a101-patrickpurchaseagre






Execution Version  $350,000,000 Patrick Industries, Inc.  4.750% Senior Notes due 2029  PURCHASE AGREEMENT  April 13, 2021  





 






i  TABLE OF CONTENTS  Page  SECTION 1. Representations and Warranties. ................................................................................2 SECTION 2. Sale and Delivery to Initial Purchasers; Closing; Agreements to Sell,  Purchase and Resell ...........................................................................................................15 SECTION 3. Covenants of the Company and the Guarantors .......................................................16 SECTION 4. Payment of Expenses ...............................................................................................20 SECTION 5. Conditions of Initial Purchasers’ Obligations ..........................................................20 SECTION 6. Indemnification. .......................................................................................................23 SECTION 7. Contribution. ............................................................................................................26 SECTION 8. Representations, Warranties and Agreements to Survive Delivery .........................27 SECTION 9. Termination of Agreement. ......................................................................................27 SECTION 10. Default by One or More of the Initial Purchasers ..................................................28 SECTION 11. Notices ...................................................................................................................29 SECTION 12. Parties .....................................................................................................................29 SECTION 13. GOVERNING LAW AND TIME .........................................................................30 SECTION 14. Effect of Headings .................................................................................................30 SECTION 15. Definitions ..............................................................................................................30 SECTION 16. Permitted Free Writing Documents .......................................................................32 SECTION 17. Absence of Fiduciary Relationship ........................................................................32 SECTION 18. Research Analyst Independence and Other Activities of the Initial  Purchasers ..........................................................................................................................33 SECTION 19. Waiver of Jury Trial. ..............................................................................................34 SECTION 20. Consent to Jurisdiction. ..........................................................................................34 SECTION 21. Recognition of the U.S. Special Resolution Regimes. ...........................................34 SECTION 22. Counterparts; Electronic Execution. ......................................................................35 





 






ii  EXHIBITS  Exhibit A – Initial Purchasers  Exhibit B – Guarantors  Exhibit C – Subsidiaries of the Company  Exhibit D – Form of Pricing Term Sheet  Exhibit E – Amendments; Issuer Free Writing Documents  Exhibit F – Form of CFO Certificate  





 






1  $350,000,000 PATRICK INDUSTRIES, INC. 4.750% Senior Notes due 2029  PURCHASE AGREEMENT  April 13, 2021  Wells Fargo Securities, LLC As Representative of the several Initial Purchasers  c/o Wells Fargo Securities, LLC  301 S. College Street   Charlotte, North Carolina  28288  Ladies and Gentlemen:  Patrick Industries, Inc., an Indiana corporation (the “Company”), confirms its agreement  with Wells Fargo Securities, LLC (“Wells Fargo”) and each of the other Initial Purchasers named  on Exhibit A hereto (collectively, the “Initial Purchasers,” which term shall also include any  person substituted for an Initial Purchaser pursuant to Section 10 hereof), for whom Wells Fargo  is acting as representative (in such capacity, the “Representative”), with respect to the issue and  sale by the Company and the purchase by the Initial Purchasers, acting severally and not jointly,  of $350,000,000 in aggregate principal amount of the Company’s 4.750% Senior Notes due 2029  (the “Securities”).  The Securities will be issued pursuant to an Indenture to be dated as of April  20, 2021 (the “Indenture”) among the Company, the Guarantors referred to below, and U.S. Bank  National Association, as trustee (the “Trustee”). The Company’s obligations under the Securities,  including the due and punctual payment of interest on the Securities, will be irrevocably and  unconditionally guaranteed on a senior unsecured basis (the “Guarantees”) by the guarantors  named on Exhibit B hereto (together, the “Guarantors”). As used herein, the term “Securities” shall  include the Guarantees, unless the context otherwise requires. Certain terms used in this purchase  agreement (this “Agreement”) are defined in Section 15 hereof.    The Securities will be offered and sold to the Initial Purchasers without registration under  the 1933 Act, in reliance on the exemption provided by Section 4(a)(2) of the 1933 Act.  The  Company and the Guarantors have prepared a preliminary offering memorandum, dated April 13,  2021 (the “Preliminary Offering Memorandum”), a pricing term sheet substantially in the form  attached hereto as Exhibit D (the “Pricing Term Sheet”) setting forth the terms of the Securities  omitted from the Preliminary Offering Memorandum and an offering memorandum, dated April  13, 2021 (the “Offering Memorandum”), setting forth information regarding the Company and the  Securities.  The Preliminary Offering Memorandum, as supplemented and amended as of the  Applicable Time, together with the Pricing Term Sheet and any of the documents listed on Exhibit  E hereto are collectively referred to as the “General Disclosure Package.”  The Company and the  Guarantors hereby confirm that they have authorized the use of the General Disclosure Package  and the Offering Memorandum in connection with the offering and resale of the Securities by the  Initial Purchasers.   





 






2  Concurrently with the offer and sale of the Securities, the Company intends to enter into a  new Fourth Amended and Restated Credit Agreement, to be dated as of the Closing Date, among  the Company, as Borrower, the Guarantors, the lenders from time to time party thereto, and Wells  Fargo Bank, National Association, as administrative agent (the “Senior Credit Facility”). The  proceeds of the initial borrowings under the Senior Credit Facility, together with the net proceeds  of the offering of Securities, will be used to repay outstanding borrowings under the Company’s  existing Third Amended and Restated Credit Agreement, as described in the General Disclosure  Package.  Any reference to the Preliminary Offering Memorandum, the General Disclosure Package  or the Offering Memorandum shall be deemed to refer to and include the Company’s most recent  Annual Report on Form 10-K and all subsequent documents filed (and not furnished) with the  Commission pursuant to Section 13(a), 13(c) or 15(d) of the 1934 Act, on or prior to the date of  the Preliminary Offering Memorandum, the General Disclosure Package or the Offering  Memorandum, as the case may be and are incorporated by reference therein. All documents filed  under the 1934 Act and deemed to be included in the Preliminary Offering Memorandum, General  Disclosure Package or the Offering Memorandum, as the case may be, or any amendment or  supplement thereto are hereinafter called the “Exchange Act Reports.”  You have advised the Company that you will offer and resell (the “Exempt Resales”) the  Securities purchased by you hereunder on the terms set forth in each of the General Disclosure  Package and the Offering Memorandum, as amended or supplemented, solely (i) to persons whom  you reasonably believe to be “qualified institutional buyers” as defined in Rule 144A under the  1933 Act (“QIBs”) and (ii) outside the United States to non-U.S. persons in compliance with  Regulation S under the 1933 Act (“Regulation S”).  Those persons specified in clauses (i) and (ii)  of this paragraph are referred to herein as “Eligible Purchasers.”  SECTION 1.  Representations and Warranties.  (a) Representations and Warranties by the Company and the Guarantors.  The  Company and each Guarantor, jointly and severally, represent and warrant to each Initial Purchaser  as of the date hereof, as of the Applicable Time, and as of the Closing Date referred to in  Section 2(b) hereof, and agree with each Initial Purchaser, as follows:   (1) Rule 144A Information.  Each of the Preliminary Offering Memorandum, the  General Disclosure Package and the Offering Memorandum, each as of its respective date, contains  all the information required by Rule 144A(d)(4) under the 1933 Act.  (2) No Stop Orders. The Preliminary Offering Memorandum, the General Disclosure  Package and the Offering Memorandum have been prepared by the Company and the Guarantors  for use by the Initial Purchasers in connection with the Exempt Resales.  No order or decree  preventing the use of the Preliminary Offering Memorandum, the General Disclosure Package or  the Offering Memorandum, or any order asserting that the transactions contemplated by this  Agreement are subject to the registration requirements of the 1933 Act has been issued, and no  proceeding for that purpose has commenced or is pending or, to the knowledge of the Company  or any of the Guarantors is contemplated.  





 






3  (3) No Material Misstatement or Omission.  (i) The Preliminary Offering  Memorandum, as of the date thereof, did not include any untrue statement of a material fact or  omit to state a material fact necessary to make the statements therein, in the light of the  circumstances under which they were made, not misleading, (ii) the General Disclosure Package,  as of the Applicable Time, did not include any untrue statement of a material fact or omit to state  a material fact necessary to make the statements therein, in the light of the circumstances under  which they were made, not misleading, (iii) the Offering Memorandum, as of the date thereof, did  not and, at the Closing Date, will not include any untrue statement of a material fact or omit to  state a material fact necessary to make the statements therein, in the light of the circumstances  under which they were made, not misleading and (iv) each Issuer Free Writing Document (as  defined below), when taken together with the General 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 to make the statements therein, in the light of the circumstances under which they  were made, not misleading.    The representations and warranties in the preceding paragraph do not apply to  statements in or omissions from the Preliminary Offering Memorandum, the Offering  Memorandum, the General Disclosure Package, any Issuer Free Writing Document or any  amendment or supplement to any of the foregoing made in reliance upon and in conformity  with written information furnished to the Company by or on behalf of any Initial Purchaser  through the Representative expressly for use therein, it being understood and agreed that  the only such information furnished by the Initial Purchasers as aforesaid consists of the  information described as such in Section 6(b) hereof.  (4) Exchange Act Reports. The Exchange Act Reports incorporated by reference in the  General Disclosure Package or the Offering Memorandum, at the respective times they were or  hereafter are filed with the Commission, complied or will comply in all material respects with the  requirements of the 1934 Act and the rules and regulations of the Commission thereunder and did  not or will not contain an untrue statement of a material fact or omit to state a material fact required  to be stated therein or necessary to make the statements therein not misleading.  (5) Reporting Compliance.  The Company is subject to, and is in full compliance in all  material respects with, the reporting requirements of Section 13 and Section 15(d), as applicable,  of the 1934 Act.  (6) Independent Accountants.  (i) During the year ended December 31, 2018 covered  by the financial statements contained in the Offering Memorandum and the General Disclosure  Package, Crowe LLP were independent public accountants with respect to the Company as  required by the rules of the Public Company Accounting Oversight Board and the 1933 Act and  the 1934 Act and the rules and regulations thereunder and (ii) Deloitte & Touche LLP are  independent public accountants with respect to the Company as required by the rules of the Public  Company Accounting Oversight Board and the 1933 Act and the 1934 Act and the rules and  regulations thereunder.  (7) Financial Statements.  The financial statements of the Company included or  incorporated by reference in the General Disclosure Package and the Offering Memorandum,  together with the related schedules (if any) and notes thereto, present fairly in all material respects  





 






4  the financial position of the Company and its consolidated subsidiaries at the dates indicated and  the results of operations, changes in stockholders’ equity and cash flows of the Company and its  consolidated subsidiaries for the periods specified. Except as set forth in the Offering  Memorandum and the General Disclosure Package, all of such financial statements have been  prepared in conformity with GAAP, applied on a consistent basis throughout the periods involved  and comply in all material respects with all applicable accounting requirements under the 1933  Act and the 1933 Act Regulations, or the 1934 Act and the 1934 Act Regulations, as applicable.  The supporting schedules, if any, incorporated by reference in the General Disclosure Package and  Offering Memorandum present fairly, in accordance with GAAP, the information required to be  stated therein. The information in the Preliminary Offering Memorandum and the Offering  Memorandum under the captions “Summary – Selected Historical Consolidated Financial  Information” and “Selected Historical Consolidated Financial Information” presents fairly the  information shown therein and has been prepared on a basis consistent with that of the audited  financial statements of the Company included in the General Disclosure Package and the Offering  Memorandum.  (8) No Material Adverse Change in Business.  Since the dates for which financial  statement information is last given in the Preliminary Offering Memorandum, the General  Disclosure Package and the Offering Memorandum (in each case exclusive of any amendments or  supplements thereto subsequent to the date of this Agreement), (A) there has been no material  adverse change or any development that could reasonably be expected to result in a material  adverse change, in the condition (financial or other), results of operations, business, properties or   management of the Company and its subsidiaries taken as a whole, whether or not arising in the  ordinary course of business (in any such case, a “Material Adverse Effect”); (B) except as  otherwise disclosed in the General Disclosure Package and the Offering Memorandum (in each  case exclusive of any amendments or supplements thereto subsequent to the date of this  Agreement), neither the Company nor any of its subsidiaries has incurred any liability or  obligation, direct or contingent, or entered into any transaction or agreement that, individually or  in the aggregate, is material with respect to the Company and its subsidiaries taken as a whole, and  neither the Company nor any of its subsidiaries has sustained any loss or interference with its  business or operations from fire, explosion, flood, earthquake or other natural disaster or calamity,  whether or not covered by insurance, or from any labor dispute or disturbance or court or  governmental action, order or decree which would reasonably be expected, individually or in the  aggregate, to result in a Material Adverse Effect; and (C) there has been no cash dividend or  distribution of any kind declared, paid or made by the Company on any class of its capital stock.  (9) Good Standing of the Company, the Guarantors and Subsidiaries.  Each of the  Company, the Guarantors and their respective subsidiaries has been duly organized and is validly  existing as a corporation, limited liability company, limited company or limited partnership, as  applicable, in good standing under the laws of the state of its jurisdiction of organization and has  power and authority to own, lease and operate its properties and to conduct its business as  described in the Preliminary Offering Memorandum, the General Disclosure Package and the  Offering Memorandum and to enter into and perform its obligations under the Transaction  Documents.  Each of the Company, the Guarantors and their respective subsidiaries is duly  qualified as a foreign corporation, limited liability company, limited company or limited  partnership, as applicable, to transact business and is in good standing in the state of its principal  place of business and in each other jurisdiction in which such qualification is required, whether by  





