$200,000,000
TEREX CORPORATION
9-1/4% Senior Subordinated Notes due 2011
PURCHASE AGREEMENT
December 10, 2001
Credit Suisse First Boston Corporation
Xxxxxxx Xxxxx Xxxxxx Inc.
As Representatives of the Several Purchasers,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Terex Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the several initial purchasers named in Schedule A hereto (the "Purchasers")
U.S. $200,000,000 principal amount of its 9-1/4% Senior Subordinated Notes due
2011 ("Notes") to be issued under an indenture, to be dated as of December 17,
2001 (the "Indenture"), between the Company, the guarantors named therein and
The Bank of New York, as Trustee, which Notes will be unconditionally guaranteed
by Koehring Cranes, Inc., Payhauler Corp., Terex Cranes, Inc., Terex-RO
Corporation, Terex-Telelect, Inc., The American Crane Corporation , O&K
Xxxxxxxxx & Xxxxxx, Inc., Amida Industries, Inc., Cedarapids, Inc., Standard
Xxxxxx, Inc., Standard Xxxxxx Products, Inc., BL-Pegson USA, Inc., Xxxxxxx
America, Inc., Xxxxxxx Engineering, Inc., EarthKing, Inc., Finlay Hydrascreen
USA, Inc., Powerscreen Holdings USA, Inc., Powerscreen International LLC,
Powerscreen North America, Inc., Powerscreen USA, LLC, Xxxxx Industries, Inc.,
Terex Xxxxxxx, Inc., Terex Paving, Inc. and CMI Terex Corporation (the
"Guarantors," and together with the Company, the "Issuers"). For purposes of
this agreement, the term "Offered Securities" means the Notes, together with the
guarantees (the "Guarantees") thereof by the Guarantors. The United States
Securities Act of 1933, as amended, is herein referred to as the "Securities
Act."
Holders (including subsequent transferees) of the Notes will have the
registration rights set forth in the Registration Rights Agreement (the
"Registration Rights Agreement"), to be dated the Closing Date (as hereinafter
defined), in substantially the form of Exhibit A hereto. 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
Securities Act (the "Exchange Offer Registration Statement") registering an
issue of senior subordinated notes identical in all material respects to the
Notes (the "Exchange Notes") to be offered in exchange for the Notes (the
"Exchange Offer") and (ii) under the circumstances set forth therein, a
registration statement pursuant to Rule 415 under the Securities Act (the "Shelf
Registration Statement").
This Agreement, the Indenture, the Offered Securities, the Exchange Notes
and the Registration Rights Agreement, are sometimes referred to in this
Agreement, individually, as a "Transaction Document" and, collectively, as the
"Transaction Documents," and the execution and delivery of the
Indenture and the issuance and sale of the Offered Securities are sometimes
referred to herein, individually, as a "Transaction" and collectively, as the
"Transactions."
Each of the Issuers, jointly and severally, hereby agrees with the several
Purchasers as follows:
2. Representations and Warranties of the Company. Each of the Issuers,
jointly and severally, represents and warrants to, and agrees with, the several
Purchasers that:
(a) A preliminary offering circular dated December 10, 2001, and an
offering circular relating to the Offered Securities to be offered by the
Purchasers have been prepared by the Company. Such preliminary offering
circular and offering circular (including material incorporated by
reference therein), as supplemented as of the date of this Agreement,
together with any other document approved by the Company for use in
connection with the contemplated resale of the Offered Securities are
hereinafter collectively referred to as the "Offering Document". On the
date of this Agreement, the Offering Document does not include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from the Offering Document based upon
written information furnished to the Company by any Purchaser through
Credit Suisse First Boston Corporation ("CSFBC") or Xxxxxxx Xxxxx Xxxxxx
Inc. specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b). Except as
disclosed in the Offering Document, the Company's Annual Report on Form
10-K most recently filed with the Securities and Exchange Commission (the
"Commission") and all subsequent reports (collectively, the "Exchange Act
Reports") which have been filed by the Company with the Commission or sent
to stockholders in either case pursuant to the Securities Exchange Act of
1934 (the "Exchange Act") did not include, as of their respective dates,
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. Such documents, when they were
filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
(b) Each of the Issuers has been duly incorporated and is an existing
corporation in good standing under the laws of the jurisdiction of its
incorporation, with the corporate power and authority to own its properties
and conduct its business as described in the Offering Document; and each of
the Issuers is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing could not
reasonably be expected, individually or in the aggregate, to have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole (a "Material Adverse Effect").
