EXHIBIT 1
EXECUTION COPY
Plastipak Holdings, Inc.
10.75% Senior Notes due 2011
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PURCHASE AGREEMENT
September 18, 2002
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Plastipak Holdings, Inc., a Michigan corporation (the
"COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to ▇▇▇▇▇▇▇, Sachs & Co. (the "PURCHASER") an aggregate of
$50,000,000 principal amount of the 10.75% Senior Notes due 2011 specified above
(the "SECURITIES"). The Securities will be unconditionally guaranteed as to the
payment of principal, premium, if any, and interest (the "GUARANTEES") by each
of the entities named in Schedule I hereto (each a "GUARANTOR" and,
collectively, the "GUARANTORS").
1. Each of the Company and the Guarantors, jointly and
severally, represents and warrants to, and agrees with, the Purchaser that:
(a) An offering circular, to be dated September 18, 2002 (the
"OFFERING CIRCULAR", including Amendment No. 2 to the registration statement on
Form S-4 dated February 19, 2002 (File No. 333-73522) and the Company's
Quarterly Report on Form 10-Q for the quarter ended August 3, 2002, which are
attached to and made a part of the Offering Circular, will be prepared in
connection with the offering of the Securities. Any reference to the Offering
Circular shall be deemed to refer to and include any Additional Issuer
Information (as defined in Section 5(f)) furnished by the Company prior to the
completion of the distribution of the Securities. The Offering Circular and any
amendments or supplements thereto does not and will not, as of its date, contain
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by the Purchaser expressly for use therein;
(b) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements included in
the Offering Circular any material loss
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or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Offering Circular; and, since the respective dates as of
which information is given in the Offering Circular, there has not been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in
the Offering Circular;
(c) The Company and its Significant Subsidiaries (as defined
in Rule 1-02(w) under Regulation S-X of the United States Securities Act of
1933, as amended (the "SECURITIES ACT")) have good and marketable title in fee
simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Offering Circular or such as do
not materially affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company and its
Significant Subsidiaries; and any real property and buildings held under lease
by the Company and its Significant Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by the Company and its Significant Subsidiaries;
(d) The Company and each Guarantor have been duly incorporated
or formed, as the case may be, and are validly existing as a corporation,
limited liability company or limited partnership, as the case may be, in good
standing under the laws of their respective jurisdictions, with power and
authority (corporate and other) to own their properties and conduct their
business as described in the Offering Circular, and have been duly qualified as
a foreign corporation, limited liability company or limited partnership, as the
case may be, for the transaction of business and are in good standing under the
laws of each other jurisdiction in which they own or lease properties or conduct
any business so as to require such qualification, except where such failure to
qualify or be in good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole. The Company and each Guarantor
are not subject to any material liability or disability by reason of the failure
to be so qualified in any such jurisdiction; and each subsidiary of the Company
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
(e) The Company has an authorized capitalization as set forth
in the Offering Circular, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of each subsidiary
of the Company have been duly and validly authorized and issued, are fully paid
and non-assessable and (except for directors' qualifying shares and except as
otherwise set forth in the Offering Circular) are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or claims;
(f) The Securities have been duly authorized and, when issued
and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company enforceable in accordance with their terms
and entitled to the benefits provided by the indenture dated as of August 20,
2001 (the "INDENTURE") by and among the Company, the Guarantors and ▇▇▇▇▇ Fargo
Bank Minnesota, National Association, as trustee, (the "TRUSTEE"), under which
they are
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to be issued, which will be substantially in the form previously delivered to
you subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principles; the Indenture has been duly authorized and
constitutes a valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Securities will and
the Indenture does conform to the descriptions thereof in the Offering Circular
and the Securities will be in substantially the form previously delivered to
you;
(g) The Guarantees have been duly authorized by the
Guarantors, and when executed, authenticated, issued and delivered pursuant to
this Agreement and the Indenture, will constitute valid and legally binding
obligations of the Guarantors entitled to the benefits provided by the
Indenture, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles. The Guarantees will conform to the descriptions thereof in the
Offering Circular;
(h) The exchange and registration rights agreement to be dated
September 25, 2002, among the Company, the Guarantors and the Purchaser (the
"REGISTRATION RIGHTS AGREEMENT") has been duly authorized by the Company and the
Guarantors, and when executed and delivered by the Company and the Guarantors,
will constitute the valid and legally binding obligation of the Company and the
Guarantors, enforceable against the Company and the Guarantors in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles. Pursuant to the Registration
