makes any statement of a material fact in the Offering Memorandum
untrue or that requires the making of any additions to or changes in the
Offering Memorandum in order to make the statements in the Offering
Memorandum, in the light of the circumstances at the time that the
Offering Memorandum is delivered to prospective Eligible Purchasers, not
misleading, or if the Company knows that it is necessary to amend or
supplement the Offering Memorandum to comply with all United States laws
applicable to Offering Memorandum, the Company shall promptly notify you
of
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such event and prepare an appropriate amendment or supplement to the
Offering Memorandum so that (i) the statements in the Offering Memorandum
as amended or supplemented will, in the light of the circumstances at the
time that the Offering Memorandum is delivered to prospective Eligible
Purchasers, not be misleading and (ii) the Offering Memorandum will
comply with such applicable United States law. Nothing contained herein
shall require the Company to monitor state securities or Blue Sky laws,
or to make any changes not required by federal securities laws where such
changes are not commercially reasonable.
(e) To cooperate with you and your counsel in connection with the
qualification of the Series A Notes for offer and sale by you and by
dealers under the state securities or Blue Sky laws of such jurisdictions
as you may request (provided, however, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in
which it is not now so qualified or to take any action that would subject
it to general consent to service of process in any jurisdiction in which
it is not now so subject). The Company will continue such qualification
in effect so long as required by law for distribution of the Series A
Notes and will file such consents to service of process or other
documents as may be necessary in order to effect such qualification.
(f) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement becomes effective or is terminated, to
pay all costs, expenses, fees and taxes incident to and in connection
with: (i) the preparation, printing, filing and distribution of the
Preliminary Offering Memorandum and the Offering Memorandum (including,
without limitation, financial statements and exhibits) and all amendments
and supplements thereto, (ii) the preparation, printing (including,
without limitation, word processing and duplication costs) and delivery
of this Agreement, the Indentures, the Registration Rights Agreement, the
Transaction Documents, all preliminary and final Blue Sky Memoranda and
all other agreements, memoranda, correspondence and other documents
printed and delivered in connection herewith and with the Exempt Resales,
(iii) the issuance and delivery by the Company of the Notes, (iv) the
qualification of the Notes for offer and sale under the securities or
Blue Sky laws of the several states (including, without limitation, the
reasonable fees and disbursements of your counsel relating to such
registration or qualification), (v) furnishing such copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and all
amendments and supplements thereto, as may be reasonably requested for
use in connection with the Exempt Resales, (vi) the preparation of
certificates for the Notes (including, without limitation, printing and
engraving thereof), (vii) the fees, disbursements and expenses of the
Company's counsel and accountants, (viii) all expenses and listing fees
in connection with the application for quotation of the Series A Notes in
the National Association of Securities Dealers, Inc. Automated Quotation
System - PORTAL ("PORTAL"), (ix) the
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rating of the Notes by rating agencies, (x) all fees and expenses
(including fees and expenses of counsel) of the Company in connection
with approval of the Series A Notes by DTC for "book-entry" transfer, and
(xi) the performance by the Company of its other obligations under this
Agreement and the Transaction Documents.
(g) To use the proceeds from the sale of the Series A Notes in the
manner described in the Offering Memorandum under the caption "USE OF
PROCEEDS."
(h) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of the Series A
Notes.
(i) Prior to the Closing Date, to furnish to you, as soon as they
have been prepared, a copy of any unaudited interim consolidated
financial statements of the Company for any month subsequent to the
period covered by the financial statements appearing in the Offering
Memorandum.
(j) To use commercially reasonable efforts to do and perform all
things required to be done and performed under this agreement by it prior
to or after the Closing Date and to satisfy all conditions precedent on
its part to the delivery of the Series A Notes.
(k) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act)
that would be integrated with the sale of the Series A Notes in a manner
that would require the registration under the Act of the sale to you or
the Eligible Purchasers of the Series A Notes.
(l) Not to use any form of general solicitation or general
advertising, neither by the Company nor by any of its representatives, in
connection with the offer and sale of the Series A Notes, including, but
not limited to, articles, notices or other communications published in
any newspaper, magazine, or similar medium or broadcast over television
or radio, or any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising.
(m) For so long as any of the Notes remain outstanding and during
any period in which the Company is not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to
make available to any Eligible Purchaser or beneficial owner of Series A
Notes in connection with any sale thereof and any prospective purchaser
of such Series A Notes from such Eligible Purchaser or beneficial owner,
the information required by Rule 144A(d)(4) under the Act.
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(n) To comply with its agreements in the Registration Rights
Agreement, and all agreements set forth in the representation letters of
the Company to DTC relating to the approval of the Notes by DTC for
"book-entry" transfer.
(o) To cause the Registered Exchange Offer to be made in the
appropriate form, as contemplated by the Registration Rights Agreement,
to permit registration of the Series B Notes to be offered in exchange
for the Series A Notes and to comply with all applicable federal and
state securities laws in connection with the Registered Exchange Offer.
(p) To use all reasonable efforts to effect the inclusion of the
Notes in PORTAL.
(q) For so long as any of the Notes are outstanding, to deliver
without charge to the Initial Purchaser, promptly upon their becoming
available, copies of (i) all reports or other publicly available
information that the Company shall mail or otherwise make available to
its holders and (ii) all reports, financial statements and proxy or
information statements filed by the Company with the Commission or any
national securities exchange and such other publicly available
information concerning the Company or its subsidiaries, including without
limitation, press releases.
(r) Neither the Company nor any of its Subsidiaries will take,
directly or indirectly, any action designed to, or that might reasonably
be expected to, cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Notes. Except as permitted by the Act and as contemplated herein,
the Company will not distribute any preliminary offering memorandum,
offering memorandum or other offering material in connection with the
offering and sale of the Notes.
(s) To comply with the agreements in the Operative Documents.
(t) To use commercially reasonable efforts to consummate the
Transactions.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to you that:
(a) All the representations and warranties of the Company contained
in the Operative Documents and the Acquisition Agreement as in effect at
the Closing (except to the extent waived by Xxxxx River) shall be true and
correct on
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the Closing Date with the same force and effect as if made on and as
of the date hereof and the Closing Date. The Company shall have
performed or complied with all of its obligations and agreements therein
contained and required to be performed or complied with by it in all
material respects at or prior to the Closing Date.
(b) The Preliminary Offering Memorandum, and the Offering Memorandum
(and each supplement and amendment thereto) have been prepared in
connection with the Exempt Resales. The Preliminary Offering Memorandum
and the Offering Memorandum do not, and any supplement or amendment
thereto will not, contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except that the representations and warranties contained
in this paragraph (a) shall not apply to statements in or omissions from
the Preliminary Offering Memorandum or Offering Memorandum (or any
supplement or amendment to them) made in reliance upon and in conformity
with information relating to you furnished to the Company in writing by
you expressly for use therein. The Company acknowledges for all purposes
under this Agreement that the statements set forth in the last paragraph
on the cover page and the third paragraph under the caption "Plan of
Distribution" in the Offering Memorandum (or any amendment or supplement
thereto) constitute the only written information furnished to the Company
by you expressly for use in the Offering Memorandum (or any amendment or
supplement thereto).
(c) Each of the Company and the Subsidiaries is a duly organized and
validly existing corporation in good standing under the laws of its
jurisdiction of incorporation, has the requisite corporate power and
authority to own, lease and operate its properties and to conduct its
business as it is currently being conducted and described in the Offering
Memorandum, and is duly qualified as a foreign corporation and is in good
standing in each jurisdiction where the ownership, leasing or operation
of property or the conduct of its business requires such qualification,
except where the failure to be so qualified would not, singly or in the
aggregate, have a material adverse effect on the properties, business,
results of operations, condition (financial or otherwise), affairs or
prospects of the Company and the Subsidiaries taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(d) The Company has all necessary corporate power and authority to
execute and deliver the Transaction Documents and the Notes, to perform
its obligations under the Transaction Documents and the Notes and to
authorize, issue, sell and deliver the Notes as contemplated by this
Agreement.