(c) Each subsidiary of the Company other than the Guarantors that (i)
generates 5% or more of the revenues, (ii) generates 5% or more of the
operating income, or (iii) holds 5% or more of the assets, in each case, of
the Company and its subsidiaries on a consolidated basis (each, a
"Significant Non-Guarantor Subsidiary," and, together with the Guarantors,
each a "Significant Subsidiary"), has been duly incorporated and is an
existing corporation in good standing under the laws of the jurisdiction of
its incorporation, with the corporate power and authority to own its
properties and conduct its business as described in the Offering Document;
and each Significant Non-Guarantor Subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure
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to be so qualified and in good standing could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; all of
the issued and outstanding capital stock of the Company and of each
Significant Subsidiary has been duly authorized and validly issued and is
fully paid and nonassessable; and, except as expressly disclosed or
incorporated by reference in the Offering Document and except for (i)
pledges in favor of Credit Suisse First Boston, as collateral agent for the
lenders, under the Company's (A) Credit Agreement, dated as of March 6,
1998, as amended (the "Credit Facility"), among the Company, certain of its
subsidiaries and the lenders named therein, and (B) Tranche C Credit
Agreement, dated as of July 2, 1999, as amended, among the Company and the
lenders named therein and (ii) the purchase money security interest in
respect of 49% of the share capital of Gru Comedil SpA, the capital stock
of each Significant Subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(d) The Indenture has been duly authorized by all necessary corporate
action required by the Issuers; the Offered Securities have been duly
authorized by each of the Issuers by all necessary corporate action
required by the Issuers; and when the Offered Securities are delivered and
paid for pursuant to this Agreement and the Indenture on the Closing Date
(as defined below), the Indenture will have been duly executed and
delivered by each of the Issuers, such Offered Securities will have been
duly executed, issued and delivered by each of the Issuers and will conform
in all material respects to the description thereof contained in the
Offering Document and the Indenture, assuming due authorization,
authentication, execution and delivery thereof by the Trustee, and such
Offered Securities, when executed and authenticated in accordance with the
provisions of the Indenture, will constitute valid and legally binding
obligations of each of the Issuers, enforceable in accordance with their
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.
(e) Except as disclosed or reflected in the fees and expenses set
forth in the Offering Document, there are no contracts, agreements or
understandings between the Company and any person that would give rise to a
valid claim against the Company or any Purchaser for a brokerage
commission, finder's fee or other like payment in connection with the
Transactions.
(f) Except for (a) that certain Registration Rights Agreement, dated
May 9, 1995, between the Company, Xxxxxxxx & Company, Inc., and Xxxxxx,
Read & Co. Inc., and (b) that certain Stock Purchase Agreement, dated
November 26, 2001, between the Company, PPM Deutschland GmbH Terex Cranes
and Xxxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx
Xxxxxx-Xxxxxxx, and Xxxxx Xxxxxxx, there are no contracts, agreements or
understandings between the Company and any person granting such person the
right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such securities
in any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(g) Except for those which have been previously obtained or as to
which the failure to obtain would not, individually or in the aggregate,
have a material adverse effect on the consummation of the Transactions by
the Issuers, no consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the Transactions as contemplated by (i) this Agreement in
connection with the issuance and sale of the Offered Securities by the
Issuers, or (ii) any other Transaction Documents in connection with the
consummation of the transactions contemplated therein.