Rights Agreement, the Company and the Guarantors will agree to file with the
United States Securities and Exchange Commission (the "COMMISSION"), under the
circumstances set forth therein, (i) a registration statement under the
Securities Act relating to another series of debt securities of the Company with
terms substantially identical to the Securities (the "EXCHANGE SECURITIES") to
be offered in exchange for the Securities (the "EXCHANGE OFFER"), and (ii) to
the extent required by the Registration Rights Agreement, a shelf registration
statement pursuant to Rule 415 of the Securities Act relating to the resale by
certain holders of the Securities, and in each case, to use all commercially
reasonable efforts to cause such registration statements to be declared
effective. The Exchange Securities have been duly authorized for issuance by the
Company, and when issued and authenticated in accordance with the terms of the
Indenture will be the valid and legally binding obligations of the Company,
entitled to the benefits provided by the Indenture, enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(i) The guarantees of the Company's obligations under the
Securities to be issued with terms substantially identical to the Guarantees
(the "EXCHANGE GUARANTEES") to be offered in exchange for the Guarantees in the
Exchange Offer have been duly authorized by the Guarantors, and when executed,
authenticated, issued and delivered pursuant to this Agreement and the
Indenture; will constitute valid and legally binding obligations of the
Guarantors entitled to the benefits provided by the Indenture, enforceable in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
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(j) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of the
Securities) will violate or result in a violation of Section 7 of the United
States Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), or any
regulation promulgated thereunder, including, without limitation, Regulations T,
U, and X of the Board of Governors of the Federal Reserve System;
(k) Prior to the date hereof, neither the Company, the
Guarantors nor any of their affiliates have taken any action which is designed
to or which has constituted or which might have been expected to cause or result
in stabilization or manipulation of the price of any security of the Company or
any Guarantor in connection with the offering of the Securities and the
Guarantees;
(l) The issue and sale of the Securities and the Guarantees
and the compliance by the Company and the Guarantors with all of the provisions
of the Securities, the Guarantees, the Indenture, the Registration Rights
Agreement and this Agreement and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the Certificate of
Incorporation, Certificate of Formation, partnership agreement or By-laws or
other organizational documents, as applicable, of the Company or any of the
Guarantors or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Securities
and the Guarantees or the consummation by the Company and the Guarantors of the
transactions contemplated by this Agreement, the Registration Rights Agreement
or the Indenture, except for the filing of a registration statement by the
Company with the Commission pursuant to the Securities Act pursuant to Section
1(h) hereof and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Purchaser;
(m) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation, Certificate of Formation,
partnership agreement or By-laws or other organizational documents, as
applicable, or in default in the performance or observance of any material
obligation, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound which default would
have a material adverse effect on the Company and its subsidiaries taken as a
whole;
(n) The statements to be set forth in the Offering Circular
under the caption "Description of Notes", insofar as they purport to constitute
a summary of the terms of the Securities and the Guarantees and under the
captions "Certain United States Federal Tax Consequences" and "Plan of
Distribution", insofar as they purport to describe the provisions of the laws
and documents referred to therein, will be accurate, complete and fair;
(o) Other than as will be set forth in the Offering Circular,
there are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which, if
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determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the current
or future financial position, shareholders' equity or results of operations of
the Company and its subsidiaries considered as one entity taken as a whole; and,
to the best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(p) When the Securities and the Guarantees are issued and
delivered pursuant to this Agreement, neither the Securities nor the Guarantees
will be of the same class (within the meaning of Rule 144A under the Securities
Act), as securities or guarantees which are listed on a national securities
exchange registered under Section 6 of the Exchange Act or quoted in a U.S.
automated inter-dealer quotation system;
(q) Neither the Company nor any of its subsidiaries is, and
after giving effect to the offering and, sale of the Securities will be an
"investment company", as such term is defined in the United States Investment
Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT");
(r) Neither the Company, the Guarantors nor any person acting
on its or their behalf has offered or sold the Securities by means of any
general solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act;
(s) Within the preceding six months, none of the Company, the
Guarantors or any other person acting on behalf of the Company or any Guarantor
has offered or sold to any person any Securities or Guarantees, or any
securities of the same or a similar class as the Securities or Guarantees, other
than Securities or Guarantees offered or sold to the Purchaser hereunder. The
Company and the Guarantors will take reasonable precautions designed to insure
that any offer or sale, direct or indirect, in the United States or to any U.S.
