exv10w1






Exhibit 10.1




Execution Version




PURCHASE AGREEMENT




PHI, INC.




$297,000,000 8.625% Senior Notes due 2018




 









 





PHI, INC.



$297,000,000 8.625% Senior Notes due 2018



PURCHASE AGREEMENT



September 16, 2010

New York, New York




UBS Securities LLC

299 Park Avenue

New York, New York 10171



Ladies and Gentlemen:




     PHI, Inc., a Louisiana corporation (the “Company”), and each of the Guarantors (as defined
herein), agree with you as follows:



     1. Issuance of Notes. The Company proposes to issue and sell to UBS Securities LLC (the
“Initial Purchaser”) $297,000,000 aggregate principal amount of 8.625% Senior Notes due 2018 (the
“Original Notes”). Concurrently, the Company proposes to issue and sell to certain accredited
investors $3,000,000 aggregate principal amount of the Senior Notes due 2018 (the “Regulation D
Notes”), such offer and sale of Regulation D Notes referred to herein as the “Regulation D Private
Placement.” The Company’s obligations under the Original Notes, the Regulation D Notes and the
Indenture (as defined below) will be, jointly and severally, unconditionally guaranteed (the
“Guarantees”) on a senior unsecured basis by the Guarantors listed on Schedule I hereto
(collectively, the “Guarantors” and, together with the Company, the “Issuers”). The Original Notes
and the Guarantees related thereto are referred to herein as the “Offered Securities.” The Offered
Securities, the Regulation D Notes and the related Guarantees are referred to herein as the
“Securities.” The Securities will be issued pursuant to an indenture (the “Indenture”), to be dated
the Closing Date (as defined herein), by and among the Issuers, and The Bank of New York Mellon
Trust Company, N.A., a national banking association, as trustee (the “Trustee”). Capitalized terms
used but not otherwise defined herein shall have the meanings given to such terms in the Indenture
or the Offering Memorandum (as defined herein).



     The Offered Securities will be offered and sold to the Initial Purchaser pursuant to an
exemption from the registration requirements under the Securities Act of 1933, as amended (the
“Act”). The Issuers have prepared a preliminary offering memorandum, dated September 14, 2010 (the
“Preliminary Offering Memorandum”) and a pricing supplement thereto dated the date hereof in the
form of Exhibit C hereto (the “Pricing Supplement”). The Preliminary Offering Memorandum and the
Pricing Supplement are herein referred to as the “Pricing Disclosure Package.” Promptly after the
execution of this Purchase Agreement (this “Agreement”), the Issuers will prepare a final offering
memorandum dated the date hereof (the



 









 




“Offering Memorandum”). Unless stated to the contrary, any references herein to the terms
“Pricing Disclosure Package” and “Offering Memorandum” shall be deemed to refer to and include any
information filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and
incorporated by reference therein, and any references herein to the terms “amend”, “amendment” or
“supplement” with respect to the Offering Memorandum shall be deemed to refer to and include any
information filed under the Exchange Act subsequent to the date hereof that is incorporated by
reference therein. All references in this Agreement to financial statements and schedules and
other information which is “contained,” “included” or “stated” (or other references of like import)
in the Pricing Disclosure Package (including the Preliminary Offering Memorandum) or Offering
Memorandum shall be deemed to mean and include all such financial statements and schedules and
other information which are incorporated by reference in the Pricing Disclosure Package or Offering
Memorandum, as the case may be.




     The Initial Purchaser has advised the Issuers that the Initial Purchaser intends, as soon as
it deems practicable after this Agreement has been executed and delivered, to resell (the “Exempt
Resales”) the Offered Securities in private sales exempt from registration under the Act on the
terms set forth in the Pricing Disclosure Package solely to (i) persons whom the Initial Purchaser
reasonably believes to be “qualified institutional buyers” (“QIBS”) as defined in Rule 144A under
the Act (“Rule 144A”), and (ii) other eligible purchasers pursuant to offers and sales that occur
outside the United States within the meaning of Regulation S under the Act (“Regulation S”); the
persons specified in clauses (i) and (ii) are sometimes collectively referred to herein as the
“Eligible Purchasers.”



     Upon issuance of the Securities and until such time as the same is no longer required under
the applicable requirements of the Act, the Offered Securities shall bear the legends relating
thereto set forth under “Transfer Restrictions” and the Regulation D Notes shall bear the legends
relating thereto set forth under “Private Placement” in the Offering Memorandum.



     Holders (including subsequent transferees) of the Securities will have the benefit of the
registration rights set forth in the registration rights agreement (the “Registration Rights
Agreement”) to be dated the Closing Date, substantially in the form attached hereto as Exhibit A.
Pursuant to the Registration Rights Agreement, the Issuers will agree to, under the provisions set
forth therein, (i) file with the Securities and Exchange Commission (the “Commission”) under the
circumstances set forth in the Registration Rights Agreement, (a) a registration statement under
the Act (the “Exchange Offer Registration Statement”) relating to a new issue of debt securities
(collectively with the Private Exchange Notes (as defined in the Registration Rights Agreement) the
“Exchange Notes” and, together with the Original Notes and the Regulation D Notes, the “Notes,”),
guaranteed by the guarantors under the Indenture, to be offered in exchange for the Original Notes,
the Regulation D Notes (if applicable) and the Guarantees thereof (the “Exchange Offer”) and issued
under the Indenture or an indenture substantially identical to the Indenture and/or (b) under
certain circumstances set forth in the Registration Rights Agreement, a shelf registration
statement pursuant to Rule 415 under the Act (the “Shelf Registration Statement” and, together with
the Exchange Offer Registration Statement, the “Registration Statements”) relating to the resale by
certain holders of the Original Notes, the Regulation D Notes and the Guarantees thereof, (ii) use
their reasonable best efforts to cause such Exchange Offer Registration Statement and, if
applicable, the Shelf



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Registration Statement to be declared effective and (iii) use their reasonable best efforts to
consummate the Exchange Offer, all within the time periods specified in the Registration Rights
Agreement. This Agreement, the Notes, the Guarantees, the Indenture and the Registration Rights
Agreement are hereinafter sometimes referred to collectively as the “Note Documents.”




     The Securities are being offered and sold by the Issuers in connection with a tender offer by
the Company for all of its existing $200,000,000 7.125% Senior Notes due 2013 (the “Tender Offer”).
The issuance and sale of the Securities is referred to as the “Transaction.”



     2. Agreements to Sell and Purchase. On the basis of the representations, warranties and
covenants of the Initial Purchaser contained in this Agreement, the Issuers agree to issue and sell
to the Initial Purchaser, and on the basis of the representations, warranties and covenants of the
Issuers contained in this Agreement, and subject to the terms and conditions contained in this
Agreement, the Initial Purchaser agrees to purchase from the Issuers, the Offered Securities. The
purchase price for the Offered Securities shall be 98.5% of their principal amount.



     3. Delivery and Payment. Delivery of, and payment of the purchase price for, the Offered
Securities shall be made at 9:00 a.m., Central Time, on September 23, 2010 (such date and time, the
“Closing Date”) at the offices of Vinson & Elkins L.L.P., 2500 First City Tower, 1001, Fannin,
Houston, Texas 77002. The Closing Date and the location of delivery of and the form of payment for
the Offered Securities may be varied by mutual agreement between the Initial Purchaser and the
Company.



     The Offered Securities shall be delivered by the Issuers to the Initial Purchaser (or as the
Initial Purchaser direct) through the facilities of The Depository Trust Company (“DTC”), against
payment by the Initial Purchaser of the purchase price therefor by means of wire transfer of
immediately available funds to such account or accounts specified by the Company in accordance with
its obligations under Sections 4(g) and 8(m) hereof on or prior to the Closing Date, or by such
means as the parties hereto shall agree prior to the Closing Date. The Offered Securities shall be
evidenced by one or more certificates in global form registered in such names as the Initial
Purchaser may request upon at least one business day’s notice prior to the Closing Date and having
an aggregate principal amount corresponding to the aggregate principal amount of the Offered
Securities.



     4. Agreements of the Issuers. The Issuers, jointly and severally, covenant and agree with the
Initial Purchaser as follows:



          (a) To furnish the Initial Purchaser and those persons identified by the Initial Purchaser,
without charge, with as many copies of the Preliminary Offering Memorandum, the Pricing Supplement,
any Issuer Written Communication (as defined below) and the Offering Memorandum, and any amendments
or supplements thereto, as the Initial Purchaser may reasonably request. The Issuers consent to the
use of the Preliminary Offering Memorandum, the Pricing Supplement, any Issuer Written
Communication and the Offering Memorandum, and any amendments and supplements thereto, by the
Initial Purchaser in connection with Exempt Resales.







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          (b) As promptly as practicable following the execution and delivery of this Agreement and in
any event not later than the second business day following the date hereof, to prepare and deliver
to the Initial Purchaser the Offering Memorandum, which shall consist of the Preliminary Offering
Memorandum as modified only by the information contained in the Pricing Supplement or as otherwise
agreed by the Initial Purchaser. Not to amend or supplement the Preliminary Offering Memorandum or
the Pricing Supplement. Not to amend or supplement the Offering Memorandum prior to the Closing
Date unless the Initial Purchaser shall previously have been advised of such proposed amendment or
supplement at least two business days prior to the proposed use, and shall not have objected to
such amendment or supplement.