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(h) The execution, delivery and performance by each of the Company and
its subsidiaries (to the extent each is a party thereto) of each of the
Transaction Documents and compliance with the terms and provisions thereof
will not result in a breach or violation of any of the terms and provisions
of, or constitute a default under, (i) any statute, rule, regulation or
order of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any Significant Subsidiary of the
Company or any of their properties, or (ii) any agreement or instrument to
which the Company or any such Significant Subsidiary is a party or by which
the Company or any such Significant Subsidiary is bound or to which any of
the properties of the Company or any such Significant Subsidiary is
subject, or (iii) the charter or by-laws of the Company or any such
Significant Subsidiary, except (A) in each case, that any rights to
indemnity and contribution may be limited by federal and state securities
laws and public policy considerations and (B) in the case of clauses (i)
and (ii) for such breaches, violations or defaults as would not,
individually or in the aggregate, have a material adverse effect on the
consummation of the Transactions by such parties; and each of the Issuers
has full corporate power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement.
(i) This Agreement has been duly authorized, executed and delivered by
the Company. Each of the other Transaction Documents has been, or as of the
Closing Date will have been, duly authorized, by each of the Company and
its subsidiaries (to the extent each is a party thereto), each of the other
Transaction Documents (with the exception of the Exchange Notes) has been,
or as of the Closing Date will have been, assuming due authorization,
authentication, execution and delivery thereof by the Trustee, to the
extent applicable, executed and delivered by each of the Company and its
subsidiaries (to the extent each is a party thereto), and each Transaction
Document conforms or will conform in all material respects to the
descriptions thereof contained in the Offering Document and each
Transaction Document (other than this Agreement), assuming due
authorization, authentication, execution and delivery thereof by the
Trustee, to the extent applicable, is or will constitute valid and legally
binding obligations of the Company and its subsidiaries (to the extent each
is a party thereto), enforceable in accordance with its respective terms,
except that any rights to indemnity and contribution may be limited by
federal and state securities laws and public policy considerations and
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.
(j) Except as disclosed in the Offering Document, the Company and its
Significant Subsidiaries have good title to all real properties and all
other properties and assets owned by them that are material to the Company
and its subsidiaries taken as a whole, in each case free from liens and
encumbrances that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them; and except as
disclosed in the Offering Document, the Company and its Significant
Subsidiaries hold any leased real or personal property that is material to
the Company and its subsidiaries taken as a whole under valid and
enforceable leases with no exceptions that would materially interfere with
the use made or to be made thereof by them.
(k) The Company and its subsidiaries (A) possess all certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them, except for
those which the failure to so possess could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect and (B)
have not received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
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(l) Except as disclosed in the Offering Document, no labor strike,
slowdown, stoppage or dispute (except for routine disciplinary and
grievance matters) with the employees of the Company or any subsidiary
exists or, to the knowledge of the Company, is imminent, that would
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(m) The Company and its subsidiaries own, possess, have the right to
use, or can acquire on reasonable terms, adequate trademarks, trade names
and other rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively, "intellectual
property rights") used in the conduct of the business now operated by them,
except for such failures to so own, possess or have the right to use or
acquire such intellectual property rights which would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect, and have not received any notice of infringement of or conflict
with asserted rights of others with respect to any intellectual property
rights that, if determined adversely to the Company or any of its
subsidiaries, would, individually or in the aggregate, have a Material
Adverse Effect.
(n) Except as disclosed in the Offering Document, neither the Company
nor any of its subsidiaries (i) is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), (ii) owns or operates any real
property that to the knowledge of the Company is contaminated with any
substance that is subject to any environmental laws, (iii) is to the
knowledge of the Company liable for any off-site disposal or contamination
pursuant to any environmental laws, or (iv) is to the knowledge of the
Company subject to any claim relating to any environmental laws, in each
case of clauses (i), (ii), (iii) or (iv) above, which violation,
contamination, liability or claim would individually or in the aggregate
have a Material Adverse Effect; and the Company is not aware of any pending
investigation which might lead to such a claim.