 






5  reason of the ownership or leasing of property or the conduct of business, except (solely in the  case of jurisdictions other than its principal place of business) where the failure so to qualify or to  be in good standing would not, individually or in the aggregate, reasonably be expected to result  in a Material Adverse Effect.  (10) Ownership of Subsidiaries.  All of the issued and outstanding shares of capital stock  of each subsidiary of the Company that is a corporation, all of the issued and outstanding  partnership interests of each subsidiary of the Company that is a limited or general partnership and  all of the issued and outstanding limited liability company interests, membership interests or other  similar interests of each subsidiary of the Company that is a limited liability company have been  duly authorized and validly issued, are fully paid and (except in the case of general partnership  interests) non-assessable and are owned by the Company, directly or through subsidiaries, free and  clear of any Liens, except as described in the General Disclosure Package and the Offering  Memorandum.  None of the issued and outstanding shares of capital stock of any such subsidiary  that is a corporation, none of the issued and outstanding partnership interests of any such subsidiary  that is a limited or general partnership, and none of the issued and outstanding limited liability  company interests, membership interests or other similar interests of any such subsidiary that is a  limited liability company was issued in violation of any preemptive rights, rights of first refusal or  other similar rights of any securityholder of such subsidiary or any other person.  Exhibit 21 to the  Company’s most recent Annual Report on Form 10-K filed with the Commission accurately sets  forth the name of each subsidiary of the Company and its jurisdiction of organization.  Any  subsidiaries of the Company which are “significant subsidiaries” as defined by Rule 1-02 of  Regulation S-X are listed on Exhibit C hereto under the caption “Material Subsidiaries.”   (11) Capitalization.  The authorized, issued and outstanding capital stock of the  Company, as of December 31, 2020, is as set forth in the column entitled “Actual” and in the  corresponding line items under the caption “Capitalization” in the Preliminary Offering  Memorandum and the Offering Memorandum.  The shares of issued and outstanding capital stock  of the Company have been duly authorized and validly issued and are fully paid and non- assessable.  None of the outstanding shares of capital stock of the Company was issued in violation  of any preemptive rights, rights of first refusal or other similar rights of any securityholder of the  Company or any other person.  (12) No Other Securities of Same Class. When the Securities and Guarantees are issued  and delivered pursuant to this Agreement, such Securities and Guarantees will not be of the same  class (within the meaning of Rule 144A under the 1933 Act) as securities of the Company or the  Guarantors that are listed on a national securities exchange registered under Section 6 of the 1934  Act or that are quoted in a United States automated inter-dealer quotation system.  (13) No Registration.  No registration under the 1933 Act of the Securities or the  Guarantees, and no qualification of the Indenture under the 1939 Act with respect thereto, is  required for the sale of the Securities and the Guarantees to you as contemplated hereby or for the  initial resale of Securities by you to the Eligible Purchasers in the manner contemplated by the  Preliminary Offering Memorandum and the Offering Memorandum, assuming the accuracy of the  Initial Purchasers’ representations and warranties in this Agreement and the compliance by the  Initial Purchasers with the agreements set forth herein.  





 






6  (14) No General Solicitation.  No form of general solicitation or general advertising  within the meaning of Regulation D under the 1933 Act (including, but not limited to,  advertisements, articles, notices or other communications published in any newspaper, magazine  or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees  have been invited by any general solicitation or general advertising) (each, a “General  Solicitation”) was used by the Company or any of its affiliates or any of its representatives (other  than you and the other Initial Purchasers, as to whom the Company and the Guarantors make no  representation) in connection with the offer and sale of the Securities.  (15) Regulation S Compliance.  The Company is a Category 2 issuer for purposes of  Regulation S.  No directed selling efforts within the meaning of Rule 902 under the 1933 Act were  or will be used by the Company and its subsidiaries or any of their representatives (other than you  and the other Initial Purchasers, as to whom the Company and the Guarantors make no  representation) with respect to Securities sold in reliance on Regulation S, and the Company, any  affiliate of the Company and any person acting on its or their behalf (other than you and the other  Initial Purchasers, as to whom the Company and the Guarantors make no representation) has  complied with and will comply with the “offering restrictions” required by Rule 902 under the  1933 Act in connection with the offering of Securities outside the United States.  (16) No Integration.  Neither the Company, any Guarantor nor any other person acting  on behalf of the Company or any Guarantor (other than you and the other Initial Purchasers, as to  whom the Company and the Guarantors make no representation) has sold or issued any securities  that would be integrated with the offering of the Securities contemplated by this Agreement  pursuant to the 1933 Act, the rules and regulations thereunder or the interpretations thereof by the  Commission.   (17) Authorization of Agreement.  This Agreement has been duly authorized, executed  and delivered by the Company and each Guarantor.  (18) Full Power.  The Company and each Guarantor has full right, power and authority  to execute, deliver and perform its obligations under the Transaction Documents.  (19) The Indenture.  The Indenture has been duly authorized by the Company and each  Guarantor and, on the Closing Date, will have been duly executed and delivered by the Company  and each Guarantor and, assuming due authorization, execution and delivery by the Trustee, will  constitute a valid and binding agreement of the Company and each Guarantor, enforceable against  the Company and each Guarantor in accordance with its terms, except as enforcement thereof may  be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium or  similar laws affecting enforcement of creditors’ rights generally or by general principles of equity.    (20) The Securities.  The Securities have been duly authorized and, at the Closing Date,  will have been duly executed by the Company and, when authenticated in accordance with  provisions of the Indenture and delivered against payment of the purchase price therefor as  provided in this Agreement, will constitute valid and binding obligations of the Company,  enforceable against the Company in accordance with their terms, except as enforcement thereof  may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting  





 






7  enforcement of creditors’ rights generally or by general principles of equity, and will be in the  form contemplated by, and entitled to the benefits of, the Indenture.  (21)  The Guarantees.  The Guarantees have been duly authorized and, at the Closing  Date, the Indenture (which includes the Guarantees) will have been duly executed by the  Guarantors.  When the Securities are delivered against payment therefor as provided in this  Agreement, and, when authenticated in accordance with provisions of the Indenture, the  Guarantees will constitute valid and binding obligations of the Guarantors, except as enforcement  thereof may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,  moratorium or similar laws affecting enforcement of creditors’ rights generally or by general  principles of equity.  (22) The Senior Credit Facility.  The Senior Credit Facility has been duly authorized by  the Company and each Guarantor and, on the Closing Date, will have been duly executed and  delivered by the Company and each Guarantor and will constitute a valid and binding agreement  of the Company and each Guarantor, enforceable against the Company and each Guarantor in  accordance with its terms, except as enforcement thereof may be limited by bankruptcy, fraudulent  conveyance, insolvency, reorganization, moratorium or similar laws affecting enforcement of  creditors’ rights generally or by general principles of equity.  (23) Description of the Securities and Agreements.  The Securities, the Guarantees and  the Indenture conform and will conform in all material respects to the respective statements  relating thereto contained in the Preliminary Offering Memorandum, the General Disclosure  Package and the Offering Memorandum.  (24) Absence of Defaults and Conflicts.  Neither the Company nor any of its subsidiaries  is (i) in violation of its Organizational Documents, (ii) in violation of any applicable law, statute,  rule, regulation, judgment, order, writ or decree of any government, government instrumentality  or court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or  any of their respective assets, properties or operations or (iii) in breach or default (or with or  without the giving of notice or the passage of time or both, would be in breach or default) in the  performance or observance of any obligation, agreement, covenant or condition contained in any  Company Document, except in the case of clauses (ii) or (iii) for such violations, breaches or  defaults that would not, individually or in the aggregate, reasonably be expected to result in a  Material Adverse Effect.  The execution, delivery and performance by the Company and the  Guarantors of the Transaction Documents and the consummation of the transactions contemplated  therein and in the Preliminary Offering Memorandum, the General Disclosure Package and the  Offering Memorandum (including the issuance and sale of the Securities and the use of the  proceeds from the sale of the Securities as described in the Preliminary Offering Memorandum  and the Offering Memorandum under the caption “Use of Proceeds”) and compliance by the  Company and the Guarantors with their obligations under the Transaction Documents do not and  will not, whether with or without the giving of notice or passage of time or both, conflict with or  constitute a breach of, or default, Termination Event or Repayment Event under, or result in the  creation or imposition of any Lien upon any property or assets of the Company or any of its  subsidiaries pursuant to, any Company Documents except for any such conflict, breach, default,  Termination Event, Repayment Event, or Lien that would not, individually or in the aggregate,  reasonably be expected to have a Material Adverse Effect or as would not materially adversely  





 






8  affect the ability of the Company and the Guarantors to consummate the transactions contemplated  herein.  Such actions will not result in any violation of (i) the provisions of the Organizational  Documents of the Company or any of its subsidiaries or (ii) any applicable law, statute, rule,  regulation, judgment, order, writ or decree of any government, government instrumentality or  court, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any  of its or their respective assets, properties or operations except in the case of clause (ii) as would  not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or  as would not materially adversely affect the ability of the Company and the Guarantors to  consummate the transactions contemplated herein.  (25) Transactions with Related Persons.  No relationship, direct or indirect, that would  be required to be described in a registration statement of the Company pursuant to Item 404 of  Regulation S-K exists, including between or among the Company and its subsidiaries, on the one  hand, and the directors, officers, affiliates, stockholders, customers or suppliers of the Company  and its subsidiaries, on the other hand, that has not been described in the General Disclosure  Package and the Offering Memorandum.  (26) Absence of Labor Dispute.  No labor dispute with the employees of the Company  or any of its subsidiaries exists or, to the knowledge of the Company or any of its subsidiaries, is  imminent.  (27) Absence of Proceedings.  There is no action, suit, proceeding, inquiry or  investigation before or brought by any court or governmental agency or body, domestic or foreign,  now pending, or, to the knowledge of the Company or its subsidiaries, threatened, against or  affecting the Company or any of its subsidiaries (other than as disclosed in the Preliminary  Offering Memorandum, the General Disclosure Package or the Offering Memorandum), which  could reasonably be expected, individually or in the aggregate, to result in a Material Adverse  Effect or to materially and adversely affect the consummation of the transactions contemplated in  the Transaction Documents or the performance by the Company or the Guarantors of their  obligations under the Transaction Documents.    (28) Description of Legal Matters.  The statements made in the General Disclosure  Package and the Offering Memorandum under the captions “Description of Notes,” “Description  of Certain Other Indebtedness,” “Certain United States Federal Income Tax Considerations” and  “Certain ERISA Considerations,” insofar as they purport to constitute summaries of the terms of  statutes, rules or regulations, legal or governmental proceedings or contracts or other documents,  constitute accurate summaries of the terms of such statutes, rules and regulations, legal and  governmental proceedings and contracts and other documents in all material respects.  (29) Solvency.  On the Closing Date, after giving pro forma effect to the entry into the  Senior Credit Facility and the initial borrowings thereunder, the Offering and the use of proceeds  therefrom described under the caption “Use of Proceeds” in the General Disclosure Package and  the Offering Memorandum, the Company and each Guarantor (i) will be Solvent (as hereinafter  defined), (ii) will have sufficient capital for carrying on its business and (iii) will be able to pay its  debts as they mature.  As used in this paragraph, the term “Solvent” means, with respect to a  particular date, that on such date (i) the present fair market value (or present fair saleable value) of  the assets of the Company and each Guarantor is not less than the total amount required to pay the  





 