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(e) This Agreement has been duly authorized and validly executed and
delivered by the Company and constitutes a legally valid and binding
agreement of the Company, enforceable against it in accordance with its
terms (assuming the due execution and delivery hereof by you), subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws in effect from time to time with respect to
creditors' rights generally and to principles of equity, whether at law
or in equity and except as rights to indemnity and contribution
thereunder may be limited by federal and state securities laws and public
policy considerations underlying such laws.
(f) The issuance and sale of the Series A Notes has been duly
authorized by the Company, and all legally required corporate proceedings
by the Company in connection with the issuance and sale of the Series A
Notes have been taken; each of the Series A Notes, when issued and
delivered to and paid for by the Initial Purchaser in accordance with
this Agreement (assuming the due authentication thereof by the Trustee),
will be the legally valid and binding obligations of the Company entitled
to the benefits of the Indentures, enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws in effect from
time to time with respect to creditors' rights generally and to
principles of equity, whether at law or in equity and except as rights to
indemnity and contribution thereunder may be limited by federal and state
securities laws and public policy considerations underlying such laws.
(g) The issuance of the Series B Notes has been duly authorized by
the Company and all legally required corporate proceedings by the Company
in connection with the issuance of the Series B Notes have been taken;
each of the Series B Notes, when issued and delivered in accordance with
the terms of the Registered Exchange Offer and the Indentures, will be
validly executed, issued and delivered and (assuming the due
authentication thereof by the Trustee) will be the legally valid and
binding obligations of the Company entitled to the benefits of the
Indentures, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws in effect from time to time with respect to
creditors' rights generally and to principles of equity, whether at law
or in equity and except as rights to indemnity and contribution
thereunder may be limited by federal and state securities laws and public
policy considerations underlying such laws.
(h) The Indentures have been duly authorized by the Company and, on
the Closing Date, will have been duly executed by the Company and will
conform in all material respects to the description thereof in the
Offering Memorandum. When the Indentures have been duly executed and
delivered, the Indentures will be the legally valid and binding
agreements of the Company, enforceable against it in
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accordance with their terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws in effect from time to time with respect to creditors'
rights generally and to principles of equity, whether at law or in equity
and except as rights to indemnity and contribution thereunder may be
limited by federal and state securities laws and public policy
considerations underlying such laws.
(i) The Registration Rights Agreement has been duly authorized by
the Company and, on the Closing Date, will have been duly executed by the
Company and will conform in all material respects to the description
thereof in the Offering Memorandum. When the Registration Rights
Agreement has been duly executed and delivered, the Registration Rights
Agreement will be the legally valid and binding agreement of the Company,
enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws in effect from time to time with respect to
creditors' rights generally and to principles of equity, whether at law
or in equity and except as rights to indemnity and contribution
thereunder may be limited by federal and state securities laws and public
policy considerations underlying such laws.
(j) The New Credit Facility has been duly authorized by the Company
and, on the Closing Date, will have been duly executed by the Company and
will conform in all material respects to the description thereof in the
Offering Memorandum. When the New Credit Facility has been duly executed
and delivered, the New Credit Facility will be the legally valid and
binding agreement of the Company, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws in effect from
time to time with respect to creditors' rights generally and to
principles of equity, whether at law or in equity.
(k) The Receivables Facility has been duly authorized by the
Company, and if executed, will conform in all material respects to the
description thereof in the Offering Memorandum.
(l) The Acquisition Agreement has been duly authorized by the
Company and, on the Closing Date, will have been duly executed by the
Company and will conform in all material respects to the description
thereof in the Offering Memorandum. Upon due execution and delivery, the
Acquisition Agreement will be the legally valid and binding agreement of
the Company, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws in effect from time to time
with respect to creditors' rights generally and to principles of equity,
whether at law or in equity.
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(m) The Reorganization has been consummated, or will have been
consummated as of the Closing Date, and conforms or will conform in all
material respects to the description thereof in the Offering Memorandum.
(n) The entities listed on Schedule A hereto are the only
Subsidiaries, direct or indirect, of the Company. The Subsidiaries
(excluding Printpack Illinois, Inc. and Flexible Funding Corp.) as of
June 29, 1996 do not collectively own more than 10% of the Company's
consolidated assets and for the latest fiscal year are not responsible
for more than 10% of the Company's consolidated revenues or profits. All
of the issued and outstanding shares of capital stock of, or other
ownership interests in, each Subsidiary have been duly and validly
authorized and issued. All of the shares of capital stock of, or other
ownership interests in, each Subsidiary are owned, directly or through
Subsidiaries, by the Company. All such shares of capital stock are fully
paid and nonassessable, and are owned free and clear of any security
interest, mortgage, pledge, claim, lien or encumbrance (each, a "LIEN"),
except for such Liens (i) created pursuant to the New Credit Facility and
the Receivables Facility, (ii) permitted by the Indentures and/or (iii)
that will be released on the Closing Date in connection with the closing
of the Transactions. There are no outstanding subscriptions, rights,
warrants, options, calls, convertible securities or commitments of sale
related to or entitling any person to purchase or otherwise to acquire
any shares of the capital stock of, or other ownership interest in, any
Subsidiary.
(o) Neither the Company nor any of the Subsidiaries is (i) in
violation of its respective charter or bylaws, (ii) in default in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or any
indenture, mortgage, deed of trust or other contract, lease or other
instrument to which the Company or any of the Subsidiaries is a party or
by which any of them is bound, or to which any of the property or assets
of the Company or any of the Subsidiaries is subject or (iii) in
violation of any law, statute, rule, regulation, or judgment or court
decree applicable to the Company or any Subsidiary, or any of their
respective properties, except for any such violation or default, in the
case of clauses (ii) and (iii), that would not result, singly or in the
aggregate, in a Material Adverse Effect. To the knowledge of the Company
and the Subsidiaries, there exists no condition which, with notice, the
passage of time or otherwise, would constitute a default under any such
document or instrument.
(p) None of (i) the execution and delivery of the Transaction
Documents, (ii) the performance by the Company of its obligations under
the Transaction Documents or (iii) the consummation of the Transactions
contemplated by the Transaction Documents, including the issuance and
sale of the
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Notes, will result in (A) a breach or violation of the respective
charters or bylaws of the Company or any of the Subsidiaries, (B) a
breach or violation of any of the terms or provisions of, or constitute a
default or cause an acceleration of any obligation under, or result in
the imposition or creation of (or the obligation to create or impose) a
Lien with respect to, any bond, note, debenture or other evidence of
indebtedness (other than Liens (i) created pursuant to the New Credit
Facility and the Receivables Facility, (ii) permitted by the Indentures
and/or (iii) that will be released on the Closing Date in connection with
the closing of the Transactions) or any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which it or any of them is bound, or to
which any properties of the Company or any of the Subsidiaries is or may
be subject, (C) contravene any order of any court or governmental agency
or body having jurisdiction over the Company or any of the Subsidiaries
or any of their respective properties, or any judgment, order or decree
of any court or governmental agency or authority having jurisdiction over
the Company or any of the Subsidiaries, or any of their respective
properties or (D) violate or conflict with any statute, rule or
regulation applicable to the Company or any of the Subsidiaries, or their
respective properties, or administrative or court decree applicable to
the Company or any of the Subsidiaries, or any of their respective
properties, except for any such breach, violation, default, acceleration,
imposition of a Lien or contravention that would not result, in the case
of clauses (B), (C) and (D), singly or in the aggregate, in a Material
Adverse Effect.
(q) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, pending against or
affecting the Company or any of the Subsidiaries, or any of their
respective properties, which is required to be disclosed and is not so
disclosed, in the Preliminary Offering Memorandum or Offering Memorandum,
or which would result, singly or in the aggregate, in a Material Adverse
Effect or which would materially and adversely affect the consummation of
this Agreement or the transactions contemplated hereby, and to the best
knowledge of the Company and the Subsidiaries, no such proceedings are
contemplated or threatened.