(o) Except as disclosed in the Offering Document, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that have a reasonable
likelihood of being adversely determined and, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations under the
Transaction Documents, or which are otherwise material in the context of
the sale of the Offered Securities; and no such actions, suits or
proceedings are threatened in writing or, to the Company's knowledge,
contemplated.
(p) The financial statements included or incorporated by reference in
the Offering Document present fairly in all material respects the financial
position, as applicable, (a) of the Company and its consolidated
subsidiaries and (b) of PPM Cranes, Inc. and its consolidated subsidiaries,
in each case as of the dates shown and their results of operations and cash
flows for the periods shown (subject in the case of interim financial
statements to normal year-end adjustments), and such financial statements
have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis and the
schedules included or incorporated by reference in the Offering Document
present fairly the information required to be stated therein.
(q) Except as disclosed in the Offering Document, since the date of
the latest financial statements included in the Offering Document, there
has been no material adverse change, nor any development or event that
could reasonably be expected to result in a material adverse
5
change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a whole,
and, except as disclosed in or contemplated by the Offering Document, there
has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(r) None of the Issuers is an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the United States Investment Company
Act of 1940 (the "Investment Company Act"); and each of the Issuers is not
and, after giving effect to the offering and sale of the Offered Securities
and the application of the proceeds thereof as described in the Offering
Document, will not be an "investment company" as defined in the Investment
Company Act.
(s) No securities of the Company or any of its subsidiaries the same
class (within the meaning of Rule 144A(d)(3) under the Securities Act) as
the Offered Securities are listed on any national securities exchange
registered under Section 6 of Exchange Act or quoted in a U.S. automated
inter-dealer quotation system.
(t) Assuming the representations of the Purchasers set forth in
Section 4 below are true and correct and that the Purchasers comply in all
material respects with applicable federal and state securities laws and
regulations in connection with the initial resale of the Offered
Securities, the offer and sale of the Offered Securities in the manner
contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof and
Regulation S thereunder; and it is not necessary to qualify an indenture in
respect of the Offered Securities under the United States Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act").
(u) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf (i) has, within the six-month period prior to
the date hereof, offered or sold in the United States or to any U.S. person
(as such terms are defined in Regulation S under the Securities Act) the
Offered Securities or any security of the same class or series as the
Offered Securities or (ii) has offered or will offer or sell the Offered
Securities (A) in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) under
the Securities Act or (B) with respect to any such securities sold in
reliance on Rule 903 of Regulation S ("Regulation S") under the Securities
Act, by means of any directed selling efforts within the meaning of Rule
902(c) of Regulation S. The Company, its affiliates and any person acting
on its or their behalf have complied in all material respects and will
comply in all material respects with the offering restrictions requirement
of Regulation S in connection with the offer and sale of the Offered
Securities. The Company has not entered and will not enter into any
contractual arrangement with respect to the distribution of the Offered
Securities except for this Agreement.
(v) The Company is subject to Section 13 or 15(d) of the Exchange Act.
(w) The Company is permitted by the terms of the Credit Facility to
use the proceeds of this Offering in the manner described in the Offering
Document.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 97.50% of the principal amount thereof
plus accrued interest from December 17, 2001 to the Closing Date (as hereinafter
defined), the respective principal amounts of Notes set forth opposite the names
of the several Purchasers in Schedule A hereto.
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The Company will deliver against payment of the purchase price the Offered
Securities in the form of one or more permanent global securities in definitive
form (the " Global Securities") deposited with the Trustee as custodian for The
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Interests in any permanent Global Securities will be held only
in book-entry form through DTC, except in the limited circumstances described in
the Offering Document. Payment for the Offered Securities shall be made by the
Purchasers in Federal (same day) funds by wire transfer to an account at a bank
designated by the Company and reasonably acceptable to CSFBC at the office of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP at 9:00 A.M. (New York time), on
December 17, 2001, or at such other time not later than seven full business days
thereafter as CSFBC and the Company determine, such time being herein referred
to as the "Closing Date," against delivery to the Trustee as custodian for DTC
of the Global Securities representing all of the Securities. The Global
Securities will be made available for checking at the above office at least 24
hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the Company
that it is a "qualified institutional buyer" within the meaning of Rule
144A under the Securities Act.
