$100,000,000
8-3/4% SENIOR SUBORDINATED NOTES DUE 2008
OF OSHKOSH TRUCK CORPORATION
PURCHASE AGREEMENT
February 20, 1998
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Oshkosh Truck Corporation, a Wisconsin corporation (the
"Company"), proposes to issue and sell to BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(the "Initial Purchaser") an aggregate of $100,000,000 in principal amount
of its 8-3/4% Senior Subordinated Notes due 2008 (the "Senior Subordinated
Notes"), subject to the terms and conditions set forth herein. The Senior
Subordinated Notes are to be issued pursuant to the provisions of an
indenture (the "Indenture"), to be dated as of the Closing Date (as
defined below), among the Company, the Guarantors (as defined below) and
Firstar Trust Company, as trustee (the "Trustee"). The Senior
Subordinated Notes and the Exchange Notes (as defined below) issuable in
exchange therefor are collectively referred to herein as the "Notes." The
Notes will be guaranteed (the "Subsidiary Guarantees") by each of the
entities listed on Schedule A hereto (each, a "Guarantor" and collectively
the "Guarantors"). Capitalized terms used but not defined herein shall
have the meanings given to such terms in the Indenture.
1. Offering Memorandum. The Senior Subordinated Notes will be
offered and sold to the Initial Purchaser pursuant to one or more
exemptions from the registration requirements under the Securities Act of
1933, as amended (the "Act"). The Company and the Guarantors have
prepared a preliminary offering memorandum, dated February 5, 1998 (the
"Preliminary Offering Memorandum"), and a final offering memorandum, dated
February 20, 1998 (the "Offering Memorandum"), relating to the Senior
Subordinated Notes and the Subsidiary Guarantees.
Upon original issuance thereof, and until such time as the same
is no longer required pursuant to the Indenture, the Senior Subordinated
Notes (and all securities issued in exchange therefor, in substitution
thereof or upon conversion thereof) shall bear the following legend:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (the "ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER:
(1) REPRESENTS THAT (I) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE ACT) (A "QIB"),
(II) IT HAS ACQUIRED THIS NOTE IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH REGULATION S UNDER THE ACT OR (III) IT
IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
ACT (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER
THIS NOTE EXCEPT (i) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (ii) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (iii) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE ACT, (iv) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
ACT, (v) TO AN IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF
THIS NOTE (the form of which can be obtained from the
Trustee) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE ACT, (vi) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE
TO THE COMPANY) OR (vii) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE
WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING."
2. Agreements to Sell and Purchase. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Company agrees
to issue and sell to the Initial Purchaser, and the Initial Purchaser
agrees to purchase from the Company, an aggregate principal amount of
$100,000,000 of Senior Subordinated Notes at a purchase price equal to
[97.25]% of the principal amount thereof (the "Purchase Price").
3. Terms of Offering. The Initial Purchaser has advised the
Company that the Initial Purchaser will make offers and sales (the "Exempt
Resales") of the Senior Subordinated Notes purchased hereunder on the
terms set forth in the Offering Memorandum, as amended or supplemented,
solely to (i) persons whom the Initial Purchaser reasonably believes to be
"qualified institutional buyers" as defined in Rule 144A under the Act
("QIBs"), (ii) not more than five (5) institutional "accredited
investors," as defined in Rule 501(a) (1), (2), (3) or (7) under the Act,
that make certain representations and agreements to the Company (each, an
"Accredited Institution"), and (iii) to persons permitted to purchase the
Senior Subordinated Notes in offshore transactions in reliance upon
Regulation S under the Act (each, a "Regulation S Purchaser") (such
persons specified in clauses (i), (ii) and (iii) being referred to herein
as the "Eligible Purchasers"). The Initial Purchaser will offer the
Senior Subordinated Notes to Eligible Purchasers initially at a price
equal to 100% of the principal amount thereof. Such price may be changed
at any time without notice.
Holders (including subsequent transferees) of the Senior
Subordinated Notes will have the registration rights set forth in the
registration rights agreement (the "Registration Rights Agreement"), to be
dated the Closing Date, in substantially the form of Exhibit A hereto, for
so long as such Senior Subordinated Notes constitute "Transfer Restricted
Securities" (as defined in the Registration Rights Agreement). Pursuant
to the Registration Rights Agreement, the Company and the Guarantors will
agree to file with the Securities and Exchange Commission (the
"Commission") under the circumstances set forth therein, (i) a
registration statement under the Act (the "Exchange Offer Registration
Statement") relating to the Company's 8-3/4% Senior Subordinated Notes due
2008 (the "Exchange Notes"), to be offered in exchange for the Senior
Subordinated Notes (such offer to exchange being referred to as the
"Exchange Offer") and the Subsidiary Guarantees thereof and (ii) a shelf
registration statement pursuant to Rule 415 under the Act (the "Shelf
Registration Statement" and, together with the Exchange Offer Registration
Statement, the "Registration Statements") relating to the resale by
certain holders of the Senior Subordinated Notes and to use its best
efforts to cause such Registration Statements to be declared and remain
effective and usable for the periods specified in the Registration Rights
Agreement and to consummate the Exchange Offer. This Agreement, the
Senior Credit Agreement, the Indenture, the Notes, the Subsidiary
Guarantees and the Registration Rights Agreement are hereinafter sometimes
referred to collectively as the "Operative Documents."
Substantially all of the net proceeds of the Offering will be
used to finance a portion of the cash consideration for the Company's
acquisition (the "Acquisition") of McNeilus Companies, Inc., a Minnesota
corporation ("McNeilus"). The Acquisition will be made pursuant to that
certain Stock Purchase Agreement between the Company, McNeilus, and the
shareholders of McNeilus named therein dated as of December 8, 1997 (the
"Acquisition Agreement").
Immediately upon consummation of the Acquisition, McNeilus
shall, and shall cause each of its domestic subsidiaries, other than MFSI,
Oshkosh/McNeilus Financial Services, Inc. and Nations Casualty Insurance,
Inc., (collectively, the "McNeilus Subsidiary Guarantors") to, execute and
deliver a counterpart of this Agreement, the Registration Rights
Agreement, the Indenture and its respective Subsidiary Guarantee.
4. Delivery and Payment.
(a) Delivery of, and payment of the Purchase Price for,
the Senior Subordinated Notes shall be made at the offices of ▇▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or such
other location as may be mutually acceptable. Such delivery and payment
shall be made at 9:00 a.m. New York City time, on February 26, 1998 or at
such other time on the same date or such other date as shall be agreed
upon by the Initial Purchaser and the Company in writing. The time and
date of such delivery and the payment for the Senior Subordinated Notes
are herein called the "Closing Date."
(b) One or more of the Senior Subordinated Notes in
definitive global form, registered in the name of Cede & Co., as nominee
of the Depository Trust Company ("DTC"), having an aggregate principal
amount corresponding to the aggregate principal amount of the Senior
Subordinated Notes (collectively, the "Global Note"), shall be delivered
by the Company to the Initial Purchaser (or as the Initial Purchaser
directs) in each case with any transfer taxes thereon duly paid by the
Company against payment by the Initial Purchaser of the Purchase Price
thereof by wire transfer in same day funds to the order of the Company.
The Global Note shall be made available to the Initial Purchaser for
inspection not later than 9:30 a.m., New York City time, on the business
day immediately preceding the Closing Date.
5. Agreements of the Company and the Guarantors. Each of the
Company and the Guarantors hereby agrees with the Initial Purchaser as
follows:
(a) To advise the Initial Purchaser promptly and, if
requested by the Initial Purchaser, confirm such advice in writing, (i) of
the issuance by any state securities commission of any stop order
suspending the qualification or exemption from qualification of any Senior
Subordinated Notes for offering or sale in any jurisdiction designated by
the Initial Purchaser pursuant to Section 5(e) hereof, or the initiation
of any proceeding by any state securities commission or any other federal
or state regulatory authority for such purpose and (ii) of the happening
of any event during the period referred to in Section 5(c) below that
makes any statement of a material fact made in the Preliminary Offering
Memorandum or the Offering Memorandum untrue or that requires any
additions to or changes in the Preliminary Offering Memorandum or the
Offering Memorandum in order to make the statements therein not
misleading. The Company and the Guarantors shall use their best efforts
to prevent the issuance of any stop order or order suspending the
qualification or exemption of any Senior Subordinated Notes under any
state securities or Blue Sky laws and, if at any time any state securities
commission or other federal or state regulatory authority shall issue an
order suspending the qualification or exemption of any Senior Subordinated
Notes under any state securities or Blue Sky laws, the Company and the
Guarantors shall use their best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchaser and those
persons identified by the Initial Purchaser to the Company as many copies
of the Preliminary Offering Memorandum and the Offering Memorandum, and
any amendments or supplements thereto, as the Initial Purchaser may
reasonably request for the time period specified in Section 5(c). Subject
to the Initial Purchaser's compliance with its representations and
warranties and agreements set forth in Section 7 hereof, the Company
consents to the use of the Preliminary Offering Memorandum and the
Offering Memorandum, and any amendments and supplements thereto required
pursuant hereto, by the Initial Purchaser in connection with Exempt
Resales.
