Exhibit
4.1


 


PURCHASE AGREEMENT


 


February 26, 2010


 


BANC
OF AMERICA SECURITIES LLC


     As
Representative of the Initial Purchasers

c/o Banc of America Securities LLC

One Bryant Park

New York, New York  10036


 


Ladies and Gentlemen:


 


Introductory.  Oshkosh Corporation,
a Wisconsin corporation (the “Company”), proposes
to issue and sell to the several Initial Purchasers named in Schedule A (the “Initial Purchasers”), acting severally and not jointly, the
respective amounts set forth in such Schedule A of $250,000,000 aggregate
principal amount of the Company’s 81⁄4% 
Senior Notes due 2017 (the “Notes due 2017”)
and $250,000,000 aggregate principal amount of the Company’s 81⁄2% Senior Notes
due 2020 (the “Notes due 2020” and, together with
the Notes due 2017, the “Notes”).  Banc of America Securities LLC has agreed to
act as the representative of the several Initial Purchasers (the “Representative”) in connection with the offering and sale of
the Notes.


 


The Securities (as defined below) will be issued
pursuant to an indenture, to be dated as of March 3, 2010 (the “Indenture”), among the Company, the Guarantors (as defined
below) and Wells Fargo Bank, National Association, as trustee (the “Trustee”).  Notes will
be issued only in book-entry form in the name of Cede & Co., as
nominee of The Depository Trust Company (the “Depositary”)
pursuant to a letter of representations, to be dated on or before the Closing
Date (as defined in Section 2 hereof) (the “DTC
Agreement”), among the Company, the Trustee and the Depositary.


 


The holders of the Notes will be entitled to the
benefits of a registration rights agreement, to be dated as of March 3,
2010 (the “Registration Rights Agreement”),
among the Company, the Guarantors and the Initial Purchasers, pursuant to which
the Company and the Guarantors may be required to file with the Commission (as
defined below), under the circumstances set forth therein, (i) a
registration statement under the Securities Act (as defined below) relating to
another series of debt securities of the Company with terms substantially
identical to the Notes (the “Exchange Notes”)
to be offered in exchange for the Notes (the “Exchange
Offer”) and (ii) a shelf registration statement pursuant to Rule 415
of the Securities Act relating to the resale by certain holders of the Notes,
and in each case, to use its commercially reasonable efforts to cause such
registration statements to be declared effective.  All references herein to the Exchange Notes
and the Exchange Offer are only applicable if the Company and the Guarantors
are in fact required to consummate the Exchange Offer pursuant to the terms of
the Registration Rights Agreement.


 


The payment of principal of, premium, if any, and
interest on the Notes will be fully and unconditionally guaranteed on a senior
unsecured basis, jointly and severally by (i) the entities listed on the
signature pages hereof as “Guarantors” in accordance with the terms of the
Indenture


 

















 


and (ii) any subsidiary
of the Company formed or acquired after the Closing Date that executes an
additional guarantee in accordance with the terms of the Indenture, and their
respective successors and assigns (collectively, the “Guarantors”),
pursuant to their guarantees (the “Guarantees”).  The Notes and the Guarantees related thereto
are herein collectively referred to as the “Securities”;
and the Exchange Notes and the Guarantees related thereto are herein collectively
referred to as the “Exchange Securities.”


 


The Company understands that the Initial Purchasers
propose to make an offering of the Securities on the terms and in the manner
set forth herein and in the Pricing Disclosure Package (as defined below) and
agrees that the Initial Purchasers may resell, subject to the conditions set
forth herein, all or a portion of the Securities to purchasers (the “Subsequent Purchasers”) on the terms set forth in the
Pricing Disclosure Package (the first time when sales of the Securities are
made is referred to as the “Time of Sale”).  The Securities are to be offered and sold to
or through the Initial Purchasers without being registered with the Securities
and Exchange Commission (the “Commission”)
under the Securities Act of 1933 (as amended, the “Securities
Act,” which term, as used herein, includes the rules and
regulations of the Commission promulgated thereunder), in reliance upon
exemptions therefrom.  Pursuant to the
terms of the Securities and the Indenture, investors who acquire Securities
shall be deemed to have agreed that Securities may only be resold or otherwise
transferred, after the date hereof, if such Securities are registered for sale
under the Securities Act or if an exemption from the registration requirements
of the Securities Act is available (including the exemptions afforded by Rule 144A
under the Securities Act (“Rule 144A”)
or Regulation S under the Securities Act (“Regulation S”)).


 


The Company has prepared and delivered to each
Initial Purchaser copies of a Preliminary Offering Memorandum, dated February 22,
2010 (the “Preliminary Offering Memorandum”),
and has prepared and delivered to each Initial Purchaser copies of a Pricing
Supplement, dated February 26, 2010 (the “Pricing
Supplement”), describing the terms of the Securities, each for use
by such Initial Purchaser in connection with its solicitation of offers to
purchase the Securities.  The Preliminary
Offering Memorandum and the Pricing Supplement are herein referred to as the “Pricing Disclosure Package.” 
Promptly after this Agreement is executed and delivered, the Company
will prepare and deliver to each Initial Purchaser a final offering memorandum
dated the date hereof (the “Final Offering Memorandum”).


 


All references herein to the terms “Pricing Disclosure Package” and “Final
Offering Memorandum” shall be deemed to mean and include all
information filed under the Securities Exchange Act of 1934 (as amended, the “Exchange Act,” which term, as used herein, includes the rules and
regulations of the Commission promulgated thereunder) prior to the Time of Sale
and incorporated by reference in the Pricing Disclosure Package (including the
Preliminary Offering Memorandum) or the Final Offering Memorandum (as the case
may be), and all references herein to the terms “amend,”
“amendment” or “supplement”
with respect to the Final Offering Memorandum shall be deemed to mean and
include all information filed under the Exchange Act after the Time of Sale and
incorporated by reference in the Final Offering Memorandum.


 


The Company hereby confirms its agreements with the
Initial Purchasers as follows:


 


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SECTION 1.           Representations and
Warranties.  Each of the
Company and each Guarantor, jointly and severally, hereby represents, warrants
and covenants to each Initial Purchaser that, as of the date hereof and as of
the Closing Date (references in this Section 1 to the “Offering Memorandum” are to (x) the Pricing Disclosure
Package in the case of representations and warranties made as of the date
hereof and (y) the Final Offering Memorandum in the case of representations
and warranties made as of the Closing Date):


 


(a)           No Registration Required.  Subject to compliance by the Initial Purchasers
with the representations and warranties set forth in Section 2 hereof and
with the procedures set forth in Section 7 hereof, it is not necessary in
connection with the offer, sale and delivery of the Securities to the Initial
Purchasers and to each Subsequent Purchaser in the manner contemplated by this
Agreement and the Offering Memorandum to register the Securities under the
Securities Act or, until such time as the Exchange Securities are issued
pursuant to an effective registration statement, to qualify the Indenture under
the Trust Indenture Act of 1939 (the “Trust Indenture Act,”
which term, as used herein, includes the rules and regulations of the
Commission promulgated thereunder).


 


(b)           No Integration of
Offerings or General Solicitation. 
None of the Company, its affiliates (as such term is defined in Rule 501
under the Securities Act) (each, an “Affiliate”), or
any person acting on its or any of their behalf (other than the Initial Purchasers
and their Affiliates, as to whom the Company and the Guarantors make no representation
or warranty) has, directly or indirectly, solicited any offer to buy or offered
to sell, or will, directly or indirectly, solicit any offer to buy or offer to
sell, in the United States or to any United States citizen or resident, any
security which is or would be integrated with the sale of the Securities in a
manner that would require the Securities to be registered under the Securities
Act.  None of the Company, its
Affiliates, or any person acting on its or any of their behalf (other than the
Initial Purchasers and their Affiliates, as to whom the Company and the
Guarantors make no representation or warranty) has engaged or will engage, in
connection with the offering of the Securities, in any form of general
solicitation or general advertising within the meaning of Rule 502 under
the Securities Act.  With respect to
those Securities sold in reliance upon Regulation S, (i) none of the
Company, its Affiliates or any person acting on its or their behalf (other than
the Initial Purchasers and their Affiliates, as to whom the Company and the
Guarantors make no representation or warranty) has engaged or will engage in
any directed selling efforts within the meaning of Regulation S and (ii) each
of the Company and its Affiliates and any person acting on its or their behalf
(other than the Initial Purchasers and their Affiliates, as to whom the Company
and the Guarantors make no representation or warranty) has complied and will
comply with the offering restrictions set forth in Regulation S.


 


(c)           Eligibility for Resale
under Rule 144A.  The
Securities are eligible for resale pursuant to Rule 144A and will not be,
at the Closing Date, of the same class as securities listed on a national
securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated interdealer quotation system.


 


(d)           The Pricing Disclosure
Package and Offering Memorandum.  Neither the Pricing Disclosure Package, as of
the Time of Sale, nor the Final Offering Memorandum,


 


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as
of its date or (as amended or supplemented in accordance with Section 3(a),
as applicable) as of the Closing Date, contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that this representation, warranty and agreement
shall not apply to statements in or omissions from the Pricing Disclosure
Package, the Final Offering Memorandum or any amendment or supplement thereto
made in reliance upon and in conformity with information furnished to the
Company in writing by or on behalf of any Initial Purchaser through the
Representative expressly for use in the Pricing Disclosure Package, the Final
Offering Memorandum or amendment or supplement thereto, as the case may
be.  The Pricing Disclosure Package
contains, and the Final Offering Memorandum will contain, all the information
specified in, and meeting the requirements of, Rule 144A.  The Company has not distributed and will not
distribute, prior to the later of the Closing Date and the completion of the
Initial Purchasers’ distribution of the Securities, any offering material in
connection with the offering and sale of the Securities other than the Pricing
Disclosure Package and the Final Offering Memorandum.


 


(e)           Company Additional Written
Communications.  The Company
has not prepared, made, used, authorized, approved or distributed and will not
prepare, make, use, authorize, approve or distribute any written communication
that constitutes an offer to sell or solicitation of an offer to buy the
Securities other than (i) the Pricing Disclosure Package, (ii) the
Final Offering Memorandum and (iii) any electronic road show or other
written communications, in each case used in accordance with Section 3(a).  Each communication by the Company or its
agents and representatives pursuant to clause (iii) of the preceding
sentence (each, a “Company Additional Written
Communication”), when taken together with the Pricing Disclosure
Package, did not as of the Time of Sale, and at the Closing Date will not,
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that this
representation, warranty and agreement shall not apply to statements in or
omissions from each such Company Additional Written Communication made in
reliance upon and in conformity with information furnished to the Company in
writing by or on behalf of any Initial Purchaser through the Representative expressly
for use in any Company Additional Written Communication.


 


(f)            Incorporated Documents.  The documents incorporated or deemed to be
incorporated by reference in the Offering Memorandum at the time they were or
hereafter are filed with the Commission (collectively, the “Incorporated Documents”) complied and will comply in all
material respects with the requirements of the Exchange Act.  Each such Incorporated Document, when taken
together with the Pricing Disclosure Package, did not as of the Time of Sale,
and at the Closing Date will not, contain any 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.


 


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(g)           Financial Statements.  The financial statements (including the
related notes thereto) of the Company and its consolidated subsidiaries
included or incorporated by reference in the Offering Memorandum comply in all
material respects with the applicable requirements of the Securities Act and
the Exchange Act, as applicable, other than the absence of a note therein
containing financial information regarding the Guarantors, and present fairly,
in all material respects, the financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods specified; such
financial statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent basis
throughout the periods covered thereby, and any supporting schedules included
or incorporated by reference in the Offering Memorandum present fairly, in all
material respects, the information required to be stated therein; and the other
financial information included or incorporated by reference in the Offering
Memorandum has been derived from the accounting records of the Company and its
consolidated subsidiaries and presents fairly, in all material respects, the
information shown thereby.