          (c) If, prior to the later of (x) the Closing Date and (y) the time that the Initial Purchaser
has completed its distribution of the Offered Securities, any event shall occur that, in the
reasonable judgment of the Issuers or in the reasonable judgment of the Initial Purchaser, makes
any statement of a material fact in the Offering Memorandum, as then amended or supplemented,
untrue or that requires the making of any additions to or changes in the Offering Memorandum in
order to make the statements in the Offering Memorandum, as then amended or supplemented, in the
light of the circumstances under which they are made, not misleading, or if it is necessary to
amend or supplement the Offering Memorandum to comply with all applicable laws, the Issuers shall
promptly notify the Initial Purchaser of such event, or the Initial Purchaser shall promptly notify
the Issuers, as the case may be, and (subject to Section 4(b)) prepare an appropriate amendment or
supplement to the Offering Memorandum so that (i) the statements in the Offering Memorandum, as
amended or supplemented, will not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the light of the
circumstances at the time that the Offering Memorandum is delivered to prospective Eligible
Purchasers, not misleading and (ii) the Offering Memorandum will comply with applicable law.




          (d) To cooperate with the Initial Purchaser and counsel to the Initial Purchaser in connection
with the qualification or registration of the Offered Securities under the securities laws of such
jurisdictions as the Initial Purchaser may request and to continue such qualification in effect so
long as required for the Exempt Resales. Notwithstanding the foregoing, no Issuer shall be required
to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or to file
a general consent to service of process in any such jurisdiction or subject itself to taxation in
excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.




          (e) To advise the Initial Purchaser promptly and, if requested by the Initial Purchaser, to
confirm such advice in writing, of the issuance by any securities commission of any stop order
suspending the qualification or exemption from qualification of any of the Securities for offering
or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any securities
commission or other regulatory authority. The Issuers shall use their reasonable best efforts to
prevent the issuance of any stop order or order suspending the qualification or exemption of any of
the Securities under any securities laws, and if at any time any securities commission or other
regulatory authority shall issue an order suspending the qualification or exemption of any of the
Securities under any securities laws, the Issuers shall use






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their reasonable best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.




          (f) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement becomes effective or is terminated other than by reason of a default by the Initial
Purchaser, to pay all costs, expenses, fees and disbursements (including fees and disbursements of
counsel and accountants for the Issuers) incurred and all stamp, documentary or similar taxes
incident to and in connection with: (i) the preparation, printing and distribution of the
Preliminary Offering Memorandum, the Pricing Supplement, any Issuer Written Communication (as
defined below) and the Offering Memorandum (including, without limitation, financial statements)
and all amendments and supplements thereto; (ii) all expenses (including travel expenses) of the
Issuers in connection with any meetings with prospective investors in the Offered Securities; (iii)
the preparation, notarization (if necessary) and delivery of the Note Documents and all other
agreements, memoranda, correspondence and documents prepared and delivered in connection with this
Agreement and with the Exempt Resales; (iv) the issuance, transfer and delivery of the Offered
Securities by the Issuers to the Initial Purchaser; (v) the qualification or registration of the
Securities for offer and sale under the securities laws of the several states of the United States
or provinces of Canada (including, without limitation, the cost of printing and mailing preliminary
and final “Blue Sky” or legal investment memoranda and fees and disbursements of counsel (including
local counsel) to the Initial Purchaser relating thereto); (vi) the preparation, printing and
distribution of one or more versions of the Pricing Disclosure Package and the Offering Memorandum
for distribution in Canada, often in the form of a Canadian “wrapper” (including the preparation of
any related Canadian blue sky memorandum and the related fees and expenses of Canadian counsel to
the Initial Purchaser); (vii) the inclusion of the Offered Securities in the book-entry system of
the DTC; (viii) the rating of the Securities by rating agencies; (ix) the fees and expenses of the
Trustee and its counsel; (x) the cost of any aircraft chartered in connection with the roadshow and
(xi) the performance by the Issuers of their other obligations under the Note Documents; provided,
however, except as set forth above in subparagraph (v) the Initial Purchaser shall be responsible
for all legal fees and expenses of its legal counsel; and provided further, however, that except as
otherwise expressly set forth in this Agreement, the Initial Purchaser shall pay its own costs and
expenses, including costs and expenses relating to the roadshow. In addition, if the transactions
contemplated by this Agreement are not consummated for any reason other than the termination of
this Agreement pursuant to Section 11 hereof or the default by the Initial Purchaser in its
obligations hereunder, the Issuers shall, in addition to paying the amounts described above,
reimburse the Initial Purchaser for one-half of its reasonably incurred out-of-pocket expenses,
including the reasonably incurred fees and disbursements of its counsel.




          (g) To use the proceeds from the sale of the Securities in a manner described in the Pricing
Disclosure Package under the caption “Use of proceeds.”




          (h) To do and perform all things required to be done and performed under this Agreement by
them prior to or after the Closing Date and to satisfy all conditions precedent on their part to
the delivery of the Offered Securities.







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          (i) Not to permit any Issuer, and not to permit any of their subsidiaries to, sell, offer for
sale or solicit offers to buy any security (as defined in the Act) that would be integrated with
the sale of the Securities in a manner that would require the registration under the Act of the
sale of the Offered Securities to the Initial Purchaser or any Eligible Purchasers.




          (j) Not to permit any Issuer or any of its subsidiaries to, and to use their reasonable best
efforts to cause their affiliates (as defined in Rule 144 under the Act) not to, resell any of the
Securities that have been acquired by any of them, other than in accordance with the letter
agreement provided for in Section 8(o) hereof.




          (k) Not to permit any Issuer to engage, not to allow any of their subsidiaries to engage, and
to use their reasonable best efforts to cause their other affiliates and any person acting on their
behalf (other than, in any case, the Initial Purchaser and any of its affiliates, as to whom the
Issuers make no covenant) not to engage, in any form of general solicitation or general advertising
(within the meaning of Regulation D under the Act) in connection with any offer or sale of the
Securities in the United States.




          (l) Not to engage, not to allow any of their subsidiaries to engage, and to use their
reasonable best efforts to cause their other affiliates and any person acting on their behalf
(other than, in any case, the Initial Purchaser and any of its affiliates, as to whom the Issuers
make no covenant) not to engage, in any directed selling effort with respect to the Securities, and
to comply with the offering restrictions requirement of Regulation S. Terms used in this paragraph
have the meanings given to them by Regulation S.




          (m) From and after the Closing Date, for so long as any of the Securities remain outstanding
and are “restricted securities” within the meaning of Rule 144(a)(3) under the Act and during any
period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act, to make
available upon request the information required by Rule 144A(d)(4) under the Act to (i) any holder
or beneficial owner of Securities in connection with any sale of such Securities and (ii) any
prospective purchaser of such Securities from any such holder or beneficial owner designated by the
holder or beneficial owner. The Issuers will pay the expenses of printing and distributing such
documents.




          (n) To comply with all of their agreements set forth in the Registration Rights Agreement.




          (o) To comply with all of their obligations set forth in the representations letter of the
Issuers to DTC relating to the approval of the Offered Securities by DTC for “book-entry” transfer
and to use their reasonable best efforts to obtain approval of the Offered Securities by DTC for
“book-entry” transfer.




          (p) Prior to the Closing Date, to furnish without charge to the Initial Purchaser, (i) as soon
as they have been prepared, a copy of any regularly prepared internal financial statements of the
Company and its subsidiaries for any period subsequent to the period covered by the financial
statements appearing in the Pricing Disclosure Package, (ii) all other reports and other
communications (financial or otherwise) that any of the Issuers mail or






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otherwise make available to their security holders and (iii) such other information as the
Initial Purchaser shall reasonably request.




          (q) Not to, and not to permit any of its affiliates or anyone acting on its or its affiliates’
behalf to (other than the Initial Purchaser and its affiliates), distribute prior to the Closing
Date any offering material in connection with the offer and sale of the Securities other than the
Preliminary Offering Memorandum, the Pricing Supplement, an Issuer Written Communication and the
Offering Memorandum. Before making, preparing, using, authorizing, approving or referring to any
Issuer Written Communication (as defined below), the Company will furnish to the Initial Purchaser
and counsel for the Initial Purchaser a copy of such written communication for review and will not
make, prepare, use, authorize, approve or refer to any such written communication to which the
Initial Purchaser reasonably objects.




          (r) During the period of two years after the Closing Date or, if earlier, until such time as
the Securities are no longer restricted securities (as defined in Rule 144 under the Act), not to
be or become an investment company required to be registered, but not registered, under the
Investment Company Act of 1940.




          (s) In connection with the offering, until the Initial Purchaser shall have notified the
Company of the completion of the resale of the Offered Securities, not to, and not to permit any of
their affiliates (as such term is defined in Rule 501(b) of Regulation D under the Act) to, either
alone or with one or more other persons, bid for or purchase for any account in which they or any
of their affiliates have a beneficial interest in any of the Securities (other than the Regulation
D Notes pursuant to the Regulation D Private Placement); and none of the Issuers nor any of their
affiliates will make bids or purchases for the purpose of creating actual, or apparent, active
trading in, or of raising the price of, the Securities.