person (as defined in Rule 902 under the Securities Act) of any Securities or
Guarantees or any substantially similar security issued by the Company, within
six months subsequent to the date on which the distribution of the Securities or
the Guarantees has been completed (as notified to the Company by ▇▇▇▇▇▇▇, Sachs
& Co.), is made under restrictions and other circumstances reasonably designed
not to affect the status of the offer and sale of the Securities and the
Guarantees in the United States and to U.S. persons contemplated by this
Agreement as transactions exempt from the registration provisions of the
Securities Act;
(t) Neither the Company, the Guarantors nor any of their
affiliates does business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(u) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Securities Act and the rules and regulations of
the Commission thereunder;
(v) Except as will be described in the Offering Circular, (i)
neither the Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code,
published policy or rule of common law or any published judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human
health or the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) including, without
limitation, laws and regulations relating to the release or threatened release
of chemicals, pollutants, contaminants, non-sanitary wastes, toxic
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substances, hazardous substances, petroleum or petroleum products (collectively,
"HAZARDOUS MATERIALS") or to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Materials
(collectively, "ENVIRONMENTAL LAWS") except where such violation would not,
singly or in the aggregate, have a material adverse effect on the Company and
its subsidiaries taken as a whole, (ii) the Company and its subsidiaries have
all material permits, authorizations and approvals required under any applicable
Environmental Laws and are each in substantial compliance with their
requirements, (iii) to the Company's knowledge there are no pending or
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Laws against the
Company or any of its subsidiaries and (iv) there are no events or circumstances
that might reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or Environmental Laws, except such
orders, actions, suits or proceedings as would not have a material adverse
effect on the Company and its subsidiaries taken as a whole;
(w) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "INTELLECTUAL PROPERTY") necessary to carry on the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, except for a lawsuit filed by North American
Container, Inc. for alleged infringement of U.S. Patent No. 5,072,841 as
disclosed in Annex A to the Offering Circular under the caption "Legal
Proceedings" or such infringements, conflicts, facts or circumstances which
would not have a material adverse effect on the Company and its subsidiaries
taken as a whole; and
(x) The Company maintains title insurance for its domestic
owned real property which is customary in coverage and amount.
2. Subject to the terms and conditions herein set forth, the
Company and the Guarantors agree to issue and sell to the Purchaser, and the
Purchaser agrees, to purchase from the Company and the Guarantors at a purchase
price of 104.50% of the principal amount thereof, plus accrued interest, if any,
from September 1, 2002 to the Time of Delivery hereunder, all of the Securities
(including the Guarantees thereof).
3. Upon the authorization by you of the release of the
Securities and the Guarantees, the Purchaser proposes to offer the Securities
for sale upon the terms and conditions set forth in this Agreement and to be set
forth in the Offering Circular and the Purchaser hereby represents and warrants
to, and agrees with the Company and the Guarantors that:
(a) It will offer and sell the Securities only to persons who
it reasonably believes are "qualified institutional buyers" ("QIBS") within the
meaning of Rule 144A under the Securities Act in transactions meeting the
requirements of Rule 144A;
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(b) It is an Institutional Accredited Investor; and
(c) It will not offer or sell the Securities by any form of
general solicitation or general advertising, including, but not limited to, the
methods described in Rule 502(c) under the Securities Act.
4. (a) The Securities to be purchased by the Purchaser
hereunder will be represented by one or more definitive global Securities in
book-entry form, which will be deposited by or on behalf of the Company with The
Depository Trust Company ("DTC") or its designated custodian. The Company and
the Guarantors will deliver the Securities and the Guarantees to ▇▇▇▇▇▇▇, Sachs
& Co., for the account of the Purchaser, against payment by or on behalf of the
Purchaser of the purchase price therefor by wire transfer in immediately
available funds, by causing DTC to credit the Securities to the account of
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. at DTC. The Company will cause the certificates
representing the Securities to be made available to ▇▇▇▇▇▇▇, Sachs & Co. for
checking at least twenty-four hours prior to the Time of Delivery (as defined
below) at the office of DTC or its designated custodian (the "DESIGNATED
OFFICE"). The time and date of such delivery and payment shall be 9:30 a.m., New
York City time, on September 25, 2002 or such other time and date as ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. and the Company may agree upon in writing. Such time and date are
herein called the "TIME OF DELIVERY".