(c) During such period as in the opinion of counsel for
the Initial Purchaser an Offering Memorandum is required by law to be
delivered in connection with Exempt Resales by the Initial Purchaser and
in connection with market-making activities of the Initial Purchaser for
so long as any Senior Subordinated Notes are outstanding, (i) not to make
any amendment or supplement to the Offering Memorandum of which the
Initial Purchaser shall not previously have been advised or to which the
Initial Purchaser shall reasonably object after being so advised and (ii)
to prepare promptly upon the Initial Purchaser's reasonable request, any
amendment or supplement to the Offering Memorandum which may be necessary
or advisable in connection with such Exempt Resales or such market-making
activities.
(d) If, during the period referred to in Section 5(c)
above, any event shall occur or condition shall exist as a result of
which, in the opinion of counsel to the Initial Purchaser, it becomes
necessary to amend or supplement the Offering Memorandum in order to make
the statements therein, in the light of the circumstances when such
Offering Memorandum is delivered to an Eligible Purchaser, not misleading,
or if, in the opinion of counsel to the Initial Purchaser, it is necessary
to amend or supplement the Offering Memorandum to comply with any
applicable law, forthwith to prepare an appropriate amendment or
supplement to such Offering Memorandum so that the statements therein, as
so amended or supplemented, will not, in the light of the circumstances
when it is so delivered, be misleading, or so that such Offering
Memorandum will comply with applicable law, and to furnish to the Initial
Purchaser and such other persons as the Initial Purchaser may designate
such number of copies thereof as the Initial Purchaser may reasonably
request.
(e) Prior to the sale of all Senior Subordinated Notes
pursuant to Exempt Resales as contemplated hereby, to cooperate with the
Initial Purchaser and counsel to the Initial Purchaser in connection with
the registration or qualification of the Senior Subordinated Notes for
offer and sale to the Initial Purchaser and pursuant to Exempt Resales
under the securities or Blue Sky laws of such jurisdictions as the Initial
Purchaser may request and to continue such registration or qualification
in effect so long as required for Exempt Resales and to file such consents
to service of process or other documents as may be necessary in order to
effect such registration or qualification; provided, however, that neither
the Company nor any Guarantor shall be required in connection therewith to
qualify as a foreign corporation in any jurisdiction in which it is not
now so qualified or to take any action that would subject it to general
consent to service of process, or taxation other than as to matters and
transactions relating to the Preliminary Offering Memorandum, the Offering
Memorandum or Exempt Resales, in any jurisdiction in which it is not now
so subject.
(f) So long as the Notes are outstanding, for any such
period during which the Company is not subject to, and in compliance with,
the periodic reporting requirements of Section 13 or Section 15 of the
Exchange Act, (i) to mail and make generally available as soon as
practicable after the end of each fiscal year to the record holders of the
Notes a financial report of the Company and its subsidiaries on a
consolidated basis (and a similar financial report of all unconsolidated
subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
shareholders' equity as of the end of and for such fiscal year, together
with comparable information as of the end of and for the preceding year,
certified by the Company's independent public accountants and (ii) to mail
and make generally available as soon as practicable after the end of each
quarterly period (except for the last quarterly period of each fiscal
year) to such holders, a consolidated balance sheet, a consolidated
statement of operations and a consolidated statement of cash flows (and
similar financial reports of all unconsolidated subsidiaries, if any) as
of the end of and for such period, and for the period from the beginning
of such year to the close of such quarterly period, together with
comparable information for the corresponding periods of the preceding
year.
(g) So long as the Notes are outstanding, to furnish to
the Initial Purchaser as soon as available copies of all reports or other
communications furnished by the Company or any of the Guarantors to its
security holders or furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company or any of the Guarantors is listed and such other publicly
available information concerning the Company and/or its subsidiaries as
the Initial Purchaser may reasonably request.
(h) So long as any of the Senior Subordinated Notes remain
outstanding and during any period in which the Company and the Guarantors
are not subject to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), to make available to any holder of
Senior Subordinated Notes in connection with any sale thereof and any
prospective purchaser of such Senior Subordinated Notes from such holder,
the information ("Rule 144A Information") required by Rule 144A(d)(4)
under the Act.
(i) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause
to be paid all expenses incident to the performance of the obligations of
the Company and the Guarantors under this Agreement, including: (i) the
fees, disbursements and expenses of counsel to the Company and the
Guarantors and accountants of the Company and the Guarantors in connection
with the sale and delivery of the Senior Subordinated Notes to the Initial
Purchaser and pursuant to Exempt Resales, and all other fees and expenses
in connection with the preparation, printing, filing and distribution of
the Preliminary Offering Memorandum, the Offering Memorandum and all
amendments and supplements to any of the foregoing (including financial
statements), including the mailing and delivering of copies thereof to the
Initial Purchaser and persons designated by it in the quantities specified
herein, (ii) all costs and expenses related to the transfer and delivery
of the Senior Subordinated Notes to the Initial Purchaser and pursuant to
Exempt Resales, including any transfer or other taxes payable thereon,
(iii) all costs of printing or reproducing this Agreement, the other
Operative Documents and any other agreements or documents in connection
with the offering, purchase, sale or delivery of the Senior Subordinated
Notes, (iv) all expenses in connection with the registration or
qualification of the Senior Subordinated Notes and the Subsidiary
Guarantees for offer and sale under the securities or Blue Sky laws of the
several states and all costs of printing or producing any preliminary and
supplemental Blue Sky memoranda in connection therewith (including the
filing fees and fees and disbursements of counsel for the Initial
Purchaser in connection with such registration or qualification and
memoranda relating thereto), (v) the cost of printing certificates
representing the Senior Subordinated Notes and the Subsidiary Guarantees,
(vi) all expenses and listing fees in connection with the application for
quotation of the Senior Subordinated Notes in the National Association of
Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL
("PORTAL"), (vii) the fees and expenses of the Trustee and the Trustee's
counsel in connection with the Indenture, the Notes and the Subsidiary
Guarantees, (viii) the costs and charges of any transfer agent, registrar
and/or depositary (including DTC), (ix) any fees charged by rating
agencies for the rating of the Notes, (x) all costs and expenses of the
Exchange Offer and any Registration Statement, as set forth in the
Registration Rights Agreement, and (xi) and all other costs and expenses
incident to the performance of the obligations of the Company and the
Guarantors hereunder for which provision is not otherwise made in this
Section.
(j) To use its best efforts to effect the inclusion of the
Senior Subordinated Notes in PORTAL and to maintain the listing of the
Senior Subordinated Notes on PORTAL for so long as the Senior Subordinated
Notes are outstanding.
(k) To obtain the approval of DTC for "book-entry"
transfer of the Notes, and to comply with all of its agreements set forth
in the representation letters of the Company and the Guarantors to DTC
relating to the approval of the Notes by DTC for "book-entry" transfer.
(l) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell, contract
to sell or otherwise transfer or dispose of any debt securities of the
Company or any Guarantor or any warrants, rights or options to purchase or
otherwise acquire debt securities of the Company or any Guarantor
substantially similar to the Notes and the Subsidiary Guarantees (other
than (i) the Notes and the Subsidiary Guarantees, (ii) in connection with
the Senior Credit Facility and (iii) commercial paper issued in the
ordinary course of business), without the prior written consent of the
Initial Purchaser.
(m) Not to sell, offer for sale or solicit offers to buy
or otherwise negotiate in respect of any security (as defined in the Act)
that would be integrated with the sale of the Senior Subordinated Notes to
the Initial Purchaser or pursuant to Exempt Resales in a manner that would
require the registration of any such sale of the Senior Subordinated Notes
under the Act.
(n) Not to voluntarily claim, and to actively resist any
attempts to claim, the benefit of any usury laws against the holders of
any Notes and the related Subsidiary Guarantees.
(o) To cause the Exchange Offer to be made in the
appropriate form to permit Exchange Notes and guarantees thereof by the
Guarantors registered pursuant to the Act to be offered in exchange for
the Senior Subordinated Notes and the Subsidiary Guarantees and to comply
with all applicable federal and state securities laws in connection with
the Exchange Offer.
(p) To comply with all of its agreements set forth in the
Registration Rights Agreement.
(q) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it
prior to the Closing Date and to satisfy all conditions precedent to the
delivery of the Senior Subordinated Notes and the Subsidiary Guarantees.
(r) Immediately upon consummation of the Acquisition, to
cause McNeilus and each McNeilus Subsidiary Guarantor to execute and
deliver a counterpart of this Agreement, the Registration Rights
Agreement, the Indenture, and its Subsidiary Guarantee, so that McNeilus
and each McNeilus Subsidiary Guarantor becomes a Guarantor for all
purposes hereof and thereof.