9  liabilities of the Company and each Guarantor on its total existing debts and liabilities (including  contingent liabilities) as they become absolute and matured; (ii) the Company and each Guarantor  is able to pay its debts and other liabilities, contingent obligations and commitments as they mature  and become due in the normal course of business; (iii) assuming consummation of the issuance of  the Securities as contemplated by this Agreement and the General Disclosure Package and the  Offering Memorandum, neither the Company nor any Guarantor is incurring debts or liabilities  beyond its ability to pay as such debts and liabilities mature; (iv) neither the Company nor any  Guarantor is engaged in any business or transaction, and does not propose to engage in any  business or transaction, for which its property would constitute unreasonably small capital after  giving due consideration to the prevailing practice in the industry in which the Company or any  Guarantor is engaged; and (v) neither the Company nor any Guarantor is otherwise insolvent under  the standards set forth in applicable laws.  (30) Possession of Intellectual Property.  The Company and its subsidiaries own or  possess or have valid and enforceable licenses to use, all patents, patent rights, patent applications,  copyrights, inventions, know-how (including trade secrets and other unpatented and/or  unpatentable proprietary or confidential information, systems or procedures), trademarks, service  marks, trade names, service names, software, internet addresses, domain names and other  intellectual property (collectively, “Intellectual Property”) that is described in the General  Disclosure Package or the Offering Memorandum or that is necessary for the conduct of their  respective businesses as currently conducted, except where the failure to own or possess such  rights would not, individually or in the aggregate, have a Material Adverse Effect.  Neither the  Company nor any of its subsidiaries has received any notice or is otherwise aware of any  infringement of or conflict with rights of others with respect to any Intellectual Property or of any  facts or circumstances which would render any Intellectual Property invalid or inadequate to  protect the interests of the Company or any of its subsidiaries therein, that would reasonably likely  to, individually or in the aggregate, have a Material Adverse Effect.  (31) Absence of Further Requirements.  (A) No filing with, or authorization, approval,  consent, license, order, registration, qualification or decree of, any court or governmental authority  or agency, domestic or foreign, (B) no authorization, approval, vote or consent of any holder of  capital stock or other securities of the Company or any Guarantor or creditor of the Company or  any of its subsidiaries, (C) no authorization, approval, waiver or consent under any Company  Document, and (D) no authorization, approval, vote or consent of any other person or entity, is  necessary or required for the execution, delivery or performance by the Company or the Guarantors  of their obligations under the Transaction Documents, for the offering, issuance, sale or delivery  of the Securities or the Guarantees hereunder, or for the consummation of any of the other  transactions contemplated by this Agreement, in each case on the terms contemplated by the  General Disclosure Package and the Offering Memorandum, except such as have been or will have  be obtained prior to the Closing Date and except that no representation is made as to any such  consents, approvals authorizations, orders, registrations or qualifications as may be required under  state and foreign securities laws.  (32) Possession of Licenses and Permits.  The Company and its subsidiaries possess  such permits, licenses, approvals, consents and other authorizations (collectively, “Governmental  Licenses”) issued by the appropriate federal, state, local or foreign regulatory agencies or bodies  necessary to conduct the business now operated by them.  The Company and its subsidiaries are  





 






10  in compliance with the terms and conditions of all such Governmental Licenses, except where the  failure so to comply would not, individually or in the aggregate, result in a Material Adverse Effect.   All of the Governmental Licenses are valid and in full force and effect.  Neither the Company nor  any of its subsidiaries has received any notice of proceedings relating to the revocation or  modification of any such Governmental Licenses.  (33) Title to Property.  The Company and each of its subsidiaries have good and  marketable title in fee simple to all real property owned by any of them (if any) and good title to  all other properties and assets that are material to the business of the Company and its subsidiaries,  in each case, free and clear of all Liens except such as (a) are described in the General Disclosure  Package and the Offering Memorandum or (b) do not, individually or in the aggregate, materially  affect the value of such property or interfere with the use made and proposed to be made of such  property by the Company or any of its subsidiaries.  All real property, buildings and other  improvements, and all equipment and other property, held under lease or sublease by the Company  or any of its subsidiaries is held by them under valid, subsisting and enforceable leases or  subleases, as the case may be, with such exceptions that would not, individually or in the aggregate,  reasonably be expected to result in a Material Adverse Effect.   (34) Neither the Company nor any of its subsidiaries has any written notice of any claim  adverse to the rights of the Company or any of its subsidiaries or which questions the rights of the  Company or any of its subsidiaries to the continued possession of its leased or subleased premises  or the continued use of its leased or subleased equipment or other property, except for such claims  which would not, individually or in the aggregate, reasonably be expected to result in a Material  Adverse Effect.   (35) Investment Company Act.  Neither the Company nor any of its subsidiaries is, and  upon the issuance and sale of the Securities as herein contemplated and the receipt and application  of the net proceeds therefrom as described in the General Disclosure Package and the Offering  Memorandum under the caption “Use Of Proceeds,” will be required to register as an “investment  company” under the 1940 Act.  (36) Environmental Laws.  Except as described in the General Disclosure Package and  the Offering Memorandum and except as would not, individually or in the aggregate, reasonably  be expected to result in a Material Adverse Effect, (A) neither the Company nor any of its  subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation,  ordinance, code, policy or rule of common law or any judicial or administrative interpretation  thereof, including any judicial or administrative order, consent, decree or judgment, relating to  pollution or protection of human health, the environment (including, without limitation, ambient  air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without  limitation, laws and regulations relating to the release or threatened release of chemicals,  pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum  products (collectively, “Hazardous Materials”) or to the manufacture, processing, distribution, use,  treatment, storage, disposal, transport or handling of Hazardous Materials (collectively,  “Environmental Laws”), (B) the Company and its subsidiaries have all permits, authorizations and  approvals required under any applicable Environmental Laws and are each in compliance with  their requirements, (C)there are no pending or, to the knowledge of the Company, threatened  administrative, regulatory or judicial actions, suits, demands, demand letters, claims, Liens, notices  





 






11  of noncompliance or violation, investigation or proceedings relating to any Environmental Law  against the Company or any of its subsidiaries and (D) to the knowledge of the Company,  there  are no events or circumstances that could reasonably be expected to form the basis of an order for  clean-up or remediation, or an action, suit or proceeding by any private party or governmental  body or agency, against or affecting the Company or any of its subsidiaries relating to Hazardous  Materials or any Environmental Laws.  (37) Tax Returns.  The Company and its subsidiaries have filed all foreign, federal, state,  local and franchise tax returns that are required to be filed or have obtained extensions thereof,  except where the failure so to file would not, individually or in the aggregate, reasonably be  expected to result in a Material Adverse Effect, and have paid all taxes (including, without  limitation, any estimated taxes) required to be paid and any other assessment, fine or penalty, to  the extent that any of the foregoing is due and payable, except for any such tax, assessment, fine  or penalty that is currently being contested in good faith by appropriate actions and except for such  taxes, assessments, fines or penalties the nonpayment of which would not, individually or in the  aggregate, reasonably be expected to result in a Material Adverse Effect.  (38) Insurance.  The Company and its subsidiaries are insured by insurers of recognized  financial responsibility against such losses and risks and in such amounts as are prudent and  customary in the businesses in which they are engaged; and neither the Company nor any of its  subsidiaries has any reason to believe that it will not be able to renew its existing insurance  coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from  similar insurers as may be necessary to continue its business.  (39) Accounting and Disclosure Controls.  The Company and its 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 financial statements in  conformity with GAAP and to maintain asset accountability; (C) access to assets is permitted only  in accordance with management’s general or specific authorization; (D) the recorded  accountability for assets is compared with the existing assets at reasonable intervals and  appropriate action is taken with respect to any differences; and (E) interactive data in eXtensbile  Business has been prepared in all material respects in accordance with the Commission’s rules and  guidelines applicable thereto. Except as described in the General Disclosure Package and the  Offering Memorandum, since the first day of the Company’s earliest fiscal year for which audited  financial statements are included in the General Disclosure Package and the Offering  Memorandum, there has been no material weakness in the Company’s internal control over  financial reporting (whether or not remediated). The Company has established, maintained and  periodically evaluates the effectiveness of its “internal control over financial reporting” and  “disclosure controls and procedures” (each as defined in Rules 13a-15 and 15d-15 under the 1934  Act). The Company’s internal control over financial reporting and disclosure controls and  procedures are effective and comply with the requirements of the 1934 Act in all material respects.  (40) Compliance with the Sarbanes-Oxley Act.  There is and has been no failure on the  part of the Company or any of the Company’s directors or officers, in their capacities as such, to  comply in all material respects with any provision of the Sarbanes-Oxley Act with which any of  them is required to comply, including Section 402 related to loans.  





 






12  (41) Margin Requirements.  None of the Company or its subsidiaries or their   authorized representatives (other than the Initial Purchasers, as to whom the Company and the  Guarantors make no representation) has taken, and none of them will take, any action that would  reasonably be expected to cause the transactions contemplated by this Agreement (including,  without limitation, the use of the proceeds from the sale of the Securities), to violate Regulations  T, U and X of the Board of Governors of the Federal Reserve System.    (42) Absence of Manipulation.  Neither the Company nor any of the Guarantors nor any  of their respective subsidiaries have taken and or will take, directly or indirectly, any action  designed to or that would constitute or that would reasonably be expected to cause or result in the  stabilization or manipulation of the price of any security to facilitate the sale or resale of the  Securities.  (43) Statistical and Market-Related Data.  Any statistical, demographic, market-related  and similar data included in the General Disclosure Package or the Offering Memorandum are  based on or derived from sources that the Company believes to be reliable and accurate and  accurately reflect the materials upon which such data is based or from which it was derived.  (44) No Unlawful Payments.  Neither the Company nor any of its subsidiaries nor any  director, or officer of the Company or any of its subsidiaries nor, to the knowledge of the Company  and each of the Guarantors, any employee, agent, affiliate or other person associated with or acting  on behalf of the Company or any of its subsidiaries is aware of or has taken any action, directly or  indirectly, that has resulted or would reasonably be expected to result in (i) the use of any funds  for any unlawful contribution, gift, entertainment or other unlawful expense relating to political  activity; (ii) the making or taking of an act in furtherance of an offer, promise or authorization of  any direct or indirect unlawful payment or benefit to any foreign or domestic government or  regulatory official or employee, including of any government-owned or controlled entity or of a  public international organization, or any person acting in an official capacity for or on behalf of  any of the foregoing, or any political party or party official or candidate for political office; (iii) a  violation by any such person of any provision of the Foreign Corrupt Practices Act of 1977, as  amended, or any applicable law or regulation implementing the OECD Convention on Combating  Bribery of Foreign Public Officials in International Business Transactions, or the commission of  an offence under the Bribery Act 2010 of the United Kingdom, or any other applicable anti-bribery  or anti-corruption laws; or (iv) the making, offering, requesting or taking of, or the agreement to  take, an act in furtherance of any unlawful bribe or other unlawful benefit, including, without  limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment  or benefit.  The Company and its subsidiaries have instituted, maintain and enforce, and will  continue to maintain and enforce policies and procedures designed to promote and ensure  compliance with all applicable anti-bribery and anti-corruption laws.    (45) Compliance with Money Laundering Laws.  The operations of the Company and  its subsidiaries are in compliance in all material respects with applicable financial recordkeeping  and reporting requirements, including as applicable, those of the Currency and Foreign  Transactions Reporting Act of 1970, as amended, the applicable money laundering statutes of all  applicable jurisdictions, the rules and regulations thereunder and any related or similar rules,  regulations or guidelines issued, administered or enforced by any governmental or regulatory  agency (collectively, the “Anti-Money Laundering Laws”) and no action, suit or proceeding by or  





 






13  before any court or governmental or regulatory agency, authority or body or any arbitrator  involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws  is pending or, to the knowledge of the Company or any of its subsidiaries is, threatened.  (46) No Conflicts with Sanctions Laws.  Neither the Company nor any of its  subsidiaries, directors, or officers, nor, to the knowledge of the Company or any of the Guarantors,  any agent, employee or affiliate or other person associated with or acting on behalf of the Company  or any of its subsidiaries is currently the subject or the target of any sanctions administered or  enforced by the U.S. Government, (including, without limitation, the Office of Foreign Assets  Control of the U.S. Department of the Treasury (“OFAC”) or the U.S. Department of State and  including, without limitation, the designation as a “specially designated national” or “blocked  person”), the United Nations Security Council (“UNSC”), the European Union, Her Majesty’s  Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor is the  Company or any of its subsidiaries located, organized or resident in a country or territory that is  the subject or the target of Sanctions, including, without limitation, Cuba, Iran, North Korea, Syria  and Crimea (each, a “Sanctioned Country”); and the Company will not directly or indirectly use  any of the proceeds of the offering, or lend, contribute or otherwise make available such proceeds  to any subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any  activities of or business with any person that, at the time of such funding or facilitation, is the  subject or the target of any Sanctions, in violation of applicable law, (ii) to fund or facilitate any  activities of or any business in any Sanctioned Country, in violation of applicable law, or (iii) in  any other manner that would result in a violation by any person (including any person participating  in the transaction, whether as initial purchaser, advisor, investor or otherwise) of any Sanctions.  For the past five years, the Company and its subsidiaries have not knowingly engaged in, are not  now knowingly engaged in, and will not engage in, any dealings or transactions with any person  that at the time of the dealing or transaction is or was the subject or the target of any Sanctions or  with any Sanctioned Country, in violation of applicable law.  (47) ERISA Compliance.  None of the following events has occurred or exists:  (i) a  failure to fulfill the obligations, if any, under the minimum funding standards of Section 302 of  ERISA with respect to a Plan determined without regard to any waiver of such obligations or  extension of any amortization period; (ii) an audit or investigation by the Internal Revenue Service,  the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal,  state or foreign governmental or regulatory agency with respect to the employment or  compensation of employees by the Company or any of its subsidiaries that could reasonably be  expected, individually or in the aggregate, to result in a Material Adverse Effect; or (iii) any breach  of any contractual obligation, or any violation of law or applicable qualification standards, with  respect to the employment or compensation of employees by the Company or any of its  subsidiaries that could reasonably be expected, individually or in the aggregate, to result in a  Material Adverse Effect.  None of the following events has occurred or is reasonably likely to  occur that could reasonably be expected, individually or in the aggregate, to result in a Material  Adverse Effect:  (i) a material increase in the aggregate amount of contributions required to be  made to all Plans in the current fiscal year of the Company and its subsidiaries compared to the  amount of such contributions made in the Company’s most recently completed fiscal year; (ii) a  material increase in the “accumulated post-retirement benefit obligations” (within the meaning of  Statement of Financial Accounting Standards 106) of the Company and its subsidiaries compared  to the amount of such obligations in the Company’s most recently completed fiscal year; (iii) any  