 


(h)           No Material Adverse
Change.  Since the date of the
most recent financial statements of the Company included or incorporated by
reference in the Offering Memorandum, (i) there has not been any change in
the capital stock (other than the issuance of shares of common stock of the
Company upon exercise of stock options and warrants or vesting of awards
described as outstanding in, and the grant of options and awards under existing
equity incentive plans described in, the Offering Memorandum), any material
change in the short-term debt or long-term debt of the Company or any of its
subsidiaries, or any dividend or distribution of any kind declared, set aside
for payment, paid or made by the Company on any class of capital stock, or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties, financial position or
results of operations of the Company and its subsidiaries taken as a whole; (ii) neither
the Company nor any of its subsidiaries has entered into any transaction or
agreement (whether or not in the ordinary course of business) that is material
to the Company and its subsidiaries taken as a whole or incurred any liability
or obligation, direct or contingent, that is material to the Company and its
subsidiaries taken as a whole; and (iii) neither the Company nor any of
its subsidiaries has sustained any loss or interference with its business that
is material to the Company and its subsidiaries taken as a whole and that is
either from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor disturbance or dispute or any action, order or
decree of any court or arbitrator or governmental or regulatory authority,
except in each case of clauses (i), (ii) and (iii) as otherwise
disclosed in the Offering Memorandum (exclusive of any amendment or supplement
thereto).  For purposes of this
Agreement, any event or condition described in clause (i), (ii) or (iii) shall
be referred to as a “Material Adverse Change.”


 


(i)            Organization and Good
Standing.  The Company, each
of the Guarantors and each of the Significant Subsidiaries (as defined below)
have been duly organized and are validly existing and in good standing under
the laws of their respective jurisdictions of organization, are duly qualified
to do business and are in good standing in each 


 


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jurisdiction
in which their respective ownership or lease of property or the conduct of
their respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged, except where the failure to be so
qualified or in good standing or have such power or authority would not,
individually or in the aggregate, have a material adverse effect on the
business, properties, financial position, results of operations or business
prospects of the Company and its subsidiaries taken as a whole or on the performance
by the Company and the Guarantors, as applicable, of their obligations under
this Agreement, the Registration Rights Agreement, the DTC Agreement, the Securities,
the Exchange Securities and the Indenture (a “Material
Adverse Effect”).  The Company
does not own or control, directly or indirectly, any corporation, association
or other entity other than the subsidiaries listed in Exhibit 21 to the
Company’s Annual Report on Form 10-K for the fiscal year ended September 30,
2009.  The subsidiaries listed in
Schedule B to this Agreement (the “Significant Subsidiaries”)
are the only significant subsidiaries of the Company.


 


(j)            Capitalization.  All the outstanding shares of capital stock
or other equity interests of each Guarantor and of each Significant Subsidiary
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company, free and
clear of any lien, charge, encumbrance, security interest, restriction on
voting or transfer or any other claim of any third party, except as may secure
the obligations of the Company under the Credit Agreement, dated December 6,
2006, as amended, among the Company, the financial institutions party thereto
and Bank of America, N.A. (the “Credit Agreement”).


 


(k)           Stock Options.  With respect to the stock options (the “Stock Options”) granted pursuant to the stock-based
compensation plans of the Company (the “Company Stock Plans”),
(i) each Stock Option intended to qualify as an “incentive stock option”
under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”) so qualifies, (ii) each grant of a Stock Option
was duly authorized no later than the date on which the grant of such Stock
Option was by its terms to be effective (the “Grant Date”)
by all necessary corporate action, including, as applicable, approval by the
Board of Directors of the Company (or a duly constituted and authorized
committee thereof) and any required shareholder approval by the necessary
number of votes or written consents, and the award agreement governing such
grant (if any) was duly executed and delivered by each party thereto, (iii) each
such grant was made in accordance with the terms of the Company Stock Plans,
the Exchange Act and all other applicable laws and regulatory rules or
requirements, including the rules of the New York Stock Exchange (the “NYSE”) and any other exchange on which Company securities
are traded, and (iv) each such grant was properly accounted for in
accordance with generally accepted accounting principles in the United States
in the financial statements (including the related notes) of the Company and
disclosed in the Company’s filings with the Commission in accordance with the
Exchange Act and all other applicable laws. 
The Company has not knowingly granted, and there is no and has been no
policy or practice of the Company of granting, Stock Options prior to, or
otherwise coordinating the grant of Stock Options with, the


 


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release
or other public announcement of material information regarding the Company or
its subsidiaries or their results of operations or prospects.


 


(l)            Due Authorization.  Each of the Company and each Guarantor, as
applicable, has full right, power and authority to execute and deliver this
Agreement, the Registration Rights Agreement, the DTC Agreement, the
Securities, the Exchange Securities and the Indenture and to perform its obligations
hereunder and thereunder; and all action required to be taken for the due and
proper authorization, execution and delivery by it of this Agreement, the
Registration Rights Agreement, the DTC Agreement, the Securities, the Exchange
Securities and the Indenture and the consummation by it of the transactions
contemplated hereby and thereby has been duly and validly taken.


 


(m)          The Purchase Agreement.  This Agreement has been duly authorized,
executed and delivered by the Company and the Guarantors.


 


(n)           The Registration Rights
Agreement and DTC Agreement. 
The Registration Rights Agreement has been duly authorized and, on the
Closing Date, will have been duly executed and delivered by the Company and the
Guarantors and (assuming due execution and delivery by the other parties
thereto) will constitute a valid and binding agreement of the Company and the
Guarantors, enforceable against the Company and the Guarantors in accordance
with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles and except as rights to indemnification may be limited by applicable
law.  The DTC Agreement has been duly
authorized and, on the Closing Date, will have been duly executed and delivered
by the Company and the Guarantors and (assuming due execution and delivery by
the other parties thereto) will constitute a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles.


 


(o)           Authorization of the
Notes, the Guarantees and the Exchange Notes.  The Notes to be purchased by the Initial
Purchasers from the Company will, on the Closing Date, be in the form
contemplated by the Indenture, have been duly authorized by the Company for
issuance and sale pursuant to this Agreement and the Indenture, will have been
duly executed by the Company and (assuming the due authentication thereof by
the Trustee in the manner provided for in the Indenture and delivery against
payment of the purchase price therefor) will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles and will be entitled to the benefits of the Indenture.  The Exchange Notes, if any, have been duly
and validly authorized for issuance by the Company and, when issued, executed
and authenticated in accordance with the terms of the Indenture, the
Registration Rights Agreement and the Exchange Offer, will constitute valid and



 


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binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium, or similar laws relating to or affecting
enforcement of the rights and remedies of creditors or by general equitable
principles and will be entitled to the benefits of the Indenture.  The Guarantees of the Notes on the Closing
Date and the Guarantees of the Exchange Notes, if any, when issued will be in
the respective forms contemplated by the Indenture and have been duly
authorized by each of the Guarantors for issuance pursuant to this Agreement
and the Indenture; the Guarantees of the Notes, at the Closing Date will have
been duly executed and delivered by Guarantors and, when the Notes have been
executed and authenticated in the manner provided for in the Indenture and
issued and delivered against payment of the purchase price therefor, will constitute
valid and binding agreements of the Guarantors; and the Guarantees of the
Exchange Notes, if any, when such Guarantees have been executed and delivered
by the Guarantors and the Exchange Notes, if any, have been executed and
authenticated in the manner provided for in the Indenture and issued and
delivered in accordance with the Registration Rights Agreement, will constitute
valid and binding agreements of the Guarantors, in each case, enforceable
against the Guarantors in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles and will be entitled
to the benefits of the Indenture.


 


(p)           Authorization of the
Indenture.  The Indenture has
been duly authorized by the Company and the Guarantors and, on the Closing
Date, will have been duly executed and delivered by the Company and the
Guarantors and (assuming due execution and delivery by the Trustee) will constitute
a valid and binding agreement of the Company and the Guarantors, enforceable
against the Company and the Guarantors in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles.


 


(q)           Description of the
Securities and the Indenture. 
The Securities, the Exchange Securities and the Indenture will conform
in all material respects to the respective statements relating thereto
contained in the Offering Memorandum.


 


(r)            No Violation or Default.  None of the Company, the Guarantors or any of
the Significant Subsidiaries is in violation of its charter or by-laws or similar
organizational documents.  Neither the
Company nor any of its subsidiaries is (i) in default, and no event has
occurred that, with notice or lapse of time or both, would constitute such a
default (“Default”), in the due performance or
observance of any term, covenant or condition contained in 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 (each, an “Existing Instrument”); or (ii) in violation of any law
or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of 


 


8

















 


clauses
(i) and (ii) above, for any such default or violation that would not,
individually or in the aggregate, have a Material Adverse Effect.


 


(s)           No Conflicts.  The execution, delivery and performance by
the Company and the Guarantors, as applicable, of this Agreement, the
Registration Rights Agreement, the DTC Agreement and the Indenture, the
issuance and sale of the Securities and the Exchange Securities and the
consummation of the transactions contemplated hereby and thereby will not (i) conflict
with or result in a breach or violation of any of the terms or provisions of,
or constitute a Default or, except for the requirement set forth in the Credit
Agreement that the net proceeds from the issuance and sale of the Notes be used
to repay outstanding indebtedness under the Credit Agreement, a Debt Repayment
Triggering Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, any Existing Instrument, (ii) result
in any violation of the provisions of the charter or by-laws or similar
organizational documents of the Company or any of its subsidiaries or (iii) result
in the violation of any law or statute or any judgment, order, rule  or
regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (i) and (iii) above, for any such
conflict, breach, violation, Default, Debt Repayment Triggering Event, lien,
charge or encumbrance that would not, individually or in the aggregate, have a
Material Adverse Effect.  As used herein,
a “Debt Repayment Triggering Event” means
any event or condition which gives, or with the giving of notice or lapse of
time would give, the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder’s behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.


 


(t)            No Consents Required.  No consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental or
regulatory authority is required for the execution, delivery and performance by
the Company and the Guarantors, as applicable, of this Agreement, the
Registration Rights Agreement, the DTC Agreement or the Indenture, the issuance
and sale of the Securities and the Exchange Securities and the consummation of
the transactions contemplated hereby and thereby, except for such consents,
approvals, authorizations, orders and registrations or qualifications as may be
required (i) by the Financial Industry Regulatory Authority, Inc. (“FINRA”) and under applicable state and foreign securities
laws in connection with the offering and sale of the Securities by the Initial
Purchasers, (ii) under the Securities Act and applicable state and foreign
securities laws with respect to the Company’s and the Guarantors’ obligations
under the Registration Rights Agreement and (iii) under the Trust
Indenture Act with respect to the Indenture upon the issuance of the Exchange
Securities.


 


(u)           Legal Proceedings.  Except as described in the Offering
Memorandum, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of its
subsidiaries is the subject that, individually or in the aggregate, if
determined adversely to the Company or any of its subsidiaries, would reasonably
be expected to have a Material Adverse Effect; no such investigations, actions,



 


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suits
or proceedings are, to the knowledge of the Company, threatened by any governmental
or regulatory authority or threatened by others; and (i) there are no
current or pending legal, governmental or regulatory actions, suits or
proceedings that would be required under the Exchange Act to be described in an
Annual Report on Form 10-K that are not so described in the Offering
Memorandum and (ii) there are no statutes, regulations or contracts or
other documents that would be required under the Exchange Act to be described
in Annual Report on Form 10-K that are not so described in the Offering
Memorandum.