6. Representations, Warranties and Agreements of the Company
and the Guarantors. As of the date hereof, each of the Company and the
Guarantors represents and warrants to, and agrees with, the Initial
Purchaser that:
(a) The Preliminary Offering Memorandum and the Offering
Memorandum do not, and any supplement or amendment to them will not,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
contained in this paragraph (a) shall not apply to statements in or
omissions from the Preliminary Offering Memorandum or the Offering
Memorandum (or any supplement or amendment thereto) based upon information
relating to the Initial Purchaser furnished to the Company in writing by
the Initial Purchaser expressly for use therein. No stop order preventing
the use of the Preliminary Offering Memorandum or the Offering Memorandum,
or any amendment or supplement thereto, or any order asserting that any of
the transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued.
(b) Each of the Company and its subsidiaries and McNeilus
and its subsidiaries has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on its
business and to own, lease and operate its properties as described in the
Preliminary Offering Memorandum and the Offering Memorandum, and each is
duly qualified and is in good standing as a foreign corporation authorized
to do business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification, except
where the failure to be so qualified would not have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Company and its subsidiaries (including McNeilus and its
subsidiaries), taken as a whole, or draw into question the validity of
this Agreement or the other Operative Documents (a "Material Adverse
Effect").
(c) All outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid,
non-assessable except, with respect to assessability, as provided in
Section 180.0622(2)(b) of the Wisconsin Business Corporation Law and
judicial interpretations thereof, and not subject to any preemptive or
similar rights.
(d) The entities listed on Schedule B hereto are the only
subsidiaries, direct or indirect, of the Company. All of the outstanding
shares of capital stock of each of the Company's subsidiaries and McNeilus
and its subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are (in the case of the Company's
subsidiaries) or upon consummation of the Acquisition will be (in the case
of McNeilus and subsidiaries) owned by the Company, directly or indirectly
through one or more subsidiaries, free and clear of any security interest,
claim, lien, encumbrance or adverse interest of any nature, other than
pledges of such shares made pursuant to the Senior Credit Facility (each,
a "Lien").
(e) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors, except McNeilus and
the McNeilus Subsidiary Guarantors. Upon consummation of the Acquisition,
this Agreement will be duly authorized, executed and delivered by McNeilus
and the McNeilus Subsidiary Guarantors.
(f) The Indenture has been duly authorized by the Company
and each of the Guarantors, except McNeilus and the McNeilus Subsidiary
Guarantors, and on the Closing Date will have been validly executed and
delivered by the Company and each of the Guarantors, except McNeilus and
the McNeilus Subsidiary Guarantors. Upon consummation of the Acquisition,
the Indenture will be duly authorized, executed and delivered by McNeilus
and the McNeilus Subsidiary Guarantors. When the Indenture has been duly
executed and delivered by the Company and each of the Guarantors, the
Indenture will be 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 (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of 1939,
as amended (the "TIA" or "Trust Indenture Act"), and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder.
(g) The Senior Subordinated Notes have been duly
authorized and, on the Closing Date, will have been validly executed and
delivered by the Company. When the Senior Subordinated Notes have been
issued, executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Initial Purchaser in
accordance with the terms of this Agreement, the Senior Subordinated Notes
will be entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable in accordance with their
terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Senior Subordinated Notes will
conform as to legal matters to the description thereof contained in the
Offering Memorandum.
(h) On the Closing Date, the Exchange Notes will have been
duly authorized by the Company. When the Exchange Notes are issued,
executed and authenticated in accordance with the terms of the Exchange
Offer and the Indenture, the Exchange Notes will be entitled to the
benefits of the Indenture and will be the valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(i) The Subsidiary Guarantee to be endorsed on the Senior
Subordinated Notes by each Guarantor has been duly authorized by each
Guarantor, except McNeilus and the McNeilus Subsidiary Guarantors, and on
the Closing Date will have been duly executed and delivered by each such
Guarantor, except McNeilus and the McNeilus Subsidiary Guarantors. Upon
consummation of the Acquisition, the Subsidiary Guarantee will be duly
authorized, executed and delivered by McNeilus and the McNeilus Subsidiary
Guarantors. When the Senior Subordinated Notes have been issued, executed
and authenticated in accordance with the Indenture and delivered to and
paid for by the Initial Purchaser in accordance with the terms of this
Agreement, the Subsidiary Guarantee of each Guarantor, including McNeilus
and the McNeilus Subsidiary Guarantors, endorsed thereon will be entitled
to the benefits of the Indenture and will be the valid and binding
obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Subsidiary Guarantees to be
endorsed on the Senior Subordinated Notes will conform as to legal matters
to the description thereof contained in the Offering Memorandum.
(j) The Subsidiary Guarantee to be endorsed on the
Exchange Notes by each Guarantor has been duly authorized by each such
Guarantor, except McNeilus and the McNeilus Subsidiary Guarantors. Upon
consummation of the Acquisition, the Subsidiary Guarantee of McNeilus and
the McNeilus Subsidiary Guarantors will be duly authorized. When issued,
the Exchange Notes will have been duly executed and delivered by each such
Guarantor. When the Exchange Notes have been issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Subsidiary Guarantee of each Guarantor endorsed thereon
will be entitled to the benefits of the Indenture and will be the valid
and binding obligation of such Guarantor, enforceable against such
Guarantor in accordance with its terms, except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability. When the Exchange Notes are issued,
authenticated and delivered, the Subsidiary Guarantees to be endorsed on
the Exchange Notes will conform as to legal matters to the description
thereof in the Offering Memorandum.
(k) The Registration Rights Agreement has been duly
authorized by the Company and each of the Guarantors and, on the Closing
Date, will have been duly authorized, executed and delivered by the
Company and each of the Guarantors. When the Registration Rights
Agreement has been duly executed and delivered, the Registration Rights
Agreement will be a valid and binding agreement of the Company and each of
the Guarantors, enforceable against the Company and each Guarantor in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Registration Rights Agreement
will conform as to legal matters to the description thereof in the
Offering Memorandum.
(l) Neither the Company nor any of its subsidiaries nor
McNeilus nor any of its subsidiaries is (A) in violation of its respective
charter or by-laws or (B) in default in the performance of any obligation,
agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument to which the
Company or any of its subsidiaries or McNeilus or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or McNeilus
or any of its subsidiaries or their respective property is bound, which
violations or defaults would, singly or in the aggregate in the case of
clause (B), have a Material Adverse Effect.
(m) The execution, delivery and performance of this
Agreement and the other Operative Documents by the Company and each of the
Guarantors, compliance by the Company and each of the Guarantors with all
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not, (i) conflict with or constitute
a breach of any of the terms or provisions of, or a default under, the
charter or by-laws of the Company or any of its subsidiaries or McNeilus
or any of its subsidiaries (ii) conflict with or constitute a breach of
any of the terms or provisions of or a default under, any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries (including for purposes of
this subsection McNeilus or any of its subsidiaries), taken as a whole, to
which the Company or any of its subsidiaries or McNeilus or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
or McNeilus or any of its subsidiaries or their respective property is
bound, (iii) require any consent, approval, authorization or other order
of, or qualification with, any court or governmental body or agency
(except such as may be required under the securities or Blue Sky laws of
the various states), (iv) violate or conflict with any applicable law or
any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Company, any of
its subsidiaries or McNeilus or any of its subsidiaries or their
respective property, (v) result in the imposition or creation of (or the
obligation to create or impose) a Lien under, any agreement or instrument
to which the Company or any of its subsidiaries or McNeilus or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
or McNeilus or any of its subsidiaries or their respective property is
bound, or (vi) result in the termination, suspension or revocation of any
Authorization (as defined below) of the Company or any of its subsidiaries
or McNeilus or any of its subsidiaries or result in any other impairment
of the rights of the holder of any such Authorization, other than in the
case of clauses (ii) through (vi), any of the foregoing that would not,
singly or in the aggregate have a Material Adverse Effect.
(n) Except as described in the Preliminary Offering
Memorandum, there are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is or could be
a party or to which any of their respective property is or could be
subject, which, if adversely determined, would result, singly or in the
aggregate, in a Material Adverse Effect.
(o) Except with respect to matters described in the
Preliminary Offering Memorandum, neither the Company nor any of its
subsidiaries nor McNeilus or any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), any provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), or any provisions of the Foreign Corrupt
Practices Act or the rules and regulations promulgated thereunder, except
for such violations which, singly or in the aggregate, would not have a
Material Adverse Effect.
(p) Except with respect to matters described in the
Preliminary Offering Memorandum, there are no costs or liabilities
associated with Environmental Laws (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any Authorization, any
related constraints on operating activities and any potential liabilities
to third parties) which would, singly or in the aggregate, have a Material
Adverse Effect.