(r) To the knowledge of the Company and the Subsidiaries, no action
has been taken and no statute, rule or regulation or order has been
enacted, adopted or issued by any governmental agency or body which
prevents the issuance of the Notes, prevents or suspends the use of any
Preliminary Offering Memorandum or Offering Memorandum or suspends the
sale of the Notes, in any jurisdiction referred to in Section 4(e)
hereof; no injunction, restraining order or order of any nature by a
federal or state court of competent jurisdiction has been issued with
respect to the Company or any of the Subsidiaries which would
prevent or suspend the issuance or sale of the Notes, or the use of any
Preliminary Offering Memorandum or Offering Memorandum in any
jurisdiction referred to in
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Section 4(e) hereof; no action, suit or proceeding is pending against
or, to the best knowledge of the Company, threatened against or affecting
the Company or any of the Subsidiaries before any court or arbitrator or
any governmental body, agency or official, domestic or foreign, which, if
adversely determined, would materially interfere with or adversely affect
the issuance of the Notes, or in any manner draw into question the
validity of this Agreement, the Indentures, the Registration Rights
Agreement or the Notes; and every request of any securities authority or
agency of any jurisdiction for additional information (to be included in
the Preliminary Offering Memorandum or Offering Memorandum or otherwise)
has been complied with.
(s) Except as set forth in the Offering Memorandum, the Company and
the Subsidiaries are in compliance with all applicable existing federal,
state and local laws and regulations relating to protection of human
health or the environment or imposing liability or standards of conduct
concerning any Hazardous Material ("ENVIRONMENTAL LAWS"), except where
the failure to comply would not have a Material Adverse Effect. The term
"Hazardous Material" means (a) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, (b) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, (c) any petroleum or petroleum
product, (d) any polychlorinated biphenyl and (e) any pollutant or
contaminant or hazardous, dangerous or toxic chemical, material, waste or
substance.
(t) Neither the Company nor any of the Subsidiaries has violated any
federal, state or local law relating to discrimination in the hiring,
promotion or pay of employees or any applicable wage or hour laws, nor
any provisions of the Employee Retirement Income Security Act of 1974
("ERISA") or the rules and regulations promulgated thereunder, nor has
the Company or any of the Subsidiaries engaged in any unfair labor
practice, which in each case would result, singly or in the aggregate, in
a Material Adverse Effect. There is (i) no significant unfair labor
practice complaint pending against the Company or any of the Subsidiaries
or, to the best knowledge of the Company and the Subsidiaries, threatened
against any of them before the National Labor Relations Board or any
state or local Labor relations board, and no significant grievance or
significant arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Company or any of the
Subsidiaries or, to the best knowledge of the Company and the
Subsidiaries, threatened against any of them, (ii) no significant strike,
labor dispute, slowdown or stoppage pending against the Company, or any
of the Subsidiaries or, to the best knowledge of the Company and the
Subsidiaries, threatened against the Company or any of the Subsidiaries
and (iii) to the best knowledge of the Company and the Subsidiaries, no
union representation question exists with respect to the employees of the
Company or
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any of the Subsidiaries and no union organizing activities are taking
place, except (with respect to any matter specified in clause (i), (ii)
or (iii) above, singly or in the aggregate) such as could not have a
Material Adverse Effect.
(u) Except (i) as would not result, singly or in the aggregate, in a
Material Adverse Effect, (ii) for the liens created pursuant to the New
Credit Facility and the Receivables Facility, (iii) for Liens permitted
by the Indentures and (iv) for Liens that will be released on the Closing
Date in connection with the closing of the Transactions, the Company and
each of the Subsidiaries has good and marketable title, free and clear of
all Liens (except Liens for taxes not yet due and payable), to all
property and assets reflected in the Company's consolidated financial
statements at and for the year ended June 29, 1996.
(v) The firm of accountants that has certified the applicable
financial statements of the Company and the Subsidiaries, included in the
Offering Memorandum are independent public accountants, as required by
the Act and the Exchange Act. The consolidated historical and pro forma
financial statements, together with related notes, included in the
Offering Memorandum comply as to form in all material respects with the
requirements applicable to registration statements on Form S-1 under the
Act. Such historical financial statements fairly present in all material
respects the consolidated financial position of the Company and the
Subsidiaries at the respective dates indicated and the results of
operations and cash flows for the respective periods indicated, in
accordance with generally accepted accounting principles in the United
States ("GAAP") consistently applied throughout such periods. Such pro
forma financial statements have been prepared on a basis consistent with
such historical statements, except for the pro forma adjustments
specified therein, and give effect to assumptions made on a reasonable
basis. The other financial and statistical information and data included
in the Offering Memorandum, historical and pro forma, are, in all
material respects, prepared on a basis consistent with such financial
statements and the books and records of the Company and the Subsidiaries,
as the case may be.
(w) The firms of accountants that has certified the applicable
financial statements of JR Flexible, and its subsidiaries, included in
the Offering Memorandum are independent public accountants, as required
by the Act and the Exchange Act. The consolidated historical and pro
forma financial statements, together with related notes, included in the
Offering Memorandum comply as to form in all material respects with the
requirements applicable to registration statements on Form S-1 under the
Act. To the Company's knowledge, such historical financial statements
fairly present in all material respects the consolidated financial
position of JR Flexible, and its subsidiaries, at the respective dates
indicated and the results of operations and cash flows for the
respective periods indicated, in accordance with GAAP consistently
applied throughout such periods.
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To the Company's knowledge, such pro forma financial statements have
been prepared on a basis consistent with such historical statements,
except for the pro forma adjustments specified therein, and give effect
to assumptions made on a reasonable basis. To the Company's knowledge,
the other financial and statistical information and data included in the
Offering Memorandum, historical and pro forma, are, in all material
respects, prepared on a basis consistent with such financial statements
and the books and records of JR Flexible, and its subsidiaries, as the
case may be.
(x) Subsequent to the respective dates as of which information is
given in the Offering Memorandum and up to the Closing Date (except as
disclosed in the Offering Memorandum), neither the Company nor any of the
Subsidiaries has incurred (other than in connection with the
Transactions) any liabilities or obligations, direct or contingent, that
are material, individually or in the aggregate, to the Company and its
Subsidiaries, taken as a whole, nor entered into any material transaction
(other than in connection with the Transactions) not in the ordinary
course of business and there has not been, singly or in the aggregate,
any material adverse change, or any development which may reasonably be
expected to involve a material adverse change, in the properties,
business, results of operations, condition (financial or otherwise),
affairs or prospects of the Company and its Subsidiaries, taken as a
whole (each, a "MATERIAL ADVERSE CHANGE").
(y) All tax returns required to be filed by the Company or any of
the Subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities have been paid, other
than those being contested in good faith and for which adequate reserves
have been provided or those currently payable without penalty or
interest, except for any failure to file or pay that would not result,
singly or in the aggregate, in a Material Adverse Effect.
(z) No authorization, approval or consent or order of, or filing,
qualification, license or permit of or with, any court or governmental or
administrative body or agency (collectively, "CONSENTS") is necessary in
connection with the (i) execution, delivery and performance by the
Company and the Subsidiaries of this Agreement, the other Operative
Documents, the Acquisition Agreement, the New Credit Facility and the
Receivables Facility, (ii) the issuance and sale of the Series A Notes
and the Series B Notes or (iii) the consummation of the Reorganization,
except for Consents that (A) may be required by the NASD, (B) have been
obtained and made (or, in the case of the Registration Rights Agreement
and the issuance of the Series B Notes in accordance with the Registered
Exchange Offer, will be made) under the Act, the TIA, the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
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"XXX XXX"), or (C) have been obtained or made (or, in the case of the
Registration Rights Agreement and the issuance of the Series B Notes in
accordance with the Registered Exchange Offer, will be made) under state
securities or Blue Sky laws or regulations and/or (D) except for any
Consent the lack of which would not result, singly or in the aggregate,
in a Material Adverse Effect. No consents or waivers from any person
under any bond, debenture, note, indenture, mortgage, deed of trust or
other agreement or instrument are required to consummate the
Transactions, except for such consents or waivers which have been, or
will be, obtained prior to the Closing Date and except for such consent
or waivers the lack of which would not result, singly or in the
aggregate, in a Material Adverse Effect.