 


(v)           Independent Accountants.  Deloitte & Touche LLP, who have
audited certain financial statements of the Company and its consolidated
subsidiaries, is an independent registered public accounting firm with respect
to the Company and its consolidated subsidiaries within the applicable rules and
regulations adopted by the Commission and the Public Company Accounting
Oversight Board (United States).


 


(w)          Title to Real and Personal
Property.  The Company and its
subsidiaries have good and marketable title in fee simple (in the case of owned
real property) to, or have valid and marketable rights to lease or otherwise
use, all items of real and personal property and assets that are material to
the business of the Company and its subsidiaries taken as a whole, in each case
free and clear of all liens, encumbrances, claims and defects and imperfections
of title except those that (i) do not materially interfere with the use
made of such property by the Company and its subsidiaries, (ii) secure the
obligations of the Company under the Credit Agreement or (iii) would not
reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.


 


(x)            Title to Intellectual
Property.  The Company and its
subsidiaries own, possess or license adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures) necessary for the conduct
of their respective businesses as currently conducted, except as would not
reasonably be expected to have a Material Adverse Effect, and to the knowledge
of the Company, the conduct of their respective businesses will not conflict in
any material respect with any such valid rights of others. To the knowledge of
the Company, the Company and its subsidiaries have not received any written
notice of any claim of infringement, misappropriation or conflict with any such
valid rights of others in connection with its patents, patent rights, licenses,
inventions, trademarks, service marks, trade names, copyrights and know-how
that would reasonably be expected to have a Material Adverse Effect.


 


(y)           No Undisclosed
Relationships.  No
relationship, direct or indirect, exists between or among the Company or any of
its subsidiaries, on the one hand, and the directors, officers or stockholders
of the Company or the customers or suppliers of the Company or any of its
subsidiaries, on the other, that would be required by the Exchange Act to be
described in an Annual Report on Form 10-K and that is not so described in
the Offering Memorandum.


 


10
















 


(z)            Investment Company Act.  Neither the Company nor any Guarantor is or,
after giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Offering Memorandum,
will be required to register as an “investment company” or an entity “controlled”
by an “investment company” within the meaning of the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Investment Company Act”).


 


(aa)         Taxes.  The Company and its subsidiaries have paid
all federal, state, local and foreign taxes (other than those taxes which are
being contested in good faith or which, if not paid, would not reasonably be
expected to have a Material Adverse Effect) and filed all material tax returns
(except in any case in which the failure to so file would not reasonably be
expected to have a Material Adverse Effect) required to be paid or filed
through the date hereof; and except as otherwise disclosed in the Offering Memorandum,
there is no tax deficiency that has been asserted against the Company or any of
its subsidiaries or any of their respective properties or assets, except for
such tax deficiencies that would not reasonably be expected to have a Material
Adverse Effect.


 


(bb)         Licenses and Permits.  The Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local
or foreign governmental or regulatory authorities that are reasonably necessary
for the ownership or lease of their respective properties or the conduct of
their respective businesses as described in the Offering Memorandum, except
where the failure to possess or make the same would not, individually or in the
aggregate, have a Material Adverse Effect; and except as described in the
Offering Memorandum, neither the Company nor any of its subsidiaries has
received notice of any revocation or modification of any such license, certificate,
permit or authorization, except such revocations or modifications that would
not, individually or in the aggregate have a Material Adverse Effect.


 


(cc)         No Labor Disputes.  No labor disturbance by or dispute with
employees of the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is threatened, except as would not have a Material Adverse
Effect.


 


(dd)         Compliance with and
Liability under Environmental Laws. 
Except as disclosed in the Offering Memorandum, (i) the Company and
its subsidiaries (a) are, and at all prior times were, in compliance with
all applicable federal, state, local and foreign laws, rules, regulations,
requirements, decisions, judgments, decrees, orders and the common law relating
to pollution or the protection of the environment, natural resources or human
health or safety, including those relating to hazardous or toxic substances or
wastes, pollutants or contaminants (collectively, “Environmental
Laws”), (b) have received and are in compliance with all
permits, licenses, certificates or other authorizations or approvals required
of them under applicable Environmental Laws to conduct their respective
businesses as currently conducted, (c) have not received notice of any actual
or potential liability under or relating to, or actual violation of, any
Environmental Laws, including for the investigation or remediation of any
release of hazardous or toxic 


 


11

















 


substances
or wastes, pollutants or contaminants, and have no knowledge of any event or
condition that would reasonably be expected to result in any such notice,
except where, in each case, such noncompliance with Environmental Laws, failure
to receive permits, licenses, certificates, authorizations or approvals or
liability would not reasonably be expected to have a Material Adverse Effect.


 


(ee)         Compliance with ERISA.  (i) Each employee benefit plan, within
the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), for
which the Company or any member of its “Controlled Group” (defined as any
organization which is a member of a controlled group of corporations within the
meaning of Section 414 of the Code would have any liability (each, a “Plan”) has been maintained in compliance with its terms and
the requirements of any applicable statutes, orders, rules and
regulations, including but not limited to ERISA and the Code, except for
noncompliance that would not reasonably be expected to result in a Material Adverse
Effect;  (ii) no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975
of the Code, has occurred with respect to any Plan excluding transactions
effected pursuant to a statutory or administrative exemption that would reasonably
be expected to result in a Material Adverse Effect; (iii) no “reportable
event” (within the meaning of Section 4043(c) of ERISA) has occurred
or is reasonably expected to occur that either has resulted, or would
reasonably be expected to result, in a Material Adverse Effect; and (iv) neither
the Company nor any member of the Controlled Group has incurred, nor reasonably
expects to incur, any liability under Title IV of ERISA (other than
contributions to the Plan or premiums to the Pension Benefit Guaranty
Corporation, in the ordinary course and without default) in respect of a Plan
(including a “multiemployer plan”, within the meaning of Section 4001(a)(3) of
ERISA) that would reasonably be expected to have a Material Adverse Effect.


 


(ff)           Disclosure Controls.  The Company maintains an effective system of “disclosure
controls and procedures” (as defined in Rule 13a-15(e) of the
Exchange Act) that complies with the requirements of the Exchange Act and that
has been designed to ensure that information required to be disclosed by the
Company in reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported within the time periods specified in the
Commission’s rules and forms, including controls and procedures designed
to ensure that such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required
disclosure.  The Company’s management has
carried out evaluations of the effectiveness of the Company’s disclosure
controls and procedures as required by Rule 13a-15 of the Exchange Act.


 


(gg)         Accounting Controls.  The Company maintains a system of “internal
control over financial reporting” (as defined in Rule 13a-15(f) of
the Exchange Act) relating to the Company and its subsidiaries that complies
with the requirements of the Exchange Act and has been designed by, or under
the supervision of, the Company’s principal executive and principal financial
officers, or persons performing similar functions, to provide reasonable
assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with generally


 


12

















 


accepted
accounting principles, including, but not limited to, 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. 
Except as disclosed in the Offering Memorandum, there are no material
weaknesses in the Company’s internal controls. 
The Company’s auditors and the Audit Committee of the Board of Directors
of the Company have been advised of:  (i) all
significant deficiencies and material weaknesses in the design or operation of
internal controls over financial reporting which have adversely affected or are
reasonably likely to adversely affect the Company’s ability to record, process,
summarize and report financial information; and (ii) any fraud, whether or
not material, that involves management or other employees who have a
significant role in the Company’s internal controls over financial reporting.


 


(hh)         Insurance.  The Company and its subsidiaries have
insurance covering their properties, operations, personnel and businesses taken
as a whole, including business interruption insurance, which insurance is in
amounts and insures against such losses and risks as are customary in the
businesses in which they are engaged.


 


(ii)           No Unlawful Payments.  Neither the Company nor any of its
subsidiaries nor, to the knowledge of the Company, any director, officer,
agent, employee or other person associated with or acting on behalf of the
Company or any of its subsidiaries has (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or (iv) made any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.


 


(jj)           Compliance with Money
Laundering Laws.  The
operations of the Company and its subsidiaries are and have been conducted at
all times in compliance in all material respects with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions, the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered or enforced
by any governmental agency (collectively, the “Money
Laundering Laws”), and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries with respect to the Money Laundering
Laws is pending or, to the knowledge of the Company, threatened.


 


(kk)         Compliance with OFAC.  None of the Company, any of its subsidiaries
or, to the knowledge of the Company, any director, officer, agent, employee or
affiliate of 


 


13

















 


the
Company or any of its subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Department of
the Treasury.


 


(ll)           No Restrictions on
Significant Subsidiaries.  No
Significant Subsidiary of the Company is currently prohibited, directly or
indirectly, under any agreement or other instrument to which it is a party or
is subject, from paying any dividends to the Company, from making any other
distribution on such Significant Subsidiary’s capital stock, from repaying to
the Company any loans or advances to such Significant Subsidiary from the
Company or from transferring any of such Significant Subsidiary’s properties or
assets to the Company or any other subsidiary of the Company.


 


(mm)       No Broker’s Fees.  Neither the Company nor any of its
subsidiaries is a party to any contract, agreement or understanding with any
person (other than this Agreement) that would give rise to a valid claim
against the Company or any of its subsidiaries or any Initial Purchaser for a
brokerage commission, finder’s fee or like payment in connection with the
offering and sale of the Securities.


 


(nn)         No Registration Rights.  No person has the right (other than under the
Registration Rights Agreement) to require the Company or any of its
subsidiaries to register any securities for sale under the Securities Act by
reason of the filing of a registration statement with the Commission in
compliance with the Registration Rights Agreement or the issuance and sale of
the Securities or the Exchange Securities.


 


(oo)         No Stabilization.  Neither the Company nor any Guarantor has taken,
directly or indirectly, any action designed to or that could reasonably be
expected to cause or result in any stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Securities.


 


(pp)         Margin Rules.  The application of the proceeds received by
the Company from the issuance, sale and delivery of the Securities as described
in the Offering Memorandum will not violate Regulation T, U or X of the Board
of Governors of the Federal Reserve System or any other regulation of such
Board of Governors.


 


(qq)         Forward-Looking
Statements.  No
forward-looking statement (within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act) contained in the
Offering Memorandum has been made or reaffirmed by the Company without a
reasonable basis or has been disclosed other than in good faith.


 


(rr)           Statistical and Market
Data.  Nothing has come to the
attention of the Company that has caused the Company to believe that the
statistical and market-related data included in the Offering Memorandum is not
based on or derived from sources that are reliable and accurate in all material
respects.


 


(ss)         Sarbanes-Oxley Act.  There is and has been no failure on the part
of the Company or, to the knowledge of the Company, any of the Company’s
directors or officers, in their capacities as such, to comply in all material
respects with any provision of the


 


14

















 


Sarbanes-Oxley
Act of 2002 and the rules and regulations promulgated in connection
therewith (the “Sarbanes-Oxley Act”), including Section 402
related to loans and Sections 302 and 906 related to certifications.


 


(tt)           Solvency.  Each of the Company and each Guarantor is,
and immediately after the Closing Date will be, Solvent.  As used herein, the term “Solvent” means, with respect to any person on a particular
date, that on such date (i) the fair market value of the assets of such
person is greater than the total amount of liabilities (including contingent
liabilities) of such person, (ii) the present fair salable value of the
assets of such person is greater than the amount that will be required to pay
the probable liabilities of such person on its debts as they become absolute
and matured, (iii) such person is able to realize upon its assets and pay
its debts and other liabilities, including contingent obligations, as they
mature and (iv) such person does not have unreasonably small capital.