          (t) During the period from the date hereof, through and including the date that is 90 days
after the date hereof, without the prior written consent of the Initial Purchaser, offer, sell,
contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Company or
any Subsidiary and having a term of more than one year.




     The Company and the Initial Purchaser agree that prior to any registration of the Securities
pursuant to the Registration Rights Agreement, or at such earlier time as may be so required, the
Indenture shall be qualified under the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”), and that it will cause to be entered into any necessary supplemental indentures in
connection therewith.



     5. Representations and Warranties.



          (a) The Issuers, jointly and severally, represent and warrant to the Initial Purchaser that:





          (i) Neither the Pricing Disclosure Package, as of the date hereof, nor the Offering
Memorandum, as of its date or (as amended or supplemented in accordance with Section 4(b),
if applicable) as of the Closing Date, contains, or will



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contain, any untrue statement of a material fact or omits 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; provided, however, that the Issuers make no
representation or warranty with respect to information relating to the Initial Purchaser
contained in or omitted from the Pricing Disclosure Package, the Offering Memorandum or any
amendment or supplement thereto in reliance upon and in conformity with information
furnished to the Company in writing by or on behalf of the Initial Purchaser expressly for
inclusion in the Pricing Disclosure Package, the Offering Memorandum or any amendment or
supplement thereto, as the case may be. No order preventing the use of the Preliminary
Offering Memorandum, the Pricing Supplement or the Offering Memorandum, or any amendment or
supplement thereto, or any order asserting that any of the transactions contemplated by this
Agreement are subject to the registration requirements of the Act, has been issued or, to
the knowledge of the Issuers, has been threatened.




          (ii) The Company (including its agents and representatives, other than the Initial
Purchaser in its capacity as such) has not prepared, made, used, authorized, approved or
referred to and will not prepare, make, use, authorize, approve or refer to any written
communication that constitutes an offer to sell or solicitation of an offer to buy the
Securities (each such communication by the Company or its agents and representatives an
“Issuer Written Communication”) other than (i) the Pricing Disclosure Package, (ii) the
Offering Memorandum and (iii) any electronic road show or other written communications, in
each case used in accordance with Section 4(q). Each such Issuer Written Communication, when
taken together with the Pricing Disclosure Package, did not, 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. The documents incorporated by reference in the
Offering Memorandum heretofore filed with the Commission were filed in a timely manner and,
when they were filed (or, if any amendment with respect to any such document was filed, when
such amendment was filed), conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations thereunder (the “Exchange Act Regulations”), and
any further incorporated documents so filed will, when they are filed, conform in all
material respects with the requirements of the Exchange Act and the Exchange Act
Regulations; no such document when it was filed (or, if an amendment with respect to any
such document was filed, when such amendment was filed) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and no such further incorporated document,
when it is filed, will contain an untrue statement of a material fact or will omit to state
a material fact required to be stated therein or necessary in order to make the statements
therein not misleading.




          (iii) There are no securities of the Issuers that are listed on a national securities
exchange registered under Section 6 of the Exchange Act or that are quoted in a United
States automated interdealer quotation system of the same class as the Securities within the
meaning of Rule 144A.



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          (iv) After giving effect to the Transaction, the capitalization of the Company as of
the Closing Date will be as set forth in the as adjusted column under the heading
“Capitalization” in the Pricing Disclosure Package, assuming the Tender Offer is fully
subscribed (subject to the issuance of shares of Common Stock upon exercise of outstanding
stock options disclosed in the Pricing Disclosure Package or the Offering Memorandum and the
grant of options under the existing stock option plans described in the Pricing Disclosure
Package or the Offering Memorandum). Attached hereto as Schedule II is a true and complete
list of each subsidiary of the Company, its jurisdiction of organization and percentage
equity ownership by the Company (collectively, the “Subsidiaries”). The entities listed on
Schedule II hereto are the only Subsidiaries, direct or indirect, of the Company. All of the
issued and outstanding shares of capital stock or other equity interests of each of the
Subsidiaries have been duly and validly authorized and issued, are fully paid and
nonassessable, were not issued in violation of any preemptive or similar rights and, except
as set forth in the Pricing Disclosure Package, are owned, directly or indirectly, by the
Company free and clear of all Liens (as defined in the Indenture) other than Permitted Liens
(as defined in the Indenture). Except as set forth in the Pricing Disclosure Package, there
are no outstanding options, warrants or other rights to acquire or purchase, or instruments
convertible into or exchangeable for, any shares of capital stock or other equity interests
of the Company or any of the Subsidiaries. No holder of any securities of the Company or any
of the Subsidiaries is entitled to have such securities (other than the Securities)
registered under any registration statement contemplated by the Registration Rights
Agreement.




          (v) Each of the Company and each Subsidiary: (A) is a corporation, limited liability
company, partnership or other entity duly organized and validly existing under the laws of
the jurisdiction of its incorporation or organization, as the case may be; (B) has all
requisite corporate, partnership or limited liability company or other power and authority,
as the case may be, and has all governmental licenses, authorizations, consents and
approvals, necessary to own its property and carry on its business as now being conducted,
except if the failure to obtain any such license, authorization, consent and approval could
not reasonably be expected to have a Material Adverse Effect; and (C) is qualified to do
business and is in good standing in all jurisdictions in which the nature of the business
conducted by it or its ownership of property makes such qualification necessary, except
where the failure to be so qualified and in good standing individually or in the aggregate
would not reasonably be expected to have a Material Adverse Effect. A “Material Adverse
Effect” means (x) any material adverse effect on the business, properties, financial
condition, results of operations or prospects of the Company and the Subsidiaries, taken as
a whole or (y) an adverse effect on the ability to consummate the Transactions on a timely
basis.




          (vi) Each of the Issuers has all requisite corporate or other power and authority, as
the case may be, to execute, deliver and perform all of its obligations under the Note
Documents to which it is a party and to consummate the transactions contemplated by the Note
Documents to be consummated on its part and, without limitation, the Company has all
requisite corporate power and authority to issue, sell and deliver the Notes and each
Guarantor has all requisite corporate or other power and



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authority to make and perform all its obligations under its Guarantee. Each of the
Issuers has duly authorized the execution, delivery and performance of each of the Note
Documents to which it is a party. Each of the Note Documents conforms, or when executed and
delivered will conform, in all material respects to the descriptions thereof in the Offering
Memorandum.




          (vii) This Agreement has been duly and validly authorized, executed and delivered by
each Issuer.




          (viii) The Indenture has been duly and validly authorized by each Issuer and, when duly
executed and delivered by each Issuer (assuming the due authorization, execution and
delivery thereof by the Trustee), will be a legal, valid and binding obligation of each of
the Issuers, enforceable against each of them in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization, fraudulent
transfer or conveyance, moratorium or other similar laws affecting the enforcement of
creditors’ rights generally and by general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity) and the discretion of the court
before which any proceeding therefor may be brought and constitutional limitations on laws
that govern the enforceability of choice of law provisions in agreements (the “Bankruptcy
and Equity Exceptions”). The Indenture, when executed and delivered, will conform in all
material respects to the description thereof in the Offering Memorandum.




          (ix) The Original Notes and the Regulation D Notes have been duly and validly
authorized for issuance and sale to the Initial Purchaser and the purchasers in the
Regulation D Private Placement by the Company and, when issued, authenticated and delivered
by the Company against payment therefor by the Initial Purchaser in accordance with the
terms of this Agreement and the Indenture and the purchasers in the Regulation D Private
Placement in accordance with the terms of the Indenture (assuming, in each case, the due
authorization, execution and delivery thereof by the Trustee), the Original Notes and the
Regulation D Notes will be legal, valid and binding obligations of the Company, entitled to
the benefits of the Indenture and enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by the Bankruptcy and Equity
Exceptions. The Original Notes and the Regulation D Notes, when issued, authenticated and
delivered, will conform in all material respects to the description thereof in the Offering
Memorandum.




          (x) The Exchange Notes have been, or upon the Closing Date will be, duly and validly
authorized for issuance by the Company and, when issued, authenticated and delivered by the
Company in accordance with the terms of the Registration Rights Agreement, the Exchange
Offer and the Indenture (assuming the due authorization, execution and delivery thereof by
the Trustee), the Exchange Notes will be legal, valid and binding obligations of the
Company, entitled to the benefits of the Indenture and enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by the
Bankruptcy and Equity Exceptions. The Exchange Notes, when issued, authenticated and
delivered, will conform in all material



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respects to the description thereof in the Preliminary Offering Memorandum and the
Offering Memorandum.