(aa) Neither the Company nor any of the Subsidiaries does business
with the Government of Cuba or with any person or any affiliate located
in Cuba.
(ab) (i) Each of the Company and the Subsidiaries has all
certificates, consents, exemptions, orders, permits, licenses,
authorizations, or other approvals (each, an "AUTHORIZATION") of and
from, and has made all declarations and filings with, all federal, state,
local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, necessary or required
to own, lease, license and use its properties and assets and to engage in
the business currently conducted by it, except as such are described in
the Offering Memorandum or to the extent that the failure to obtain or
file would not, singly or in the aggregate, have a Material Adverse
Effect, (ii) all such Authorizations are valid and in full force and
effect and (iii) the Company and the Subsidiaries are in compliance in
all material respects with the terms and conditions of all such
Authorizations and with the rules and regulations of the regulatory
authorities and governing bodies having jurisdiction with respect
thereto. Neither the Company nor any Subsidiary believes that any
governmental body or agency is considering limiting, suspending or
revoking any such material license, certificate, permit, authorization,
approval, franchise or right.
(ac) Neither the Company nor any of the Subsidiaries is (a) an
"investment company" or a company "controlled" by an investment company
within the meaning of the Investment Company Act of 1940, as amended, or
(b) a "holding company" or a "subsidiary company" of a holding company or
an "affiliate" thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(ad) No holder of any security (other than the holders of Series A
Notes) of the Company or any of the Subsidiaries has or will have any
right to require the registration under the Act of such security by
virtue of the consummation of the Transactions.
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(ae) Except for this Agreement, there are no contracts, agreements
or understandings between the Company or any of the Subsidiaries and any
person that would give rise to a valid claim against the Company, the
Subsidiaries or the Initial Purchaser for a brokerage commission,
finder's fee or like payment solely as a result of the issuance, purchase
and sale of the Notes.
(af) The Company and the Subsidiaries possess all material patents,
patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service
marks and trade names (collectively, "INTELLECTUAL PROPERTY") presently
employed by them in connection with the businesses now operated by them,
and, except as set forth in the Offering Memorandum, neither the Company
nor any Subsidiary has received any notice of infringement of or conflict
with asserted rights of others with respect to the foregoing, which
notice of infringement of or conflict with asserted rights of others is
reasonably likely to result in a Material Adverse Effect.
(ag) The Company and the Subsidiaries each maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's
general or specific authorizations, (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in accordance
with management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(ah) The present fair value of the assets of each of the Company and
the Subsidiaries exceeds the amount that will be required to be paid on
or in respect of the existing debts and other liabilities (including
contingent liabilities) of each such person as they become absolute and
matured. The assets of each of the Company and the Subsidiaries do not
constitute unreasonably small capital to carry out their businesses as
conducted or as proposed to be conducted. Neither the Company or the
Subsidiaries intends to, nor does it believe that it will, incur debts
beyond its ability to pay such debts as they mature. Upon the issuance
of the Series A Notes, the present fair value of the assets of each of
the Company and the Subsidiaries will exceed the amount that will be
required to be paid on or in respect of the existing debts and other
liabilities (including contingent liabilities) of such person as they
become absolute and matured. The assets of the Company and the
Subsidiaries, upon the issuance of the Series A Notes, will not
constitute unreasonably small capital to carry out their businesses as
now conducted, including the capital needs of each of the Company and
the Subsidiaries, taking
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into account the projected capital requirements and capital availability
of each of the Company and the Subsidiaries.
(ai) None of the Company, the Subsidiaries or any agent thereof
acting on the behalf of any of them has taken, and none of them will
take, any action that might cause this Agreement, any of the Transaction
Documents, including the Operative Documents, the consummation of the
Acquisition or the issuance or sale of the Notes to violate Regulation G
(12 C.F.R. Part 207), Regulation T (12 C.F.R. Part 220), Regulation U (12
C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of
Governors of the Federal Reserve System.
(aj) The Company and each Subsidiary maintains insurance covering
their properties, operations, personnel and businesses. Such insurance
insures against such losses and risks as are adequate in accordance with
customary industry practice to protect the Company and the Subsidiaries
and their businesses. Neither the Company nor any Subsidiary has
received notice from any insurer or agent of such insurer that
substantial capital improvements or other expenditures will have to be
made in order to continue such insurance. All such insurance is
outstanding and duly in force on the date hereof and will be outstanding
and duly in force on the Closing Date.
(ak) When the Notes are issued and delivered pursuant to this
Agreement, such Notes will not be of the same class (within the meaning
of Rule 144A under the Act) as securities of the Company that are listed
on a national securities exchange registered under Section 6 of the
Exchange Act or that are quoted in a United States automated inter-dealer
quotation system.
(al) Assuming (i) that your representations and warranties in
Section 6 are true, (ii) that the representations of the Accredited
Investors set forth in the certificates of such Accredited Investors in
the form set forth in Annex A to the Offering Memorandum are true, (ii)
compliance by you with your covenants set forth in Section 8 and (iii)
that each of the Eligible Purchasers is a QIB or an Accredited Investor,
the purchase and resale of the Series A Notes pursuant hereto (including
pursuant to the Exempt Resales) is exempt from the registration
requirements of the Act. No form of general solicitation or general
advertising was used by the Company or any of its representatives (other
than you, as to whom the Company makes no representation) in connection
with the offer and sale of the Series A Notes, including, but not limited
to, articles, notices or other communications published in any newspaper,
magazine, or similar medium or broadcast over television or radio, or any
seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. No securities of the same class as
the Series A Notes have been issued and sold by the Company within the
six-month period immediately prior to the date hereof.
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(am) The execution and delivery of the Operative Documents,
including the issuance and sale of the Series A Notes to be purchased by
Eligible Purchasers will not involve any prohibited transaction within
the meaning of Section 406 of ERISA or Section 4975 of the Code. The
representation made by the Company in the preceding sentence is made in
reliance upon and subject to the accuracy of, and compliance with, the
representations and covenants made or deemed made by the Eligible
Purchasers as set forth in the Offering Memorandum under the Section
entitled "Notice to Investors."
(an) Each of the Preliminary Offering Memorandum and the Offering
Memorandum as of their respective dates, and each amendment or supplement
thereto, as of its date, contains the information specified in, and meets
the requirements of Rule 144A(d)(4) of the Act.
(ao) Except as disclosed in the Offering Memorandum, there are no
business relationships or related party transactions required to be
disclosed therein pursuant to Item 404 of Regulation S-K of the
Commission (assuming for purposes of this paragraph 5(ao) that Regulation
S-K is applicable to the Offering Memorandum).
All of the foregoing representations and warranties are made as if the
Acquisition had been consummated and the assets to be acquired thereby had
already been acquired.
6. INITIAL PURCHASER'S REPRESENTATIONS AND WARRANTIES. The Initial
Purchaser represents and warrants to the Company that:
(a) The Initial Purchaser is a QIB with such knowledge and
experience in financial and business matters as are necessary in order to
evaluate the merits and risks of an investment in the Series A Notes.
(b) The Initial Purchaser (i) is not acquiring the Series A Notes
with a view to any distribution thereof or with any present intention
of offering or selling any of the Series A Notes in a transaction that
would violate the Act or the securities laws of any State of the United
States or any other applicable jurisdiction and (ii) will be reoffering
and reselling the Series A Notes only to QIBs in reliance on the
exemption from the registration requirements of the Act provided by Rule
144A and to a limited number of Accredited Investors that execute and
deliver a
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letter containing certain representations and agreements in the form
attached as Annex A to the Offering Memorandum.