 


(uu)         Regulation S.  The Securities sold in reliance on Regulation
S will be represented upon issuance by a temporary global security that may not
be exchanged for definitive securities until the expiration of the 40-day
restricted period referred to in Rule 903 of the Securities Act and only
upon certification of beneficial ownership of such Securities by non-U.S.
persons or U.S. persons who purchased such Securities in transactions that were
exempt from the registration requirements of the Securities Act.


 


Any certificate signed by an officer of the Company
or any Guarantor and delivered to the Initial Purchasers or to counsel for the
Initial Purchasers shall be deemed to be a representation and warranty by the
Company or such Guarantor to each Initial Purchaser as to the matters set forth
therein.


 


SECTION 2.           Purchase, Sale and
Delivery of the Securities.


 


(a)           The Securities.  Each
of the Company and each Guarantor agrees to issue and sell to the Initial
Purchasers, severally and not jointly, all of the Securities, and the Initial
Purchasers agree, severally and not jointly, to purchase from the Company and
the Guarantors the aggregate principal amount of Securities set forth opposite
their names on Schedule A, at a purchase price of 98.00% of the principal
amount of the Notes due 2017 and 98.00% of the principal amount of the Notes
due 2020, payable on the Closing Date, in each case, on the basis of the representations,
warranties and agreements herein contained, and upon the terms, subject to the
conditions thereto, herein set forth.


 


(b)           The Closing Date. 
Delivery of certificates for the Securities in definitive global form to
be purchased by the Initial Purchasers and payment therefor shall be made at
the offices of Mayer Brown LLP, 71 S. Wacker Drive, Suite 3200, Chicago,
Illinois, 60606 (or such other place as may be agreed to by the Company and the
Representative) at 9:00 a.m. New York City time, on March 3, 2010, or
such other time and date as the Representative shall designate by notice to the
Company (the time and date of such closing are called the “Closing Date”).  The Company hereby acknowledges that
circumstances under which the Representative may provide notice to postpone the
Closing Date as originally scheduled include, but are in no way limited to, any
determination by the Company or the Initial Purchasers to recirculate to
investors copies of 


 


15

















 


an amended or supplemented
Offering Memorandum or a delay as contemplated by the provisions of Section 17
hereof.


 


(c)           Delivery of the Securities.  The Company shall deliver, or cause to be
delivered, to the Representative for the accounts of the several Initial
Purchasers certificates for the Notes through the facilities of the Depositary
on the Closing Date against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price therefor.  The certificates for the Notes shall be in
such denominations and registered in the name of Cede & Co., as
nominee of the Depositary, pursuant to the DTC Agreement, and shall be made
available for inspection on the business day preceding the Closing Date at a
location in New York City, as the Representative may designate.  Time shall be of the essence, and delivery at
the time and place specified in this Agreement is a further condition to the
obligations of the Initial Purchasers.


 


(d)           Initial Purchasers as Qualified Institutional Buyers.  Each Initial Purchaser severally and not
jointly represents and warrants to, and agrees with, the Company that:


 


(i)          it will offer and sell Securities only to (a) persons
who it reasonably believes are “qualified institutional buyers” within the
meaning of Rule 144A ( “Qualified Institutional
Buyers”) in transactions meeting the requirements of Rule 144A
or (b) upon the terms and conditions set forth in Annex I to this
Agreement;


 


(ii)        it is an institutional “accredited investor” within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities
Act; and


 


(iii)       it will not offer or sell 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.


 


SECTION 3.           Additional Covenants.  Each of the Company and each Guarantor
further covenants and agrees with each Initial Purchaser as follows:


 


(a)           Preparation of Final
Offering Memorandum; Initial Purchasers’ Review of Proposed Amendments and
Supplements and Company Additional Written Communications.  As promptly as practicable following the Time
of Sale and in any event not later than the second business day following the
date hereof, the Company will prepare and deliver to the Initial Purchasers the
Final Offering Memorandum, which shall consist of the Preliminary Offering
Memorandum as modified only by the information contained in the Pricing Supplement.  The Company will not amend or supplement the
Preliminary Offering Memorandum or the Pricing Supplement, except as set forth
in Section 3(b).  The Company will
not amend or supplement the Final Offering Memorandum prior to the Closing Date
unless the Representative shall previously have been furnished a copy of the
proposed amendment or supplement at least two business days prior to the
proposed use or filing, and shall not have objected to such amendment or
supplement.  Before making, preparing, using,
authorizing, approving or distributing any Company Additional Written
Communication, the Company will furnish to the Representative a 


 


16

















 


copy
of such written communication for review and will not make, prepare, use, authorize,
approve or distribute any such written communication to which the
Representative reasonably object.


 


(b)           Amendments and Supplements
to the Final Offering Memorandum and Other Securities Act Matters.  If at any time prior to the Closing Date (i) any
event shall occur or condition shall exist as a result of which any of the
Pricing Disclosure Package as then amended or supplemented would include 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 or (ii) it is
necessary to amend or supplement any of the Pricing Disclosure Package to comply
with law, the Company and the Guarantors will immediately notify the Initial Purchasers
thereof and forthwith prepare and (subject to Section 3(a) hereof)
furnish to the Initial Purchasers such amendments or supplements to any of the
Pricing Disclosure Package as may be necessary so that the statements in any of
the Pricing Disclosure Package as so amended or supplemented will not, in the
light of the circumstances under which they were made, be misleading or so that
any of the Pricing Disclosure Package will comply with all applicable law.  If, prior to the completion of the placement
of the Securities by the Initial Purchasers with the Subsequent Purchasers, any
event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Final Offering Memorandum, as then amended or
supplemented, in order to make the statements therein, in the light of the
circumstances when the Final Offering Memorandum is delivered to a Subsequent
Purchaser, not misleading, or if in the judgment of the Representative or
counsel for the Initial Purchasers it is otherwise necessary to amend or supplement
the Final Offering Memorandum to comply with law, the Company agrees to
promptly prepare (subject to Section 3 hereof) and furnish at its own
expense to the Initial Purchasers, amendments or supplements to the Final
Offering Memorandum so that the statements in the Final Offering Memorandum as
so amended or supplemented will not, in the light of the circumstances at the
Closing Date and at the time of sale of Securities, be misleading or so that the
Final Offering Memorandum, as amended or supplemented, will comply with all
applicable law.


 


The Company hereby expressly acknowledges
that the indemnification and contribution provisions of Sections 8 and 9
hereof are specifically applicable and relate to each offering memorandum,
amendment or supplement referred to in this Section 3.


 


(c)           Copies of the Offering
Memorandum.  The Company
agrees to furnish the Initial Purchasers, without charge, as many copies of the
Pricing Disclosure Package and the Final Offering Memorandum and any amendments
and supplements thereto as they shall reasonably request.


 


(d)           Blue Sky Compliance.  Each of the Company and the Guarantors shall
cooperate with the Representative and counsel for the Initial Purchasers to
qualify or register (or to obtain exemptions from qualifying or registering)
all or any part of the Securities for offer and sale under the securities laws
of the several states of the United States, the provinces of Canada or any
other jurisdictions designated by the Representative, shall 


 


17

















 


comply
with such laws and shall continue such qualifications, registrations and exemptions
in effect so long as required for the distribution of the Securities.  None of the Company or any of the Guarantors
shall be required to qualify as a foreign entity or to take any action that
would subject it to general service of process in any such jurisdiction where
it is not presently qualified or where it would be subject to taxation as a
foreign entity.  The Company will advise
the Representative promptly of the suspension of the qualification or
registration of (or any such exemption relating to) the Securities for offering,
sale or trading in any jurisdiction or any initiation or threat of any
proceeding for any such purpose, and in the event of the issuance of any order
suspending such qualification, registration or exemption, each of the Company
and each Guarantor shall use its commercially reasonable efforts to obtain the
withdrawal thereof at the earliest possible moment.


 


(e)           Use of Proceeds.  The Company shall apply the net proceeds from
the sale of the Securities sold by it in the manner described under the caption
“Use of Proceeds” in the Pricing Disclosure Package.


 


(f)            The Depositary.  The Company will cooperate with the Initial
Purchasers and use its commercially reasonable efforts to permit the Securities
to be eligible for clearance and settlement through the facilities of the
Depositary.


 


(g)           Additional Issuer
Information.  Prior to the
completion of the placement of the Securities by the Initial Purchasers with
the Subsequent Purchasers, the Company shall file, on a timely basis, with the
Commission and the NYSE all reports and documents required to be filed under Section 13
or 15 of the Exchange Act.  Additionally,
at any time when the Company is not subject to Section 13 or 15 of the
Exchange Act, for the benefit of holders and beneficial owners from time to
time of the Securities, the Company shall furnish, at its expense, upon
request, to holders and beneficial owners of Securities and prospective
purchasers of Securities information (“Additional Issuer Information”)
satisfying the requirements of Rule 144A(d).


 


(h)           Agreement Not To Offer or
Sell Additional Securities. 
During the period of 90 days following the date hereof, the Company will
not, without the prior written consent of Banc of America Securities LLC (which
consent may be withheld at the sole discretion of Banc of America Securities
LLC), directly or indirectly, sell, offer, contract or grant any option to
sell, pledge, transfer or establish an open “put equivalent position” within
the meaning of Rule 16a-1 under the Exchange Act, or otherwise dispose of
or transfer, or announce the offering of, or file any registration statement
under the Securities Act in respect of, any debt securities of the Company or
securities exchangeable for or convertible into debt securities of the Company
(other than as contemplated by this Agreement and to register the Exchange Securities).  For the avoidance of doubt, this paragraph (h) shall
not affect the Company’s ability to borrow amounts under any revolving credit
facility or enter into a new revolving credit facility or term loan facility.


 


(i)            Future Reports to the
Initial Purchasers.  At any
time when the Company is not subject to Section 13 or 15 of the Exchange
Act and any Securities or


 


18

















 


Exchange
Securities remain outstanding, the Company will furnish to the Representative
and, upon request, to each of the other Initial Purchasers:  (i) as soon as practicable after the end
of each fiscal year, copies of the Annual Report of the Company containing the
balance sheet of the Company as of the close of such fiscal year and statements
of income, shareholders’ equity and cash flows for the year then ended and the
opinion thereon of the Company’s independent public or certified public
accountants; (ii) as soon as practicable after the filing thereof, copies
of each proxy statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q,
Current Report on Form 8-K or other report filed by the Company with the
Commission, FINRA or any securities exchange; and (iii) as soon as
available, copies of any report or communication of the Company mailed generally
to holders of its capital stock or debt securities (including the holders of
the Securities), if, in each case, such documents are not filed with the
Commission within the time periods specified by the Commission’s rules and
regulations under Section 13 or 15 of the Exchange Act.


 


(j)            No Integration.  The Company agrees that it will not and will
cause its Affiliates not to make any offer or sale of securities of the Company
of any class if, as a result of the doctrine of “integration” referred to in Rule 502
under the Securities Act, such offer or sale would render invalid (for the
purpose of (i) the sale of the Securities by the Company to the Initial
Purchasers, (ii) the resale of the Securities by the Initial Purchasers to
Subsequent Purchasers or (iii) the resale of the Securities by such
Subsequent Purchasers to others) the exemption from the registration
requirements of the Securities Act provided by Section 4(2) thereof
or by Rule 144A or by Regulation S thereunder or otherwise.