          (xi) The Guarantees have been duly and validly authorized by each of the Guarantors
and, when the Original Notes and the Regulation D Notes are issued, authenticated by the
Trustee and delivered by the Company against payment by the Initial Purchaser in accordance
with the terms of this Agreement and the Indenture and the purchasers in the Regulation D
Private Placement in accordance with the terms of the Indenture (assuming, in each case, the
due authorization, execution and delivery thereof by the Trustee), will be legal, valid and
binding obligations of the Guarantors, enforceable against each of them in accordance with
their terms, except as the enforcement thereof may be limited by the Bankruptcy and Equity
Exceptions. The Guarantees, when executed and delivered, will conform in all material
respects to the description thereof in the Offering Memorandum.




          (xii) The guarantees in respect of the Exchange Notes have been duly and validly
authorized by the Guarantors and, when the Exchange Notes are issued, authenticated and
delivered in accordance with the terms of the Registration Rights Agreement, the Exchange
Offer and the Indenture (assuming the due authorization, execution and delivery thereof by
the Trustee), will be legal, valid and binding obligations of the Guarantors, enforceable
against each of them in accordance with their terms, except as the enforcement thereof may
be limited by the Bankruptcy and Equity Exceptions.




          (xiii) The Registration Rights Agreement has been duly and validly authorized by each
of the Issuers and, when duly executed and delivered by each of the Issuers (assuming the
due authorization, execution and delivery thereof by the Initial Purchaser), will constitute
a legal, valid and binding obligation of each of the Issuers, enforceable against them in
accordance with its terms, except (A) as the enforcement thereof may be subject to the
Bankruptcy and Equity Exceptions, and (B) that any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and public policy
considerations. The Registration Rights Agreement will conform in all material respects to
the description thereof in the Offering Memorandum.




          (xiv) All taxes, fees and other governmental charges that are due and payable on or
prior to the Closing Date in connection with the execution, delivery and performance of the
Note Documents and the execution, delivery and sale of the Securities shall have been paid
by or on behalf of the Company at or prior to the Closing Date.




          (xv) None of the Company or any of the Subsidiaries is (A) in violation of its charter,
bylaws or other constitutive documents, (B) in default (or, with notice or lapse of time or
both, would be in default) in the performance or observance of any obligation, agreement,
covenant or condition contained in any bond, debenture, note, indenture, mortgage, deed of
trust, loan or credit agreement, lease, license, franchise agreement, authorization, permit,
certificate or other agreement or instrument to which any of them is a party or by which any
of them is bound or to which any of their assets or



11









 






properties is subject (collectively, “Agreements and Instruments”), or (C) in violation
of any law, statute, rule, regulation, judgment, order or decree of any domestic or foreign
court with jurisdiction over any of them or any of their assets or properties or other
governmental or regulatory authority, agency or other body, which, in the case of clauses
(B) and (C) herein, individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect. There exists no condition that, with notice, the passage of time
or otherwise, would constitute a default by the Company or any of its Subsidiaries under any
such document or instrument or result in the imposition of any penalty or the acceleration
of any indebtedness, other than penalties, defaults or conditions that, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse Effect.




          (xvi) The execution, delivery and performance by each of the Issuers of the Note
Documents to which it is a party, including the consummation of the offer and sale of the
Securities and the Exchange Notes, does not and will not violate, conflict with or
constitute a breach of any of the terms or provisions of or a default under (or an event
that with notice or the lapse of time, or both, would constitute a default), or require
consent under, or result in the creation or imposition of a Lien, on any property or assets
of the Company or any Subsidiaries pursuant to, (i) the charter, bylaws or other
constitutive documents of any of the Company or any of its Subsidiaries, (ii) any judgment,
order or decree of any domestic or foreign court or governmental agency or authority having
jurisdiction over the Company or any of its Subsidiaries or their respective assets or
properties except such judgments, orders or decrees that would have a Material Adverse
Effect, (iii) any of the Agreements and Instruments or (iv) any law, statute, rule or
regulation applicable to the Company or any of its Subsidiaries or their respective assets
or properties, except in the case of clauses (iii) and (iv), such violations, conflicts,
breaches or defaults as could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. Assuming the accuracy of the representations and
warranties of the Initial Purchaser in Section 5(b) of this Agreement, no consent, approval,
authorization or order of, or filing, registration, qualification, license or permit of or
with, any court or governmental agency, body or administrative agency, domestic or foreign,
is required to be obtained or made by the Company or any of its Subsidiaries for the
execution, delivery and performance by the Company and each of its Subsidiaries of the Note
Documents to which they are party including the consummation of any of the transactions
contemplated thereby, except (x) such as have been or will be obtained or made on or prior
to the Closing Date, (y) registration of the Exchange Offer or resale of the Notes under the
Act pursuant to the Registration Rights Agreement and (z) qualification of the Indenture
under the Trust Indenture Act in connection with the issuance of the Exchange Notes. No
consents or waivers from any other person or entity are required for the execution, delivery
and performance of this Agreement or any of the other Note Documents or the consummation of
any of the transactions contemplated hereby or thereby, other than such consents and waivers
as have been obtained or will be obtained prior to the Closing Date and will be in full
force and effect, except such consents or waivers that the failure to obtain could not be
reasonably expected to have a Material Adverse Effect.



12









 






          (xvii) Except as set forth in the Pricing Disclosure Package, there is (A) no action,
suit or proceeding before or by any court, arbitrator or governmental agency, body or
official, domestic or foreign, now pending or, to the knowledge of the Issuers, threatened
or contemplated, to which the Company or any of the Subsidiaries is or may be a party or to
which the business, assets or property of such person is or may be subject, (B) no law,
statute, rule, regulation or order that has been enacted, adopted or issued or, to the
knowledge of the Issuers, that has been proposed by any governmental body or agency,
domestic or foreign, (C) no injunction, restraining order or order of any nature by a
federal or state court or foreign court of competent jurisdiction to which the Company or
any of the Subsidiaries is or may be subject that in the case of clause (A), (B) or (C),
could, individually or in the aggregate, reasonably be expected, (1) to have a Material
Adverse Effect or (2) to interfere with or adversely affect the issuance of the Securities
in any jurisdiction or adversely affect the consummation of the transactions contemplated by
any of the Note Documents. Every request of any securities authority or agency of any
jurisdiction for additional information with respect to the Securities that has been
received by the Company or any of the Subsidiaries or their counsel prior to the date hereof
has been, or will prior to the Closing Date be, complied with in all material respects.




          (xviii) Except as could not reasonably be expected to have a Material Adverse Effect,
no labor disturbance by the employees of any of the Company or any of the Subsidiaries
exists or, to the knowledge of the Issuers, is imminent.




          (xix) Except as set forth in the Pricing Disclosure Package, the Company and each of
the Subsidiaries (A) is in compliance with, or not subject to costs or liabilities under,
all laws, regulations, rules of common law, orders and decrees, as in effect as of the date
hereof, and any present judgments and injunctions issued or promulgated thereunder relating
to pollution or protection of public and employee health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants applicable to it or its
business or operations or ownership or use of its property (“Environmental Laws”), other
than noncompliance or such costs or liabilities that, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect, and (B) possesses all
permits, licenses or other approvals required under applicable Environmental Laws, except
where the failure to possess any such permit, license or other approval could not reasonably
be expected to have, either individually or in the aggregate, a Material Adverse Effect. All
currently pending and, to the knowledge of the Issuers, threatened proceedings, notices of
violation, demands, notices of potential responsibility or liability, suits and existing
environmental conditions by any governmental authority which the Company or any of its
Subsidiaries would reasonably expect to result in a Material Adverse Effect are accurately
described in all material respects in the Pricing Disclosure Package. The Company and each
of the Subsidiaries maintains a system of internal environmental management controls
sufficient to provide reasonable assurance of compliance in all material respects of their
business facilities, real property and operations with requirements of applicable
Environmental Laws.



13









 






          (xx) The Company and each of the Subsidiaries have (A) all licenses, certificates,
permits, authorizations, approvals, franchises and other rights from, and has made all
declarations and filings with, all applicable authorities, all self-regulatory authorities
and all courts and other tribunals (each, an “Authorization”) necessary to engage in the
business conducted by them in the manner described in the Pricing Disclosure Package, except
where the failure to hold such Authorizations could not, individually or in the aggregate,
be reasonably expected to have a Material Adverse Effect, and (B) no reason to believe that
any governmental body or agency, domestic or foreign, is considering limiting, suspending or
revoking any such Authorization, except where any such limitations, suspensions or
revocations could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. All such Authorizations are valid and in full force and effect and
the Company and each of the Subsidiaries are in compliance in all material respects with the
terms and conditions of all such Authorizations and with the rules and regulations of the
regulatory authorities having jurisdiction with respect to such Authorizations, except for
any invalidity, failure to be in full force and effect or noncompliance with any
Authorization that could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.




          (xxi) Each of the Company and the Subsidiaries has good and valid title in fee simple
to all items of real property and valid title to all personal property owned by each of
them, in each case free and clear of any Lien, except (i) such as do not materially and
adversely affect the value of such property and do not interfere with the use made or
proposed to be made of such property by the Company or such Subsidiaries to an extent that
such interference would reasonably be expected to have a Material Adverse Effect, and (ii)
Liens described in the Pricing Disclosure Package. Any real property and buildings held
under lease by the Company or any of the Subsidiaries are held under valid, subsisting and
enforceable leases, with such exceptions as do not materially interfere with the use made or
proposed to be made of such property and buildings by the Company or the Subsidiaries.