 






14  event or condition giving rise to a liability under Title IV of ERISA; or (iv) the filing of a claim  by one or more employees or former employees of the Company or any of its subsidiaries related  to its or their employment.  For purposes of this paragraph and the definition of ERISA, the term  “Plan” means a plan (within the meaning of Section 3(3) of ERISA) with respect to which the  Company or any of its subsidiaries may have any liability.  (48) No Restrictions on Dividends.  No subsidiary of the Company is a party to or  otherwise bound by any instrument or agreement that limits, directly or indirectly, any subsidiary  of the Company from paying any dividends or making any other distributions on its capital stock,  limited or general partnership interests, limited liability company interests, or other equity  interests, as the case may be, or from repaying any loans or advances from, or (except for  instruments or agreements that by their express terms prohibit the transfer or assignment thereof  or of any rights thereunder and the laws of the jurisdiction of formation of such entities)  transferring any of its properties or assets to, the Company or any other subsidiary, in each case  except as described in the General Disclosure Package and the Offering Memorandum and any  restriction or limitation that will be permitted under the Indenture.  (49) Brokers.  There is not a broker, finder or other party that is entitled to receive from  the Company or any of its subsidiaries any brokerage or finder’s fee or other fee or commission as  a result of any of the transactions contemplated by this Agreement, except for underwriting  discounts and commissions payable to the Initial Purchasers in connection with the sale of the  Securities pursuant to this Agreement.  (50) Cyber Security; Data Protection. The Company and its subsidiaries’ information  technology and computer systems, networks, hardware, software, internet web sites, data and  databases (including the data of their respective customers, employees, suppliers, vendors and any  third party data maintained by or on behalf of them), equipment or technology (collectively, “IT  Systems and Data”) are adequate for, and operate and perform in all material respects as required  in connection with, the operation of the business of the Company and the subsidiaries as currently  conducted, except as would not, individually or in the aggregate, reasonably be expected to have  a Material Adverse Effect. The Company and its subsidiaries have implemented and maintained  commercially reasonable information technology, information security, cyber security and data  protection controls, policies and procedures, including oversight, access controls, encryption,  technological and physical safeguards, business continuity/disaster recovery and incident response  to adequately protect and prevent security breaches of, unauthorized access to and other similar  compromises of IT Systems and Data in accordance with industry practices and as required by  applicable regulatory standards. The Company and its subsidiaries (i) to the knowledge of the  Company and the Guarantors, have not experienced and have no knowledge of any cyber-attack,  security breach, unauthorized access or other similar compromise to their IT Systems and Data  and (ii) are presently in compliance with all applicable laws or statutes and all judgments, orders,  rules and regulations of any court or arbitrator or governmental or regulatory authority, internal  policies and contractual obligations relating to the privacy and security of IT Systems and Data  and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation  or modification, except, in each case of clauses (i) and (ii), for any such cyber-attack, security  breach, unauthorized access or other similar compromise, or noncompliance, that would not,  individually or in the aggregate, be reasonably likely to have a Material Adverse Effect.   





 






15  (b) Certificates.  Any certificate signed by any officer of the Company, or any of its  subsidiaries (whether signed on behalf of such officer, the Company, or such subsidiary) and  delivered to the Representative or to counsel for the Initial Purchasers shall be deemed a  representation and warranty by the Company or such Guarantor to each Initial Purchaser as to the  matters covered thereby.  SECTION 2.  Sale and Delivery to Initial Purchasers; Closing; Agreements to Sell,  Purchase and Resell.  (a) The Securities.  On the basis of the representations and warranties herein contained  and subject to the terms and conditions herein set forth, the Company and each of the Guarantors  agree to sell to each Initial Purchaser, severally and not jointly, and each Initial Purchaser, severally  and not jointly, agrees to purchase from the Company and each of the Guarantors, the aggregate  principal amount of Securities set forth opposite such Initial Purchaser’s name in Exhibit A hereto  plus any additional principal amount of Securities which such Initial Purchaser may become  obligated to purchase pursuant to the provisions of Section 10 hereof, in each case at a price equal  to 99.0% of the principal amount thereof, plus accrued interest, if any, from April 20, 2021. The  Company and the Guarantors will not be obligated to deliver any of the Securities except upon  payment for all the Securities to be purchased as provided herein.  (b) Payment.  Payment of the purchase price for, and delivery of, the Securities shall  be made at the offices of Cahill Gordon & Reindel LLP, 32 Old Slip New York, New York 10005,  or at such other place as shall be agreed upon by the Representative and the Company, at 9:00 A.M.  (New York City time) on April 20, 2021 (unless postponed in accordance with the provisions of  Section 10), or such other time not later than five business days after such date as shall be agreed  upon by the Representative and the Company (such time and date of payment and delivery being  herein called the “Closing Date”).  Payment shall be made to the Company by wire transfer of immediately available funds to  a single bank account designated by the Company against delivery to the Representative for the  respective accounts of the Initial Purchasers of the Securities to be purchased by them.  It is  understood that each Initial Purchaser has authorized the Representative, for its account, to accept  delivery of, receipt for, and make payment of the purchase price for, the Securities which it has  agreed to purchase.  Wells Fargo, individually and not as representative of the Initial Purchasers,  may (but shall not be obligated to) make payment of the purchase price for the Securities to be  purchased by any Initial Purchaser whose funds have not been received by the Closing Date, but  such payment shall not relieve such Initial Purchaser from its obligations hereunder.  (c) Delivery of Securities.  The Company shall make one or more global certificates  (collectively, the “Global Securities”) representing the Securities available for inspection by the  Representative not later than 1:00 p.m., New York City time, on the business day prior to the  Closing Date and, on or prior to the Closing Date, the Company shall deliver the Global Securities  to DTC or to the Trustee, acting as custodian for DTC, as applicable.  Delivery of the Securities to  the Initial Purchasers on the Closing Date shall be made through the facilities of DTC unless the  Representative shall otherwise instruct.  





 






16  (d) Representations of the Initial Purchasers.  Each of the Initial Purchasers, severally  and not jointly hereby represents and warrants to the Company that it intends to offer the Securities  for sale upon the terms and conditions set forth in this Agreement and in the General Disclosure  Package.  Each of the Initial Purchasers, severally and not jointly, hereby represents and warrants  to, and agrees with, the Company, on the basis of the representations, warranties and agreements  of the Company and the Guarantors, that such Initial Purchaser: (i) is a QIB and an institutional  accredited investor within the meaning of Rule 501(a) under the Securities Act; (ii) in connection  with the Exempt Resales, will sell the Securities only to the Eligible Purchasers; and (iii) will not  offer or sell the Securities in the United States by any form of general solicitation or general  advertising within the meaning of Regulation D under the 1933 Act and (iv) will not engage in any  directed selling efforts within the meaning of Rule 902 under the 1933 Act, in connection with the  offering of the Securities.  The Initial Purchasers have advised the Company that they will resell  the Securities to Eligible Purchasers at a price initially equal to 100.000% of the principal amount  thereof, plus accrued interest, if any, from April 20, 2021.  Such price may be changed by the  Initial Purchasers at any time without notice.  Each of the Initial Purchasers understands that the  Company and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to  this Agreement, counsel to the Company and counsel to the Initial Purchasers, will rely upon the  accuracy and truth of the foregoing representations, warranties and agreements, and the Initial  Purchasers hereby consent to such reliance.  SECTION 3.  Covenants of the Company and the Guarantors.  The Company and the Guarantors, jointly and severally, covenant with each Initial  Purchaser as follows:  (a) Securities Law Compliance.  The Company will (i) advise each Initial Purchaser  promptly after obtaining knowledge (and, if requested by any Initial Purchaser, confirm such advice  in writing) of (A) the issuance by any U.S. or non-U.S. federal or state securities commission of any  stop order suspending the qualification or exemption from qualification of any of the Securities for  offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any U.S. or  non-U.S. federal or state securities commission or other regulatory authority, or (B) the happening  of any event that makes any statement of a material fact made in the General Disclosure Package,  any Issuer Free Writing Document or the Offering Memorandum, untrue or that requires the making  of any additions to or changes in the General Disclosure Package, any Issuer Free Writing Document  or the Offering Memorandum, to make the statements therein, in the light of the circumstances under  which they were made, not misleading, (ii) use its reasonable best efforts to prevent the issuance of  any stop order or order suspending the qualification or exemption from qualification of any of the  Securities under any securities or “Blue Sky” laws of U.S. state or non-U.S. jurisdictions and (iii) if,  at any time, any U.S. or non-U.S. federal or state securities commission or other regulatory authority  shall issue an order suspending the qualification or exemption from qualification of any of the  Securities under any such laws, use its reasonable best efforts to obtain the withdrawal or lifting of  such order at the earliest possible time.  (b) Amendments.  The Company will give the Representative notice of its intention to  prepare any amendment, supplement or revision to the Preliminary Offering Memorandum, the  Offering Memorandum or any Issuer Free Writing Document, and the Company will furnish the  Representative with copies of any such documents within a reasonable amount of time prior to such  





 






17  proposed use, and will not use any such document to which the Representative or counsel for the  Initial Purchasers shall reasonably object in a timely manner.  The Company has given the  Representative notice of any filings made pursuant to the 1934 Act or the 1934 Act Regulations  reasonably prior to the Applicable Time.  The Company will give the Representative notice of its  intention to make any such filing from and after the Applicable Time through the Closing Date (or,  if later, through the completion of the distribution of the Securities by the Initial Purchasers to  Eligible Purchasers) and will furnish the Representative with copies of any such documents a  reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use  any such document to which the Representative or counsel for the Initial Purchasers shall reasonably  object, unless such filing is required by law.   The Representative shall notify the Company if the  Initial Purchasers have not completed the distribution of Securities as of the Closing Date.  (c) Delivery of Disclosure Documents to the Representative.  The Company will  deliver to the Representative and counsel for the Initial Purchasers, within two days of the date  hereof and without charge, such number of copies of the Preliminary Offering Memorandum, the  Pricing Term Sheet and the Offering Memorandum and any amendment or supplement to any of the  foregoing as they reasonably request.  (d) Continued Compliance with Securities Laws.  The Company will comply with the  1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations so as to permit the  completion of the distribution of the Securities as contemplated by this Agreement, the General  Disclosure Package and the Offering Memorandum.  If at any time prior to the completion of the  distribution of the Securities by the Initial Purchasers to Eligible Purchasers, any event shall occur  or condition shall exist as a result of which it is necessary (or if the Representative or counsel for the  Initial Purchasers shall notify the Company that, in their reasonable judgment, it is necessary) to  amend or supplement the General Disclosure Package or the Offering Memorandum (or, in each  case, any documents incorporated by reference therein) so that the General Disclosure Package or  the Offering Memorandum, as the case may be, will not include 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 or then prevailing, not misleading or if it is necessary  (or, if the Representative or counsel for the Initial Purchasers shall notify the Company that, in their  reasonable judgment, it is necessary) to amend or supplement the General Disclosure Package or the  Offering Memorandum (or, in each case, any documents incorporated by reference therein) in order  to comply with the requirements of the 1933 Act, the 1933 Act Regulations, the 1934 Act or the  1934 Act Regulations, the Company will promptly notify the Representative of such event or  condition and of its intention to prepare such amendment or supplement (or, if the Representative or  counsel for the Initial Purchasers shall have notified the Company as aforesaid, the Company will  promptly notify the Representative of its intention to prepare such amendment or supplement) and  will promptly prepare, subject to Section 3(b) hereof, such amendment or supplement as may be  necessary to correct such untrue statement or omission or to comply with such requirements, and the  Company will furnish to the Initial Purchasers such number of copies of such amendment or  supplement as the Initial Purchasers may reasonably request.  If at any time an event shall occur or  condition shall exist as a result of which it is necessary (or if the Representative or counsel for the  Initial Purchasers shall notify the Company that, in their reasonable judgment, it is necessary) to  amend or supplement any Issuer Free Writing Document so that it will not include an untrue  statement of a material fact or omit to state a material fact necessary in order to make the statements  therein, in the light of the circumstances under which they were made or then prevailing, not  





 