 


(k)           No General Solicitation or
Directed Selling Efforts.  The
Company agrees that it will not and will not permit any of its Affiliates or
any other person acting on its or their behalf (other than the Initial
Purchasers, as to which no covenant is given) to (i) solicit offers for,
or offer or sell, the Securities by means of any form of general solicitation
or general advertising within the meaning of Rule 502(c) of
Regulation D or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act or (ii) engage in any
directed selling efforts with respect to the Securities within the meaning of
Regulation S, and the Company will and will cause all such persons to comply
with the offering restrictions requirement of Regulation S with respect to the
Securities.


 


(l)            No Restricted Resales.  For a period of one year after the Closing
Date, the Company will not, and will not permit any of its affiliates (as
defined in Rule 144 under the Securities Act) to, resell any of the Notes,
which constitute “restricted securities” under Rule 144, that have been
reacquired by any of them.


 


(m)          Legended Securities.  Each certificate for a Note will bear a
legend substantially in the form of that contained in “Notice to Investors” in
the Preliminary Offering Memorandum for the time period and upon the other
terms stated in the Preliminary Offering Memorandum.


 


19

















 


The Representative on behalf of the several Initial
Purchasers, may, in its sole discretion, waive in writing the performance by
the Company or any Guarantor of any one or more of the foregoing covenants or
extend the time for their performance.


 


SECTION 4.           Payment of Expenses.  Each of the Company and each Guarantor agrees
to pay all costs, fees and expenses incurred in connection with the performance
of its obligations hereunder and in connection with the transactions
contemplated hereby, including, without limitation, (i) all expenses
incident to the issuance and delivery of the Securities (including all printing
costs), (ii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Securities to the Initial
Purchasers, (iii) all fees and expenses of the Company’s and the
Guarantors’ counsel, independent public or certified public accountants and
other advisors, (iv) all costs and expenses incurred in connection with
the preparation, printing, filing, shipping and distribution of the Pricing
Disclosure Package and the Final Offering Memorandum (including financial
statements and exhibits), and all amendments and supplements thereto, this
Agreement, the Registration Rights Agreement, the Indenture, the DTC Agreement
and the Notes and Guarantees, (v) all filing fees, reasonable attorneys’
fees and expenses incurred by the Company, the Guarantors or the Initial
Purchasers (which shall not exceed $5,000) in connection with qualifying or
registering (or obtaining exemptions from the qualification or registration of)
all or any part of the Securities for offer and sale under the securities laws
of the several states of the United States, the provinces of Canada or other
jurisdictions designated by the Initial Purchasers (including, without
limitation, the cost of preparing, printing and mailing preliminary and final
blue sky or legal investment memoranda and any related supplements to the
Pricing Disclosure Package or the Final Offering Memorandum), (vi) the
fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture, the Securities and
the Exchange Securities, (vii) any fees payable in connection with the
rating of the Securities or the Exchange Securities with the ratings agencies, (viii) any
filing fees incident to, and any reasonable fees and disbursements of counsel
to the Initial Purchasers in connection with the review by FINRA, if any, of
the terms of the sale of the Securities or the Exchange Securities, (ix) all
fees and expenses (including reasonable fees and expenses of counsel) of the
Company and the Guarantors in connection with approval of the Securities by the
Depositary for “book-entry” transfer, and the performance by the Company and
the Guarantors their respective other obligations under this Agreement and (x) all
expenses incident to the “road show” for the offering of the Securities,
including the cost of any chartered airplane or other transportation.  Except as provided in this Section 4 and
Sections 6, 8 and 9 hereof, the Initial Purchasers shall pay their own expenses,
including the fees and disbursements of their counsel.


 


SECTION 5.           Conditions of the
Obligations of the Initial Purchasers.  The obligations of the several Initial
Purchasers to purchase and pay for the Securities as provided herein on the
Closing Date shall be subject to the accuracy of the representations and
warranties on the part of the Company and the Guarantors set forth in Section 1
hereof as of the date hereof and as of the Closing Date as though then made and
to the timely performance by the Company of its covenants and other obligations
hereunder, and to each of the following additional conditions:


 


(a)           Accountants’ Comfort
Letter.  On the date hereof,
the Initial Purchasers shall have received from Deloitte & Touche LLP,
the independent registered public accounting firm for the Company, a “comfort
letter” dated the date hereof addressed to the


 


20
















 


Initial
Purchasers, in form and substance satisfactory to the Representative, covering
the financial information in the Pricing Disclosure Package and other customary
matters.  In addition, on the Closing
Date, the Initial Purchasers shall have received from such accounting firm, a “bring-down
comfort letter” dated the Closing Date addressed to the Initial Purchasers, in
form and substance satisfactory to the Representative, in the form of the “comfort
letter” delivered on the date hereof, except that (i) it shall cover the
financial information in the Final Offering Memorandum and any amendment or
supplement thereto and (ii) procedures shall be brought down to a date no
more than 5 days prior to the Closing Date.


 


(b)           No Ratings Agency Change.  For the period from and after the date of
this Agreement and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded the Company or any of
its subsidiaries or any of their securities or indebtedness by any “nationally
recognized statistical rating organization” as such term is defined for
purposes of Rule 436 under the Securities Act.


 


(c)           Opinions and 10b-5
Statement of Counsel for the Company.  On the Closing Date the Initial Purchasers
shall have received, at the request of the Company, the opinion and 10b-5
statement of Foley & Lardner LLP, counsel for the Company, dated as of
such Closing Date, to the effect set forth in Exhibit A hereto, and the
opinion of Bryan J. Blankfield, Executive Vice President, General Counsel and
Secretary of the Company, to the effect set forth in Exhibit B hereto.


 


(d)           Opinion of Counsel for the
Initial Purchasers.  On the
Closing Date the Initial Purchasers shall have received the favorable opinion
of Mayer Brown LLP, counsel for the Initial Purchasers, dated as of such
Closing Date, with respect to such matters as may be reasonably requested by
the Initial Purchasers.


 


(e)           Officers’ Certificate.  On the Closing Date the Initial Purchasers
shall have received a written certificate, on behalf of the Company and each
Guarantor, executed by the Chief Financial Officer or Chief Accounting Officer
of the Company or the Guarantor, as the case may be, and one additional senior
executive officer of the Company or the Guarantor, as the case may be, who is
satisfactory to the Representative, dated as of the Closing Date, to the effect
set forth in Section 5(b) hereof, and further to the effect that:


 


(i)            for the period from and after the date of this Agreement
and prior to the Closing Date there has not occurred any Material Adverse
Change;


 


(ii)           the representations, warranties and covenants of the
Company and the Guarantors set forth in Section 1 hereof were true and
correct as of the date hereof and are true and correct as of the Closing Date
with the same force and effect as though expressly made on and as of the
Closing Date; and


 


21

















 


(iii)          the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date.


 


(f)            Indenture; Registration
Rights Agreement.  The Company and the Guarantors shall have
executed and delivered the Indenture, in form and substance reasonably
satisfactory to the Initial Purchasers, and the Initial Purchasers shall have received
executed copies thereof.  The Company and
the Guarantors shall have executed and delivered the Registration Rights
Agreement, in form and substance reasonably satisfactory to the Initial
Purchasers, and the Initial Purchasers shall have received such executed
counterparts.


 


(g)           Additional Documents.  On or before the Closing Date, the Initial Purchasers
and counsel for the Initial Purchasers shall have received such information,
documents and opinions as they may reasonably require for the purposes of
enabling them to pass upon the issuance and sale of the Securities as
contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the conditions or
agreements, herein contained.


 


If any condition specified in this Section 5 is
not satisfied when and as required to be satisfied, this Agreement may be
terminated by the Representative by notice to the Company at any time on or
prior to the Closing Date, which termination shall be without liability on the
part of any party to any other party, except that Sections 4, 6, 8 and 9
hereof shall at all times be effective and shall survive such termination.


 


SECTION 6.           Reimbursement of Initial
Purchasers’ Expenses.  If this
Agreement is terminated by the Representative pursuant to Section 5 or 10
(other than subsections (ii), (iii) or (iv)) hereof, including if the sale
to the Initial Purchasers of the Securities on the Closing Date is not
consummated because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or to comply with any provision hereof,
the Company agrees to reimburse the Initial Purchasers, severally, upon demand
for all out-of-pocket expenses that shall have been reasonably incurred by the
Initial Purchasers in connection with the proposed purchase and the offering
and sale of the Securities, including, without limitation, fees and disbursements
of counsel, printing expenses, travel expenses, postage, facsimile and
telephone charges.


 


SECTION 7.           Offer, Sale and Resale
Procedures.  Each of the
Initial Purchasers, on the one hand, and the Company and each of the
Guarantors, on the other hand, hereby agree to observe the following procedures
in connection with the offer and sale of the Securities:


 


(a)           Offers and sales of the Securities have been and will be
made only by the Initial Purchasers or Affiliates thereof qualified to do so in
the jurisdictions in which such offers or sales are permitted to be made.  Each such offer or sale has been and shall be
made only to persons whom the offeror or seller reasonably believes to be
Qualified Institutional Buyers and in accordance with Rule 144A under the
Securities Act or to be non-U.S. persons outside the United States to whom the
offeror or seller reasonably believes 


 


22

















 


offers
and sales of the Securities may be made in reliance upon Regulation S upon the
terms and conditions set forth in Annex I hereto, which Annex I is hereby
expressly made a part hereof.


 


(b)           The Securities have been and will be offered by
approaching prospective Subsequent Purchasers on an individual basis.  No general solicitation or general advertising
(within the meaning of Rule 502 under the Securities Act) will be used in
the United States in connection with the offering of the Securities.


 


(c)           Upon original issuance by the Company, and until such time
as the same is no longer required under the applicable requirements of the
Securities Act, the Notes (and all securities issued in exchange therefor or in
substitution thereof, other than the Exchange Notes) shall bear a legend
substantially in the form of that contained in “Notice to Investors” in the
Preliminary Offering Memorandum for the time period and upon the other terms
stated in the Preliminary Offering Memorandum.


 


Following the sale of the Securities by the Initial
Purchasers to Subsequent Purchasers pursuant to the terms hereof, the Initial
Purchasers shall not be liable or responsible to the Company for any losses,
damages or liabilities suffered or incurred by the Company, including any
losses, damages or liabilities under the Securities Act, arising from or
relating to any resale or transfer of any Security.


 


SECTION 8.         Indemnification.


 


(a)           Indemnification of the Initial Purchasers.  Each of the Company and each Guarantor,
jointly and severally, agrees to indemnify and hold harmless each Initial
Purchaser, its directors, officers and employees, and each person, if any, who
controls any Initial Purchaser within the meaning of the Securities Act and the
Exchange Act against any loss, claim, damage, liability or expense, as
incurred, to which such Initial Purchaser, director, officer, employee or
controlling person may become subject, under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
either effected with the written consent of the Company or does not require the
consent of the Company as contemplated in Section 8(d)), insofar as such
loss, claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in the Preliminary
Offering Memorandum, the Pricing Supplement, any Company Additional Written
Communication or the Final Offering Memorandum (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and to reimburse each
Initial Purchaser and each such director, officer, employee or controlling
person for any and all expenses (including the fees and disbursements of
counsel chosen by Banc of America Securities LLC) as such expenses are
reasonably incurred by such Initial Purchaser or such director, officer,
employee or controlling person in connection with investigating, defending,
settling, compromising or paying any such loss, claim, damage, liability,
expense or action; provided, however, that the foregoing indemnity agreement
shall not apply, with respect to an Initial Purchaser, to any loss, claim,
damage, liability or expense to the 


 


23

















 


extent, but only to the
extent, arising out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Initial Purchaser through the Representative expressly for use in the
Preliminary Offering Memorandum, the Pricing Supplement, any Company Additional
Written Communication or the Final Offering Memorandum (or any amendment or
supplement thereto).  The indemnity
agreement set forth in this Section 8(a) shall be in addition to any
liabilities that the Company may otherwise have.