          (xxii) Each of the Company and the Subsidiaries owns, possesses or has the right to
employ all patents, patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and trade names
(collectively, the “Intellectual Property”) necessary to conduct the businesses operated by
it as described in the Pricing Disclosure Package, except where the failure to own, possess
or have the right to employ such Intellectual Property, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect. None of the Company or
any of the Subsidiaries has received any notice of infringement of or conflict with (or
knows of any such infringement or a conflict with) asserted rights of others with respect to
any of the foregoing that, if such assertion of infringement or conflict were sustained,
would reasonably be expected to have a Material Adverse Effect. The use of the Intellectual
Property in connection with the business and operations of the Company and the Subsidiaries
does not infringe on the rights of any person, except for such infringement as could not
reasonably be expected to have a Material Adverse Effect.



14









 






          (xxiii) All tax returns required to be filed by the Company and each of the
Subsidiaries have been filed in all jurisdictions where such returns are required to be
filed; and all taxes, including withholding taxes, value added and franchise taxes,
penalties and interest, assessments, fees and other charges due or claimed to be due from
such entities or that are due and payable have been paid, other than those being contested
in good faith and for which reserves have been provided in accordance with GAAP or those
currently payable without penalty or interest and except where the failure to make such
required filings or payments could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. To the knowledge of the Issuers, there are no
material proposed additional tax assessments against the Company or any of the Subsidiaries
or their assets or property.




          (xxiv) Neither the Company nor any of the Subsidiaries has any liability for any
prohibited transaction or accumulated funding deficiency (within the meaning of Section 412
of the Internal Revenue Code of 1986, as amended (the “Code”)) or any complete or partial
withdrawal liability with respect to any pension, profit sharing or other plan which is
subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), to
which the Company or any of the Subsidiaries makes or ever has made a contribution and in
which any employee of the Company or any of the Subsidiaries is or has ever been a
participant. With respect to such plans, the Company and each of the Subsidiaries are in
compliance in all material respects with all applicable provisions of ERISA.




          (xxv) Neither the Company nor any of the Subsidiaries is, or after giving effect to the
Transactions will be, an “investment company” or a company “controlled” by an “investment
company” incorporated in the United States within the meaning of the Investment Company Act
of 1940, as amended.




          (xxvi) The statements in the Preliminary Offering Memorandum and the Final Offering
Memorandum under the headings “Certain U.S. Federal Income Tax Consequences”, “Description
of Notes”, “Legal Matters”, “Exchange Offer; Registration Rights” and “Government
Regulation” and under the subheading “Business—Legal Proceedings” fairly summarize the
matters therein described in all material respects.




          (xxvii) Except as set forth in the Pricing Disclosure Package, neither the Company nor
any of its Subsidiaries nor, to the knowledge of the Company and each of the Guarantors, 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 bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.




          (xxviii) Except as set forth in the Pricing Disclosure Package, the operations of the
Company and its Subsidiaries are and have been conducted at all times



15









 






in compliance 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 best knowledge of the Company, threatened.




          (xxix) Except as set forth in the Pricing Disclosure Package, none of the Company, any
of its Subsidiaries or, to the knowledge of the Company, any director, officer, agent,
employee or affiliate of 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 (“OFAC”); and the Company will not directly or indirectly use the proceeds
of the offering of the Securities hereunder, or lend, contribute or otherwise make available
such proceeds to any Subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.




          (xxx) The Company and each of the Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that: (A) transactions are executed in
accordance with management’s general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of their financial statements in conformity with
GAAP and to maintain accountability for assets; (C) access to assets is permitted only in
accordance with management’s general or specific authorization; and (D) the recorded
accountability for their assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.




          (xxxi) The Company has established and maintains disclosure controls and procedures (as
such term is defined in Rules 13a-15 and 15d-14 under the Exchange Act); such disclosure
controls and procedures are designed to ensure that material information relating to the
Company and the Subsidiaries is made known to the chief executive officer and chief
financial officer of the Company by others within the Company or any Subsidiary, and such
disclosure controls and procedures are reasonably effective to perform the functions for
which they were established subject to the limitations of any such control system; the
Company’s auditors and the audit committee of the board of directors of the Company have
been advised of: (A) any significant deficiencies, if any, in the design or operation of
internal controls which could adversely affect the Company’s ability to record, process,
summarize, and report financial data; and (B) any fraud, if any, whether or not material,
that involves management or other employees who have a role in the Company’s internal
controls; and since the date of the most recent evaluation of such disclosure controls and
procedures, there have been no significant changes in internal controls or in other factors
that could significantly affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses. The Company has provided or
made available to the Initial




16











 






Purchaser or its counsel true and complete copies of all extant minutes or draft
minutes of meetings, or resolutions adopted by written consent, of the board of directors of
the Company and each Subsidiary and each committee of each such board in the past three
years, and all agendas for each such meeting for which minutes or draft minutes do not
exist.




          (xxxii) The Company and each of the Subsidiaries maintain insurance covering their
properties, assets, operations, personnel and businesses, and such insurance is of such type
and in such amounts in accordance with customary industry practice to reasonably protect the
Company and of the Subsidiaries and their businesses. None of the Company or any of the
Subsidiaries has received notice from any insurer or agent of such insurer that any material
capital improvements or other material expenditures will have to be made in order to
continue any insurance maintained by any of them other than capital improvements and other
expenditures that have been budgeted by the Company or the Subsidiaries, as the case may be.




          (xxxiii) Neither the Company nor any of its affiliates (as defined in Rule 501(b) of
Regulation D under the Act) has (A) taken, directly or indirectly, any action designed to,
or that might reasonably be expected to, cause or result in stabilization or manipulation of
the price of any security of the Issuers to facilitate the sale or resale of the Securities,
(B) sold, bid for, purchased or paid any person any compensation for soliciting purchases of
the Securities in a manner that would require registration of the Securities under the Act
or paid or agreed to pay to any person any compensation for soliciting another to purchase
any other securities of any Issuer in a manner that would require registration of the
Securities under the Act, (C) sold, offered for sale, contracted to sell, pledged, solicited
offers to buy or otherwise disposed of or negotiated in respect of, any security (as defined
in the Act) that is currently or will be integrated with the sale of the Securities in a
manner that would require the registration of the Securities under the Act, or (D) engaged
in any directed selling effort with respect to the Securities, and each of them has complied
with the offering restrictions requirement of Regulation S. Terms used in this paragraph
have the meaning given to them by Regulation S.




          (xxxiv) No form of general solicitation or general advertising was used by the Issuers
or any of their representatives (other than the Initial Purchaser, as to whom the Issuers
make no representation) in connection with the offer and sale of any of the Securities or in
connection with Exempt Resales, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium or broadcast over
television or radio or displayed on any computer terminal, or any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising. None of the
Company or any of its affiliates has entered into, and none of the Company or any of its
affiliates will enter into, any contractual arrangement with respect to the distribution of
the Securities except for this Agreement and the Director Purchase Agreements executed in
connection with the Regulation D Private Placement in substantially the form provided to the
Initial Purchaser.



17









 






          (xxxv) Since December 31, 2009, except as set forth or contemplated in the Pricing
Disclosure Package, (A) neither the Company nor any of the Subsidiaries has (1) incurred any
liabilities or obligations, direct or contingent, that could, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, or (2) entered into any
transaction not in the ordinary course of business that would reasonably be expected to have
a Material Adverse Effect, (B) there has not been any event or development in respect of the
business or condition (financial or other) of the Company and the Subsidiaries that,
individually or in the aggregate, would reasonably be expected to have a Material Adverse
Effect and (C) there has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock and (D) there has not been any material
change in the long-term debt of the Company or any of the Subsidiaries.




          (xxxvi) Neither the Company nor any of the Subsidiaries (or any agent thereof acting on
their behalf) has taken, and none of them will take, any action that would reasonably be
expected to cause this Agreement or the issuance or sale of the Notes to violate Regulations
T, U or X of the Board of Governors of the Federal Reserve System, as in effect, or as the
same may hereafter be in effect, on the Closing Date.




          (xxxvii) Deloitte & Touche LLP, whose reports are included in the Pricing Disclosure
Package, is an independent accountant within the meaning of the Act. The historical
consolidated financial statements and the notes thereto included in the Pricing Disclosure
Package present fairly in all material respects the consolidated financial position, results
of operations, cash flows and changes in stockholders’ equity of the Company and its
consolidated subsidiaries at the respective dates and for the respective periods indicated.
Such consolidated financial statements have been prepared in accordance with generally
accepted accounting principles in the United States (“GAAP”) applied on a consistent basis
throughout the periods presented (except as disclosed in the Pricing Disclosure Package) and
in compliance with Regulation S-X (“Regulation S-X”), except that the interim financial
statements do not include full footnote disclosure. The other financial information and
data included in the Pricing Disclosure Package are accurately presented in all material
respects and prepared on a basis consistent with the financial statements and the books and
records of the Company and the Subsidiaries. The year-end information set forth under the
caption “Summary consolidated financial and other data” included in the Pricing Disclosure
Package has been prepared on a consistent basis with that of the audited financial
statements of the Company. The interim information set forth under the caption “Summary
consolidated financial and other data” included in the Pricing Disclosure Package has been
prepared on a consistent basis with that of the interim unaudited financial statements of
the Company.