18  misleading, or if it is necessary (or, if the Representative or counsel for the Initial Purchasers shall  notify the Company that, in their judgment, it is necessary) to amend or supplement such Issuer Free  Writing Document in order to comply with the requirements of the 1933 Act or the 1933 Act  Regulations, the Company will promptly notify the Representative of such event or condition and  of its intention to prepare such amendment or supplement (or, if the Representative or counsel for  the Initial Purchasers shall have notified the Company as aforesaid, the Company will promptly  notify the Representative of its intention to prepare such amendment or supplement) and will  promptly prepare and, subject to Section 3(b) hereof distribute, such amendment or supplement as  may be necessary to eliminate or correct such conflict, untrue statement or omission or to comply  with such requirements, and the Company will furnish to the Initial Purchasers such number of  copies of such amendment or supplement as the Initial Purchasers may reasonably request.  (e) Use of Offering Materials.  The Company and each of the Guarantors consents to  the use of the General Disclosure Package and the Offering Memorandum in accordance with the  securities or “Blue Sky” laws of the jurisdictions in which the Securities are offered by the Initial  Purchasers and by all dealers to whom Securities may be sold, in connection with the offering and  sale of the Securities.  (f) “Blue Sky” and Other Qualifications.  The Company will cooperate with the Initial  Purchasers, to qualify the Securities for offering and sale, or to obtain an exemption for the Securities  to be offered and sold, under the applicable securities laws of such states and other jurisdictions  (domestic or foreign) as the Representative may reasonably request and to maintain such  qualifications and exemptions in effect for so long as required for the distribution of the Securities;  provided, however, that the Company shall not be obligated to file any general consent to service of  process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which  it is not so qualified or to subject itself to taxation in respect of doing business in any jurisdiction in  which it is not otherwise so subject.  In each jurisdiction in which the Securities have been so  qualified or are exempt, the Company will file such statements and reports as may be required by  the laws of such jurisdiction to continue such qualification or exemption, as the case may be, in  effect for so long as required for the distribution of the Securities.  (g) Use of Proceeds.  The Company will use the net proceeds received by it from the  sale of the Securities in the manner specified in the Preliminary Offering Memorandum and the  Offering Memorandum under “Use of Proceeds.”  (h) Restriction on Sale of Securities. From and including the date of this Agreement  through and including the 90th day after the date of this Agreement, the Company and the Guarantors  will not, without the prior written consent of Wells Fargo, directly or indirectly issue, offer, pledge,  sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell,  grant any option or right to sell or otherwise transfer or dispose of any debt securities of or  guaranteed by the Company or any Guarantor (other than the Securities issued under this Agreement)  or any securities convertible into or exercisable or exchangeable for any debt securities of or  guaranteed by the Company.  (i) Rule 144A Information.  So long as any of the Securities are outstanding, during  any period in which the Company is not subject to and in compliance with Section 13 or 15(d) of  the Exchange Act, the Company and the Guarantors will furnish at their expense to the Initial  





 






19  Purchasers, and, upon request, to the holders of the Securities and prospective purchasers of the  Securities, the information required by Rule 144A(d)(4) under the 1933 Act (if any).  (j) Pricing Term Sheet.  The Company will prepare the Pricing Term Sheet reflecting  the final terms of the Securities, in substantially the form attached hereto as Exhibit D and otherwise  in form and substance satisfactory to the Representative; provided that the Company will furnish the  Representative with copies of any such Pricing Term Sheet and will not use any such document to  which the Representative or counsel to the Initial Purchasers shall object.  (k) Preparation of the Offering Memorandum.  As promptly as practicable following  the execution of this Agreement, the Company will, subject to Section 3(b) hereof, prepare the  Offering Memorandum, which shall contain the public offering price and terms of the Securities, the  plan of distribution thereof and such other information as the Representative and the Company may  deem appropriate.  (l) DTC.  The Company will use its best efforts to permit the Securities to be eligible  for clearance and settlement through DTC.  (m) No Stabilization.  The Company, the Guarantors and their respective affiliates will  not take, directly or indirectly, any action designed to or that has constituted or that reasonably could  be expected to cause or result in the stabilization or manipulation of the price of any security of the  Company or the Guarantors in connection with the offering of the Securities.  (n) No Affiliate Resales.  The Company and the Guarantors will not, and will not  permit any of their respective affiliates (as defined in Rule 144 under the 1933 Act) to, resell any of  the Securities that have been acquired by any of them, except for Securities purchased by the  Company, the Guarantors or any of their respective affiliates and resold in a transaction registered  under the 1933 Act.  (o) No General Solicitation.  In connection with any offer or sale of the Securities,  except as directed by the Initial Purchasers, the Company and the Guarantors will not engage, and  will cause their respective affiliates and any person acting on their behalf (other than, in any case,  the Initial Purchasers and any of their affiliates, as to whom the Company and the Guarantors make  no covenant) not to engage (i) in any form of general solicitation or general advertising (within the  meaning of Regulation D of the 1933 Act), other than any General Solicitation with the prior consent  of the Representative and listed on Schedule 5 hereto, or any public offering within the meaning of  Section 4(a)(2) of the 1933 Act in connection with any offer or sale of the Securities and/or (ii) in  any directed selling effort with respect to the Securities within the meaning of Regulation S under  the 1933 Act, and to comply with the offering restrictions requirement of Regulation S of the 1933  Act. (p) No Integration.  The Company will not, and will ensure that no affiliate of the  Company will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any  “security” (as defined in the 1933 Act) that would be integrated with the sale of the Securities in a  manner that would require the registration under the 1933 Act of the sale to the Initial Purchasers or  to the Eligible Purchasers of the Securities.  





 






20  (q) Transaction Documents.  The Company and the Guarantors will do and perform all  things reasonably required or necessary to be done and performed under the Transaction Documents  by them prior to the Closing Date, and to satisfy all conditions precedent to the Initial Purchasers’  obligations hereunder to purchase the Securities.  SECTION 4.  Payment of Expenses.  (a) Expenses.  The Company and the Guarantors, jointly and severally, will pay all  expenses incident to the performance of their respective obligations under this Agreement,  including (i) the preparation, printing and delivery of the Preliminary Offering Memorandum, the  General Disclosure Package, the Offering Memorandum and any Issuer Free Writing Documents  and each amendment thereto (in each case including exhibits) and any costs associated with  electronic delivery of any of the foregoing, (ii) the word processing and delivery to the Initial  Purchasers of each of the Transaction Documents and such other documents as may be required in  connection with the offering, purchase, sale, issuance or delivery of the Securities, (iii) the  preparation, issuance and delivery of the certificates for the Securities and the issuance and  delivery of the Securities to the Initial Purchasers, including any issue or other transfer taxes and  any stamp or other taxes or duties payable in connection with the sale, issuance or delivery of the  Securities to the Initial Purchasers, (iv) the fees and disbursements of the counsel, accountants and  other advisors to the Company and the Guarantors, (v) the qualification or exemption of the  Securities under securities laws in accordance with the provisions of Section 3(f) hereof, including  the reasonable fees and disbursements of counsel for the Initial Purchasers in connection therewith  and in connection with the preparation, printing and delivery of the Blue Sky Survey and any  supplements thereto, (vi) the fees and expenses of the Trustee, including the fees and  disbursements of counsel for the Trustee in connection with the Transaction Documents and  (vii) all fees charged by any rating agencies for rating the Securities and all expenses and  application fees incurred in connection with the approval of the Securities for clearance, settlement  and book-entry transfer through DTC.  (b) Termination of Agreement.  If this Agreement is terminated by the Representative  in accordance with the provisions of Section 5, Section 9(a)(i), or Section 9(a)(iii) hereof, the  Company and the Guarantors, jointly and severally, will reimburse the Initial Purchasers for all of  their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the  Initial Purchasers.  SECTION 5.  Conditions of Initial Purchasers’ Obligations.  The obligations of the several Initial Purchasers hereunder are subject to the accuracy, on  the date hereof and at the Closing Date, of the representations and warranties of the Company and  the Guarantors contained in this Agreement, or in certificates signed by any officer of the  Company, any Guarantor or any subsidiary of the Company (whether signed on behalf of such  officer, the Company or such subsidiary) delivered to the Representative or counsel for the Initial  Purchasers, to the performance by the Company and the Guarantors of their respective covenants  and other obligations hereunder, and to the following further conditions:  (a) Opinions of Counsel for Company and the Guarantors.  At the Closing Date, the  Representative shall have received the opinion, each dated as of the Closing Date, in form and  





 






21  substance satisfactory to the Representative of (i) McDermott Will & Emery LLP, New York,  Delaware and California counsel for the Company and the Guarantors (“Company Counsel”),  which shall include a negative assurance letter (ii) Warrick & Boyn, LLP, Indiana counsel for the  Company and Guarantors, (iii) The Nelson Law Group, PLLC, Arizona counsel for the Company  and Guarantors, (iv) Brownstein Hyatt Farber Schreck, LLP, Nevada counsel for the Company  and Guarantors and (v) Reinhart Boerner Van Deuren s.c., Wisconsin counsel for the Company  and Guarantors, in each case in form and substance reasonably satisfactory to the Representative  and together with signed or reproduced copies of such opinion for each of the other Initial  Purchasers.  (b) Opinion of Counsel for Initial Purchasers.  At the Closing Date, the Representative  shall have received the favorable letter, dated as of the Closing Date, of Cahill Gordon & Reindel  LLP, counsel for the Initial Purchasers, together with signed or reproduced copies of such letter for  each of the other Initial Purchasers, with respect to the Securities to be sold by the Company  pursuant to this Agreement, the Indenture, the General Disclosure Package and the Offering  Memorandum, and any amendments or supplements thereto and such other matters as the  Representative may reasonably request.  (c) Officers’ Certificate.  At the Closing Date, there shall not have been, since the date  hereof or since the respective dates as of which information is given in the General Disclosure  Package and the Offering Memorandum (in each case exclusive of any amendments or  supplements thereto subsequent to the date of this Agreement), any material adverse change or any  development that would reasonably be expected to result in a material adverse change, in the  condition (financial or other), results of operations, business, properties or management of the  Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of  business.  At the Closing Date, the Representative shall have received a certificate, signed on  behalf of the Company and each Guarantor by the President or the Chief Executive Officer of the  Company and each Guarantor and the Chief Financial Officer or Chief Accounting Officer of the  Company and each Guarantor, dated as of the Closing Date, to the effect that (i) there has been no  such material adverse change, (ii) the representations and warranties of the Company and the  Guarantors in this Agreement are true and correct at and as of the Closing Date with the same force  and effect as though expressly made at and as of the Closing Date and (iii) the Company and the  Guarantors have complied with all agreements and satisfied all conditions on their part to be  performed or satisfied at or prior to the Closing Date under or pursuant to this Agreement.  (d) Accountants’ Comfort Letters.  At the time of the execution of this Agreement, the  Representative shall have received (i) from Crowe LLP a letter, dated the date of this Agreement  and in form and substance satisfactory to the Representative, together with signed or reproduced  copies of such letter for each of the other Initial Purchasers, containing statements and information  of the type ordinarily included in accountants’ “comfort letters” to initial purchasers with respect  to the financial statements and certain financial information of the Company contained in the  General Disclosure Package, any Issuer Free Writing Documents (other than any electronic road  show) and the Offering Memorandum and any amendments or supplements to any of the foregoing  and (ii) from Deloitte & Touche LLP a letter, dated the date of this Agreement and in form and  substance satisfactory to the Representative, together with signed or reproduced copies of such  letter for each of the other Initial Purchasers, containing statements and information of the type  ordinarily included in accountants’ “comfort letters” to initial purchasers with respect to the  





 






22  financial statements and certain financial information of the Company contained in the General  Disclosure Package, any Issuer Free Writing Documents (other than any electronic road show) and  the Offering Memorandum and any amendments or supplements to any of the foregoing.   (e) Bring-down Comfort Letter.  At the Closing Date, the Representative shall have  received from Deloitte & Touche LLP a letter, dated as of the Closing Date and in form and  substance satisfactory to the Representative, to the effect that they reaffirm the statements made in  the letter furnished pursuant to subsection (d) of this Section 5, except that the specified date  referred to shall be a date not more than three business days prior to the Closing Date.  (f) No Downgrade.  There shall not have occurred, on or after the date of this  Agreement, any downgrading in the rating of any debt securities of or guaranteed by the Company  , any preferred stock of the Company or any debt securities, preferred stock or trust preferred  securities of any subsidiary or subsidiary trust of the Company by any “nationally recognized  statistical rating organization” (as defined by the Commission in Section 3(a)(62) of the 1934 Act)  or any public announcement that any such organization has placed its rating on the Company or  any such debt securities, preferred stock or other securities under surveillance or review or on a  so-called “watch list” (other than an announcement with positive implications of a possible  upgrading, and no implication of a possible downgrading, of such rating) or any announcement by  any such organization that the Company or any such debt securities, preferred stock or other  securities has been placed on negative outlook.  (g) DTC Eligibility.  The Securities shall be eligible for clearance and settlement  through DTC.  (h) Transaction Documents.  The Company, the Guarantors and the other parties  thereto shall have executed and delivered each of the Transaction Documents, and the Initial  Purchasers shall have received original copies thereof, duly executed by the Company, the  Guarantors and the other parties thereto.  (i) CFO Certificate. Upon the execution hereof, the Company shall have furnished to  the Initial Purchasers a certificate, signed by the Chief Financial Officer of the Company, dated as  of the date hereof and in the form attached as Exhibit F hereto, with respect to certain financial   information and data included in the General Disclosure Package and the Offering Memorandum.  At the Closing Date, the Company shall have furnished to the Initial Purchasers a certificate, signed  by the Chief Financial Officer of the Company, dated as of the Closing Date and in the form  attached as Exhibit F hereto, with respect to certain financial  information and data included in the  General Disclosure Package and the Offering Memorandum.  (j) Additional Documents.  At the Closing Date, counsel for the Initial Purchasers shall  have been furnished with such documents and opinions as they may require for the purpose of  enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in  order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any  of the conditions, contained in this Agreement, or as the Representative or counsel for the Initial  Purchasers may otherwise reasonably request.  