 


(b)           Indemnification of the Company and the Guarantors.  Each Initial Purchaser agrees, severally and
not jointly, to indemnify and hold harmless the Company, each Guarantor, each
of their respective directors and officers and each person, if any, who
controls the Company or any Guarantor within the meaning of the Securities Act
or the Exchange Act, against any loss, claim, damage, liability or expense, as
incurred, to which the Company, any Guarantor or any such director, officer or
controlling person may become subject, under the Securities Act, the Exchange
Act, or other federal or state statutory law or regulation, or at common law or
otherwise (including in settlement of any litigation, if such settlement is
either effected with the written consent of such Initial Purchaser or does not
require the consent of such Initial Purchaser as contemplated in Section 8(d)),
insofar as such loss, claim, damage, liability or expense (or actions in
respect thereof as contemplated below) arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in
the Preliminary Offering Memorandum, the Pricing Supplement, any Company
Additional Written Communication or the Final Offering Memorandum (or any
amendment or supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, 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
Preliminary Offering Memorandum, the Pricing Supplement, any Company Additional
Written Communication or the Final Offering Memorandum (or any amendment or
supplement thereto), in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Initial Purchaser
through the Representative expressly for use therein; and to reimburse the
Company, any Guarantor and each such director or controlling person for any and
all expenses (including the fees and disbursements of counsel) as such expenses
are reasonably incurred by the Company, any Guarantor or such director or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action.  Each of the Company and each Guarantor
hereby acknowledges that the only information that the Initial Purchasers
through the Representative have furnished to the Company expressly for use in
the Preliminary Offering Memorandum, the Pricing Supplement, any Company
Additional Written Communication or the Final Offering Memorandum (or any
amendment or supplement thereto) are the statements set forth in the fourth,
sixth (third and fourth sentences), eighth, ninth, tenth, eleventh and twelfth
paragraphs under the caption “Plan of Distribution” in the Preliminary Offering
Memorandum and the Final Offering Memorandum. 
The indemnity agreement set forth in this Section 8(b) shall
be in addition to any liabilities that each Initial Purchaser may otherwise
have.


 


(c)           Notifications and Other Indemnification Procedures.  Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party 


 


24

















 


under this Section 8,
notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party under the indemnity
agreement contained in this Section 8 except to the extent it is
materially prejudiced (through the forfeiture of substantive rights or defenses)
as a result of such failure and shall not relieve the indemnifying party from
any liability that the indemnifying party may have to an indemnified party
otherwise than under the provisions of this Section 8 and Section 9.  In case any such action is brought against
any indemnified party and such indemnified party seeks or intends to seek
indemnity from an indemnifying party, the indemnifying party will be entitled
to participate in and, to the extent that it shall elect, jointly with all
other indemnifying parties similarly notified, by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that a conflict may
arise between the positions of the indemnifying party and the indemnified party
in conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties.  Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party’s election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses of more than
one separate counsel (together with local counsel (in each jurisdiction)),
approved by the indemnifying party (Banc of America Securities LLC in the case
of Sections 8(b) and 9 hereof), representing the indemnified parties
who are parties to such action) or (ii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action, in each of which cases the fees and expenses of counsel shall be at the
expense of the indemnifying party.


 


(d)           Settlements.  The
indemnifying party under this Section 8 shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party against any
loss, claim, damage, liability or expense by reason of such settlement or
judgment.  Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by this Section 8, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 60
days after receipt by such indemnifying party of the aforesaid request, (ii) such
Indemnifying Person shall have received notice of the terms of the settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request or disputed in good


 


25

















 


faith the indemnified party’s
entitlement to such reimbursement prior to the date of such settlement.  No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement,
compromise or consent to the entry of judgment in any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity was or could have been sought hereunder
by such indemnified party, unless such settlement, compromise or consent (i) includes
an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding and (ii) does
not include any statements as to or any findings of fault, culpability or failure
to act by or on behalf of any indemnified party.


 


SECTION 9.           Contribution.  If the indemnification provided for in Section 8
hereof is for any reason held to be unavailable to or otherwise insufficient to
hold harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount paid or payable by such indemnified party,
as incurred, as a result of any losses, claims, damages, liabilities or
expenses referred to therein (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Guarantors, on
the one hand, and the Initial Purchasers, on the other hand, from the offering
of the Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant equitable
considerations.  The relative benefits
received by the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses, but after
deducting underwriting discounts and commissions) received by the Company, and
the total discount received by the Initial Purchasers bear to the aggregate
initial offering price of the Securities. 
The relative fault of the Company and the Guarantors, on the one hand,
and the Initial Purchasers, on the other hand, shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company and the Guarantors, on the one
hand, or the Initial Purchasers, on the other hand, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.


 


The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to above shall
be deemed to include, subject to the limitations set forth in Section 8
hereof, any legal or other fees or expenses reasonably incurred by such party
in connection with investigating or defending any action or claim.  The provisions set forth in Section 8
hereof with respect to notice of commencement of any action shall apply if a
claim for contribution is to be made under this Section 9; provided,
however, that no additional notice shall be required with respect to any action
for which notice has been given under Section 8 hereof for purposes of
indemnification.


 


26

















 


The Company, the Guarantors and the Initial
Purchasers agree that it would not be just and equitable if contribution pursuant
to this Section 9 were determined by pro rata allocation (even if the
Initial Purchasers were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to in this Section 9.


 


Notwithstanding the provisions of this Section 9,
no Initial Purchaser shall be required to contribute any amount in excess of
the discount received by such Initial Purchaser in connection with the
Securities distributed by it.  No person
guilty of fraudulent misrepresentation (within the meaning of Section 11
of the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.  The Initial Purchasers’ obligations to
contribute pursuant to this Section 9 are several, and not joint, in
proportion to their respective commitments as set forth opposite their names in
Schedule A.  For purposes of this Section 9,
each director, officer and employee of an Initial Purchaser and each person, if
any, who controls an Initial Purchaser within the meaning of the Securities Act
and the Exchange Act shall have the same rights to contribution as such Initial
Purchaser, and each director and officer of the Company or any Guarantor, and
each person, if any, who controls the Company or any Guarantor with the meaning
of the Securities Act and the Exchange Act shall have the same rights to contribution
as the Company and the Guarantors.


 


SECTION 10.         Termination of this
Agreement.  This Agreement may
be terminated by the Representative by notice given to the Company, if after
the execution and delivery of this Agreement and prior to the Closing
Date:  (i) trading or quotation in
any of the Company’s securities shall have been suspended or limited by the
Commission or by the NYSE, (ii) trading in securities generally on either
the Nasdaq Stock Market or the NYSE shall have been suspended or materially
limited; (iii) a general banking moratorium shall have been declared by
any of federal or New York authorities; (iv) there shall have occurred any
outbreak or escalation of national or international hostilities or any crisis
or calamity, as in the judgment of the Representative is material and adverse
and makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the Securities on the Closing Date in the manner and on the terms described
in the Pricing Disclosure Package or (v) there shall have occurred any
Material Adverse Change the effect of which in the judgment of the
Representative makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Securities on the Closing Date in the manner
and on the terms and in the manner described in the Pricing Disclosure
Package.  Any termination pursuant to this
Section 10 shall be without liability on the part of (i) the Company
or any Guarantor to any Initial Purchaser, except that the Company and the
Guarantors shall be obligated to reimburse the expenses of the Initial
Purchasers pursuant to Sections 4 and 6 hereof, (ii) any Initial
Purchaser to the Company, or (iii) any party hereto to any other party
except that the provisions of Sections 8 and 9 hereof shall at all times
be effective and shall survive such termination.


 


SECTION 11.         Representations and
Indemnities to Survive Delivery. 
The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Guarantors and the several Initial
Purchasers set forth in or made by or on behalf of the Company, the Guarantors
and the several Initial Purchasers pursuant to this Agreement or any certificate
delivered pursuant hereto will remain in full force and effect, regardless of
any investigation 


 


27

















 


made by or on behalf of any
Initial Purchaser, the Company, any Guarantor or any of their partners,
officers or directors or any controlling person, as the case may be, and will
survive delivery of and payment for the Securities sold hereunder and any
termination of this Agreement.


 


SECTION 12.         Notices.  All communications hereunder shall be in
writing and shall be mailed, hand delivered, couriered or facsimiled and
confirmed to the parties hereto as follows:


 


If
to the Initial Purchasers:


 


Banc of America Securities LLC

One Bryant Park

New York, New York  10036 

Facsimile: (212) 901-7897

Attention: Legal Department


 


with a copy to:


 


Mayer Brown LLP


71 South Wacker Drive, Suite 3200


Chicago, Illinois  60606

Facsimile:  (312) 706-8106

Attention:  Edward S. Best, Esq.


 


If to the Company or the
Guarantors:


 


Oshkosh Corporation


2307 Oregon Street


Oshkosh, Wisconsin  54902


Facsimile: 
(920) 966-5955


Attention: 
Executive Vice President, General Counsel and Secretary


 


with a copy to:


 


Foley & Lardner LLP


777 East Wisconsin Avenue


Milwaukee, Wisconsin 53202

Facsimile:  (414) 297-4900

Attention:  Patrick G. Quick, Esq.


 


Any party hereto may change the address or facsimile
number for receipt of communications by giving written notice to the others.


 


SECTION 13.         Successors.  This Agreement will inure to the benefit of
and be binding upon the parties hereto, and to the benefit of the indemnified
parties referred to in Sections 8 and 9 hereof, and in each case their
respective successors, and no other person will have any right or obligation
hereunder.  The term “successors” shall
not include any Subsequent Purchaser or other 


 


28

















 


purchaser of the Securities
as such from any of the Initial Purchasers merely by reason of such purchase.


 


SECTION 14.         Authority of the
Representative.  Any action by
the Initial Purchasers hereunder may be taken by the Representative on behalf
of the Initial Purchasers, and any such action taken by the Representative
shall be binding upon the Initial Purchasers.


 


SECTION 15.         Partial Unenforceability.  The invalidity or unenforceability of any section,
paragraph or provision of this Agreement shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.  If any section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.


 


SECTION 16.         Governing Law Provisions.  THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES THEREOF.


 


SECTION 17.         Default of One or More of
the Several Initial Purchasers. 
If any one or more of the several Initial Purchasers shall fail or
refuse to purchase Securities that it or they have agreed to purchase hereunder
on the Closing Date, and the aggregate principal amount of Securities which
such defaulting Initial Purchaser or Initial Purchasers agreed but failed or refused
to purchase does not exceed 10% of the aggregate principal amount of the
Securities to be purchased on such date, the other Initial Purchasers shall be
obligated, severally, in the proportions that the aggregate principal amount of
Securities set forth opposite their respective names on Schedule A bears to the
aggregate principal amount of Securities set forth opposite the names of all
such non-defaulting Initial Purchasers, or in such other proportions as may be
specified by the Initial Purchasers with the consent of the non-defaulting
Initial Purchasers, to purchase the Securities which such defaulting Initial
Purchaser or Initial Purchasers agreed but failed or refused to purchase on the
Closing Date.  If any one or more of the
Initial Purchasers shall fail or refuse to purchase Securities and the
aggregate principal amount of Securities with respect to which such default occurs
exceeds 10% of the aggregate principal amount of Securities to be purchased on
the Closing Date, and arrangements satisfactory to the Initial Purchasers and
the Company for the purchase of such Securities are not made within 48 hours
after such default, this Agreement shall terminate without liability of any
party to any other party except that the provisions of Sections 4, 6, 8
and 9 hereof shall at all times be effective and shall survive such
termination.  In any such case either the
Initial Purchasers or the Company shall have the right to postpone the Closing
Date, as the case may be, but in no event for longer than seven days in order
that the required changes, if any, to the Final Offering Memorandum or any
other documents or arrangements may be effected.