          (xxxviii) As of the date hereof (and immediately prior to and immediately following the
issuance of the Securities on the Closing Date) each Issuer is and will be Solvent. No
Issuer is contemplating either the filing of a petition by it under any bankruptcy or
insolvency laws or the liquidating of all or a substantial portion of its property, and no
Issuer has knowledge of any person contemplating the filing of any such



18









 







petition against any Issuer. As used herein, “Solvent” shall mean, for any person on a
particular date, that on such date (A) the fair value of the property of such person is
greater than the total amount of liabilities, including, without limitation, contingent
liabilities, of such person, (B) the present fair salable value of the assets of such person
is not less than the amount that will be required to pay the probable liability of such
person on its debts as they become absolute and matured, (C) such person does not intend to,
and does not believe that it will, incur debts and liabilities beyond such person’s ability
to pay as such debts and liabilities mature, (D) such person is not engaged in a business or
a transaction, and is not about to engage in a business or a transaction, for which such
person’s property would constitute an unreasonably small capital and (E) such person is able
to pay its debts as they become due and payable.




          (xxxix) Except as described in the section entitled “Plan of distribution” in the
Pricing Disclosure Package, there are no contracts, agreements or understandings between the
Company or any of the Subsidiaries and any other person other than the Initial Purchaser
that would give rise to a valid claim against the Company, any Subsidiary or the Initial
Purchaser for a brokerage commission, finder’s fee or like payment in connection with the
issuance, purchase and sale of the Securities.




          (xl) The Company, the Subsidiaries and, to the Company’s knowledge, their respective
directors and officers (in their capacities as such) are each in compliance in all material
respects with all applicable effective provisions of the 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.




          (xli) The statistical and market-related data and forward-looking statements (within
the meaning of Section 27A of the Act and Section 21E of the Exchange Act) included in the
Pricing Disclosure Package are based on or derived from sources that the Issuers believe to
be reliable and accurate in all material respects.



     Each certificate signed by any officer of the Issuers and delivered to the Initial Purchaser
or counsel for the Initial Purchaser pursuant to, or in connection with, this Agreement shall be
deemed to be a representation and warranty by the Issuers to the Initial Purchaser as to the
matters covered by such certificate.



     The Issuers acknowledge that the Initial Purchaser and, for purposes of the opinions to be
delivered to the Initial Purchaser pursuant to Section 8 of this Agreement, counsel to the Issuers
and counsel to the Initial Purchaser will rely upon the accuracy and truth of the foregoing
representations and the Issuers hereby consent to such reliance.



          (b) The Initial Purchaser represents that it is a QIB and acknowledges that it is purchasing
the Offered Securities pursuant to a private sale exemption from registration under the Act, and
that the Offered Securities have not been registered under the Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons






19









 







except pursuant to an exemption from the registration requirements of the Act. The Initial
Purchaser represents, warrants and covenants to the Issuers that:





          (i) (A) Neither it, nor any person acting on its behalf, has solicited or will solicit
offers for, or has offered or will offer or sell, the Offered Securities by any form of
general solicitation or general advertising (as those terms are used in Regulation D under
the Act) or in any manner involving a public offering within the meaning of Section 4(2) of
the Act and (B) it has solicited and will solicit offers for the Offered Securities only
from, and will offer and sell the Offered Securities only to, (1) persons whom the Initial
Purchaser reasonably believes to be QIBs or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent, only when such
person has represented to the Initial Purchaser that each such account is a QIB to whom
notice has been given that such sale or delivery is being made in reliance on Rule 144A,
and, in each case, in reliance on the exemption from the registration requirements of the
Act pursuant to Rule 144A, or (2) persons other than U.S. persons outside the United States
in reliance on the exemption from the registration requirements of the Act provided by
Regulation S.




          (ii) With respect to offers and sales outside the United States, (A) the Initial
Purchaser will comply with all applicable laws and regulations in each jurisdiction in which
they acquire, offer, sell or deliver Offered Securities or have in their possession or
distribute either any Offering Memorandum or any such other material, in all cases at their
own expense; and (B) the Initial Purchaser has offered the Offered Securities and will offer
and sell the Offered Securities (1) as part of its distribution at any time and (2)
otherwise until 40 days after the later of the commencement of the offering of the Offered
Securities and the Closing Date, only in accordance with Rule 903 of Regulation S or another
exemption from the registration requirements of the Act. Accordingly, neither the Initial
Purchaser nor any persons acting on its behalf have engaged or will engage in any directed
selling efforts (within the meaning of Regulation S) with respect to the Offered Securities,
and any such persons have complied and will comply with the offering restrictions
requirements of Regulation S. Terms used in this Section 5(b)(ii) have the meanings given
to them by Regulation S.



     The Initial Purchaser agrees that, at or prior to confirmation of a sale of Offered Securities
pursuant to Regulation S, it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Offered Securities from it or through
it during the restricted period a confirmation or notice to substantially the following effect:




“The Securities covered hereby have not been registered under the
United States Securities Act of 1933, as amended (the “Securities
Act”), and may not be offered or sold within the United States or to
or for the account or benefit of, U.S. persons (i) as part of their
distribution at any time and (ii) otherwise until forty days after
the later of the date upon which the offering of the Securities
commenced and the date of closing, except in either case in



20









 







accordance with Regulation S or Rule 144A under the Securities Act.
Terms used above have the meaning given to them by Regulation S.”



     The Initial Purchaser understands that the Issuers and, for purposes of the opinions to be
delivered to them pursuant to Section 8 hereof, counsel to the Issuers and counsel to the Initial
Purchaser will rely upon the accuracy and truth of the foregoing representations, and the Initial
Purchaser hereby consents to such reliance.



     6. Indemnification.



          (a) The Issuers, jointly and severally, agree to indemnify and hold harmless the Initial
Purchaser, each person, if any, who controls the Initial Purchaser within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, the agents, employees, officers and directors of
the Initial Purchaser and the agents, employees, officers and directors of any such controlling
person from and against any and all losses, liabilities, claims, damages and expenses whatsoever
(including, but not limited, to reasonable attorneys’ fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all reasonable amounts paid in settlement of any
claim or litigation) (collectively, “Losses”) to which they or any of them may become subject under
the Act, the Exchange Act or otherwise insofar as such Losses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a material fact
contained in the Pricing Disclosure Package, any Issuer Written Communication, the Offering
Memorandum, or in any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading; provided
that none of the Issuers will be liable in any such case to the extent, but only to the extent,
that any such Loss arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission relating to the Initial Purchaser made therein in
reliance upon and in conformity with written information furnished to the Company by or on behalf
of the Initial Purchaser expressly for use therein.




          (b) The Initial Purchaser agrees to indemnify and hold harmless the Issuers, and each person,
if any, who controls any of the Issuers within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, the agents, employees, officers and directors of any of the Issuers and
the agents, employees, officers and directors of any such controlling person from and against any
and all Losses to which they or any of them may become subject under the Act, the Exchange Act or
otherwise insofar as such Losses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the Pricing Disclosure
Package or the Offering Memorandum, or in any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact necessary to make
the statements therein, 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 any such Loss arises out of or
is based upon any untrue statement or alleged untrue statement or omission or alleged omission
relating to the Initial Purchaser made therein in






21









 







reliance upon and in conformity with information furnished in writing to the Company by or on
behalf of the Initial Purchaser expressly for use therein.




          (c) Promptly after receipt by an indemnified party under subsection 6(a) or 6(b) above of
notice of the commencement of any action, suit or proceeding (collectively, an “action”), such
indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party
under such subsection, notify each party against whom indemnification is to be sought in writing of
the commencement of such action (but the failure so to notify an indemnifying party shall not
relieve such indemnifying party from any liability that it may have under this Section 6 except to
the extent that it has been prejudiced in any material respect by such failure). In case any such
action is brought against any indemnified party, and it notifies an indemnifying party of the
commencement of such action, the indemnifying party will be entitled to participate in such action,
and to the extent it may elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the defense of such action
with counsel reasonably satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own counsel in any such
action, but the reasonable fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall have been authorized
in writing by the indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the defense of such action
within a reasonable time after notice of commencement of the action, or (iii) the named parties to
such action (including any impleaded parties) include such indemnified party and the indemnifying
parties (or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded that there may be defenses available
to it or them that are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of which events such
reasonable fees and expenses of counsel shall be borne by the indemnifying parties. In no event
shall the indemnifying parties be liable for the fees and expenses of more than one counsel
(together with appropriate local counsel) at any time for all indemnified parties in connection
with any one action or separate but substantially similar or related actions arising in the same
jurisdiction out of the same general allegations or circumstances. An indemnifying party shall not
be liable for any settlement of any claim or action effected without its written consent, which
consent may not be unreasonably withheld. 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 paragraph (a) or (b) of this Section 6, then
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 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying party at least 45
days’ prior notice of its intention to settle and the amount thereof. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless such settlement (x)
includes an unconditional






22









 







release of such indemnified party from all liability on claims that are the subject matter of
such proceeding and (y) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.