(q) Each of the Company and its subsidiaries and McNeilus
and its subsidiaries has such permits, licenses, consents, exemptions,
franchises, authorizations and other approvals (each, an "Authorization")
of, and has made all filings with and notices to, all governmental or
regulatory authorities and self-regulatory organizations and all courts
and other tribunals, including without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate
its respective properties and to conduct its business, except where the
failure to have any such Authorization or to make any such filing or
notice would not, singly or in the aggregate, have a Material Adverse
Effect. Each such Authorization is valid and in full force and effect and
each of the Company and its subsidiaries and McNeilus and its subsidiaries
is in compliance with all the terms and conditions thereof and with the
rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including,
without limitation, the receipt of any notice from any authority or
governing body) which allows or, after notice or lapse of time or both,
would allow, revocation, suspension or termination of any such
Authorization or results or, after notice or lapse of time or both, would
result in any other impairment of the rights of the holder of any such
Authorization; and such Authorizations contain no restrictions that are
burdensome to the Company or any of its subsidiaries or McNeilus or any of
its subsidiaries; except where such failure to be valid and in full force
and effect or to be in compliance, the occurrence of any such event or the
presence of any such restriction would not, singly or in the aggregate,
have a Material Adverse Effect.
(r) The accountants, Ernst & Young LLP, and Larson, Allen,
Weishair and Co., LLP, that have certified the financial statements and
supporting schedules included in the Preliminary Offering Memorandum and
the Offering Memorandum are independent public accountants with respect to
the Company and the Guarantors, as required by the Act and the Exchange
Act. The historical financial statements, together with related schedules
and notes, set forth in the Preliminary Offering Memorandum and the
Offering Memorandum comply as to form in all material respects with the
requirements applicable to registration statements on Form S-3 under the
Act.
(s) The historical financial statements, together with
related schedules and notes forming part of the Offering Memorandum (and
any amendment or supplement thereto), present fairly the consolidated
financial position, results of operations and changes in financial
position of the Company and its subsidiaries and McNeilus and its
subsidiaries on the basis stated in the Offering Memorandum at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein; and
the other financial and statistical information and data set forth in the
Offering Memorandum (and any amendment or supplement thereto) are, in all
material respects, accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company
and its subsidiaries and McNeilus and its subsidiaries.
(t) The pro forma financial statements included in the
Preliminary Offering Memorandum and the Offering Memorandum have been
prepared on a basis consistent with the historical financial statements of
the Company and its subsidiaries and McNeilus and its subsidiaries and
give effect to assumptions used in the preparation thereof on a reasonable
basis and in good faith and present fairly the historical and proposed
transactions contemplated by the Preliminary Offering Memorandum and the
Offering Memorandum; and such pro forma financial statements comply as to
form in all material respects with the requirements applicable to pro
forma financial statements included in registration statements on Form S-3
under the Act. The other pro forma financial and statistical information
and data included in the Offering Memorandum are, in all material
respects, accurately presented and prepared on a basis consistent with the
pro forma financial statements.
(u) Neither the Company nor any of its subsidiaries nor
McNeilus or any of its subsidiaries is, nor after giving effect to the
offering and sale of the Senior Subordinated Notes and the application of
the net proceeds thereof as described in the Offering Memorandum, will be,
an "investment company," as such term is defined in the Investment Company
Act of 1940, as amended.
(v) There are no contracts, agreements or understandings
between the Company or any Guarantor and any person granting such person
the right to require the Company or such Guarantor to file a registration
statement under the Act with respect to any securities of the Company or
such Guarantor or to require the Company or such Guarantor to include such
securities with the Notes and Subsidiary Guarantees registered pursuant to
any Registration Statement.
(w) Neither the Company nor any of its subsidiaries nor
McNeilus or any of its subsidiaries nor any agent thereof acting on the
behalf of them has taken, and none of them will take, any action that
might cause this Agreement or the issuance or sale of the Senior
Subordinated Notes to violate Regulation G (12 C.F.R. Part 207),
Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or
Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System.
(x) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under
the Act (i) has imposed (or has informed the Company or any Guarantor that
it is considering imposing) any condition (financial or otherwise) on the
Company's or any Guarantor's retaining any rating assigned to the Company
or any Guarantor, any securities of the Company or any Guarantor or (ii)
has indicated to the Company or any Guarantor that it is considering (a)
the downgrading, suspension, or withdrawal of, or any review for a
possible change that does not indicate the direction of the possible
change in, any rating so assigned or (b) any change in the outlook for any
rating of the Company, any Guarantor or any securities of the Company or
any Guarantor.
(y) Since the respective dates as of which information is
given in the Offering Memorandum and other than as set forth in the
Offering Memorandum (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), (i) there has not occurred any
material adverse change or any development involving a prospective
material adverse change in the condition, financial or otherwise, or the
earnings, business, management or operations of the Company and its
subsidiaries (including for purposes of this subsection McNeilus and its
subsidiaries, taken as a whole, (ii) there has not been any material
adverse change or any development involving a prospective material adverse
change in the capital stock or in the long-term debt of the Company or any
of its subsidiaries or McNeilus or any of its subsidiaries and (iii)
neither the Company nor any of its subsidiaries nor McNeilus or any of its
subsidiaries has incurred any material liability or obligation, direct or
contingent.
(z) Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its date, contains all the information
specified in, and meeting the requirements of, Rule 144A(d)(4) under the
Act.
(aa) When the Senior Subordinated Notes and the Subsidiary
Guarantees are issued and delivered pursuant to this Agreement, neither
the Senior Subordinated Notes nor the Subsidiary Guarantees will be of the
same class (within the meaning of Rule 144A under the Act) as any security
of the Company or the Guarantors that is listed on a national securities
exchange registered under Section 6 of the Exchange Act or that is quoted
in a United States automated inter-dealer quotation system.
(bb) No form of general solicitation or general advertising
(as defined in Regulation D under the Act) was used by the Company, the
Guarantors or any of their respective representatives (other than the
Initial Purchaser, as to whom the Company and the Guarantors make no
representation) in connection with the offer and sale of the Senior
Subordinated Notes contemplated hereby, including, but not limited to,
articles, notices or other communications published in any newspaper,
magazine, or similar medium or broadcast over television or radio, or any
seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. No securities of the same class as
the Senior Subordinated Notes have been issued and sold by the Company
within the six-month period immediately prior to the date hereof.
(cc) Prior to the effectiveness of any Registration
Statement, the Indenture is not required to be qualified under the TIA.
(dd) None of the Company, the Guarantors nor any of their
respective affiliates or any person acting on its or their behalf (other
than the Initial Purchaser, as to whom the Company and the Guarantors make
no representation) has engaged or will engage in any directed selling
efforts within the meaning of Regulation S under the Act ("Regulation S")
with respect to the Senior Subordinated Notes or the Subsidiary
Guarantees.
(ee) Assuming the accuracy of your representations,
warranties and agreements in Section 7 hereof, the Senior Subordinated
Notes offered and sold in reliance on Regulation S have been and will be
offered and sold only in offshore transactions.
(ff) The sale of the Senior Subordinated Notes pursuant to
Regulation S is not part of a plan or scheme to evade the registration
provisions of the Act.
(gg) No registration under the Act of the Senior
Subordinated Notes or the Subsidiary Guarantees is required for the sale
of the Senior Subordinated Notes and the Subsidiary Guarantees to the
Initial Purchaser as contemplated hereby or for the Exempt Resales
assuming the accuracy of the Initial Purchaser's representations and
warranties and agreements set forth in Section 7 hereof.
(hh) The Acquisition Agreement has been duly authorized,
executed and delivered by each of the Company, McNeilus and McNeilus'
shareholders and constitutes the valid and binding agreement of each of
them, enforceable against each of them, in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, fraud,
insolvency, fraudulent conveyance, reorganization, moratorium, or other
similar laws affecting the enforcement of creditors' rights generally and
general equitable principles.
(ii) The Company, the Guarantors and their respective
affiliates and all persons acting on their behalf (other than the Initial
Purchaser, as to whom the Company and the Guarantors make no
representation) have complied with and will comply with the offering
restrictions requirements of Regulation S in connection with the offering
of the Senior Subordinated Notes outside the United States and, in
connection therewith, the Offering Memorandum will contain the disclosure
required by Rule 902(h).
(jj) The Company is a "reporting issuer", as defined in
Rule 902 under the Act.
(kk) The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them which is material
to the business of the Company and its subsidiaries, in each case free and
clear of all Liens and defects, except such as are described in the
Offering Memorandum or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries are
held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries, in each case except as described in the Offering Memorandum.
(ll) The Company and its subsidiaries own or possess, or
can acquire on reasonable terms, all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
("intellectual property") currently employed by them in connection with
the business now operated by them except where the failure to own or
possess or otherwise be able to acquire such intellectual property would
not, singly or in the aggregate, have a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of such intellectual property which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
(mm) Except as disclosed in the Offering Memorandum, no
relationship, direct or indirect, exists between or among the Company or
any of its subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which would be required by the Act to be
described in the Offering Memorandum if the Offering Memorandum were a
prospectus included in a registration statement on Form S-3 filed with the
Commission.