 


As used in this Agreement, the term “Initial Purchaser” shall be deemed to include any person
substituted for a defaulting Initial Purchaser under this Section 17.  Any action taken under


 


29

















 


this Section 17 shall
not relieve any defaulting Initial Purchaser from liability in respect of any
default of such Initial Purchaser under this Agreement.


 


SECTION 18.         No Advisory or Fiduciary
Responsibility.  Each of the
Company and each Guarantor acknowledges and agrees that:  (i) the purchase and sale of the
Securities pursuant to this Agreement, including the determination of the
offering price of the Securities and any related discounts and commissions, is
an arm’s-length commercial transaction between the Company and the Guarantors,
on the one hand, and the several Initial Purchasers, on the other hand, and the
Company and the Guarantors are capable of evaluating and understanding and understand
and accept the terms, risks and conditions of the transactions contemplated by
this Agreement; (ii) in connection with each transaction contemplated
hereby and the process leading to such transaction each Initial Purchaser is
and has been acting solely as a principal and is not the agent or fiduciary of
the Company, the Guarantors or their respective affiliates, stockholders,
creditors or employees or any other party; (iii) no Initial Purchaser has
assumed or will assume an advisory or fiduciary responsibility in favor of the
Company and the Guarantors with respect to any of the transactions contemplated
hereby or the process leading thereto (irrespective of whether such Initial
Purchaser has advised or is currently advising the Company and the Guarantors
on other matters) or any other obligation to the Company and the Guarantors
except the obligations expressly set forth in this Agreement; (iv) the
several Initial Purchasers and their respective affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of
the Company and the Guarantors and that the several Initial Purchasers have no
obligation to disclose any of such interests by virtue of any fiduciary or
advisory relationship; and (v) the Initial Purchasers have not provided
any legal, accounting, regulatory or tax advice with respect to the offering
contemplated hereby and the Company and the Guarantors have consulted their own
legal, accounting, regulatory and tax advisors to the extent they deemed appropriate.


 


This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company, the Guarantors
and the several Initial Purchasers, or any of them, with respect to the subject
matter hereof.  The Company and the
Guarantors hereby waive and release, to the fullest extent permitted by law,
any claims that the Company and the Guarantors may have against the several
Initial Purchasers with respect to any breach or alleged breach of fiduciary
duty with respect to the subject matter hereof.


 


SECTION 19.         General Provisions.  This Agreement constitutes the
entire agreement of the parties to this Agreement and supersedes all prior
written or oral and all contemporaneous oral agreements, understandings and
negotiations with respect to the subject matter hereof.  This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.  Delivery of an executed counterpart of a
signature page to this Agreement by telecopier, facsimile or other
electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery
of a manually executed counterpart thereof. 
This Agreement may not be amended or modified unless in writing by all
of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to
benefit.  The section headings herein are
for the convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.


 


30

















 


[Signature
Pages Follow]


 


31
















 


If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company the enclosed copies hereof,
whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  OSHKOSH CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David M. Sagehorn

  
	
   

  	
   

  	
  David M. Sagehorn

  
	
   

  	
   

  	
  Executive Vice President,
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  ACCESS FINANCIAL
  SOLUTIONS, INC.

  
	
   

  	
  AUDUBON MANUFACTURING
  CORPORATION

  
	
   

  	
  CONCRETE EQUIPMENT
  COMPANY, INC.

  
	
   

  	
  FULTON INTERNATIONAL, INC.

  
	
   

  	
  IOWA CONTRACT FABRICATORS,
  INC.

  
	
   

  	
  IOWA MOLD TOOLING CO.,
  INC.

  
	
   

  	
  JERRDAN CORPORATION

  
	
   

  	
  JLG EQUIPMENT SERVICES,
  INC.

  
	
   

  	
  JLG INDUSTRIES, INC.

  
	
   

  	
  JLG OMNIQUIP, INC.

  
	
   

  	
  KEWAUNEE FABRICATIONS,
  L.L.C.

  
	
   

  	
  McNEILUS COMPANIES, INC.

  
	
   

  	
  McNEILUS FINANCIAL, INC.

  
	
   

  	
  McNEILUS TRUCK AND
  MANUFACTURING, INC.

  
	
   

  	
  MEDTEC AMBULANCE
  CORPORATION

  
	
   

  	
  OSHKOSH SPECIALTY
  VEHICLES, INC.

  
	
   

  	
  PIERCE MANUFACTURING INC.

  
	
   

  	
  VIKING TRUCK &
  EQUIPMENT SALES, INC.,

  
	
   

  	
  as Guarantors

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David M. Sagehorn

  
	
   

  	
   

  	
  David M. Sagehorn

  
	
   

  	
   

  	
  Executive Vice President,
  Chief Financial Officer

  



 

















 


The foregoing Purchase Agreement is hereby confirmed and accepted by
the Initial Purchasers as of the date first above written.


 


	
  BANC OF AMERICA SECURITIES
  LLC

  	
   

  
	
  Acting on behalf of itself

  	
   

  
	
  and as the Representative of

  	
   

  
	
  the several Initial Purchasers

  	
   

  
	
   

  	
   

  
	
  By:

  	
  Banc of America Securities
  LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Mark Kushemba

  	
   

  
	
   

  	
  Mark Kushemba

  	
   

  
	
   

  	
  Vice President

  	
   

  



 


2

















 


SCHEDULE A


 


	
  Initial Purchasers

  	
   

  	
  Aggregate Principal

  Amount of

  Notes due 2017

  to be Purchased

  	
   

  	
  Aggregate Principal

  Amount of

  Notes due 2020

  to be Purchased

  	
   

  
	
  Banc of America Securities LLC

  	
   

  	
  $

  	
  75,000,000

  	
   

  	
  $

  	
  75,000,000

  	
   

  
	
  Goldman, Sachs & Co.

  	
   

  	
  50,000,000

  	
   

  	
  50,000,000

  	
   

  
	
  J.P. Morgan Securities Inc.

  	
   

  	
  75,000,000

  	
   

  	
  75,000,000

  	
   

  
	
  SunTrust Robinson Humphrey, Inc.

  	
   

  	
  12,500,000

  	
   

  	
  12,500,000

  	
   

  
	
  Wells Fargo Securities, LLC

  	
   

  	
  12,500,000

  	
   

  	
  12,500,000

  	
   

  
	
  BNP Paribas Securities Corp.

  	
   

  	
  5,000,000

  	
   

  	
  5,000,000

  	
   

  
	
  Credit Agricole Securities (USA) Inc.

  	
   

  	
  5,000,000

  	
   

  	
  5,000,000

  	
   

  
	
  PNC Capital Markets LLC

  	
   

  	
  5,000,000

  	
   

  	
  5,000,000

  	
   

  
	
  RBS Securities Inc.

  	
   

  	
  5,000,000

  	
   

  	
  5,000,000

  	
   

  
	
  TD Securities (USA) LLC

  	
   

  	
  5,000,000

  	
   

  	
  5,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  250,000,000

  	
   

  	
  $

  	
  250,000,000

  	
   

  



 

















 


SCHEDULE B


Significant
Subsidiaries


 


JLG Industries, Inc.


JLG Manufacturing Europe BVBA


 
















 


EXHIBIT A


 


[Form of Opinion of
Foley & Lardner LLP]


 


(a)                                  Each of the
Company and each Guarantor, as applicable, has corporate or limited liability
company power and authority to execute and deliver the Purchase
Agreement, the Registration Rights Agreement, the DTC Agreement, the
Securities, the Exchange Securities and the Indenture and to perform
its obligations thereunder; and all action required to be taken for the due and
proper authorization, execution and delivery by the Company and each Guarantor
of the Purchase Agreement, the Registration Rights Agreement, the DTC
Agreement, the Securities, the Exchange Securities and the Indenture and the
consummation by the Company and each Guarantor of the transactions contemplated
thereby or by the Pricing Disclosure Package and the Final Offering Memorandum
has been duly and validly taken.


 


(b)                                 The Purchase
Agreement has been duly authorized, executed and delivered by the Company and
each Guarantor.


 


(c)                                  The
Registration Rights Agreement has been duly authorized, executed and delivered
by the Company and each Guarantor and (assuming the due authorization,
execution and delivery thereof by the Initial Purchasers) constitutes a valid
and binding agreement of the Company and each Guarantor, enforceable against
the Company and each Guarantor in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors generally or by general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law) and
except as rights to indemnification may be limited by applicable law or the
public policy underlying such laws, as to which such counsel need express no
opinion.


 


(d)                                 The DTC
Agreement has been duly authorized, executed and delivered by the Company and
(assuming the due authorization, execution and delivery thereof by DTC)
constitutes a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors generally or
by general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).


 


(e)                                  The Indenture
has been duly authorized, executed and delivered by the Company and each
Guarantor and (assuming the due authorization, execution and delivery thereof
by the Trustee) constitutes a valid and binding agreement of the Company and
each Guarantor, enforceable against the Company and each Guarantor in
accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
relating to 


 


A-1

















 


or affecting the rights and remedies of creditors
generally or by general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law).


 


(f)                                    The Notes are
substantially in the form contemplated by the Indenture, have been duly
authorized by the Company for issuance and sale pursuant to the Purchase
Agreement and the Indenture, have been duly executed by the Company and, when
authenticated by the Trustee in the manner provided in the Indenture (assuming
the due authorization, execution and delivery of the Indenture by the Trustee)
and issued and delivered against payment of the purchase price therefor, will
constitute valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or other
similar laws relating to or affecting enforcement of the rights and remedies of
creditors generally or by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and will be
entitled to the benefits of the Indenture.


 


(g)                                 The Exchange
Notes have been duly authorized by the Company for issuance pursuant to the
Registration Rights Agreement and the Indenture and, if executed by the Company
and authenticated by the Trustee in the manner provided in the Indenture
(assuming the due authorization, execution and delivery of the Indenture by the
Trustee) and issued and delivered pursuant to the Registration Rights Agreement
and the Exchange Offer, will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws relating to or affecting enforcement of the
rights and remedies of creditors generally or by general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or
at law), and will be entitled to the benefits of the Indenture.


 


(h)                                 The Guarantees
of the Notes are substantially in the form contemplated by the Indenture, have
been duly authorized by each of the Guarantors for issuance pursuant to the
Purchase Agreement and the Indenture, the Guarantees of the Notes have been
duly executed by each of the Guarantors and the Notes have been duly executed
by the Company and, when authenticated by the Trustee in the manner provided
for in the Indenture (assuming the due authorization, execution and delivery of
the Indenture by the Trustee) and issued and delivered against payment of the
purchase price therefor, will constitute valid and binding obligations of the
Guarantors, enforceable against the Guarantors in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors generally or by general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or
at law), and will be entitled to the benefits of the Indenture.  The Guarantees of the Exchange Notes have
been duly authorized by each of the Guarantors for issuance pursuant to the
Registration Rights Agreement and the Indenture and, if the Guarantees of the
Exchange Notes are executed by each of the Guarantors and the Exchange Notes
are executed by the Company and authenticated by the 


 


A-2

















 


Trustee in the manner provided for in the Indenture
(assuming the due authorization, execution and delivery of the Indenture by the
Trustee) and issued and delivered pursuant to the Registration Rights Agreement
and the Exchange Offer, will constitute valid and binding obligations of the
Guarantors, enforceable against the Guarantors in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law), and
will be entitled to the benefits of the Indenture.