(b) The documents to be delivered at the Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents reasonably
requested by the Purchaser pursuant to Section 7(i) hereof, will be delivered at
such time and date at the offices of Seyburn, Kahn, ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇, P.C.,
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "CLOSING
LOCATION"), and the Securities and the Guarantees will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be held at the
Closing Location at 1:00 p.m., New York City time, on the New York Business Day
next preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "NEW YORK
BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. Each of the Company and the Guarantors, jointly and
severally, agrees with the Purchaser:
(a) To prepare the Offering Circular in a form approved by
you; to make no amendment or any supplement to the Offering Circular which shall
be disapproved by you promptly after reasonable notice thereof; to deliver the
Offering Circular to you by the close of business on September 20, 2002; and to
furnish you with copies thereof;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Securities, provided that in connection therewith neither the Company nor
any of the Guarantors shall be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
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(c) To furnish the Purchaser with copies of the Offering
Circular and each amendment or supplement thereto with the independent
accountants' report(s) in the Offering Circular, and any amendment or supplement
containing amendments to the financial statements covered by such report(s),
signed by the accountants, and additional written and electronic copies thereof
in such quantities as you may from time to time reasonably request, and if, at
any time prior to the expiration of nine months after the date of the Offering
Circular, any event shall have occurred as a result of which the Offering
Circular as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such Offering Circular is delivered, not misleading, or, if for any other
reason it shall be necessary or desirable during such same period to amend or
supplement the Offering Circular, to notify you and upon your request to prepare
and furnish without charge to the Purchaser and to any dealer in securities as
many written and electronic copies as you may from time to time reasonably
request of an amended Offering Circular or a supplement to the Offering Circular
which will correct such statement or omission or effect such compliance;
(d) During the period beginning from the date hereof and
continuing until the date six months after the Time of Delivery, not to offer,
sell contract to sell or otherwise dispose of, without the consent of ▇▇▇▇▇▇▇,
Sachs & Co. and except as provided hereunder, any securities of the Company or
any Guarantor that are substantially similar to the Securities or the
Guarantees;
(e) Not to be or become, at any time prior to the expiration
of three years after the Time of Delivery, an open-end investment company, unit
investment trust, closed-end investment company or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act;
(f) At any time when the Company is not subject to Section 13
or 15(d) of the Exchange Act, for the benefit of holders from time to time of
Securities, to furnish at its expense, upon request, to holders of Securities
and prospective purchasers of securities information (the "ADDITIONAL ISSUER
INFORMATION") satisfying the requirements of subsection (d)(4)(i) of Rule 144A
under the Securities Act;
(g) If requested by you, to use its best efforts to cause the
Securities to be eligible for the PORTAL trading system of the National
Association of Securities Dealers, Inc.;
(h) To furnish to the holders of the Securities as soon as
practicable after the end of each fiscal year an annual report (including a
balance sheet and statements of income, shareholders' equity and cash flows of
the Company and its consolidated subsidiaries certified by independent public
accountants) and, as soon as practicable after the end of each of the first
three quarters of each fiscal year (beginning with the fiscal quarter ending
after the date of the Offering Circular), to make available to the holders of
the Securities consolidated summary financial information of the Company and its
subsidiaries for such quarter in reasonable detail;
(i) During a period of three years from the date of the
Offering Circular, to furnish to you copies of all reports or other
communications (financial or other) furnished to holders of Securities of the
Company or any of the Guarantors, and to deliver to you (i) as soon as they are
available, copies of any reports and financial statements furnished to or filed
with the Commission or any securities exchange on which the Securities, or any
class of securities of the Company or the Guarantors is listed; and (ii) such
additional information concerning the business and financial condition of the
Company and the Guarantors as you may from time to
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time reasonably request (such financial statements to be on a consolidated basis
to the extent the accounts of the Company and its subsidiaries are consolidated
in reports furnished to its shareholders generally or to the Commission);
(j) During the period of two years after the Time of Delivery,
the Company and the Guarantors will not, and will not permit any of their
"affiliates" (as defined in Rule 144 under the Securities Act) to, resell any of
the Securities which constitute "restricted securities" under Rule 144 that have
been reacquired by any of them;
(k) The Company and the Guarantors shall file and use all
commercially reasonable efforts to cause to be declared or become effective
under the Securities Act, on or prior to 180 days after the Time of Delivery, a
registration statement on Form S-4 providing for the registration of the
Exchange Securities and the Exchange Guarantees, the exchange of the Securities
for the Exchange Securities and the exchange of the Guarantees for the Exchange
Guarantees, all in a manner which will permit persons who acquire the Exchange
Securities and the Exchange Guarantees to resell the Exchange Securities and the
Exchange Guarantees pursuant to Section 4(1) of the Securities Act; and
(l) To use the net proceeds received by it from the sale of
the Securities pursuant to this Agreement in the manner specified in the
Offering Circular under the caption "Use of Proceeds."
6. Each of the Company and the Guarantors, jointly and
severally, covenants and agrees with the Purchaser that the Company and the
Guarantors will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the issue of the Securities and the Guarantees and all other
expenses in connection with the preparation, printing and filing of the Offering
Circular and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Purchaser and dealers; (ii) the cost of
printing or producing this Agreement, the Registration Rights Agreement, the
Indenture, the Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities and the Exchange
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Purchaser in connection with such qualification and in connection with the Blue
Sky and legal investment surveys; (iv) any fees charged by securities rating
services for rating the Securities and the Exchange Securities; (v) the cost of
preparing the Securities, the Guarantees, the Exchange Securities and the
Exchange Guarantees; (vi) the fees and expenses of the Trustee and any agent of
the Trustee in connection with the Indenture, the Securities and the Exchange
Securities; (vii) any cost incurred in connection with the designation of the
Securities for trading in PORTAL and (viii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the Purchaser
will pay all of its own costs and expenses, including the fees of its counsel,
transfer taxes on resale of any of the Securities by it, and any advertising
expenses connected with any offers it may make.