(nn) The Company and each of its subsidiaries that is a
Significant Subsidiary (as defined in Rule 1-02(w) of Regulation S-X)
maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(oo) All tax returns required to be filed by the Company
and each of its subsidiaries in any jurisdiction have been filed, other
than those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and
other charges due pursuant to such returns or pursuant to any assessment
received by the Company or any of its subsidiaries have been paid, other
than those being contested in good faith and for which adequate reserves
have been provided and except where the failure to file such returns or
make such payments would not, singly or in the aggregate, have a Material
Adverse Effect.
(pp) All indebtedness of the Company and the Guarantors
that will be repaid with the proceeds of the issuance and sale of the
Senior Subordinated Notes was incurred, and the indebtedness represented
by the Senior Subordinated Notes is being incurred, for proper purposes
and in good faith and each of the Company and the Guarantors was, at the
time of the incurrence of such indebtedness that will be repaid with the
proceeds of the issuance and sale of the Senior Subordinated Notes, and
will be on the Closing Date (after giving effect to the application of the
proceeds from the issuance of the Senior Subordinated Notes) solvent, and
had at the time of the incurrence of such indebtedness that will be repaid
with the proceeds of the issuance and sale of the Senior Subordinated
Notes and will have on the Closing Date (after giving effect to the
application of the proceeds from the issuance of the Senior Subordinated
Notes) sufficient capital for carrying on their respective business and
were, at the time of the incurrence of such indebtedness that will be
repaid with the proceeds of the issuance and sale of the Senior
Subordinated Notes, and will be on the Closing Date (after giving effect
to the application of the proceeds from the issuance of the Senior
Subordinated Notes) able to pay their respective debts as they mature.
(qq) To the knowledge of the Company, no action has been
taken and no law, statute, rule or regulation or order has been enacted,
adopted or issued by any governmental agency or body which prevents the
execution, delivery and performance of any of the Operative Documents, the
issuance of the Senior Subordinated Notes or the Subsidiary Guarantees, or
suspends the sale of the Senior Subordinated Notes or the Subsidiary
Guarantees in any jurisdiction referred to in Section 4(e); and to the
knowledge of the Company, no injunction, restraining order or other order
or relief of any nature by a federal or state court or other tribunal of
competent jurisdiction has been issued with respect to the Company or any
of its subsidiaries which would prevent or suspend the issuance or sale of
the Senior Subordinated Notes or the Subsidiary Guarantees in any
jurisdiction referred to in Section 4(e).
(rr) Other than as described in the Offering Memorandum or
as would not, singly or in the aggregate, have a Material Adverse Effect,
there are no (i) no claims pending or threatened against the Company by
the United States government (the "Government") or any other party related
to any Government contract or subcontract, (ii) default notices, cure
notices, show cause notices pending or threatened against the Company by
the Government or any other party related to any Government contract or
subcontract; (iii) instances of default or material instances of
contractual or regulatory noncompliance by the Company related to any
Government contract or subcontract; (iv) suits (civil or criminal) or
investigations pending or threatened against the Company by the Government
or any other party related to any Government contract or subcontract; or
(v) suspensions, debarments, or administrative proceedings pending or
threatened involving the Company related to any Government contract or
subcontract.
(ss) Except with respect to matters as would not,
individually or in the aggregate, result in a Material Adverse Effect,
during the past five years, the Company has neither conducted or initiated
an internal investigation (nor had reason to conduct or initiate an
internal investigation), nor made any voluntary disclosure to the
Government with respect to any alleged irregularity, misstatement or
omission related to any government contract or subcontract.
(tt) The cost accounting and procurement systems and
practices of the Company are, and for the past five years have been, in
material compliance with all applicable Government laws and regulations
(including all applicable cost accounting standards).
(uu) There are no pending or unresolved audits by the
Government (including the DCAA) related to any government contract or
subcontract, except for (i) Cost Accounting Standard (CAS) issues
regarding Sustaining Engineering, Product Support (Warranty) and Material
Overhead, (ii) post-award audits regarding the LVS Base, A-Frame, X010
HEMTT Overhaul II, X159 HET, X159 HET (Modification for 187 vehicles),
X039 CBT and HEMTT Family (Modification P00003) contracts and (iii)
pending audits of the Company's Material Management Accounting System and
treatment of Federal Excise Tax with respect to federal government
contracts.
The Company acknowledges that the Initial Purchaser and, for
purposes of the opinions to be delivered to the Initial Purchaser pursuant
to Section 9 hereof, counsel to the Company and the Guarantors and counsel
to the Initial Purchaser will rely upon the accuracy and truth of the
foregoing representations and hereby consents to such reliance.
7. Initial Purchaser's Representations and Warranties. The
Initial Purchaser represents and warrants to, and agrees with, the Company
and the Guarantors:
(a) Such Initial Purchaser is either a QIB or an
Accredited Institution, in either case, with such knowledge and experience
in financial and business matters as is necessary in order to evaluate the
merits and risks of an investment in the Senior Subordinated Notes.
(b) Such Initial Purchaser (A) is not acquiring the Senior
Subordinated Notes with a view to any distribution thereof or with any
present intention of offering or selling any of the Senior Subordinated
Notes in a transaction that would violate the Act or the securities laws
of any state of the United States or any other applicable jurisdiction and
(B) will be reoffering and reselling the Senior Subordinated Notes only to
(x) QIBs in reliance on the exemption from the registration requirements
of the Act provided by Rule 144A, (y) not more than five Accredited
Institutions that execute and deliver a letter containing certain
representations and agreements in the form attached as Annex A to the
Offering Memorandum and (z) in offshore transactions in reliance upon
Regulation S under the Act.
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D
under the Act) has been or will be used by such Initial Purchaser or any
of its representatives in connection with the offer and sale of the Senior
Subordinated Notes pursuant hereto, including, but not limited to,
articles, notices or other communications published in any newspaper,
magazine or similar medium or broadcast over television or radio, or any
seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with
Exempt Resales, such Initial Purchaser will solicit offers to buy the
Senior Subordinated Notes only from, and will offer to sell the Senior
Subordinated Notes only to, Eligible Purchasers. Each Initial Purchaser
further agrees that it will offer to sell the Senior Subordinated Notes
only to, and will solicit offers to buy the Senior Subordinated Notes only
from (A) Eligible Purchasers that the Initial Purchaser reasonably
believes are QIBs, (B) Accredited Institutions who make the
representations contained in, and execute and return to the Initial
Purchaser, a certificate in the form of Annex A attached to the Offering
Memorandum and (C) Regulation S Purchasers, in each case, that agree that
(x) the Senior Subordinated Notes purchased by them may be resold, pledged
or otherwise transferred within the time period referred to under Rule
144(k) (taking into account the provisions of Rule 144(d) under the Act,
if applicable) under the Act, as in effect on the date of the transfer of
such Senior Subordinated Notes, only (I) to the Company or any of its
subsidiaries, (II) to a person whom the seller reasonably believes is a
QIB purchasing for its own account or for the account of a QIB in a
transaction meeting the requirements of Rule 144A under the Act, (III) in
an offshore transaction (as defined in Rule 902 under the Act) meeting the
requirements of Rule 904 of the Act, (IV) in a transaction meeting the
requirements of Rule 144 under the Act, (V) to an Accredited Institution
that, prior to such transfer, furnishes the Trustee a signed letter
containing certain representations and agreements relating to the
registration of transfer of such Senior Subordinated Note (the form of
which is substantially the same as Annex A to the Offering Memorandum)
and, if such transfer is in respect of an aggregate principal amount of
Senior Subordinated Notes less than $250,000, an opinion of counsel
acceptable to the Company that such transfer is in compliance with the
Act, (VI) in accordance with another exemption from the registration
requirements of the Act (and based upon an opinion of counsel acceptable
to the Company) or (VII) pursuant to an effective registration statement
and, in each case, in accordance with the applicable securities laws of
any state of the United States or any other applicable jurisdiction and
(y) they will deliver to each person to whom such Senior Subordinated
Notes or an interest therein is transferred a notice substantially to the
effect of the foregoing.
(e) Such Initial Purchaser and its affiliates or any
person acting on its or their behalf have not engaged or will not engage
in any directed selling efforts within the meaning of Regulation S with
respect to the Senior Subordinated Notes or the Subsidiary Guarantees.
(f) The Senior Subordinated Notes offered and sold by such
Initial Purchaser pursuant hereto in reliance on Regulation S have been
and will be offered and sold only in offshore transactions.
(g) The sale of the Senior Subordinated Notes offered and
sold by such Initial Purchaser pursuant hereto in reliance on Regulation S
is not part of a plan or scheme to evade the registration provisions of
the Act.