The Initial Purchaser also understands that the Company and, for
purposes of the opinions to be delivered to you pursuant to Sections 8(f)
and 8(g) hereof, each of Xxxxxx & Bird and Xxxxxx & Xxxxxxx, will rely
upon the accuracy and truth of the foregoing representations and you
hereby consent to such reliance.
The Initial Purchaser further agrees that, in connection with the
Exempt Resales, the Initial Purchaser will solicit offers to buy the
Series A Notes only from, and will offer to sell the Series A Notes only
to, the Eligible Purchasers. The Initial Purchaser further agrees that
it will offer to sell the Series A Notes only to, and will solicit offers
to buy the Series A Notes only from, persons who in purchasing such
Series A Notes will be deemed to have represented and agreed (1) if such
Eligible Purchaser is a QIB, that they are purchasing the Series A Notes
for their own account or an account with respect to which they exercise
sole investment discretion and that they or each of such accounts are
QIBs, (2) that such Series A Note will not have been registered under the
Act and may be resold, pledged or otherwise transferred, only (A) (I) to
a person who the seller reasonably believes is a "qualified institutional
buyer" within the meaning of Rule 144A under the Act in a transaction
meeting the requirements of Rule 144A, or in accordance with Rule 144
under the Act, or pursuant to another exemption from the registration
requirements of the Act (and based upon an opinion of counsel if the
Company so requests) or (II) to the Company and (B) in each case, in
accordance with any applicable securities laws of any State of the United
States or any other applicable jurisdiction, (3) that the holder will,
and each subsequent holder is required to, notify any purchaser from it
of the security evidenced thereby of the resale restrictions set forth in
(2) above.
7. INDEMNIFICATION.
(a) The Company and the Subsidiaries (the "INDEMNIFYING PARTIES")
jointly and severally agree to indemnify and hold harmless (i) the
Initial Purchaser, (ii) each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the
Initial Purchaser (any of the persons referred to in this clause (ii)
being hereinafter referred to as a "CONTROLLING PERSON"), and (iii) the
respective officers, directors, partners, employees, representatives and
agents of the Initial Purchaser or any controlling person (any person
referred to in clause (i), (ii), or (iii) may hereinafter be referred to
as an "INDEMNIFIED PERSON") to the fullest extent lawful, from and
against any and all losses, claims, damages, liabilities, judgments,
actions and expenses (including without limitation and as incurred,
reimbursement of all reasonable costs of investigating, preparing or
defending any claim or action, or any investigation or
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proceeding by any governmental agency or body, commenced or threatened,
including the reasonable fees and expenses of counsel to any Indemnified
Person) directly or indirectly (a) caused by, related to, based upon,
arising out of or in connection with any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Offering
Memorandum (or any amendment or supplement thereto) or the Offering
Memorandum (or any amendment or supplement thereto) or any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein in the light of the
circumstances under which they were made) not misleading, except insofar
as such losses, claims, damages, liabilities or expenses are caused by an
untrue statement or omission or alleged untrue statement or omission that
is made in reliance upon and in conformity with information relating to
the Initial Purchaser furnished in writing to the Company by the Initial
Purchaser expressly for use in the Preliminary Offering Memorandum (or
any amendment or supplement thereto) or the Offering Memorandum (or any
amendment or supplement thereto) provided, however, that the foregoing
indemnity shall not inure to the benefit of the Initial Purchaser from
whom the person asserting any such losses, claims, damages, liabilities,
judgments, actions or expenses purchased Notes, or any controlling person
of the Initial Purchaser, if a copy of the Preliminary Offering
Memorandum or Offering Memorandum (including any amendment or supplement
thereto delivered to the Initial Purchaser prior to the date such
Preliminary Offering Memorandum or Offering Memorandum was sent or given
to such purchaser) was not sent or given by or on behalf of the Initial
Purchaser to such person at or prior to the written confirmation of the
sale of Notes to such person, and if the Preliminary Offering Memorandum
or Offering Memorandum (including any amendment or supplement thereto
delivered to the Initial Purchaser prior to the date such Preliminary
Offering Memorandum or Offering Memorandum was sent or given to such
purchaser) cured the defect giving rise to such losses, claims, damages,
liabilities, judgments, actions or expenses. The Company shall notify
you promptly of the institution, threat or assertion of any claim,
proceeding (including any governmental investigation) or litigation in
connection with the matters addressed by this Agreement which involves
the Company or an Indemnified Person.
(b) In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against any of the
Indemnified Persons with respect to which indemnity may be sought against
the Company, such Person (or the entity controlled by such controlling
person) shall promptly notify the Company, in writing (provided, that the
failure to give such notice shall not relieve the Company of their
obligations pursuant to this Agreement unless such failure to notify has
materially prejudiced the ability of the Company to defend any such
claim) and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Persons
and
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payment of all reasonable fees and expenses. Such Indemnified Person
shall have the right to employ its own counsel in any such action and
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the Indemnified Person's expense unless (i) the
employment of such counsel has been specifically authorized in writing by
the Company, (ii) the Company has not assumed the defense and employed
counsel reasonably satisfactory to such Indemnified Person within a
reasonable time after notice of commencement of such action or proceeding
or (iii) the named parties to any such action or proceeding (including
any impleaded parties) include both an Indemnified Person and the Company
or any such Indemnified Person shall have been advised by such counsel
that there may be one or more legal defenses available to it which are
different from or additional to those available to the Company (in which
case the Company shall not have the right to assume the defense of such
action on behalf of the Indemnified Persons, it being understood,
however, that the Company shall not, in connection with any one such
action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more
than one separate firm of attorneys (in addition to any local counsel) at
any time for such Indemnified Persons, which firm shall be designated by
the Initial Purchaser).
(c) No indemnifying parties (whether the persons described in
subparagraphs (a) and (b) above or in subparagraph (d) below) shall be
liable for any settlement of any such action or proceeding effected with
the such indemnifying parties' prior written consent, which consent will
not be unreasonably withheld, and the indemnifying parties agree to
indemnify and hold harmless any indemnified person from and against any
loss, claim, damage, liability or expense by reason of any settlement of
any action effected with the written consent of the indemnifying parties.
If at any time the indemnified person shall have requested the
indemnifying parties to reimburse the indemnified person for fees and
expenses of counsel as contemplated by the second sentence of
subparagraph (b) in connection with any such action or proceeding, the
indemnifying parties agree that they shall be liable for any settlement
of any proceeding effected without their written consent so long as they
receive written notice of such settlement if (i) such settlement is
entered into more than ninety business days after receipt by such
indemnifying parties of the aforesaid request and (ii) such indemnifying
parties shall not have reimbursed the indemnified person in accordance
with such request prior to the date of such settlement. The indemnifying
parties shall not, without the prior written consent of each indemnified
person, which will not be unreasonably withheld, settle or compromise or
consent to the entry of a judgment in or otherwise seek to terminate any
pending or threatened action, claim, litigation proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or
not any indemnified person is a party thereto), unless such settlement,
compromise, consent or termination includes an unconditional release
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of each indemnified person from all liability arising out of such
action, claim, litigation or proceeding.
(d) The Initial Purchaser agrees to indemnify and hold harmless the
Company and its directors, their officers who sign the Offering
Memorandum, any person controlling (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act) the Company, and the officers,
directors, partners, employees, representatives and agents of each such
person to the same extent as the foregoing indemnity from the
Indemnifying Parties to each of the Indemnified Persons, but only with
respect to claims and actions based on information relating to the
Initial Purchaser furnished in writing by the Initial Purchaser expressly
for use in the Preliminary Offering Memorandum or Offering Memorandum.