 






23  (k) Termination of Agreement.  If any condition specified in this Section 5 shall not  have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the  Representative by notice to the Company and the Guarantors at any time on or prior to the Closing  Date and such termination shall be without liability of any party to any other party except as  provided in Section 4 hereof and except that Sections 1, 4(b), 6, 7, 8, 11, 12, 13, 14, 15, 17, 18 19  and 20 hereof shall survive any such termination of this Agreement and remain in full force and  effect.  SECTION 6.  Indemnification.  (a) Indemnification by the Company and the Guarantors.  The Company and each  Guarantor agree, jointly and severally, to indemnify and hold harmless each Initial Purchaser, its  affiliates, and its and their officers, directors, employees, agents, partners and members and each  person, if any, who controls any Initial Purchaser within the meaning of Section 15 of the 1933  Act or Section 20 of the 1934 Act as follows:  (i) against any and all loss, liability, claim, damage and expense  whatsoever, as incurred, arising out of or based upon any untrue statement or  alleged untrue statement of a material fact in the Preliminary Offering  Memorandum, any Issuer Free Writing Document, the General Disclosure Package  or the Offering Memorandum (or any amendment or supplement to any of the  foregoing), or in any materials, presentations or information provided to investors  by, or with the approval of, the Company or any Guarantor in connection with the  marketing of the offering of the Securities, including any road show or investor  presentations made to investors by the Company (whether in person or  electronically), or the omission or alleged omission therefrom of a material fact  necessary in order to make the statements therein, in the light of the circumstances  under which they were made, not misleading;  (ii) against any and all loss, liability, claim, damage and expense  whatsoever, as incurred, to the extent of the aggregate amount paid in settlement  of, or pursuant to a judgment or other disposition in, any litigation, or any  investigation or proceeding by any governmental or self-regulatory agency or body,  commenced or threatened, or of any claim whatsoever arising out of or based upon  any such untrue statement or omission, or any such alleged untrue statement or  omission; provided that (subject to Section 6(d) below) any such settlement is  effected with the written consent of the Company and the Guarantors; and  (iii) against any and all expense whatsoever, as incurred (including the  fees and disbursements of counsel), reasonably incurred in investigating, preparing  or defending against any litigation, or any investigation or proceeding by any  governmental or self-regulatory agency or body, commenced or threatened, or any  claim whatsoever arising out of or based upon any such untrue statement or  omission, or any such alleged untrue statement or omission, to the extent that any  such expense is not paid under (i) or (ii) above,  





 






24  provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,  damage or expense to the extent arising out of or based upon any untrue statement or omission or  alleged untrue statement or omission made in reliance upon and in conformity with written  information about any Initial Purchaser furnished to the Company or any Guarantor by such Initial  Purchaser through the Representative expressly for use in the Preliminary Offering Memorandum,  any Issuer Free Writing Document, the General Disclosure Package or the Offering Memorandum  (or in any amendment or supplement to any of the foregoing), it being understood and agreed that  the only such information furnished by the Initial Purchasers as aforesaid consists of the  information described as such in Section 6(b) hereof.  (b) Indemnification by the Initial Purchasers.  Each Initial Purchaser agrees, severally  and not jointly, to indemnify and hold harmless the Company, the Guarantors, their respective  directors and each person, if any, who controls the Company within the meaning of Section 15 of  the 1933 Act or Section 20 of the 1934 Act against any and all loss, liability, claim, damage and  expense described in the indemnity contained in subsection (a) of this Section 6, as incurred, but  only with respect to untrue statements or omissions, or alleged untrue statements or omissions,  made in the Preliminary Offering Memorandum, any Issuer Free Writing Document, the General  Disclosure Package or the Offering Memorandum (or any amendment or supplement to any of the  foregoing), in reliance upon and in conformity with written information relating to such Initial  Purchaser furnished to the Company or any Guarantor by such Initial Purchaser through the  Representative expressly for use therein.  The Company and the Guarantors hereby acknowledge  and agree that the information furnished to the Company and any Guarantor by the Initial  Purchasers through the Representative expressly for use in the Preliminary Offering  Memorandum, any Issuer Free Writing Document or the Offering Memorandum (or any  amendment or supplement to any of the foregoing), consists exclusively of the following  information appearing under the caption “Plan of Distribution” in the Preliminary Offering  Memorandum and the Offering Memorandum:  (i) the information regarding stabilization,  syndicate covering transactions and penalty bids appearing in the first sentence of the ninth  paragraph under such caption (but only insofar as such information concerns the Initial Purchasers)  and (ii) the information regarding market making by the Initial Purchasers appearing in the fourth  sentence of the seventh paragraph under such caption.  (c) Actions Against Parties; Notification.  Each indemnified party shall give notice as  promptly as reasonably practicable to each indemnifying party of any action commenced against  it in respect of which indemnity may be sought hereunder; provided, however, that the failure to  so 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 materially prejudiced by such  failure. In case any such action is brought against any indemnified party and such indemnified  party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will  be entitled to participate in and, to the extent that it shall elect, jointly with all other indemnifying  parties similarly notified, by written notice delivered to the indemnified party promptly after  receiving the aforesaid notice from such indemnified party, to assume the defense thereof with  counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in  any such action include both the indemnified party and the indemnifying party and the indemnified  party shall have reasonably concluded that a conflict may arise between the positions of the  indemnifying party and the indemnified party in conducting the defense of any such action or that  there may be legal defenses available to it and/or other indemnified parties which are different  





 






25  from or additional to those available to the indemnifying party, the indemnified party or parties  shall have the right to select separate counsel to assume the defense of such action on behalf of  such indemnified party or parties. Upon receipt of notice from the indemnifying party to such  indemnified party of such indemnifying party’s election so to assume the defense of such action  and approval by the indemnified party of counsel, the indemnifying party will not be liable to such  indemnified party under this Section 6 for any legal or other expenses subsequently incurred by  such indemnified party in connection with the defense thereof unless (i) the indemnified party shall  have employed separate counsel in accordance with the proviso to the immediately preceding  sentence (it being understood, however, that the indemnifying party shall not be liable for the  expenses of more than one separate counsel (in addition to local counsel) representing the  indemnified parties who are parties to such action (which separate counsel shall be selected by (x)  the Representative, in the case of counsel representing the Initial Purchasers or their related persons  or (y) the Company, in the case of counsel representing the Company and the Guarantors or their  respective related persons)) or (ii) the indemnifying party shall not have employed counsel  satisfactory to the indemnified party to represent the indemnified party within a reasonable time  after notice of commencement of the action, in each of which cases the fees and expenses of  counsel shall be at the expense of the indemnifying party.  (d) Settlements.  The indemnifying party under this Section 6 shall not be liable for any  settlement of any proceeding effected without its written consent, which will not be unreasonably  withheld, but if settled with such consent or if there be a final judgment, the indemnifying party  agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by  reason of such settlement or judgment. Counsel to the indemnified parties shall be selected as  follows:  counsel to the Initial Purchasers and the other indemnified parties referred to in  Section 6(a) above shall be selected by Wells Fargo and counsel to the Company and the  Guarantors, their respective directors, each of their respective officers and each person, if any, who  controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934  Act shall be selected by the Company and the Guarantors.  An indemnifying party may participate  at its own expense in the defense of any such action; provided, however, that counsel to the  indemnifying party shall not (except with the consent of the indemnified party) also be counsel to  the indemnified party.  In no event shall the indemnifying party be liable for the fees and expenses  of more than one counsel (in addition to any local counsel) separate from their own counsel for  the Initial Purchasers and the other indemnified parties referred to in Section 6(a) above; and the  fees and expenses of more than one counsel (in addition to any local counsel) separate from their  own counsel for the Company and the Guarantors, their respective directors, each of their  respective officers and each person, if any, who controls the Company within the meaning of  Section 15 of the 1933 Act or Section 20 of the 1934 Act, in each case in connection with any one  action or separate but similar or related actions in the same jurisdiction arising out of the same  general allegations or circumstances.  No indemnifying party shall, without the prior written  consent of the indemnified parties, settle or compromise or consent to the entry of any judgment  with respect to any litigation, or any investigation or proceeding by any governmental agency or  body, commenced or threatened, or any claim whatsoever in respect of which indemnification or  contribution could be sought under this Section 6 or Section 7 hereof (whether or not the  indemnified parties are actual or potential parties thereto), unless such settlement, compromise or  consent (i) includes an unconditional release of each indemnified party from all liability arising  





 






26  out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to  or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.  (e) Settlement Without Consent if Failure to Reimburse.  If at any time an indemnified  party shall have requested an indemnifying party to reimburse the indemnified party for fees and  expenses of counsel as contemplated by this Section 6, such indemnifying party agrees that it shall  be liable for any settlement contemplated by Section 6(a) effected without its written consent if all  of the following exist (i) such settlement is entered into more than 45 days after receipt by such  indemnifying party of the aforesaid request (and the indemnifying party has not objected within  such 45-day period to such settlement), (ii) such indemnifying party shall have received notice of  the terms of such settlement at least 30 days prior to such settlement being entered into and  (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with  such request prior to the date of such settlement or shall not have disputed in good faith the  indemnified party’s entitlement to such reimbursement.  SECTION 7.  Contribution.  If the indemnification provided for in Section 6 hereof is for any reason unavailable to or  insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims,  damages or expenses referred to therein, then each indemnifying party shall contribute to the  aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such  indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits  received by the Company and the Guarantors on the one hand and the Initial Purchasers on the  other hand from the offering of the Securities pursuant to this Agreement or (ii) if the allocation  provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to  reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the  Company and the Guarantors on the one hand and of the Initial Purchasers on the other hand in  connection with the statements or omissions which resulted in such losses, liabilities, claims,  damages or expenses, as well as any other relevant equitable considerations.  The relative benefits received by the Company and the Guarantors on the one hand and the  Initial Purchasers on the other hand in connection with the offering of the Securities pursuant to  this Agreement shall be deemed to be in the same respective proportions as the total net proceeds  from the offering of the Securities pursuant to this Agreement (before deducting expenses)  received by the Company and the Guarantors and the total discounts and commissions received by  the Initial Purchasers, in each case as determined pursuant to this Agreement, bear to the aggregate  initial offering price of the Securities as set forth on the cover of the Offering Memorandum.  The relative fault of the Company and the Guarantors on the one hand and the Initial  Purchasers on the other hand shall be determined by reference to, among other things, whether any  such untrue or alleged untrue statement of a material fact or omission or alleged omission to state  a material fact relates to information supplied by the Company or the Guarantors on the one hand  or by the Initial Purchasers on the other hand and the parties’ relative intent, knowledge, access to  information and opportunity to correct or prevent such statement or omission.  The Company and the Guarantors and the Initial Purchasers agree that it would not be just  and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation  





 






27  (even if the Initial Purchasers were treated as one entity for such purpose) or by any other method  of allocation which does not take account of the equitable considerations referred to above in this  Section 7.  The aggregate amount of losses, liabilities, claims, damages and expenses incurred by  an indemnified party and referred to above in this Section 7 shall be deemed to include any legal  or other expenses reasonably incurred by such indemnified party in investigating, preparing or  defending against any litigation, or any investigation or proceeding by any governmental agency  or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged  untrue statement or omission or alleged omission.  Notwithstanding the provisions of this Section 7, no Initial Purchaser shall be required to  contribute any amount in excess of the amount by which the total discounts and commissions from  the sale to Eligible Purchasers of the Securities initially purchased by it exceeds the amount of any  damages which such Initial Purchaser has otherwise been required to pay by reason of any such  untrue or alleged untrue statement or omission or alleged omission.  No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of  the 1933 Act) shall be entitled to contribution from any person who was not guilty of such  fraudulent misrepresentation.  For purposes of this Section 7, each affiliate, officer, director, employee, partner and  member of each Initial Purchaser and each person, if any, who controls any Initial Purchaser within  the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights  to contribution as such Initial Purchaser, and each director of the Company and of each Guarantor,  each officer of the Company and of each Guarantor, and each person, if any, who controls the  Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall  have the same rights to contribution as the Company and the Guarantors.  The Initial Purchasers’  respective obligations to contribute pursuant to this Section 7 are several in proportion to the  principal amount of Securities set forth opposite their respective names in Exhibit A hereto and  not joint.  SECTION 8.  Representations, Warranties and Agreements to Survive Delivery.  All representations, warranties and agreements contained in this Agreement or in  certificates signed by any officer of the Company or any of its subsidiaries (whether signed on  behalf of such officer, the Company, or such subsidiary) and delivered to the Representative or  counsel to the Initial Purchasers, shall remain operative and in full force and effect, regardless of  any investigation made by or on behalf of any Initial Purchaser, its affiliates and any of their any  officers, directors, employees, partners, members or agents of any Initial Purchaser or any person  controlling any Initial Purchaser, or by or on behalf of the Company, any Guarantor, any officer,  director or employee of the Company or any Guarantor or any person controlling the Company or  any Guarantor, and shall survive delivery of and payment for the Securities.  SECTION 9.  Termination of Agreement.  (a) Termination; General.  The Representative may terminate this Agreement, by  notice to the Company and the Guarantors, at any time on or prior to the Closing Date (i) if there  has been, at any time on or after the date of this Agreement or since the respective dates as of  