          (d) This indemnity agreement will be in addition to any liability that the Issuers may
otherwise have, including, but not limited to, liability under this Agreement.




     7. Contribution. In order to provide for contribution in circumstances in which the
indemnification provided for in Section 6 of this Agreement is for any reason held to be
unavailable from the indemnifying party, or is insufficient to hold harmless a party indemnified
under Section 6 of this Agreement, each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such aggregate Losses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Issuers, on the one hand, and the
Initial Purchaser, on the other hand, from the offering of the Offered Securities or (ii) if such
allocation is not permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault of the Issuers, on the one
hand, and the Initial Purchaser, on the other hand, in connection with the statements or omissions
that resulted in such Losses, as well as any other relevant equitable considerations. The relative
benefits received by the Issuers, on the one hand, and the Initial Purchaser, on the other hand,
shall be deemed to be in the same proportion as (x) the total proceeds from the offering of
Securities (net of discounts and commissions but before deducting expenses) received by the Issuers
are to (y) the total discounts and commissions received by the Initial Purchaser. The relative
fault of the Issuers, on the one hand, and the Initial Purchaser, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Issuers or the Initial Purchaser and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission or alleged
statement or omission.



     The Issuers and the Initial Purchaser agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation or by any other
method of allocation that does not take into account the equitable considerations referred to
above. Notwithstanding the provisions of this Section 7, (i) in no case shall the Initial Purchaser
be required to contribute any amount in excess of the amount by which the total discount and
commissions applicable to the Offered Securities purchased hereof pursuant to this Agreement
exceeds the amount of any damages that the Initial Purchaser has otherwise been required to pay by
reason of any untrue or alleged untrue statement or omission or alleged omission and (ii) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls the Initial Purchaser within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as an Initial Purchaser, and each person, if any, who controls an Issuer within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and each director, officer,
employee and agent of such Issuer shall have the same rights to contribution of such Issuer. Any
party entitled to contribution will, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for



23









 




contribution may be made against another party or parties under this Section 7, notify such
party or parties from whom contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be sought from any
obligation it or they may have under this Section 7 or otherwise, except to the extent that it has
been prejudiced in any material respect by such failure; provided, however, that no additional
notice shall be required with respect to any action for which notice has been given under Section 6
for purposes of indemnification. Anything in this section to the contrary notwithstanding, no party
shall be liable for contribution with respect to any action or claim settled without its written
consent, provided, however, that such written consent was not unreasonably withheld.




     8. Conditions of Initial Purchaser’s Obligations. The obligations of the Initial Purchaser to
purchase and pay for the Offered Securities, as provided for in this Agreement, shall be subject to
satisfaction of the following conditions prior to or concurrently with such purchase:



          (a) All of the representations and warranties of the Issuers contained in this Agreement shall
be true and correct, or true and correct in all material respects where such representations and
warranties are not qualified by materiality or Material Adverse Effect, on the date of this
Agreement and, in each case after giving effect to the transactions contemplated hereby, on the
Closing Date, except that if a representation and warranty is made as of a specific date, and such
date is expressly referred to therein, such representation and warranty shall be true and correct
(or true and correct in all material respects, as applicable) as of such date. The Issuers shall
have performed or complied with all of the agreements and covenants contained in this Agreement and
required to be performed or complied with by them at or prior to the Closing Date.




          (b) The Offering Memorandum shall have been printed and copies distributed to the Initial
Purchaser in accordance with Section 4(b) hereof. No stop order suspending the qualification or
exemption from qualification of the Securities in any jurisdiction shall have been issued and no
proceeding for that purpose shall have been commenced or shall be pending or threatened.




          (c) Since the execution of this Agreement, there shall not have been any decrease in the
rating of any debt or preferred stock of the Company or any Subsidiary by any “nationally
recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act),
or any notice given of any intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the possible change.




          (d) No action shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any governmental agency that would, as of the Closing Date, prevent
the issuance of the Securities or consummation of the Exchange Offer; except as disclosed in the
Pricing Disclosure Package, no action, suit or proceeding shall have been commenced and be pending
against or affecting or, to the best knowledge of the Issuers, threatened against any Issuer before
any court or arbitrator or any governmental body, agency or official that, if adversely determined,
would reasonably be expected to have a Material Adverse Effect; and no stop order preventing the
use of the Preliminary Offering Memorandum, the Pricing Supplement or the Offering Memorandum, or
any amendment or supplement thereto, or






24









 







any order asserting that any of the transactions contemplated by this Agreement are subject to
the registration requirements of the Act shall have been issued.




          (e) Since December 31, 2009, except as set forth or contemplated in the Pricing Disclosure
Package, (a) neither the Company nor any Subsidiary has (1) incurred any liabilities or
obligations, direct or contingent, that would reasonably be expected to have a Material Adverse
Effect, or (2) entered into any material transaction not in the ordinary course of business, (b)
there has not been any event or development in respect of the business or condition (financial or
other) of the Company and the Subsidiaries that, either individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect and (c) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of its capital stock.




          (f) The Initial Purchaser shall have received certificates, dated the Closing Date, signed by
an authorized officer of each Issuer confirming, as of the Closing Date, to their knowledge, the
matters set forth in paragraphs (a), (b), (c), (d) and (e) of this Section 8.




          (g) The Initial Purchaser shall have received on the Closing Date opinions dated the Closing
Date, addressed to the Initial Purchaser, of Jones, Walker, Poitevent, Carrère & Denègre, L.L.P.,
counsel to the Company, including customary qualifications and limitations, substantially in the
form of Exhibit B hereto.




          (h) The Initial Purchaser shall have received on the Closing Date an opinion (satisfactory in
form and substance to the Initial Purchaser) dated the Closing Date from Vinson & Elkins L.L.P.,
counsel to the Initial Purchaser.




          (i) The Initial Purchaser shall have received a “comfort letter” from Deloitte & Touche LLP,
independent public accountants for the Company, dated the date of this Agreement, addressed to the
Initial Purchaser and in form and substance satisfactory to the Initial Purchaser and counsel to
the Initial Purchaser, covering the financial and accounting information in the Pricing Disclosure
Package. In addition, the Initial Purchaser shall have received a “bring down comfort letter” from
Deloitte & Touche LLP, independent public accountants for the Company, dated as of the Closing
Date, addressed to the Initial Purchaser and in the form of the “comfort letter” delivered on the
date hereof, except that (i) it shall cover the financial and accounting information in the
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, and otherwise in form and substance
satisfactory to the Initial Purchaser and counsel to the Initial Purchaser.




          (j) Each of the Issuers and the Trustee shall have executed and delivered the Indenture and
the Initial Purchaser shall have received copies, conformed as executed, thereof.




          (k) Each of the Issuers shall have executed and delivered into the Registration Rights
Agreement and the Initial Purchaser shall have received counterparts, conformed as executed,
thereof.





25











 





          (l) All government authorizations required in connection with the issue and sale of the
Offered Securities as contemplated under this Agreement and the performance of the Issuers’
obligations hereunder and under the Indenture and the Offered Securities shall be in full force and
effect.




          (m) The Initial Purchaser shall have been furnished with wiring instructions for the
application of the proceeds of the Offered Securities in accordance with this Agreement and such
other information as it may reasonably request.




          (n) Vinson & Elkins L.L.P., counsel to the Initial Purchaser, shall have been furnished with
such documents as they may reasonably request to enable them to review or pass upon the matters
referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction
in all material respects of any of the representations, warranties or conditions contained in this
Agreement.




          (o) Each purchaser in the Regulation D Private Placement shall have executed a letter
agreement with UBS Securities LLC, substantially in the form of Exhibit D hereto.




     The documents required to be delivered by this Section 8 will be delivered at the office
specified in Section 3 hereof on the Closing Date.




     9. Initial Purchaser’s Information. The Issuers and the Initial Purchaser severally
acknowledge that the statements with respect to the delivery of the Offered Securities to the
Initial Purchasers set forth in (i) the last paragraph of the cover page and (ii) the fourth,
sixth, seventh, eighth, ninth and tenth paragraphs under the caption “Plan of distribution” in the
Preliminary Offering Memorandum and the Offering Memorandum constitute the only information
furnished in writing by the Initial Purchaser expressly for use in the Pricing Disclosure Package
or the Offering Memorandum.



     10. Survival of Representations and Agreements. All representations and warranties, covenants
and agreements contained in this Agreement, including the agreements contained in Sections 4(f) and
11(d), the indemnity agreements contained in Section 6 and the contribution agreements contained in
Section 7 shall remain operative and in full force and effect regardless of any investigation made
by or on behalf of the Initial Purchaser or any controlling person thereof or by or on behalf of
the Issuers or any controlling person thereof, and shall survive delivery of and payment for the
Offered Securities to and by the Initial Purchaser. The agreements contained in Sections 4(f), 6,
7, 9 and 11(d) shall survive the termination of this Agreement, including pursuant to Section 11.