(e) If the indemnification provided for in this Section 7 is
unavailable to a party entitled to indemnification pursuant to Section
7(b), (c) or (d) in respect of any losses, claims, damages, liabilities
or expenses referred to herein, then each indemnifying party, in lieu of
indemnifying such indemnified person, shall contribute to the amount paid
or payable by such indemnified person as a result of such losses, claims,
damages, liabilities, expenses and judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying
party (or parties, as applicable) on the one hand and the indemnified
person (or persons, as applicable) on the other hand from the offering of
the Series A Notes 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 indemnifying party (or parties, as
applicable) and the indemnified person (or persons, as applicable), as
well as any other relevant equitable considerations. The relative
benefits received by the Company, on the one hand, and the Initial
Purchaser, on the other hand, shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received
by the Initial Purchaser, in each case as set forth in the table on the
cover page of the Offering Memorandum. The relative fault of the
Company, on the one hand, and the Initial Purchaser, on the other hand,
shall be determined by reference to, among other things whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact related to information supplied
by the Company, on the one hand, or the Initial Purchaser, on the other
hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
indemnity and contribution obligations of the Company set forth herein
shall be in addition to any liability or obligation the Company may
otherwise have to any Indemnified Person.
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The Company and the Initial Purchaser agree that it would not be
just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
in this paragraph 7(d). The amount paid or payable by an indemnified
person as a result of the losses, claims, damages, liabilities, expenses
or judgments referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal
or other expenses reasonably incurred by such indemnified person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), the Initial
Purchaser (and its related Indemnified Persons) shall not be required to
contribute, in the aggregate, any amount in excess of the amount by which
the total underwriting discount applicable to the Notes purchased by the
Initial Purchaser exceeds the amount of any damages which the Initial
Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
8. CONDITIONS OF THE INITIAL PURCHASER'S OBLIGATIONS. The
obligations of the Initial Purchaser to purchase the Notes under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the date hereof and the
Closing Date, respectively. The Company shall have performed or complied
with all of their obligations and agreements herein contained and
required to be performed or complied with by them at or prior to the
Closing Date.
(b) No stop order suspending the sale of the Notes in any
jurisdiction referred to in Section 4(e) shall have been issued and no
proceeding for that purpose shall have been commenced or shall be pending
or threatened.
(c) (i) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency which would, as of the Closing Date, prevent the
issuance of the Series A Notes; (ii) no injunction, restraining order or
order of any nature by a federal or state court of competent jurisdiction
shall have been issued as of the Closing Date which would prevent the
issuance of the Series A Notes; and (iii) on the Closing Date no action,
suit or proceeding shall be pending against or affecting or, to the
knowledge of the Company, threatened against, the Company or any
Subsidiary before any court or arbitrator or any governmental body,
agency or official which,
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if adversely determined, would prohibit the issuance of the Series A
Notes except as disclosed in the Offering Memorandum.
(d) (i) Since the date hereof or since the dates as of which
information is given in the Preliminary Offering Memorandum or Offering
Memorandum, there shall not have been any Material Adverse Change, (ii)
since the date of the latest balance sheet included in the Preliminary
Offering Memorandum or Offering Memorandum, and except as described or
contemplated in the Offering Memorandum there shall not have been any
material change in the capital stock or long-term debt, or material
increase in short-term debt, of the Company or any of the Subsidiaries
and (iii) the Company and the Subsidiaries shall have no liability or
obligation, direct or contingent, that is material to the Company and the
Subsidiaries taken as a whole and is required to be disclosed on a
balance sheet in accordance with GAAP and is not disclosed on the latest
balance sheet included in the Offering Memorandum.
(e) You shall have received certificates, dated the Closing Date,
signed by (i) the President or any Vice President or any other executive
officer and (ii) a principal financial or accounting officer of the
Company confirming, as of the Closing Date, the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 8.
(f) On the Closing Date, you shall have received an, opinion
(satisfactory to you and your counsel), dated the Closing Date, of Xxxxxx
& Bird, counsel for the Company, to the effect that:
(i) The Company and each of the Subsidiaries (other
than those Subsidiaries organized under laws other than
the United States or its political subdivisions and
Printpack Illinois, Inc.) is a duly organized and validly
existing corporation in good standing under the laws of its
jurisdiction of incorporation, has the requisite corporate
power and authority to own, lease and operate its
properties and to conduct its business as it is currently
being conducted and described in the Offering Memorandum,
and is duly qualified as a foreign corporation and is in
good standing in each jurisdiction where the ownership,
leasing or operation of property or the conduct of its
business requires such qualification, except where the
failure to be so qualified would not, singly or in the
aggregate, have a Material Adverse Effect;
(ii) The Company has all necessary corporate power
and authority to execute and deliver the Transaction
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Documents and the Notes, and to perform its obligations
under the Transaction Documents and the Notes and to
authorize issue, sell and deliver the Notes as contemplated
by the Purchase Agreement;
(iii) The Purchase Agreement has been duly authorized
and validly executed and delivered by the Company and
constitutes a legally valid and binding agreement of the
Company, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights generally and to
principles of equity, whether at law or in equity and
except as rights to indemnity and contribution thereunder
may be limited by federal and state securities laws and
public policy considerations underlying such laws;
(iv) The issuance and sale of the Series A Notes has
been duly authorized by the Company, and all legally
required corporate proceedings by the Company in connection
with the issuance and sale of the Series A Notes have been
taken; when authenticated in accordance with the terms of
the Indentures and delivered to and paid for by the you in
accordance with the terms of the Purchase Agreement, the
Series A Notes will be legally valid and binding agreements
of the Company, enforceable against the Company in
accordance with their terms and entitled to the benefits of
the Indentures, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and
remedies generally and to general principles of equity,
whether at law or in equity;
(v) The issuance of the Series B Notes has been duly
authorized by the Company and all legally required
corporate proceedings by the Company in connection with the
issuance of the Series B Notes have been taken; when
authenticated in accordance with the terms of the
Indentures and delivered to and paid for by you in
accordance with the terms of the Registered Exchange Offer
and the Indentures, the Series B Notes will be the legally
valid and binding agreements of the Company, enforceable
against the Company in accordance with their terms and
entitled to the benefits of the Indentures, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and to general
principles of equity, whether at law or in equity;
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(vi) The Indentures have been duly authorized by the
Company and conform in all material respects to the
description thereof in the Offering Memorandum; assuming
due authorization, execution and delivery thereof by the
Trustee, the Indentures constitute the legally valid and
binding agreements of the Company, enforceable against it
in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is
sought at law or in equity);
(vii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and is
the legally valid and binding agreement of the Company,
enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws
affecting creditors' rights generally and to principles of
equity, whether at law or in equity and except as rights to
indemnity and contribution thereunder may be limited by
federal and state securities laws and public policy
considerations underlying such laws and except as rights to
indemnity and contribution thereunder may be limited by
federal and state securities laws and public policy
considerations underlying such laws;
(viii) To such counsel's knowledge, all of the
outstanding shares of capital stock of the Company have
been duly authorized, validly issued, and are fully paid
and nonassessable and were not issued in violation of any
preemptive rights or similar rights;
(ix) The Reorganization has been consummated and
conforms in all material respects to the description
thereof in the Offering Memorandum;
(x) All of the issued and outstanding shares of
capital stock of, or other ownership interests in, each
Subsidiary have been duly and validly authorized and
issued. Based solely upon a review of the stock records of
each Subsidiary, all of the shares of capital stock of, or
other ownership interests in, each Subsidiary are owned,
directly or through Subsidiaries, by the Company. To the
best knowledge of such counsel, all shares of capital stock
are fully paid and nonassessable, and are owned free and
clear of all Liens, except for Liens (i) created pursuant
to the New Credit Facility and
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the Receivables Facility, (ii) permitted by the
Indentures or (iii) that will be released on the Closing
Date in connection with the closing of the Transactions.