(h) Such Initial Purchaser agrees that it has not offered
or sold and will not offer or sell the Senior Subordinated Notes in the
United States or to, or for the benefit or account of, a U.S. Person
(other than a distributor), in each case, as defined in Rule 902 under the
Act (i) as part of its distribution at any time and (ii) otherwise until
40 days after the later of the commencement of the offering of the Senior
Subordinated Notes pursuant hereto and the Closing Date, other than in
accordance with Regulation S of the Act or another exemption from the
registration requirements of the Act. Such Initial Purchaser agrees that,
during such 40-day restricted period, it will not cause any advertisement
with respect to the Senior Subordinated Notes (including any "tombstone"
advertisement) to be published in any newspaper or periodical or posted in
any public place and will not issue any circular relating to the Senior
Subordinated Notes, except such advertisements as are permitted by and
include the statements required by Regulation S.
(i) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Senior Subordinated Notes by it to any
distributor, dealer or person receiving a selling concession, fee or other
remuneration during the 40-day restricted period referred to in Rule
903(c)(2) under the Act, it will send to such distributor, dealer or
person receiving a selling concession, fee or other remuneration a
confirmation or notice to substantially the following effect:
"The Senior Subordinated Notes covered hereby have not
been registered under the U.S. Securities Act of 1933,
as amended (the "Securities Act"), and may not be
offered and sold within the United States or to, or
for the account or benefit of, U.S. persons (i) as
part of your distribution at any time or (ii)
otherwise until 40 days after the later of the
commencement of the Offering and the Closing Date,
except in either case in accordance with Regulation S
under the Securities Act (or Rule 144A or to
Accredited Institutions in transactions that are
exempt from the registration requirements of the
Securities Act), and in connection with any subsequent
sale by you of the Senior Subordinated Notes covered
hereby in reliance on Regulation S during the period
referred to above to any distributor, dealer or person
receiving a selling concession, fee or other
remuneration, you must deliver a notice to
substantially the foregoing effect. Terms used above
have the meanings assigned to them in Regulation S."
Such Initial Purchaser acknowledges that the Company and the
Guarantors and, for purposes of the opinions to be delivered to each
Initial Purchaser pursuant to Section 9 hereof, counsel to the Company and
the Guarantors and counsel to the Initial Purchaser will rely upon the
accuracy and truth of the foregoing representations and such Initial
Purchaser hereby consents to such reliance.
8. Indemnification.
(a) The Company and each Guarantor agree, jointly and
severally, to indemnify and hold harmless the Initial Purchaser, its
directors, its officers and each person, if any, who controls such Initial
Purchaser within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments (including, without limitation, any reasonable
legal or other expenses incurred in connection with investigating or
defending any matter, including any action, that could give rise to any
such losses, claims, damages, liabilities or judgments) caused by any
untrue statement or alleged untrue statement of a material fact contained
in the Offering Memorandum (or any amendment or supplement thereto), the
Preliminary Offering Memorandum or any Rule 144A Information provided by
the Company or any Guarantor to any holder or prospective purchaser of
Senior Subordinated Notes pursuant to Section 5(h) or caused by any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information furnished in writing
to the Company by the Initial Purchaser expressly for use in the
Preliminary Offering Memorandum or the Offering Memorandum (or any
amendment or supplement thereto); provided, however, that the foregoing
indemnity agreement with respect to any Preliminary Offering Memorandum
shall not inure to the benefit of the Initial Purchaser if the Initial
Purchaser failed to deliver a Final Offering Memorandum (as then amended
or supplemented, provided by the Company to the several Initial Purchasers
in the requisite quantity and on a timely basis to permit proper delivery
on or prior to the Closing Date) to the person asserting any losses,
claims, damages and liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Offering Memorandum, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if such material
misstatement or omission or alleged material misstatement or omission was
cured in the Final Offering Memorandum.
(b) The Initial Purchaser agrees to indemnify and hold
harmless the Company and the Guarantors, and their respective directors
and officers and each person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) the Company or
the Guarantors, to the same extent as the foregoing indemnity from the
Company and the Guarantors to the Initial Purchaser but only with
reference to information furnished in writing to the Company by the
Initial Purchaser expressly for use in the Preliminary Offering Memorandum
or the Offering Memorandum (or any amendment or supplement thereto).
(c) In case any action shall be commenced involving any
person in respect of which indemnity may be sought pursuant to Section
8(a) or 8(b) (the "indemnified party"), the indemnified party shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party shall assume
the defense of such action, including the employment of counsel reasonably
satisfactory to the indemnified party and the payment of all reasonable
fees and expenses of such counsel, as incurred (except that in the case of
any action in respect of which indemnity may be sought pursuant to both
Sections 8(a) and 8(b), the Initial Purchaser shall not be required to
assume the defense of such action pursuant to this Section 8(c), but may
employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at
the expense of the Initial Purchaser). Any indemnified party shall have
the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel shall be at
the expense of the indemnified party unless (i) the employment of such
counsel shall have been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party shall have failed to
assume the defense of such action or employ counsel reasonably
satisfactory to the indemnified party or (iii) the named parties to any
such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have
been advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available
to the indemnifying party (in which case the indemnifying party shall not
have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not,
in connection with any one action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any
local counsel) for all indemnified parties and all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated
in writing by BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, in the case of the parties
indemnified pursuant to Section 8(a), and by the Company, in the case of
parties indemnified pursuant to Section 8(b), subject in each case to the
approval of the indemnifying party, which shall not be unreasonably
delayed or withheld. The indemnifying party shall indemnify and hold
harmless the indemnified party from and against any and all losses,
claims, damages, liabilities and judgments by reason of any settlement of
any action (i) effected with its written consent or (ii) effected without
its written consent if the settlement is entered into more than thirty
business days after the indemnifying party shall have received a request
from the indemnified party for reimbursement for the fees and expenses of
counsel (in any case where such fees and expenses are at the expense of
the indemnifying party) and, prior to the date of such settlement, the
indemnifying party shall have failed to comply with such reimbursement
request. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could
have been a party and indemnity or contribution may be or could have been
sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability on claims that are or could have been
the subject matter of such action 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 the indemnified party.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages, liabilities or judgments referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities
and judgments (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 Purchaser on the other hand from the offering of the
Senior Subordinated Notes or (ii) if the allocation provided by clause
8(d)(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause 8(d)(i) above but also the relative fault of the Company and the
Guarantors, on the one hand, and the Initial Purchaser, on the other hand,
in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, 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 Purchaser, on
the other hand, shall be deemed to be in the same proportion as the total
net proceeds from the offering of the Senior Subordinated Notes (after
underwriting discounts and commissions, but before deducting expenses)
received by the Company, and the total discounts and commissions received
by the Initial Purchaser bear to the total price to investors of the
Senior Subordinated Notes, in each case as set forth in the table on the
cover page of the Offering Memorandum. The relative fault of the Company
and the Guarantors, on the one hand, and the Initial Purchaser, on the
other hand, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or the Guarantors, on the one hand, or
the Initial Purchaser, on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Guarantors, and the Initial Purchaser agree
that it would not be just and equitable if contribution pursuant to this
Section 8(d) were determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses incurred by such indemnified
party in connection with investigating or defending any matter, including
any action, that could have given rise to such losses, claims, damages,
liabilities or judgments. Notwithstanding the provisions of this Section
8, the Initial Purchaser shall not be required to contribute any amount in
excess of the amount by which the total discounts and commissions received
by such Initial Purchasers exceeds the amount of any damages which the
Initial Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
9. Conditions of Initial Purchaser's Obligations. The
obligations of the Initial Purchaser to purchase the Senior Subordinated
Notes under this Agreement are subject to the satisfaction of each of the
following conditions:
(a) All the representations and warranties of the Company
and the Guarantors contained in this Agreement shall be true and correct
on the Closing Date with the same force and effect as if made on and as of
the Closing Date.
(b) Since the respective dates as of which information is
given in the Offering Memorandum other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement), (i) there shall not have occurred any
change or any development involving a prospective change in the condition,
financial or otherwise, or the earnings, business, management or
operations of the Company and its subsidiaries (including for purposes of
this subsection McNeilus and its subsidiaries), taken as a whole, (ii)
there shall not have been any change or any development involving a
prospective change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries or McNeilus or any of its Subsidiaries
and (iii) neither the Company nor any of its subsidiaries nor McNeilus or
any of its subsidiaries shall have incurred any liability or obligation,
direct or contingent, the effect of which, in any such case described in
clause 9(b)(i), 9(b)(ii) or 9(b)(iii), in your judgment, is material and
adverse and, in your judgment, makes it impracticable to market the Senior
Subordinated Notes on the terms and in the manner contemplated in the
Offering Memorandum.