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7. The obligations of the Purchaser hereunder shall be
subject, in its discretion, to the condition that all representations and
warranties and other statements of the Company and the Guarantors herein are, at
and as of the Time of Delivery, true and correct, the condition that the Company
and the Guarantors shall have, performed all of their respective obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Purchaser, shall have
furnished to you such opinion or opinions, dated the Time of Delivery, with
respect to the matters covered in paragraph (vi), (viii), (x) and (xi) of
subsection (b) below and paragraphs (v), (vi) and (vii) of subsection (c) below
as well as such other related matters as you may reasonably request, and such
counsel shall received such papers and information as they may reasonably
request to enable them to pass such matters;
(b) Seyburn, Kahn, ▇▇▇▇, ▇▇▇▇ and ▇▇▇▇▇▇, P.C., counsel for
the Company, shall have furnished to you their written opinion, dated the Time
of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Michigan, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Offering Circular;
(ii) The Company has an authorized capitalization as
set forth in the Offering Circular, and all of the issued
shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and
non-assessable;
(iii) Each domestic subsidiary of the Company has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation; and all of the issued shares of
capital stock of each such subsidiary have been duly and
validly authorized and issued, are fully paid and
non-assessable, and (except for directors' qualifying shares
and except as otherwise set forth in the Offering Circular)
are owned directly or indirectly by the Company, and to the
best of such counsel's knowledge are free and clear of all
liens, encumbrances, equities or claims, except as disclosed
in the Offering Circular (such counsel being entitled to rely
in respect of the opinion in this clause in respect of matters
of fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that they
believe that both you and they are justified in relying upon
such certificates);
(iv) To the best of such counsel's knowledge and
other than as set forth in the Offering Circular, there are no
legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
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EXHIBIT 1
(v) This Agreement has been duly authorized, executed
and delivered by the Company and each of the Guarantors;
(vi) The Securities have been duly authorized,
executed, authenticated, issued and delivered by the Company;
(vii) The Exchange Securities have been authorized by
the Company;
(viii) The Guarantees have been duly authorized,
executed, authenticated, issued and delivered by the
Guarantors;
(ix) The Exchange Guarantees have been authorized by
the Guarantors;
(x) The Indenture has been duly authorized, executed
and delivered by the Company and the Guarantors;
(xi) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and the
Guarantors;
(xii) The issue and sale of the Securities and the
Guarantees and the compliance by the Company and the
Guarantors with all of the provisions of the Securities and
the Guarantees, the Indenture, the Registration Rights
Agreement and the Purchase Agreement and the consummation of
the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any
violation of the provisions of the Certificate of
Incorporation, Certificate of Formation, Partnership Agreement
or By-laws or other organizational document of the Company or
any of the Guarantors or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties;
(xiii) No consent, approval, authorization, order,
registration or qualification of or with any such court .or
governmental agency or body is required for the issue and sale
of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution
of the Securities by the Purchaser;
(xiv) Other than as described in the Offering
Circular, to such counsel's knowledge (i) neither the Company
nor any of its subsidiaries is in violation of any federal,
state or local statute, law, rule, regulation, ordinance,
code, published policy or rule of common law or any judicial
or administrative interpretation thereof, including any
published judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health
11
EXHIBIT 1
or the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface
strata) including, without limitation, laws and regulations
relating to the release or threatened release of chemicals,
pollutants, contaminants, non-sanitary wastes, toxic
substances, hazardous substances, petroleum or petroleum
products (collectively, "HAZARDOUS MATERIALS") or to the
manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous
Materials (collectively, "ENVIRONMENTAL LAWS") except where
such violation would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries
taken as a whole, (ii) the Company and its subsidiaries have
all material permits, authorizations and approvals required
under any applicable Environmental Laws and are each in
compliance with their requirements, (iii) there are no pending
or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings
relating to any Environmental Laws against the Company or any
of its subsidiaries and (iv) there are no events or
circumstances that might reasonably be expected to form the
basis of an order for clean-up or remediation, or an action,
suit or proceeding by any private party or governmental body
or agency against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or Environmental
Laws, except such orders, actions, suits or proceedings as
would not have a material adverse effect on the Company and
its subsidiaries taken as a whole;
(xv) Any U.S. real property and buildings held under
lease by the Company and its subsidiaries relating to its
manufacturing plants or corporate headquarters are held by
them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the
use made and proposed to be made of such property and
buildings by the Company and its subsidiaries (in giving the
opinion in this clause, such counsel may state that they are
giving such opinion based on Michigan law based on the
assumption that the laws governing the leases are the same as
the laws of the state of Michigan and they are relying in
respect of matters of fact, upon certificates of officers of
the Company or its subsidiaries, provided that such counsel
shall state that they believe that both you and they are
justified in relying upon such certificates); and
(xvi) Any and all documents filed by the Company with
the Commission under the Exchange Act (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they were
filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act, and the
rules and regulations of the Commission thereunder; and such
counsel has no reason to believe that any of such documents,
when they were so filed, contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading.