Such opinion need not cover Subsidiaries organized under
laws other than the United States and its political
subdivision or the authorization and issuance of capital
stock of Printpack Illinois, Inc.;
(xi) To such counsel's knowledge, there are no
outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or Liens
(except for Liens (i) created pursuant to the New Credit
Facility and the Receivables Facility and Liens,
subscriptions and other rights and commitments in
connection with the organization and operation of Flexible
Funding Corp. as contemplated in the Receivables Facility,
(ii) permitted by the Indentures and/or (iii) that will be
released on the Closing Date in connection with the closing
of the Transactions) related to or entitling any person to
purchase or otherwise to acquire any shares of the capital
stock of, or other ownership interest in, any Subsidiary;
(xii) Neither of the Company or any of the
Subsidiaries is (a) an "investment company" or a company
"controlled" by an investment company within the meaning of
the Investment Company Act of 1940, as amended, or (b) a
"holding company" or a "subsidiary company" of a holding
company or an "affiliate" thereof within the meaning of the
Public Utility Holding Company Act of 1935, as amended;
(xiii) The descriptions in the Offering Memorandum,
as of its date and on the Closing Date, under the
captions "Prospectus Summary The Reorganization"; the
description of the registration of the "Printpack"
trademark under "Business Patents and Trademarks";
Environmental Matters and Government Regulation"; "Legal
"Proceedings"; and "Management Incentive and Deferred
Compensation" insofar as such statements constitute a
summary of legal matters, documents or proceedings referred
to therein, to such counsel's knowledge with respect to
factual matters, fairly and accurately present or summarize
in all material respects such legal matters, documents and
proceedings; and to such counsel's knowledge, there is no
action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, pending
against or affecting the Company or any of the
Subsidiaries, or any of their respective properties, which
is required
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to be disclosed and is not so disclosed, in the
Offering Memorandum, or which would result, singly or in
the aggregate, in a Material Adverse Effect or which would
materially and adversely affect the consummation of this
Agreement or the transactions contemplated hereby, and to
the best knowledge of the Company and the Subsidiaries, no
such proceedings are contemplated or threatened.
(xiv) To the knowledge of such counsel, no action has
been taken and no statute, rule or regulation or order has
been enacted, adopted or issued by any governmental agency
or body which prevents the issuance of the Notes, and such
counsel have received no notice which suspends the sale of
the Notes, in any jurisdiction referred to in Section 4(e)
hereof; no injunction, restraining order or order of any
nature by a federal or state court of competent
jurisdiction has been issued with respect to the Company or
any of the Subsidiaries which would prevent or suspend the
issuance or sale of the Notes, and such counsel have not
received notice which prevents or suspends the use of the
Offering Memorandum in any jurisdiction referred to in
Section 4(e) hereof; no action, suit or proceeding is
pending against or threatened against or affecting the
Company or any of the Subsidiaries before any court or
arbitrator or any governmental body, agency or official,
domestic or foreign, which, if adversely determined, would
prevent the issuance of the Notes; and every request of any
securities authority or agency of any jurisdiction for
additional information (to be included in the Preliminary
Offering Memorandum or Offering Memorandum or otherwise)
has been complied with or otherwise addressed with the
Commission;
(xv) No authorization, approval or consent or order
of, or filing, qualification, license or permit of or
with, any court or governmental or administrative body or
agency (collectively, "CONSENTS") is necessary in
connection with the (i) execution, delivery and performance
by the Company and the Subsidiaries of this Agreement and
the other Transaction Documents, (ii) the issuance and sale
of the Series A Notes and the Series B Notes or (iii) the
consummation of the Reorganization, except for Consents
that (A) that may be required by the NASD or under state
securities or Blue Sky laws or regulation, (B) may be
necessary in connection with the performance of the
Registered Exchange Offer and the Registration Rights
Agreement and/or (C) except for any Consent the lack of
which would not result, singly or in the aggregate, in a
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Material Adverse Effect. No consents or waivers from
any person under any bond, debenture, note, indenture,
mortgage, deed of trust or other agreement or instrument
are required to consummate the Transactions, except for
such consents or waivers which have been, or will be,
obtained prior to the Closing Date and except for such
consent or waivers the lack of which would not result,
singly or in the aggregate, in a Material Adverse Effect;
(xvi) On the Closing Date, the Offering Memorandum
(except for financial statements, the notes thereto, the
pro forma financial information, and the related schedules
and other financial data included therein, as to which no
opinion need be expressed) complied as to form in all
material respects with applicable provisions of the Act and
the applicable rules and regulations of the Commission;
(xvii) None of (i) the execution and delivery of the
Transaction Documents, (ii) the performance by the Company
of its obligations under the Transactions Documents or
(iii) the consummation of the Transactions contemplated by
the Transaction Documents, including the issuance and sale
of the Notes, will result in (A) a breach or violation of
the respective charters or bylaws of the Company or any of
the Subsidiaries, (B) to such counsel's knowledge a breach
or violation of any of the terms or provisions of, or
constitute a default or cause an acceleration of any
obligation under, or result in the imposition or creation
of (or the obligation to create or impose) a Lien (other
than Liens that will be released on the Closing Date in
connection with the closing of the Transactions) with
respect to, any bond, note, debenture or other evidence of
indebtedness (except for Liens (i) created pursuant to the
New Credit Facility and the Receivables Facility, (ii)
permitted by the Indentures and/or (iii) that will be
released on the Closing Date in connection with the closing
of the Transactions) or any indenture, mortgage, deed of
trust or other agreement or instrument to which the Company
or any of the Subsidiaries is a party or by which it or any
of them is bound, or to which any properties of the Company
or any of the Subsidiaries is or may be subject, (C) to
such counsel's knowledge, contravene any order of any court
or governmental agency or body having jurisdiction over the
Company or any of the Subsidiaries or any of their
respective properties, or any judgment, order or decree of
any court or governmental agency or authority having
jurisdiction over the Company or any of the Subsidiaries,
or any of their respective properties or (D) to such
counsel's
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knowledge, violate or conflict with any statute, rule
or regulation applicable to the Company or any of the
Subsidiaries, or their respective properties, or
administrative or court decree applicable to the Company or
any of the Subsidiaries, or any of their respective
properties, except for any such breach, violation, default,
acceleration, imposition of a Lien or contravention that
would not result, in the case of clauses (B), (C) and (D),
singly or in the aggregate, in a Material Adverse Effect.
(xviii) When the Series A Notes are issued and
delivered pursuant to the Purchase Agreement, such Series A
Notes will not be of the same class (within the meaning of
Rule 144A under the Act) as securities of the Company that
are listed on a national securities exchange registered
under Section 6 of the Exchange Act or that are quoted in a
United States automated inter-dealer quotation system;
(xix) Assuming (i) that your representations and
warranties in Section 6 are true, (ii) that the
representations of the Accredited Investors set forth in
the certificates of such Accredited Investors in the form
set forth in Annex A to the Offering Memorandum are true,
(iii) compliance by you with your covenants set forth in
Section 8 and (iv) that each of the Eligible Purchasers is
a QIB or an Accredited Investor, the purchase and resale of
the Series A Notes pursuant hereto (including pursuant to
the Exempt Resales) is exempt from the registration
requirements of the Act. To such counsel's knowledge, no
form of general solicitation or general advertising was
used by the Company or any of its representatives (other
than you, as to whom the Company makes no representation)
in connection with the offer and sale of the Series A
Notes, including, but not limited to, articles, notices or
other communications published in any newspaper, magazine,
or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising. To such
counsel's knowledge, no securities of the same class as the
Series A Notes have been issued and sold by the Company
within the six-month period immediately prior to the date
hereof;
(xx) Prior to the Registered Exchange Offer or the
effectiveness of the Shelf Registration Statement, the
Indentures are not required to be qualified under the TIA;
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(xxi) The Offering Memorandum as of their respective
dates, and each amendment or supplement thereto, as of its
date, contained the information specified in, and meets the
requirements of Rule 144A(d)(4) of the Act;
(xxii) Except as provided in the Operative Documents,
no holder of any security of the Company or any of the
Subsidiaries has or will have any right to require the
registration under the Act of such security by virtue of
the consummation of the Transactions.