(c) You shall have received on the Closing Date a
certificate dated the Closing Date, signed by the President and the Chief
Financial Officer of the Company and each of the Guarantors, confirming
the matters set forth in Sections 6(y) and 9(a) and stating that each of
the Company and the Guarantors has complied with all the agreements and
satisfied all of the conditions herein contained and required to be
complied with or satisfied on or prior to the Closing Date.
(d) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchaser), dated the
Closing Date, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company and the
Guarantors, to the effect that:
(i) each of the Company and its subsidiaries and
McNeilus and its subsidiaries is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power
and authority to carry on its business and to own, lease
and operate its properties as described in the Offering
Memorandum;
(ii) each of the Company and its subsidiaries and
McNeilus and its subsidiaries is duly qualified and is in
good standing as a foreign corporation authorized to do
business in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires
such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect;
(iii) all the outstanding shares of capital stock of
the Company have been duly authorized and validly issued
and are fully paid, non-assessable except, with respect to
accessibility, as provided in Section 180.062(2)(b) of the
Wisconsin Business Corporation Law and judicial
interpretations thereof, and not subject to any preemptive
or similar rights;
(iv) to such counsel's knowledge, all of the
outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and
validly issued and are fully paid and non-assessable, and
are owned by the Company, free and clear of any Lien
except, with respect to accessibility, as provided in
Section 180.062(2)(b) of the Wisconsin Business Corporation
Law and judicial interpretations thereof;
(v) the Senior Subordinated Notes have been duly
authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchaser in
accordance with the terms of this Agreement, will be
entitled to the benefits of the Indenture and will be valid
and legally binding obligations of the Company. The
Subsidiary Guarantees have been duly authorized by each
Guarantor (except McNeilus and the McNeilus Subsidiary
Guarantors) and, when the Senior Subordinated Notes are
executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for
by the Initial Purchaser in accordance with the terms of
this Agreement, the Subsidiary Guarantees endorsed thereon
will be entitled to the benefits of the Indenture and will
be valid and binding obligations of the Guarantors (except
McNeilus and the McNeilus Subsidiary Guarantors). The
Indenture has been duly authorized, executed and delivered
by the Company and each Guarantor (except McNeilus and the
McNeilus Subsidiary Guarantors) and is a valid and binding
agreement of the Company and each Guarantor (except
McNeilus and the McNeilus Subsidiary Guarantors). The
Senior Subordinated Notes, the Subsidiary Guarantees and
the Indenture are each enforceable against the Company and
each Guarantor (except McNeilus and the McNeilus Subsidiary
Guarantors, with respect to whom such documents will be
enforceable upon their execution) in accordance with its
terms, subject in each case to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles and
subject to the qualification that certain provisions
thereof may be unenforceable in whole or in part under the
laws of the State of Wisconsin, but the inclusion of such
provisions does not affect the validity of the Senior
Subordinated Notes, the Subsidiary Guarantees or the
Indenture and each of them contain legally adequate
provisions for the realization of the principal legal
rights and benefits afforded thereby. The Indenture and
the Subsidiary Guarantees will be duly authorized, executed
and delivered by McNeilus and the McNeilus Subsidiary
Guarantors immediately upon consummation of the
Acquisition, assuming the delivery of certain shareholder
and director consents of McNeilus and the McNeilus
Subsidiary Guarantors in the form reviewed by such counsel;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company and the Guarantors
(except McNeilus and the McNeilus Subsidiary Guarantors);
this Agreement will be duly authorized, executed and
delivered by McNeilus and the McNeilus Subsidiary
Guarantors immediately upon consummation of the
Acquisition, assuming the delivery of certain shareholder
and director consents of McNeilus and the McNeilus
Subsidiary Guarantors in the form reviewed by such counsel;
(vii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and the
Guarantors (except McNeilus and the McNeilus Subsidiary
Guarantors) and is a valid and binding agreement of the
Company and each Guarantor (except McNeilus and the
McNeilus Subsidiary Guarantors), enforceable against the
Company and each Guarantor in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights
and to general equity principles; and the Registration
Rights Agreement will be duly authorized, executed and
delivered by McNeilus and the McNeilus Subsidiary
Guarantors immediately upon consummation of the
Acquisition, assuming the delivery of certain shareholder
and director consents of McNeilus and the McNeilus
Subsidiary Guarantors in the form reviewed by such counsel;
(viii) the Exchange Notes have been duly authorized;
(ix) the statements under the captions "The
Transactions," "Certain Transactions," "Description of
Indebtedness," "Description of Notes" and "Certain Tax
Considerations" in the Offering Memorandum, insofar as such
statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly
present in all material respects such legal matters,
documents and proceedings;
(x) neither the Company nor any of its subsidiaries
is in violation of its respective charter or by-laws and,
to the best of such counsel's knowledge, and except such as
would not have a Material Adverse Effect, neither the
Company nor any of its subsidiaries is in default in the
performance of any obligation, agreement, covenant or
condition contained in any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or
their respective property is bound;
(xi) the execution, delivery and performance of this
Agreement and the other Operative Documents by the Company
and each of the Guarantors, the compliance by the Company
and each of the Guarantors with all provisions hereof and
thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any
consent, approval, authorization or other order of, or
qualification with, any governmental body or agency (except
such as may be required under the securities or Blue Sky
laws of the various states) or, to such counsel's
knowledge, any court, (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default
under, the charter or by-laws of the Company or any of its
subsidiaries, or any indenture, loan agreement, mortgage,
lease or other agreement or instrument known to such
counsel to which the Company and its subsidiaries,
including McNeilus and its subsidiaries, are bound or to
which any of their respective properties are subject, (iii)
to such counsel's knowledge, violate or conflict with any
applicable law or any rule, regulation, judgment, order or
decree of any court or any governmental body or agency
having jurisdiction over the Company, any of its
subsidiaries or McNeilus or any of its subsidiaries or
their respective property or (iv) to such counsel's
knowledge, result in the imposition or creation of (or the
obligation to create or impose) a Lien under any agreement
or instrument to which the Company or any of its
subsidiaries or McNeilus or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries or
McNeilus or any of its subsidiaries or their respective
property is bound.
(xii) such counsel does not know of any legal or
governmental proceedings to which the Company or any of its
subsidiaries or McNeilus or any of its subsidiaries is a
party or to which any of their respective property is
subject, that is required to be described in the Company's
latest Annual Report on Form 10-K filed pursuant to the
Exchange Act, or would be required to be so described, if
the facts and circumstances known to such counsel had been
known on the date of such filing, that is not so described.
(xiii) the Company is not and, after giving effect to
the offering and sale of the Senior Subordinated Notes and
the application of the net proceeds thereof as described in
the Offering Memorandum, will not be, an "investment
company" as such term is defined in the Investment Company
Act of 1940, as amended;
(xiv) to the best of such counsel's knowledge after
due inquiry, there are no contracts, agreements or
understandings between the Company or any Guarantor and any
person granting such person the right to require the
Company or such Guarantor to file a registration statement
under the Act with respect to any securities of the Company
or such Guarantor or to require the Company or such
Guarantor to include such securities with the Notes and
Subsidiary Guarantees registered pursuant to any
Registration Statement;
(xv) the Indenture complies as to form in all
material respects with the requirements of the TIA and the
rules and regulations of the Commission applicable to an
indenture which is qualified thereunder. It is not
necessary in connection with the offer, sale and delivery
of the Senior Subordinated Notes to the Initial Purchaser
in the manner contemplated by this Agreement or in
connection with the Exempt Resales to qualify the Indenture
under the TIA.
(xvi) no registration under the Act of the Senior
Subordinated Notes is required for the sale of the Senior
Subordinated Notes to the Initial Purchaser as contemplated
by this Agreement or for the Exempt Resales assuming that
(i) each Eligible Purchaser that purchases Notes is a QIB,
(ii) the accuracy of, and compliance with, the Initial
Purchaser's representations and agreements contained in
Section 7 of this Agreement, and (iii) the accuracy of the
representations of the Company and the Guarantors set forth
in Sections 6(bb), (dd), (ee) and (ff) of this Agreement.
(xvii) no facts came to such counsel's attention
which lead such counsel to believe that, as of the date of
the Offering Memorandum or as of the Closing Date, the
Offering Memorandum, as amended or supplemented, if
applicable (except for the financial or statements,
financial schedules and other financial or statistical data
included therein, as to which such counsel need not express
any belief) contains any untrue statement of a material
fact or omits to state a material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
The opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ described in Section 9(d) above
shall be rendered to you at the request of the Company and the Guarantors
and shall so state therein. In giving such opinion with respect to the
matters covered by Section 9(d)(xxii), ▇▇▇▇▇ & Lardner may state that
their opinion and belief are based upon their participation in the
preparation of the Offering Memorandum and any amendments or supplements
thereto and review and discussion of the contents thereof, but are without
independent check or verification except as specified. With respect to
matters covered by subsections 9(d)(iii), 9(d)(iv), 9(d)(x), 9(d)(xi)(iv)
and 9(d)(xiv), an opinion of the general counsel to the Company may be
substituted for that of ▇▇▇▇▇ & ▇▇▇▇▇▇▇. Except where McNeilus and the
McNeilus Subsidiary Guarantors are specifically identified in subsections
9(d)(i) - 9(d)(xvii), opinions contained therein with respect to McNeilus
and the McNeilus Subsidiary Guarantors may be given by Siegel, Brill,
Greupner, ▇▇▇▇▇ & ▇▇▇▇▇▇.