Such counsel shall also state that, in the course of preparing
the Offering Circular, they have considered the information
set forth therein, and have participated in conferences with
representatives and officers of the Company, including its
internal counsel and independent public accountants, during
the course of which the contents of the Offering Circular and
related matters were
12
EXHIBIT 1
discussed; that they have not independently checked the
accuracy or completeness of, or otherwise verified, and
accordingly are not passing upon, and do not assume
responsibility for, the accuracy, completeness or fairness of
the statements contained in the Offering Circular; that they
have relied as to factual matters upon the officers and
representatives of the Company; and that, as a result of such
consideration and participation, nothing has come to their
attention which causes them to believe that the Offering
Circular and any further amendments or supplements thereto
made by the Company prior to the Time of Delivery (other than
the financial statements, financial data and supporting
schedules therein, as to which such counsel need express no
opinion) contained as of its date or contains as of the Time
of Delivery an untrue statement of a material fact or omitted
or omits, as the case may be, to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) Mayer, Brown, ▇▇▇▇ & Maw, counsel for the Company, shall
have furnished to you their written opinion, dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) Assuming that the Securities have been duly
authorized, executed, authenticated, issued and delivered, and
duly paid for in accordance with the applicable provisions of
this Agreement, the Securities constitute valid and legally
binding obligations of the Company entitled to the benefits
provided by the Indenture, enforceable against the Company in
accordance with their terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally, (ii) laws or
underlying policies limiting rights of indemnity or
contribution and (iii) general principles of equity;
(ii) Assuming that the Guarantees have been duly
authorized, executed and delivered by all parties thereto, the
Guarantees to be delivered at the Time of Delivery constitute
valid and legally binding obligations of the Guarantors
entitled to the benefits provided by the Indenture,
enforceable against the Guarantors in accordance with their
terms, except to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to or affecting creditors' rights
generally, (ii) laws or underlying policies limiting rights of
indemnity or contribution and (iii) general principles of
equity;
(iii) Assuming that the Indenture has been duly
authorized, executed and delivered by all parties thereto, the
Indenture constitutes a valid and legally binding instrument,
enforceable against the Company and the Guarantors in
accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally, (ii) laws or
underlying policies limiting rights of indemnity or
contribution and (iii) general equity principles;
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EXHIBIT 1
(iv) Assuming that the Registration Rights Agreement
has been duly authorized, executed and delivered by all
parties thereto, the Registration Rights Agreement is a valid
and legally binding agreement of the Company and each
Guarantor, enforceable against the Company and each Guarantor
in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or other similar laws now or hereafter in effect relating to
or affecting creditors' rights generally, (ii) laws or
underlying policies limiting rights of indemnity or
contribution and (iii) general principles of equity;
(v) The statements set forth in the Offering Circular
(i) under the caption "Description of Notes" insofar as they
purport to constitute a summary of the terms of the
Securities, under the caption "Certain United States Federal
Tax Consequences," and under the caption "Plan of
Distribution," insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate and complete in all material respects;
(vi) The Securities, the Guarantees and the Indenture
conform to the descriptions thereof in the Offering Circular
in all material requests;
(vii) Assuming the accuracy of the representations,
warranties and agreements of the Purchaser contained herein,
no registration of the Securities under the Securities Act, is
required for the offer, sale and initial resale of the
Securities by the Purchaser in the manner contemplated by this
Agreement and the Offering Circular; and
(viii) The Company is not an "investment company", as
such term is defined in the Investment Company Act.