 






28  which information is given in the General Disclosure Package or the Offering Memorandum (in  each case exclusive of any amendments or supplements thereto subsequent to the date of this  Agreement), any material adverse change or any development that could reasonably be expected  to result in a material adverse change, in the condition (financial or other), results of operations,  business, properties or management of the Company and its subsidiaries taken as a whole, whether  or not arising in the ordinary course of business, or (ii) if there has occurred any material adverse  change in the financial markets in the United States or the international financial markets, any  declaration of a national emergency or war by the United States, any outbreak of hostilities or  escalation thereof or other calamity or crisis or any change or development involving a prospective  change in national or international political, financial or economic conditions (including, without  limitation, as a result of terrorist activities), in each case the effect of which is such as to make it,  in the judgment of the Representative, impracticable or inadvisable to proceed with the offering,  sale or delivery of the Securities or to enforce contracts for the sale of the Securities on the terms  and in the manner contemplated in the General Disclosure Package and the Offering  Memorandum, or (iii) (A) if trading in any securities of the Company has been suspended or  materially limited by the Commission or the Nasdaq Global Market, or (B) if trading generally on  the NYSE, the Nasdaq Global Select Market or the Nasdaq Global Market has been suspended or  limited, or minimum or maximum prices for trading have been fixed, or maximum ranges for  prices have been required, by any of said exchanges or by order of the Commission or any other  governmental authority, or (C) if a material disruption has occurred in commercial banking or  securities settlement or clearance services in the United States or in Europe, or (iv) if a banking  moratorium has been declared by either Federal or New York authorities or (v) if there shall have  occurred, on or after the date of this Agreement, any downgrading in the rating of any debt  securities of or guaranteed by the Company or any Guarantor, any preferred stock of any Guarantor  or any debt securities, preferred stock or trust preferred securities of any subsidiary or subsidiary  trust of the Company by any “nationally recognized statistical rating organization” (as defined by  the Commission in Section 3(a)(62) of the 1934 Act) or any public announcement that any such  organization has placed its rating on the Company or any Guarantor or any such debt securities,  preferred stock or other securities under surveillance or review or on a so-called “watch list” (other  than an announcement with positive implications of a possible upgrading, and no implication of a  possible downgrading, of such rating) or any announcement by any such organization that the  Company or any Guarantor or any such debt securities, preferred stock or other securities has been  placed on negative outlook.  (b) Liabilities.  If this Agreement is terminated pursuant to Section 5 or this Section 9,  such termination shall be without liability of any party to any other party except as provided in  Section 4 hereof, and except that Sections 1, 4(b), 6, 7, 8, 11, 12, 13, 14, 15, 17, 18, 19 and 20  hereof shall survive such termination and remain in full force and effect.  SECTION 10.  Default by One or More of the Initial Purchasers.  (a) If one or more of the Initial Purchasers shall fail at the Closing Date to purchase the  aggregate principal amount of Securities which it or they are obligated to purchase under this  Agreement (the “Defaulted Securities”), the Representative shall have the right, within 24 hours  thereafter, to make arrangements for one or more of the non-defaulting Initial Purchasers, or any  other purchaser, to purchase all, but not less than all, of the Defaulted Securities in such amounts  





 






29  as may be agreed upon and upon the terms herein set forth; if, however, the Representative shall  not have completed such arrangements within such 24-hour period, then:  (i) if the aggregate principal amount of Defaulted Securities does not  exceed 10% of the aggregate principal amount of Securities, each of the non- defaulting Initial Purchasers shall be obligated, severally and not jointly, to  purchase the full amount of such Defaulted Securities in the proportions that their  respective underwriting obligations hereunder bear to the underwriting obligations  of all non-defaulting Initial Purchasers; or  (ii) if the number of Defaulted Securities exceeds 10% of the aggregate  principal amount of Securities, this Agreement shall terminate without liability on  the part of any non-defaulting Initial Purchaser.  No action taken pursuant to this Section 10 shall relieve any defaulting Initial Purchaser  from liability in respect of its default.  In the event of any such default which does not result in a termination of this Agreement,  the Representative shall have the right to postpone the Closing Date for a period not exceeding  seven days in order to effect any required changes in the General Disclosure Package or Offering  Memorandum or in any other documents or arrangements.  As used herein, the term “Initial  Purchaser” includes any person substituted for an Initial Purchaser under this Section 10.  SECTION 11.  Notices.    All notices and other communications hereunder shall be in writing, shall be effective  only upon receipt and shall be mailed, delivered by hand or overnight courier, or transmitted by  fax (with the receipt of any such fax to be confirmed by telephone).  Notices to the Initial  Purchasers shall be directed to the Representative at Wells Fargo Securities, LLC, 550 S. Tryon  Street, 5th Floor, Charlotte, North Carolina 28202, Attention:  Leveraged Syndicate, fax no. (704)  410-4874 (with such fax to be confirmed by telephone to (704) 410-4885), e-mail.  IBCMDCMLSHYLeveragedSyndicate@wellsfargo.com; and notices to the Company or any  Guarantor shall be directed to it at 107 W. Franklin Street, P.O. Box 638, Elkhart, Indiana,  Attention: Jake Petkovich, email boonej@patrickind.com (with such email to be confirmed by  telephone to (574) 206-7734).  In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed  into law October 26, 2001)), the Initial Purchasers are required to obtain, verify and record  information that identifies their respective clients, including the Company, which information  may include the name and address of their respective clients, as well as other information that  will allow the Initial Purchasers to properly identify their respective clients. SECTION 12.  Parties.  This Agreement shall each inure to the benefit of and be binding upon the Initial  Purchasers, the Company, the Guarantors and their respective successors.  Nothing expressed or  mentioned in this Agreement is intended or shall be construed to give any person, firm or  





 






30  corporation, other than the Initial Purchasers, the Company, the Guarantors and their respective  successors and the controlling persons and other indemnified parties referred to in Sections 6 and  7 and their successors, heirs and legal representatives, any legal or equitable right, remedy or claim  under or in respect of this Agreement or any provision herein contained.  This Agreement and all  conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Initial  Purchasers, the Company, the Guarantors and their respective successors, and said controlling  persons and other indemnified parties and their successors, heirs and legal representatives, and for  the benefit of no other person or entity.  No purchaser of Securities from any Initial Purchaser shall  be deemed to be a successor by reason merely of such purchase.  SECTION 13.  GOVERNING LAW AND TIME.  THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING  UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY AND  CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.   EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, SPECIFIED TIMES OF DAY  REFER TO NEW YORK CITY TIME.  SECTION 14.  Effect of Headings.  The Section and Exhibit headings herein are for convenience only and shall not affect the  construction hereof.  SECTION 15.  Definitions.  As used in this Agreement, the following terms have the respective meanings set forth  below:  “Applicable Time” means 3:20 p.m. (New York City time) on April 13, 2021 or such other  time as agreed by the Company, the Guarantors and the Representative.   “Common Stock” means the Company’s common stock, which has no stated par value.  “Commission” means the Securities and Exchange Commission.  “Company Documents” means all contracts, indentures, mortgages, deeds of trust, loan or  credit agreements, bonds, notes, debentures, evidences of indebtedness, swap agreements, leases  or other instruments or agreements to which the Company or any of its subsidiaries is a party or  by which the Company or any of its subsidiaries is bound or to which any of the property or assets  of the Company or any of its subsidiaries is subject.    “DTC” means The Depository Trust Company.  “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and  the regulations and published interpretations thereunder.  “FCPA” means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and  regulations thereunder.  





 






31  “GAAP” means generally accepted accounting principles in the United States.  “Lien” means any security interest, mortgage, pledge, lien, encumbrance, claim or equity.  “NYSE” means the New York Stock Exchange.  “OFAC” means the Office of Foreign Assets Control of the U.S. Treasury Department.  “Organizational Documents” means (a) in the case of a corporation, its charter and  by-laws; (b) in the case of a limited or general partnership, its partnership certificate, certificate of  formation or similar organizational document and its partnership agreement; (c) in the case of a  limited liability company, its articles of organization, certificate of formation or similar  organizational documents and its operating agreement, limited liability company agreement,  membership agreement or other similar agreement; (d) in the case of a trust, its certificate of trust,  certificate of formation or similar organizational document and its trust agreement or other similar  agreement; and (e) in the case of any other entity, the organizational and governing documents of  such entity.  “Repayment Event” means any event or condition which, either immediately or with notice  or passage of time or both, (i) gives the holder of any bond, note, debenture or other evidence of  indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase,  redemption or repayment of all or a portion of such indebtedness by the Company or any subsidiary  of the Company, or (ii) gives any counterparty (or any person acting on such counterparty’s behalf)  under any swap agreement, hedging agreement or similar agreement or instrument to which the  Company or any subsidiary of the Company is a party the right to liquidate or accelerate the  payment obligations or designate an early termination date under such agreement or instrument,  as the case may be.  “Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002 and the rules and regulations  promulgated thereunder or implementing the provisions thereof.  “Termination Event” means any event or condition which gives any person the right, either  immediately or with notice or passage of time or both, to terminate or limit (in whole or in part)  any Company Documents or any rights of the Company, or any of its subsidiaries thereunder,  including, without limitation, upon the occurrence of a change of control of the Company or any  Guarantor or other similar events.  “Transaction Documents” means this Agreement, the Indenture, the Securities, the  Guarantees and the Senior Credit Facility, collectively.   “1933 Act” means the Securities Act of 1933, as amended.  “1933 Act Regulations” means the rules and regulations of the Commission under the 1933  Act.  “1934 Act” means the Securities Exchange Act of 1934, as amended.  





 






32  “1934 Act Regulations” means the rules and regulations of the Commission under the 1934  Act.  “1939 Act” means the Trust Indenture Act of 1939, as amended, and the rules and  regulations of the Commission thereunder.  “1940 Act” means the Investment Company Act of 1940, as amended.  All references in this Agreement to the Preliminary Offering Memorandum and the  Offering Memorandum, any Issuer Free Writing Document or any amendment or supplement to  any of the foregoing shall be deemed to include all versions thereof delivered (physically or  electronically) to the Representative or the Initial Purchasers. All references in this Agreement to financial statements and schedules and other  information which is “contained,” “included” or “stated” in the Preliminary Offering  Memorandum or the Offering Memorandum (and all other references of like import) shall be  deemed to mean and include all such financial statements and schedules and other information  which is incorporated by reference in the Preliminary Offering Memorandum or the Offering  Memorandum, as the case may be; and all references in this Agreement to amendments or  supplements to the Preliminary Offering Memorandum or the Offering Memorandum shall be  deemed to mean and include the filing of any document under the 1934 Act which is incorporated  by reference in the Preliminary Offering Memorandum or the Offering Memorandum.  SECTION 16.  Permitted Free Writing Documents.  The Company and each Guarantor represents, warrants and agrees that it has not made and,  unless it obtains the prior written consent of the Representative, it will not make, and each Initial  Purchaser, severally and not jointly, represents, warrants and agrees that it has not made and, unless  it obtains the prior written consent of the Company, the Guarantors and the Representative, it will  not make, any offer relating to the Securities that (if the offering of the Securities was made  pursuant to a registered offering under the 1933 Act) would constitute an “Issuer Free Writing  Prospectus” (as defined in Rule 433) (any such document, a “Issuer Free Writing Document”) or  that would constitute a “free writing prospectus” (as defined in Rule 405) which would be required  to be filed with the Commission in connection with an offering registered under the 1933 Act;  provided that the prior written consent of the Company, the Guarantors and the Representative  shall be deemed to have been given in respect of the Issuer Free Writing Documents, if any, listed  on Exhibit E hereto and to any electronic road show in the form previously provided by the  Company to and approved by the Representative.    SECTION 17.  Absence of Fiduciary Relationship.  The Company and each Guarantor acknowledge and agree that:  (a) each of the Initial Purchasers is acting solely as an initial purchaser in connection  with the sale of the Securities and no fiduciary, advisory or agency relationship between the  Company and any Guarantor, on the one hand, and any of the Initial Purchasers, on the other hand,  has been created in respect of any of the transactions contemplated by this Agreement, irrespective  of whether or not any of the Initial Purchasers has advised or is advising the Company or any  