(xxiii) To such counsel's knowledge, none of the
Company, the Subsidiaries or any duly authorized agent
thereof acting on the behalf of any of them has taken any
action that will cause this Agreement or the issuance or
sale of the Notes to violate Regulation G (12 C.F.R. Part
207), Regulation T (12 C.F.R. Part 220), Regulation U (12
C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of
the Board of Governors of the Federal Reserve System.
In giving their opinion required by this subsection 8(f), Xxxxxx &
Bird shall additionally state that such counsel have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company,
your representatives and your counsel at which the contents of the
Offering Memorandum and related matters were discussed and, although such
counsel have not undertaken to investigate or independently verify, and
do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Offering Memorandum (except
as indicated in clause (xvi) above); on the basis of the foregoing, no
facts came to such counsel's attention that caused such counsel to
believe that the Offering Memorandum, as of its date or as of the Closing
Date, contained an untrue statement of a material fact or omitted to
state any fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such counsel need
express no opinion nor express any statement or belief with respect to
the financial statements, schedules and other historical and pro forma
financial and statistical data contained therein).
Xxxxxx & Bird shall not be required to opine as to any matters of
foreign or Illinois law. Xxxxxx & Bird may deliver to the Initial
Purchaser in respect of the matters to be opined hereon, reliance letters
as to the opinions delivered in connection with the New Credit Facility,
the Acquisition and the Receivables Facility, if consummated, by the
Closing (except it shall not be required to deliver the true
sale/nonconsolidation opinion).
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(g) You shall have received an opinion, dated the Closing Date, of
Xxxxxx & Xxxxxxx, counsel for the Initial Purchaser, in form and
substance reasonably satisfactory to you.
(h) You shall have received letters on and as of the date hereof as
well as on and as of the Closing Date (in the latter case constituting an
affirmation of the statements set forth in the former), in form and
substance satisfactory to you, from Price Waterhouse, L.L.P., independent
auditors, with respect to the financial statements and certain financial
information contained in the Offering Memorandum relating to the Company
and the Subsidiaries.
(i) You shall have received letters on and as of the date hereof as
well as on and as of the Closing Date (in the latter case constituting an
affirmation of the statements set forth in the former), in form and
substance satisfactory to you, from Price Waterhouse, L.L.P., independent
auditors, with respect to the financial statements and certain financial
information contained in the Offering Memorandum relating to JR Flexible,
and its subsidiaries.
(j) Xxxxxx & Xxxxxxx shall have been furnished with such documents
and opinions, in addition to those set forth above, as they may
reasonably require for the purpose of enabling them to review or pass
upon the matters referred to in this Section 8 and in order to evidence
the accuracy, completeness or satisfaction in all material respects of
any of the representations, warranties or conditions herein contained.
(k) The Reorganization and the transactions contemplated by the
Acquisition Agreement and the New Credit Facility shall be consummated
prior to, or simultaneously with, the Closing Date on terms as described
in the Offering Memorandum and if the Receivables Facility is
consummated, it will be on terms as described in the Offering Memorandum.
The Initial Purchaser shall have received certificates or such other
documentation as it deems reasonably necessary evidencing the closing of
the Acquisition Agreement, the New Credit Facility and, if consummated,
the Receivables Facility, and the consummation of the Transactions
contemplated thereby and of the Reorganization.
(l) Prior to the Closing Date, the Company shall have furnished to
you such further information, certificates and documents as you may
reasonably request.
(m) The Company and the Trustee shall have entered into the
Indentures and you shall have received counterparts, conformed as
executed, thereof.
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(n) The Initial Purchaser shall have received a certificate, dated
the Closing Date, of the Chief Financial Officer of the Company as to the
solvency of the Company and the Subsidiaries following consummation of
the Transactions.
(o) The Offering Memorandum shall have been printed and copies
distributed to you not later than 9:00 A.M., New York City time, on
August 20, 1996, or at such later date and time as you may approve in
writing.
All opinions, certificates, letters and other documents required by
this Section 8 to be delivered by the Company will be in compliance with the
provisions hereof only if they are reasonably satisfactory in form and
substance to you. The Company will furnish the Initial Purchaser with such
conformed copies of such opinions, certificates, letters and other documents as
it shall reasonably request.
9. Effective Date of Agreement and Termination.
(a) This Agreement shall become effective upon the execution and
delivery of this Agreement by the parties hereto.
(b) This Agreement may be terminated at any time on or prior to the
Closing Date by you by notice to the Company if any of the following has
occurred: (i) subsequent to the date of the Offering Memorandum or of this
Agreement, any Material Adverse Change which, in the judgment of the Initial
Purchaser, materially impairs the investment quality of the Series A Notes;
(ii) any outbreak or escalation of hostilities or other national or
international calamity or crisis or material adverse change in the financial
markets of the United States, or any other substantial national or
international calamity or emergency if the effect of such outbreak, escalation,
calamity, crisis or emergency would, in the judgment of the Initial Purchaser,
make it impracticable or inadvisable to market the Series A Notes or to enforce
contracts for the sale of the Series A Notes; (iii) any suspension or
limitation of trading generally in securities on the New York Stock Exchange,
the American Stock Exchange or in the over-the-counter markets or any setting
of minimum prices for trading on such exchange or markets; (iv) any declaration
of a general banking moratorium by either federal or New York authorities; (v)
the taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs that, in the judgment of the Initial
Purchaser, has a material adverse effect on the financial markets in the United
States and would, in the judgment of the Initial Purchaser, make it
impracticable or inadvisable to market the Series A Notes or to enforce
contracts for the sale of the Series A Notes; or (vi) the enactment,
publication, decree, or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which,
in the judgment of the Initial Purchaser, materially and adversely affect, or
will materially and adversely affect, the business or operations of the
Company.
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(c) The indemnities and contribution provisions and other agreements,
representations and warranties of the Company, its respective officers and
directors and of the Initial Purchaser set forth in or made pursuant to this
Agreement shall remain operative and in full force and effect, and will survive
delivery of and payment for the Series A Notes, regardless, of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
the Initial Purchaser or by or on behalf of the Company, the officers or
directors of the Company or any controlling person of the Company, (ii)
acceptance of the Series A Notes and payment for them hereunder and (iii)
termination of this Agreement.
(d) If this Agreement shall be terminated by the Initial Purchaser
pursuant to clause (i) of paragraph (b) of this Section 9 or because of the
failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company agrees to
reimburse you for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by you. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has
agreed to pay pursuant to Section 4(f) hereof.
(e) Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Initial
Purchaser, any Indemnified Person referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The terms "successors and assigns" shall not include a purchaser of
any of the Series A Notes from the Initial Purchaser merely because of such
purchase.
10. NOTICES. Notices given pursuant to any provision of this Agreement
shall be addressed as follows: (a) if to the Company, to Printpack, Inc., 0000
Xxxxxxx Xxxxx, X.X., Xxxxxxx, Xxxxxxx, 00000, Attention: R. Xxxxxxx Xxxxxxx,
with a copy to Xxxxxx & Bird, One Atlantic Center, 0000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx, 00000-0000, Attention: Xxxxx X. XxxXxxxxx, III, and (b) if to
the Initial Purchaser, to 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx 00000-0000, Attention: Xxxxxxx X. Xxxxxxx, with a copy to Xxxxxx &
Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X.
Xxxxxxxxx, or in any case to such other address as the person to be notified
may have requested in writing.
11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK.
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12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and other persons referred to in Section 5, and no other
person will have any right or obligation hereunder.
[signatures on next page]
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This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument. Please confirm that the foregoing
correctly sets forth the agreement among the Company and you.
Very truly yours,
PRINTPACK, INC.
By: /s/ R. Xxxxxxx Xxxxxxx
-----------------------
Name R. Xxxxxxx Xxxxxxx
Title: Vice President, Finance
and Administration
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name Xxxxxx Xxxxx
Title: Vice President
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