(d) Trench, Rossi and Wantanabe, special Brazilian counsel to
the Company, shall have furnished to you their written opinion, dated the Time
of Delivery, in form and substance satisfactory to you, to the effect that:
(i) Each Brazilian subsidiary of the Company has been
duly organized and is validly existing as a corporation,
limited liability company or limitada in good standing under
the laws of its jurisdiction of incorporation; and all of the
issued equity interests of each such subsidiary have been duly
and validly authorized and issued, are fully paid and
non-assessable, and are owned directly or indirectly by the
Company, and to the best of such counsel's knowledge are free
and clear-of all liens, encumbrances, equities or claims,
except as disclosed in the Offering Circular (such counsel
being entitled to rely in respect of the opinion in this
clause in respect of matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that
such counsel shall state that they believe that both you and
they are justified in relying upon such certificates); and
(ii) The City of Paulinia duly authorized the
donation of, and the indefinite right to use, the land on
which Plastipak do Brasil's Paulinia facility is built;
however, transfer of title of the land to Plastipak do Brasil
is pending the resolution of an outstanding tax issue between
the City of Paulinia and the Brazilian federal government.
14
EXHIBIT 1
(e) The Company shall engage special Argentinean counsel who
shall have furnished to you their written opinion, dated the Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) The Company's Argentinean subsidiary has been
duly incorporated and is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock
of each such subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable, and are owned
directly or indirectly by the Company, and to the best of such
counsel's knowledge are free and clear of all liens,
encumbrances, equities or claims, except as disclosed in the
Offering Circular (such counsel being entitled to rely in
respect of the opinion in this clause in respect of matters of
fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that they
believe that both you and they are justified in relying upon
such certificates).
(f) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, general counsel of the Company, shall
have furnished to you her written opinion, dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material
liability or disability by reason of the failure to be so
qualified in any such jurisdiction (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company, provided that
such counsel shall state that they believe that both you and
they are justified in relying upon such opinions and
certificates);
(ii) The Company and its subsidiaries have adequate
title insurance on all U.S. real property owned by them;
(iii) Neither the Company nor any of its subsidiaries
is in violation of its Certificate of Incorporation,
Certificate of Formation, Partnership Agreement or By-laws or
other organizational documents or, to her knowledge, is in
default in the performance or observance of any material
obligation, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it
or any of its properties may be bound which default would have
a material adverse effect on the Company and its subsidiaries
taken as a whole; and
(iv) The Company-and its subsidiaries own or possess,
or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "INTELLECTUAL PROPERTY")
necessary to carry on the business now operated by them, and
neither the Company nor any of its subsidiaries has received
any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts
15
EXHIBIT 1
or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company
or any of its subsidiaries therein, except for a lawsuit filed
by North American Container, Inc. for alleged infringement of
U.S. Patent No. 5,072,841 as disclosed in the Offering
Circular under the caption "Legal Proceedings" or such
infringements, conflicts, facts or circumstances which would
not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
Such counsel shall also state that, in the course of preparing
the Offering Circular, she has considered the information set
forth therein, and has participated in conferences with other
representatives and other officers of the Company, as well as
its independent public accountants, during the course of which
the contents of the Offering Circular and related matters were
discussed; and that, as a result of such consideration and
participation, nothing has come to her attention which causes
her to believe that the Offering Circular and any further
amendments or supplements thereto made by the Company prior to
the Time of Delivery (other than the financial statements,
financial data and supporting schedules therein, as to which
such counsel need express no opinion) contained as of its date
or contains as of the Time of Delivery an untrue statement of
a material fact or omitted or omits, as the case may be, to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(g) On the date of the Offering Circular and also at the Time
of Delivery, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall have furnished to you a letter or letters,
dated the date of the Offering Circular and the Time of Delivery, in form and
substance satisfactory to you;
(h) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included in the Offering Circular any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Offering Circular,
and (ii) since the respective dates as of which information is given in the
Offering Circular there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in
the Offering Circular, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of the Purchaser so material and adverse as to
make it impracticable or inadvisable to proceed with the offering or the
delivery of the Securities on the terms and in the manner contemplated in this
Agreement and in the Offering Circular;
(i) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no
such organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities;
(j) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on the New
16
EXHIBIT 1
York Stock Exchange or the Nasdaq National Market; (ii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities; (iii) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or
war, if the effect of any such event specified in this clause (iii) in the
judgment of the Purchaser makes it impracticable or inadvisable to proceed with
the offering or the delivery of the Securities on the terms and in the manner
contemplated in the Offering Circular; or (iv) the occurrence of any material
adverse change in the existing financial political or economic conditions in the
United States or elsewhere which, in the judgment of the Purchaser, would
materially and adversely affect the financial markets, or the markets for the
Securities and other debt securities;
(k) The Securities have been designated for trading on PORTAL;
and
(l) The Company shall have furnished or caused to be furnished
to you at the Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the performance by
the Company of all of its obligations hereunder to be performed at or prior to
such Time of Delivery, as to the matters set forth in subsections (g) and (h) of
this Section and as to such other matters as you may reasonably request.