 






33  Guarantor on other matters (it being understood that in any event no Initial Purchaser shall be  deemed to have provided legal, accounting or tax advice to the Company, any Guarantor or any of  their respective subsidiaries);  (b) the offering price of the Securities and the price to be paid by the Initial Purchasers  for the Securities set forth in this Agreement were established by the Company and the Guarantors  following discussions and arms-length negotiations with the Representative;  (c) they are capable of evaluating and understanding, and understand and accept, the  terms, risks and conditions of the transactions contemplated by this Agreement;  (d) they are aware that the Initial Purchasers and their respective affiliates are engaged  in a broad range of transactions which may involve interests that differ from those of the Company  and the Guarantors and that none of the Initial Purchasers has any obligation to disclose such  interests and transactions to the Company or the Guarantors by virtue of any fiduciary, advisory  or agency relationship or otherwise;   (e) the Company and the Guarantors have consulted their own legal and financial  advisors to the extent they deemed appropriate; and  (f) they waive, to the fullest extent permitted by law, any claims they may have against  any of the Initial Purchasers for breach of fiduciary duty or alleged breach of fiduciary duty and  agree that none of the Initial Purchasers shall have any liability (whether direct or indirect, in  contract, tort or otherwise) to them in respect of such a fiduciary duty claim or to any person  asserting a fiduciary duty claim on their behalf or in right of them or the Company, the Guarantors  or any stockholders, employees or creditors of Company or any Guarantor.  SECTION 18.  Research Analyst Independence and Other Activities of the Initial  Purchasers.  The Company and the Guarantors acknowledge that the Initial Purchasers’ research  analysts and research departments are required to be separate from, and not influenced by, their  respective investment banking divisions and are subject to certain regulations and internal policies,  and that such Initial Purchasers’ research analysts may hold views and make statements or  investment recommendations and/or publish research reports with respect to the Company or the  Guarantors and/or the offering that differ from the views of their respective investment banking  divisions.  The Company and the Guarantors hereby waive and release, to the fullest extent  permitted by applicable law, any claims that the Company or the Guarantors may have against the  Initial Purchasers arising from the fact that the views expressed by their research analysts and  research departments may be different from or inconsistent with the views or advice communicated  to the Company or the Guarantors by such Initial Purchasers’ investment banking divisions.  The  Company and the Guarantors also acknowledge that each of the Initial Purchasers is a full service  securities firm and as such from time to time, subject to applicable securities laws, may effect  transactions for its own account or the account of its customers, may make recommendations and  provide other advice, and may hold long or short positions in debt or equity securities of, or  derivative products related to, the companies that may be the subject of the transactions  contemplated by this Agreement and the Company and the Guarantors hereby waive and release,  





 






34  to the fullest extent permitted by applicable law, any claims that the Company or the Guarantors  may have against the Initial Purchasers with respect to any such other activities.  SECTION 19.  Waiver of Jury Trial.  The Company , the Guarantors and each of the Initial Purchasers hereby irrevocably waives, to the  fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding  arising out of or relating to this Agreement or the transactions contemplated hereby.  SECTION 20.  Consent to Jurisdiction.  The Company and the Guarantors hereby submit to the non-exclusive jurisdiction of any  U.S. federal or state court located in the Borough of Manhattan, the City and County of New York  in any action, suit or proceeding arising out of or relating to or based upon this Agreement or any  of the transactions contemplated hereby, and the Company and the Guarantors irrevocably and  unconditionally waive any objection to the laying of venue of any action, suit or proceeding in any  such court arising out of or relating to this Agreement or the transactions contemplated hereby and  irrevocably and unconditionally waive and agree not to plead or claim in any such court that any  such action, suit or proceeding has been brought in an inconvenient forum.  SECTION 21.  Recognition of the U.S. Special Resolution Regimes.  (a) In the event that any Initial Purchaser is a Covered Entity and becomes subject to a  proceeding under a U.S. Special Resolution Regime, the transfer from such Initial Purchaser of  this Agreement, and any interest and obligation in or under this Agreement, will be effective to the  same extent as the transfer would be effective under the U.S. Special Resolution Regime if this  Agreement, and any such interest and obligation, were governed by the laws of the United States  or a state of the United States.  (b) In the event that any Initial Purchaser is a Covered Entity or a BHC Act Affiliate  of such Initial Purchaser becomes subject to a proceeding under a U.S. Special Resolution Regime,  Default Rights under this Agreement that may be exercised against the Initial Purchaser are  permitted to be exercised to no greater extent than such Default Rights could be exercised under  the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United  States or a state of the United States.  (c) For purposes of this Section 21, the following terms have the respective meanings  set forth below:   “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be  interpreted in accordance with, 12 U.S.C. § 1841(k).   “Covered Entity” means any of the following:   (i) a “covered entity” as that term is defined in, and interpreted in accordance with,  12 C.F.R. § 252.82(b);   





 






35  (ii) a “covered bank” as that term is defined in, and interpreted in accordance with,  12 C.F.R. § 47.3(b); or   (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with,  12 C.F.R. § 382.2(b).   “Default Right” has the meaning assigned to that term in, and shall be interpreted in  accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.   “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act  and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street  Reform and Consumer Protection Act and the regulations promulgated thereunder.  SECTION 22.  Counterparts; Electronic Execution.  This agreement may be executed in any number of counterparts, each of which when so  executed and delivered shall be an original, but all of which shall constitute one and the same  instrument.  The execution and delivery of this agreement shall be deemed to include electronic  signatures on electronic platforms approved by the Representative, which shall be of the same  legal effect, validity or enforceability as delivery of a manually executed signature, to the extent  and as provided for in any applicable law, including the Federal Electronic Signatures in Global  and National Commerce Act, the New York State Electronic Signatures and Records Act, or any  other similar state laws based on the Uniform Electronic Transactions Act; provided that, upon the  request of any party hereto, such electronic signature shall be promptly followed by the original  thereof.   [Signature Page Follows]  





 






 





 






 





 






 





 






[Signature Page to Purchase Agreement]    CONFIRMED AND ACCEPTED, as of the  date first above written:  WELLS FARGO SECURITIES, LLC  By     Name:   Title: Authorized Signatory  For itself and as Representative of the Initial Purchasers named in Exhibit A hereto.    Jack C. Goins 





 






A-1  EXHIBIT A  Name of Initial Purchaser  Principal  Amount of  Securities  Wells Fargo Securities, LLC.......................................................................  $105,000,000 BofA Securities, Inc. ...................................................................................  $105,000,000  KeyBanc Capital Markets Inc. ....................................................................  $30,620,000  Truist Securities, Inc. ..................................................................................  $23,630,000  Capital One Securities, Inc. ........................................................................  $19,250,000  Fifth Third Securities, Inc. ..........................................................................  $19,250,000  U.S. Bancorp Investments, Inc. ..................................................................  $19,250,000  TD Securities (USA) LLC ..........................................................................  $14,000,000  Robert W. Baird & Co. Incorporated ..........................................................  $3,500,000  C.L. King & Associates, Inc. ......................................................................  $3,500,000  CJS Securities, Inc. .....................................................................................  $3,500,000  Sidoti & Company, LLC .............................................................................  $3,500,000  Total ............................................................................  $350,000,000 





 






B-1  EXHIBIT B  GUARANTORS  ALL COUNTIES GLASS, INC., a California corporation  ALL STATE GLASS, INC., a California corporation  Arran Isle, Inc., an Indiana corporation  BATHROOM & CLOSET, LLC, a Nevada limited liability company  Bristolpipe, LLC, an Indiana limited liability company  DEHCO, INC., an Indiana corporation  Dowco, Inc., a Wisconsin corporation  Fresno Shower Door, Inc., a California corporation   Great Lakes Boat Top LLC, a Delaware limited liability company  Heywood Williams USA, LLC, an Indiana limited liability company  Highland Lakes Acquisition, LLC, a Delaware limited liability company  KLS DOORS, LLC, a California limited liability company   Larry Methvin Installations, Inc., a California corporation  LaSalle Bristol Corporation, an Indiana corporation  LaSalle Bristol, LLC, a Delaware limited liability company  LaSalle Bristol, LP, an Indiana limited partnership  Marine Accessories Corporation, an Arizona corporation  Monster Marine Products, Inc., a Delaware corporation  Patrick Transportation, LLC, an Indiana limited liability company   Shower Enclosures America, Inc., a California corporation  Structural Composites, LLC, an Indiana limited liability company  Transport Indiana, LLC, an Indiana limited liability company   Xtreme Marine Corporation, a Delaware corporation  





 






C-1  EXHIBIT C  None. 





 






D-1  EXHIBIT D  FORM OF PRICING TERM SHEET  See attached.  





 






CONFIDENTIAL     PATRICK INDUSTRIES, INC.  4.750% Senior Notes due 2029  April 13, 2021  This term sheet relates to the Preliminary Offering Memorandum dated April 13, 2021  (the “Preliminary Offering Memorandum”) related to the offering of the Notes described below  and should be read together with the Preliminary Offering Memorandum before making an  investment decision with regard to the Notes.  Capitalized terms used but not defined in this term  sheet have the meanings assigned to such terms in the Preliminary Offering Memorandum.  Issuer: Patrick Industries, Inc.  Security Description: 4.750% Senior Notes due 2029  Distribution: 144A / Regulation S for life (no registration rights)  Aggregate Principal Amount: $350,000,000  Gross Proceeds to Issuer: $350,000,000  Maturity: May 1, 2029  Coupon: 4.750%  Yield to Maturity: 4.750%  Offering Price: 100.000% of principal amount  Interest Payment Dates: May 1 and November 1, commencing November 1,  2021  Record Dates: April 15 and October 15  Equity Clawback: Up to 40% of the principal amount at 104.750%,  plus accrued and unpaid interest to the redemption  date, prior to May 1, 2024  Optional Redemption: Make-whole call at T+50 basis points at any time  prior to May 1, 2024 plus accrued and unpaid  interest to the redemption date, then:  On or after May 1 of:  Price:  2024   102.375%  2025   101.188%  





 






-2-     2026 and thereafter   100.000%  Change of Control: Putable at 101% of principal, plus accrued and  unpaid interest to the repurchase date  Trade Date:  April 13, 2021  Expected Settlement Date: (T+5); April 20, 2021  Under Rule 15c6-1 under the Exchange Act, trades  in the secondary market generally are required to  settle in two business days unless the parties to any  such trade expressly agree otherwise.  Accordingly,  purchasers who wish to trade the Notes on the date  of pricing will be required, by virtue of the fact that  the Notes initially will settle in T+5, to specify an  alternative settlement cycle at the time of any such  trade to prevent failed settlement.  Purchasers of  the Notes who wish to trade the Notes on the date  of pricing should consult their own advisors.  Rule 144A CUSIP / ISIN: 703343 AD5 / US703343AD59  Regulation S CUSIP / ISIN: U70335 AB7 / USU70335AB74  Denominations/Multiple: $2,000 / $1,000  Joint Book-Running Managers: Wells Fargo Securities, LLC  BofA Securities, Inc.  KeyBanc Capital Markets Inc.  Truist Securities, Inc.  Senior Co-Managers: Capital One Securities, Inc.  Fifth Third Securities, Inc.  U.S. Bancorp Investments, Inc.  TD Securities (USA) LLC  Co-Managers: Robert W. Baird & Co. Incorporated  C.L. King & Associates, Inc.  CJS Securities, Inc.  Sidoti & Company, LLC  *   *   *  The Notes and related guarantees have not been registered under the U.S. Securities Act  of 1933, as amended (the “Securities Act”) or any state or foreign securities laws.  The Notes and  related guarantees are being offered and sold only to persons reasonably believed to be qualified  





 






-3-     institutional buyers in accordance with Rule 144A under the Securities Act and outside the  United States solely to non-U.S. persons in reliance on Regulation S under the Securities Act.   The Notes and related guarantees may not be offered or sold in the United States or to U.S.  persons (as defined in Regulation S under the Securities Act) except pursuant to an exemption  from, or in a transaction not subject to, the registration requirements of the Securities Act.  This term sheet is confidential and is for your information only and is not intended to be  used by anyone other than you.  This term sheet does not purport to be a complete description of  the Notes and related guarantees and is qualified in its entirety by reference to the Preliminary  Offering Memorandum.  The information in this term sheet supplements the Preliminary  Offering Memorandum and supersedes the information in the Preliminary Offering  Memorandum to the extent inconsistent with the information in the Preliminary Offering  Memorandum.  This term sheet does not constitute an offer to sell or a solicitation of an offer to buy any  security in any state or jurisdiction in which such offer, solicitation or sale would be unlawful.  Any disclaimer or other notice that may appear below is not applicable to this  communication and should be disregarded.  Such disclaimer or notice was automatically  generated as a result of this communication being sent by Bloomberg or another email system.  





 






E-1  EXHIBIT E  PRELIMINARY OFFERING MEMORANDUM AMENDMENTS; ISSUER FREE  WRITING DOCUMENTS  (1) Pricing Term Sheet containing the terms of the Securities, substantially in the form of  Exhibit D hereto.