 


(i)                                     The Securities,
the Indenture and the Registration Rights Agreement conform in all material
respects to the descriptions thereof contained in the Pricing Disclosure
Package and the Final Offering Memorandum.


 


(j)                                     The documents
incorporated by reference in the Pricing Disclosure Package and the Final
Offering Memorandum (other than the financial statements and related schedules
therein or omitted therefrom, as to which such counsel need express no
opinion), appeared on their face, when they were filed with the Commission, to
be appropriately responsive in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder.


 


(k)                                  The statements
in the Pricing Disclosure Package and the Final Offering Memorandum under the
captions “Description of Certain Indebtedness,” “Description of Notes,” “Material
U.S. Federal Income Tax Considerations” and “Notice to Investors,” insofar as
such statements constitute matters of law, summaries of legal matters or
documents, or legal conclusions, have been reviewed by such counsel and are
correct in all material respects.


 


(l)                                     After giving effect
to the application of the proceeds received by the Company from the offering
and sale of the Securities as described in the Pricing Disclosure Package and
the Final Offering Memorandum, the Company will not be required to register as
an “investment company” or an entity “controlled” by an “investment company”
within the meaning of the Investment Company Act.


 


(m)                               Assuming the
accuracy of the representations and warranties and compliance with the
covenants of the Company and the Initial Purchasers contained in the Purchase
Agreement, no registration of the Notes or the Guarantees under the Securities
Act, and no qualification of an indenture under the Trust Indenture Act with
respect thereto, is required in connection with the purchase of the Securities
by the Initial Purchasers or the initial resale of the Securities by the
Initial Purchasers to Qualified Institutional Buyers or to non-U.S. persons
outside the United States in reliance upon Regulation S, in each case, in the
manner contemplated by the Purchase Agreement and the Pricing Disclosure
Package and the Final Offering Memorandum other than any registration or
qualification that may be required in connection with the Exchange Offer
contemplated by the Pricing Disclosure Package and the Final Offering
Memorandum or in connection with the Registration Rights Agreement.  Such counsel need express no opinion, 


 


A-3

















 


however, as to when or under what circumstances any
Initial Notes initially sold by the Initial Purchasers may be reoffered or
resold.


 


In rendering such opinion, such counsel may rely as to matters of fact
on certificates of responsible officers of the Company and public officials
that are furnished to the Initial Purchasers.


 


[Form of 10b-5 Statement
of Foley & Lardner LLP]


 


We have acted as counsel for the Company in connection with the sale to
the Initial Purchasers of the Securities. 
The primary purpose of our professional engagement was not to establish
or confirm factual matters or financial or quantitative information.  Moreover, many of the determinations required
to be made in the preparation of the Pricing Disclosure Package and the Final Offering
Memorandum involve matters of a non-legal nature.  Therefore, we are not passing upon, and do
not take any responsibility for, the accuracy, completeness or fairness of, the
statements contained in, or incorporated by reference in, the Pricing
Disclosure Package or the Final Offering Memorandum (other than as set forth in
paragraph (k) of our opinion) and have not made an independent check or
verification thereof.  We have, however,
reviewed the Pricing Disclosure Package and the Final Offering Memorandum and
participated in conferences and telephone conversations with certain officers
and other representatives of the Company, representatives of the Company’s
independent registered public accounting firm and representatives of and
counsel for the Initial Purchasers, during which conferences and conversations
the contents of the Pricing Disclosure Package and the Final Offering
Memorandum and related matters were reviewed and discussed.


 


Subject to the foregoing and on the basis of the information we gained
in the course of performing the services referred to above, nothing came to our
attention that caused us to believe that (i) the Pricing Disclosure
Package, as of the Time of Sale, contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (ii) the Final Offering Memorandum, as of its
date or the Closing Date, contained or contains any untrue statement of a
material fact or omitted or omits 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 in each case we express
no belief with respect to any financial statements and related notes, financial
schedules or other financial, accounting data or information, or assessments of
or reports on the effectiveness of internal control, contained or incorporated
by reference in or omitted from the Pricing Disclosure Package or the Final
Offering Memorandum.


 


A-4

















 


EXHIBIT B


 


[Form of
Opinion of General Counsel of the Company]


 


(a)                                  The Company and
each of the Guarantors are validly existing and, if applicable, in good
standing under the laws of their respective jurisdictions of organization, are
duly qualified to do business and are in good standing in each jurisdiction in
which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and
authority necessary to own or hold their respective properties and to conduct
the businesses in which they are engaged as described in the Pricing Disclosure
Package and the Final Offering Memorandum, except where the failure to be so
qualified or in good standing or have such power or authority would not,
individually or in the aggregate, have a Material Adverse Effect.


 


(b)                                 All the
outstanding shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable.


 


(c)                                  All the
outstanding shares of capital stock or other equity interests of each Guarantor
have been duly and validly authorized and issued, are fully paid and
non-assessable, except, in each case, where any such failure would not,
individually or in the aggregate, have a Material Adverse Effect, and are owned
directly or indirectly by the Company, free and clear of any lien, charge,
encumbrance, security interest, restriction on voting or transfer or any other
claim of any third party, except as may secure the obligations of the Company
under the Credit Agreement.


 


(d)                                 The execution,
delivery and performance by the Company and the Guarantors, as applicable, of
the Purchase Agreement, the Registration Rights Agreement, the DTC Agreement
and the Indenture, the issuance and sale of the Securities and the Exchange
Securities and the consummation of the transactions contemplated thereby will
not (i) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a Default or, except for the requirement
set forth in the Credit Agreement that the net proceeds from the issuance and
sale of the Notes be used to repay outstanding indebtedness under the Credit
Agreement, a Debt Repayment Triggering Event under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, any Existing Instrument, (ii) result
in any violation of the provisions of the charter or by-laws or similar
organizational documents of the Company or any of the Guarantors or (iii) result
in the violation of any domestic law or statute or any judgment, order, rule 
or regulation of any court or arbitrator or governmental or regulatory
authority to which the Company or its subsidiaries are subject, except, in
the case of clauses (i) and (iii) above, for any such conflict,
breach, violation, Default, Debt Repayment Triggering Event, lien, charge or
encumbrance that would not, individually or in the aggregate, have a Material
Adverse Effect.


 


(e)                                  No consent,
approval, authorization, order, license, registration or qualification of or
with any court or governmental or regulatory authority is required for the
execution, delivery


 


B-1

















 


and performance by the Company and the Guarantors,
as applicable, of the Purchase Agreement, the Registration Rights Agreement,
the DTC Agreement or the Indenture, the issuance and sale of the Securities and
the Exchange Securities and the consummation of the transactions contemplated
thereby, except for such consents, approvals, authorizations, orders and
registrations or qualifications as may be required by (i) FINRA and under
the Securities Act and applicable state and foreign securities laws in
connection with the offering and sale of the Securities by the Initial
Purchasers, (ii) under the Securities Act and applicable state and foreign
securities laws with respect to the Company’s and the Guarantors’ obligations
under the Registration Rights Agreement and (iii) under the Trust
Indenture Act with respect to the Indenture upon the issuance of the Exchange
Securities, as to which such counsel need express no opinion.


 


(f)                                    To the
knowledge of such counsel, except as described in the Pricing Disclosure
Package and the Final Offering Memorandum, there are no legal, governmental or
regulatory investigations, actions, suits or proceedings pending to which the
Company or any of its subsidiaries is a party or to which any property of the
Company or any of its subsidiaries is the subject which, individually or in the
aggregate, if determined adversely to the Company or any of its subsidiaries,
would reasonably be expected to have a Material Adverse Effect; and to the
knowledge of such counsel, no such investigations, actions, suits or
proceedings are threatened by any governmental or regulatory authority or
threatened by others.


 


(g)                                 The
descriptions in the Pricing Disclosure Package and the Final Offering
Memorandum of statutes, legal, governmental and regulatory proceedings and
contracts and other documents are accurate in all material respects; and, to
the knowledge of such counsel, there are no current or pending legal,
governmental or regulatory actions, suits or proceedings that would be required
under the Exchange Act to be described in an Annual Report on Form 10-K
and that are not so described in the Pricing Disclosure Package and the Final
Offering Memorandum.


 


In rendering such opinion,
such counsel may rely as to matters of fact on certificates of responsible
officers of the Company and public officials that are furnished to the Initial
Purchasers.


 


B-2

















 


ANNEX I


 


Resale Pursuant to
Regulation S.  Each Initial Purchaser
understands that:


 


Such Initial Purchaser
agrees that it has not engaged and will not engage in any directed selling
efforts within the meaning of Regulation S with respect to the Securities and
it has not offered or sold and will not offer or sell the Securities in the
United States or to, or for the benefit or account of, a U.S. Person (other
than a distributor), in each case, as defined in Rule 902 of
Regulation S (i) as part of its distribution at any time and (ii) otherwise
until 40 days after the later of the commencement of the offering of the
Securities pursuant hereto and the Closing Date, other than in accordance with
Regulation S or another exemption from the registration requirements of
the Securities Act.  Such Initial
Purchaser agrees that, during such 40-day restricted period, it will not cause
any advertisement with respect to the Securities (including any “tombstone”
advertisement) to be published in any newspaper or periodical or posted in any
public place and will not issue any circular relating to the Securities, except
such advertisements as are permitted by and include the statements required by
Regulation S.


 


Such
Initial Purchaser agrees that, at or prior to confirmation of a sale of Securities
by it to any distributor, dealer or person receiving a selling concession, fee
or other remuneration during the 40-day restricted period referred to in Rule 903
of Regulation S, it will send to such distributor, dealer or person
receiving a selling concession, fee or other remuneration a confirmation or
notice to substantially the following effect:


 


“The Securities covered
hereby have not been registered under the U.S. Securities Act of 1933, as
amended (the “Securities Act”), and may not be offered and sold within the
United States or to, or for the account or benefit of, U.S. persons (i) as
part of your distribution at any time or (ii) otherwise until 40 days
after the later of the date the Securities were first offered to persons other
than distributors in reliance on Regulation S and the Closing Date, except
in either case in accordance with Regulation S under the Securities Act
(or in accordance with Rule 144A under the Securities Act or to accredited
investors in transactions that are exempt from the registration requirements of
the Securities Act), and in connection with any subsequent sale by you of the
Securities covered hereby in reliance on Regulation S under the Securities
Act during the period referred to above to any distributor, dealer or person
receiving a selling concession, fee or other remuneration, you must deliver a
notice to substantially the foregoing effect. 
Terms used above have the meanings assigned to them in Regulation S
under the Securities Act.”


 


Such Initial Purchaser
agrees that the Securities offered and sold in reliance on Regulation S
will be represented upon issuance by a global security that may not be
exchanged for definitive securities until the expiration of the 40-day
restricted period referred to in Rule 903 of Regulation S and only
upon certification of beneficial ownership of such Securities by non-U.S.


 


I-1

















 


persons or U.S. persons who purchased such
Securities in transactions that were exempt from the registration requirements
of the Securities Act.


 


I-2