8. (a) The Company and each Guarantor will, jointly and
severally, indemnify and hold harmless the Purchaser against any losses, claims,
damages or liabilities, joint or several, to which the Purchaser may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Offering Circular, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact necessary to make the statements therein not misleading, and
will reimburse the Purchaser for any legal or other expenses reasonably incurred
by the Purchaser in connection with investigating or defending any such action
or claim as such expenses are incurred; provided, however, that neither the
Company nor any Guarantor shall be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Offering Circular or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by the
Purchaser expressly for use therein.
(b) The Purchaser will indemnify and hold harmless the Company
and the Guarantors against any losses, claims, damages or liabilities to which
the Company and any Guarantor may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Offering Circular, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Offering Circular or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by the Purchaser expressly for use therein; and will reimburse
the Company and the Guarantors for any legal or other expenses reasonably
incurred by the Company and the Guarantors in connection with investigating or
defending any such action or claim as such expenses are incurred.
17
EXHIBIT 1
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors on the one hand and
the Purchaser on the other from the offering of the Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Guarantors on the one hand and the Purchaser on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Guarantors on the one hand and the Purchaser on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company and the Guarantors
bear to the total underwriting discounts and commissions received by the
Purchaser, in each case as set forth in the Offering Circular. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
and the Guarantors on the one hand or the Purchaser on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Guarantors and
the Purchaser agree that it would not be just and equitable if contribution
pursuant to this subsection (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 above in this subsection
18
EXHIBIT 1
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), the Purchaser shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to investors were offered to
investors exceeds the amount of any damages which the Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
(e) The obligations of the Company and the Guarantors under
this Section 8 shall be in addition to any liability which the Company and the
Guarantors may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Purchaser within the
meaning of the Securities Act; and the obligations of the Purchaser under this
Section 8 shall be in addition to any liability which the Purchaser may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company or any Guarantor and to each person, if any,
who controls the Company or any Guarantor within the meaning of the Securities
Act.
9. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Guarantors and the
Purchaser, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of the Purchaser or any controlling person of the
Purchaser, or the Company, the Guarantors or any officer or director or
controlling person of the Company or a Guarantor, and shall survive delivery of
and payment for the Securities.
10. If for any reason the Securities (including the Guarantees
with respect thereto) are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Purchaser for all out-of-pocket
expenses, including fees and disbursements of counsel, reasonably incurred by
the Purchaser in making preparations for the purchase, sale and delivery of the
Securities, but the Company shall then be under no further liability to the
Purchaser except as provided in Sections 6 and 8 hereof.
11. All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Purchaser shall be delivered or sent by mail,
telex or facsimile transmission to you at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Registration Department; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Offering Circular, Attention: Secretary. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
12. This Agreement shall be binding upon, and inure solely to
the benefit of, the Purchaser, the Company, the Guarantors and, to the extent
provided in Sections 8 and 9 hereof, the officers and directors of the Company
and the Guarantors and each person who controls the Company, any Guarantor or
the Purchaser, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Securities from the
Purchaser shall be deemed a successor or assign by reason merely of such
purchase.
13. Time shall be of the essence of this Agreement.
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EXHIBIT 1
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such respective counterparts shall together constitute
one and the same instrument.
16. The Company is authorized, subject to applicable law, to
disclose any and all aspects of this potential transaction that are necessary to
support any U.S. federal income tax benefits expected to be claimed with respect
to such transaction, without the Purchaser imposing any limitation of any kind.
17. If the foregoing is in accordance with your understanding,
please sign and return to us counterparts hereof, and upon the acceptance hereof
by you, this letter and such acceptance hereof shall constitute a binding
agreement between the Purchaser and the Company.
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EXHIBIT 1
Very truly yours,
Issuer:
PLASTIPAK HOLDINGS, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title Vice President and Chief
Financial Officer
Guarantors:
WHITELINE EXPRESS, LTD.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title Vice President and Chief
Financial Officer
CLEAN TECH, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title Vice President and Chief
Financial Officer
PLASTIPAK PACKAGING, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title Vice President and Chief
Financial Officer
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EXHIBIT 1
▇▇▇▇ REALTY, LLC
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title Authorized Representative
Accepted as of the date hereof:
▇▇▇▇▇▇▇, SACHS & CO.
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
-----------------------------------------------
(▇▇▇▇▇▇▇ Sachs & Co.)
22
EXHIBIT 1
SCHEDULE I
Whiteline Express, Ltd.
Clean Tech, Inc.
Plastipak Packaging, Inc.
▇▇▇▇ Realty, LLC
23