(e) The Initial Purchaser shall have received on the
Closing Date an opinion, dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Initial Purchaser, in form and substance reasonably
satisfactory to the Initial Purchaser.
(f) The Initial Purchaser shall have received on the
Closing Date an opinion, dated the Closing Date and addressed to the
Company, which expressly permits the Initial Purchaser to rely thereon, of
Seigel, Brill, Greupner, ▇▇▇▇▇ & ▇▇▇▇▇▇, counsel to McNeilus and its
subsidiaries.
(g) The Initial Purchaser shall have received, at the time
this Agreement is executed and at the Closing Date, letters dated the date
hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchaser from Ernst & Young LLP, and Larson,
Allen, Weishair and Co., LLP, independent public accountants, containing
the information and statements of the type ordinarily included in
accountants' "comfort letters" to the Initial Purchaser with respect to
the financial statements and certain financial information contained in
the Offering Memorandum.
(h) The Senior Subordinated Notes shall have been approved
by the NASD for trading and duly listed in PORTAL.
(i) The Initial Purchaser shall have received a
counterpart, conformed as executed, of the Indenture which shall have been
entered into by the Company, the Guarantors (except McNeilus and the
McNeilus Subsidiary Guarantors) and the Trustee; the Initial Purchaser
shall have received signature pages of the Indenture for delivery
immediately upon consummation of the Acquisition from McNeilus and the
McNeilus Subsidiary Guarantors.
(j) The Company and the Guarantors (except McNeilus and
the McNeilus Subsidiary Guarantors) shall have executed the Registration
Rights Agreement and the Initial Purchaser shall have received an original
copy thereof, duly executed by the Company and the Guarantors (except
McNeilus and the McNeilus Subsidiary Guarantors); the Initial Purchaser
shall have received signature pages of the Registration Rights Agreement
for delivery immediately upon consummation of the Acquisition from
McNeilus and the McNeilus Subsidiary Guarantors.
(k) Neither the Company nor the Guarantors shall have
failed at or prior to the Closing Date to perform or comply with any of
the agreements herein contained and required to be performed or complied
with by the Company or the Guarantors, as the case may be, at or prior to
the Closing Date.
(l) The Company and the Guarantors (except McNeilus and
the McNeilus Subsidiary Guarantors) shall have executed this Agreement and
the Initial Purchaser shall have received an original copy thereof, duly
executed by the Company and the Guarantors (except McNeilus and the
McNeilus Subsidiary Guarantors); the Initial Purchaser shall have received
signature pages of this Agreement for delivery immediately upon
consummation of the Acquisition from McNeilus and the McNeilus Subsidiary
Guarantors.
(m) Prior to or on the Closing Date all material
conditions (as determined by the Initial Purchaser) to the consummation of
(a) the Acquisition and (b) the $325 million Senior Credit Facility (the
"Senior Credit Facility"), have been waived or satisfied and the parties
to the Acquisition Agreement and to the Senior Credit Agreement shall be,
in the reasonable judgment of the Initial Purchaser, prepared to close
immediately, in each case on substantially the same terms as described in
the Offering Memorandum.
10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement
by the parties hereto.
This Agreement may be terminated at any time on or prior to the
Closing Date by the Initial Purchaser by written notice to the Company if
any of the following has occurred: (i) any outbreak or escalation of
hostilities or other national or international calamity or crisis or
change in economic conditions or in the financial markets of the United
States or elsewhere that, in the Initial Purchaser's judgment, is material
and adverse and, in the Initial Purchaser's judgment, makes it
impracticable to market the Senior Subordinated Notes on the terms and in
the manner contemplated in the Offering Memorandum, (ii) the suspension or
material limitation of trading in securities or other instruments on the
New York Stock Exchange, the American Stock Exchange, the Chicago Board of
Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of
Trade or the Nasdaq National Market or limitation on prices for securities
or other instruments on any such exchange or the Nasdaq National Market,
(iii) the suspension of trading of any securities of the Company or any
Guarantor on any exchange or in the over-the-counter market, (iv) the
enactment, publication, decree or other promulgation of any federal or
state statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely
affects, or will materially and adversely affect, the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking
moratorium by either federal or New York State authorities or (vi) the
taking of any action by any federal, state or local government or agency
in respect of its monetary or fiscal affairs which in your opinion has a
material adverse effect on the financial markets in the United States.
11. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company or
any Guarantor, to Oshkosh Truck Corporation, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, telephone number (▇▇▇) ▇▇▇-▇▇▇▇, and (ii) if to the
Initial Purchaser, BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: High-Yield Syndication
Department, or in any case to such other address as the person to be
notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, and warranties of the Company, the Guarantors and the
Initial Purchaser set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery
of and payment for the Senior Subordinated Notes, regardless of (i) any
investigation, or statement as to the results thereof, made by or on
behalf of the Initial Purchaser, the officers or directors of the Initial
Purchaser, any person controlling the Initial Purchaser, the Company, any
Guarantor, the officers or directors of the Company or any Guarantor, or
any person controlling the Company or any Guarantor, (ii) acceptance of
the Senior Subordinated Notes and payment for them hereunder and (iii)
termination of this Agreement; provided, however, that if this Agreement
is terminated by the Initial Purchaser pursuant to the second paragraph of
Section 10 hereof, the indemnities, contribution agreements,
representations and warranties of all of the parties hereto shall
immediately expire.
If for any reason the Senior Subordinated Notes are not
delivered by or on behalf of the Company as provided herein (other than as
a result of any termination of this Agreement pursuant to Section 10), the
Company and each Guarantor, jointly and severally, agree to reimburse the
Initial Purchaser for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by them. Notwithstanding any
termination of this Agreement, the Company shall be liable for all
expenses which it has agreed to pay pursuant to Section 5(i) hereof. The
Company and each Guarantor also agree, jointly and severally, to reimburse
the Initial Purchaser and its officers, directors and each person, if any,
who controls such Initial Purchaser within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act for any and all fees and
expenses (including without limitation the fees and expenses of counsel)
incurred by them in connection with enforcing their valid and legitimate
rights under this Agreement (including without limitation its rights under
Section 8).
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Guarantors, the Initial Purchaser, the Initial Purchaser's directors and
officers, any controlling persons referred to herein, the directors of the
Company and the Guarantors and their respective successors and assigns,
all as and to the extent provided in this Agreement, and no other person
shall acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include a purchaser of any of the
Senior Subordinated Notes from the Initial Purchaser merely because of
such purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Guarantors and the Initial Purchaser.
Very truly yours,
OSHKOSH TRUCK CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
MCNEILUS TRUCK & MANUFACTURING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
IOWA CONTRACT FABRICATORS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
▇▇▇▇▇▇▇▇ FABRICATORS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
KENSETT FABRICATORS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
MCNEILUS COMPANIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
MCNEILUS FINANCIAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
and Chief Financial Officer
▇▇▇▇▇▇ MANUFACTURING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
SUMMIT PERFORMANCE SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
SCHEDULE A
Guarantors
Upon consummation of the Acquisition:
McNeilus Truck & Manufacturing, Inc.
Iowa Contract Fabricators, Inc.
▇▇▇▇▇▇▇▇ Fabricators, Inc.
Kensett Fabricators, Inc.
McNeilus Companies, Inc.
McNeilus Financial, Inc.
▇▇▇▇▇▇ Manufacturing, Inc.
Summit Performance Systems, Inc.
SCHEDULE B
Subsidiaries
Upon consummation of the Acquisition:
McNeilus Truck & Manufacturing, Inc.
Iowa Contract Fabricators, Inc.
▇▇▇▇▇▇▇▇ Fabricators, Inc.
Kensett Fabricators, Inc.
McNeilus Companies, Inc.
McNeilus Financial, Inc.
▇▇▇▇▇▇ Manufacturing, Inc.
Summit Performance Systems, Inc.
McNeilus Financial Services, Inc.
Oshkosh/McNeilus Financial Services, Inc.
Nations Casualty Insurance, Inc.
Oshkosh Foreign Sales Corporation, Inc.
▇▇▇▇▇▇ Manufacturing International Inc.
Dover Technologies, Inc.
EXHIBIT A
Form of Registration Rights Agreement
OSHKOSH TRUCK CORPORATION
EACH OF THE GUARANTORS NAMED HEREIN
$100,000,000
8-3/4% SENIOR SUBORDINATED NOTES DUE 2008
Purchase Agreement
February 20, 1998
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