     11. Effective Date of Agreement; Termination.



          (a) This Agreement shall become effective upon execution and delivery of a counterpart hereof
by each of the parties hereto.




          (b) The Initial Purchaser shall have the right to terminate this Agreement at any time prior
to the Closing Date by notice to the Company from the Initial Purchaser, without liability (other
than with respect to Sections 6 and 7) on the Initial Purchaser’s part to the Issuers






26









 







if, on or prior to such date, (x) there has been any material adverse change or any
development involving a prospective material adverse change in the business, properties,
management, financial condition or results of operation of the Company and the Subsidiaries taken
as a whole, which would, in the Initial Purchaser’s judgment, make it impracticable or inadvisable
to proceed with the offering or delivery of the Notes on the terms and in the manner contemplated
in the Pricing Disclosure Package, or (y) since the time of execution of this Agreement, there
shall have occurred: (i) a suspension or material limitation in trading in securities generally on
the New York Stock Exchange or the NASDAQ Global Market; (ii) a suspension or material limitation
in trading in the Company’s securities on the NASDAQ Global Market; (iii) a general moratorium on
commercial banking activities declared by either federal or New York State authorities or a
material disruption in commercial banking or securities settlement or clearance services in the
United States; (iv) an outbreak or escalation of hostilities or acts of terrorism involving the
United States or a declaration by the United States of a national emergency or war; or (v) any
other calamity or crisis or any change in financial, political or economic conditions in the United
States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the Initial
Purchaser’s judgment makes it impracticable or inadvisable to proceed with the offering or delivery
of the Offered Securities on the terms and in the manner contemplated in the Pricing Disclosure
Package or (z) there shall have occurred any downgrading, or any notice or announcement shall have
been given or made of (i) any intended or potential downgrading or (ii) any watch, review or
possible change that does not indicate an affirmation or improvement, in the rating accorded any
securities of or guaranteed by the Company or any Subsidiary by any “nationally recognized
statistical rating organization,” as that term is defined in Rule 436(g)(2) under the Act.




          (c) Any notice of termination pursuant to this Section 11 shall be given at the address
specified in Section 12 below by telephone, telex, telephonic facsimile or telegraph, confirmed in
writing by letter.




          (d) If the sale of the Notes provided for in this Agreement is not consummated because of any
refusal, inability or failure on the part of the Issuers to satisfy any condition to the
obligations of the Initial Purchaser set forth in this Agreement to be satisfied on its part or
because of any refusal, inability or failure on the part of the Issuers to perform any agreement in
this Agreement or comply with any provision of this Agreement, the Issuers will reimburse the
Initial Purchaser for one-half of its reasonable out-of-pocket expenses, including, without
limitation, the fees and expenses of the Initial Purchaser’s counsel incurred in connection with
this Agreement.




     12. Notice. All communications with respect to or under this Agreement, except as may be
otherwise specifically provided in this Agreement, shall be in writing and, if sent to the Initial
Purchaser, shall be mailed, delivered, or faxed and confirmed in writing to c/o UBS Securities LLC,
677 Washington Blvd., Stamford, CT 06901 (fax number: (203) 719-3667), Attention: High Yield
Syndicate Department, with a copy for information purposes only to (i) UBS Securities LLC, 677
Washington Blvd., Stamford, CT 06901 (fax number: (203) 719 0680), Attention: Legal and Compliance
Department and (ii) Vinson & Elkins L.L.P., 2500 First City Tower, 1001 Fannin, Houston, Texas
77002 (fax number: (713) 615-5956), Attention: Stephen M. Gill; and, if sent to the Issuers, shall
be mailed, delivered or telegraphed or



27









 




telecopied and confirmed in writing to PHI, Inc., Post Office Box 90808, Municipal Airport, Lafayette,
Louisiana 70509-0808 (telephone: (337) 235-2452, fax number: (337) 206-9576), Attention: Chief
Financial Officer, with a copy for information purposes only to Jones, Walker, Poitevent, Carrère &
Denègre, L.L.P, Four United Plaza, 8555 United Plaza Boulevard, Baton Rouge, Louisiana 70809 (fax
number: (225) 248-3026), Attention: Dionne Rousseau.




     All such notices and communications shall be deemed to have been duly given: when delivered by
hand, if personally delivered; five business days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged by telecopier machine, if telecopied; and one
business day after being timely delivered to a next-day air courier.



     13. Parties. This Agreement shall inure solely to the benefit of, and shall be binding upon,
the Initial Purchaser, the Issuers and the controlling persons and agents referred to in Sections 6
and 7, and their respective successors and assigns, and no other person shall have or be construed
to have any legal or equitable right, remedy or claim under or in respect of or by virtue of this
Agreement or any provision herein contained. The term “successors and assigns” shall not include a
purchaser, in its capacity as such, of Notes from the Initial Purchaser.



     14. Governing Law; Construction. This Agreement and any claim, counterclaim or dispute of any
kind or nature whatsoever arising out of or in any way relating to this Agreement (“Claim”),
directly or indirectly, shall be governed by, and construed in accordance with, the laws of the
State of New York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.



     15. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and the Issuers
consent to the jurisdiction of such courts and personal service with respect thereto. The Issuers
hereby consent to personal jurisdiction, service and venue in any court in which any Claim arising
out of or in any way relating to this Agreement is brought by any third party against the Initial
Purchaser or any indemnified party. Each of the Initial Purchaser and the Issuers (on its behalf
and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates)
waives all right to trial by jury in any action, proceeding or counterclaim (whether based upon
contract, tort or otherwise) in any way arising out of or relating to this Agreement. The Issuers
agree that a final judgment in any such action, proceeding or counterclaim brought in any such
court shall be conclusive and binding upon the Issuers and may be enforced in any other courts to
the jurisdiction of which the Issuers are or may be subject, by suit upon such judgment.



     16. Captions. The captions included in this Agreement are included solely for convenience of
reference and are not to be considered a part of this Agreement.



     17. Counterparts. This Agreement may be executed in various counterparts that together shall
constitute one and the same instrument.



28









 





     18. No Fiduciary Relationship. The Issuers hereby acknowledge that the Initial Purchaser is
acting solely as initial purchaser in connection with the purchase and sale of the Offered
Securities. The Issuers further acknowledge that the Initial Purchaser is acting pursuant to a
contractual relationship created solely by this Agreement entered into on an arm’s length basis and
in no event do the parties intend that the Initial Purchaser act or be responsible as a fiduciary
to the Issuers, their management, stockholders, creditors or any other person in connection with
any activity that the Initial Purchaser may undertake or has undertaken in furtherance of the
purchase and sale of the Securities, either before or after the date hereof. The Initial Purchaser
hereby expressly disclaims any fiduciary or similar obligations to the Issuers, either in
connection with the transactions contemplated by this Agreement or any matters leading up to such
transactions, and the Issuers hereby confirm their understanding and agreement to that effect. The
Issuers and the Initial Purchaser agree that they are each responsible for making their own
independent judgments with respect to any such transactions, and that any opinions or views
expressed by the Initial Purchaser to the Issuers regarding such transactions, including but not
limited to any opinions or views with respect to the price or market for the Securities, do not
constitute advice or recommendations to the Issuers. The Issuers hereby waive and release, to the
fullest extent permitted by law, any claims that such Issuers may have against the Initial
Purchaser with respect to any breach or alleged breach of any fiduciary or similar duty to the
Issuers in connection with the transactions contemplated by this Agreement or any matters leading
up to such transactions.








29









 








     If the foregoing agreement correctly sets forth the understanding among the Issuers and the
Initial Purchaser, please so indicate in the space provided below for the purpose, whereupon this
letter and your acceptance shall constitute a binding agreement among the Issuers and the Initial
Purchaser.



	 	 	 	 	 
	 	PHI, INC.

 	 
	 	By:  	/s/ Michael J. McCann
 	 
	 	 	Name:  	Michael J. McCann 	 
	 	 	Title:  	Chief Financial Officer,


Treasurer and Secretary 	 
	 
	 	INTERNATIONAL HELICOPTER TRANSPORT, INC.

PHI TECH SERVICES, INC.

AIR EVAC SERVICES, INC.

PHI AIR MEDICAL, INC.

PETROLEUM HELICOPTERS INTERNATIONAL, INC.

HELICOPTER MANAGEMENT, L.L.C.

HELICOPTER LEASING, L.L.C.

HELEX, L.L.C.

SKY LEASING, L.L.C.

VERTILEASE, LLC

LEASING SOURCE, LLC

 	 
	 	By:  	/s/ Michael J. McCann
 	 
	 	 	Name:  	Michael J. McCann 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Purchase Agreement]




 









 








	 	 	 	 	 
	 	CONFIRMED AND ACCEPTED

as of the date first above written:



UBS SECURITIES LLC

 	 
	 	By:  	/s/ James Boland
 	 
	 	 	Name:  	James Boland 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	/s/ Suzanne Rode
 	 
	 	 	Name:  	Suzanne Rode 	 
	 	 	Title:  	Director 	 
	 



[Signature Page to Purchase Agreement]