(b) Each Purchaser severally agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement with
respect to the distribution of the Offered Securities except for any such
arrangements with the other Purchaser or affiliates of the other Purchaser
or with the prior written consent of the Company.
(c) Each Purchaser severally agrees that it and each of its affiliates
will not offer or sell the Offered Securities in the United States by means
of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act, including, but not limited
to (i) any advertisement, article, notice or other communication published
in any newspaper, magazine or similar media or broadcast over television or
radio, or (ii) any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising. Each Purchaser severally
agrees, with respect to resales made in reliance on Rule 144A of any of the
Offered Securities, to deliver either with the confirmation of such resale
or otherwise prior to settlement of such resale a notice to the effect that
the resale of such Offered Securities has been made in reliance upon the
exemption from the registration requirements of the Securities Act provided
by Rule 144A.
(d) Each of the Purchasers severally represents and agrees that (i) it
has not offered or sold and prior to the date six months after the date of
issue of the Offered Securities will not offer or sell any Offered
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995; (ii) it has
complied and will comply with all applicable provisions of the Financial
Services Xxx 0000 with respect to anything done by it in relation to the
Offered Securities in, from or otherwise involving the United Kingdom; and
(iii) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issue of
the Offered Securities to a person who is of a kind described in Article
11(3) of the Financial Services Xxx 0000 (Investment Advertisements)
(Exemptions) Order 1996 or is a person to whom such document may otherwise
lawfully be issued or passed on.
(e) Each Purchaser understands that the Offered Securities are being
sold to it hereunder in a transaction not involving a public offering in
the United States within the meaning of the
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Securities Act, that the Offered Securities have not been, and except as
described in the Registration Rights Agreement, will not be registered
under the Securities Act, and that such Purchaser will only offer such
Offered Securities for resale (i) inside the United States to persons whom
such Purchaser reasonably believes is a "qualified institutional buyer"
meeting the requirements of Rule 144A under the Securities Act, (ii)
outside the United States in a transaction complying with Rule 904 under
the Securities Act, (iii) pursuant to an exemption from registration under
the Securities Act provided by Rule 144 (if available), or (iv) pursuant to
an effective registration statement under the Securities Act, and, in each
case of clauses (i) through (iv), in accordance with any applicable
securities laws of any state of the United States, and such Purchaser will
notify any subsequent purchaser from it of such Offered Securities of the
resale restrictions applicable to the Offered Securities referred to in the
Indenture and the Offering Document.
(f) Each Purchaser represents and agrees that it is not acquiring the
Offered Securities with a view to any distribution thereof in a transaction
that would violate the Securities Act or the securities laws of any state
of the United States or any other applicable jurisdiction.
(g) Each Purchaser understands and acknowledges that the availability
of an exemption from registration under the Securities Act of the offer and
sale of the Offered Securities depends in part on, and the Issuers and, for
the purposes of the opinions to be delivered to the Purchasers pursuant to
Section 6 hereof, counsel for the Issuers and counsel for the Purchasers
will rely upon, the accuracy of the foregoing representations, and such
Purchaser hereby consents to such reliance.
5. Certain Agreements of the Company. Each of the Issuers, jointly and
severally, agrees with the several Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to amend or
supplement the Offering Document and will not effect such amendment or
supplementation without CSFBC's consent, which consent shall not be
unreasonably withheld or delayed. If, at any time prior to the completion
of the resale of the Offered Securities by the Purchasers, any event occurs
as a result of which the Offering Document as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, the Company
promptly will notify CSFBC of such event and promptly will prepare, at its
own expense, an amendment or supplement which will correct such statement
or omission or effect such compliance. Neither CSFBC's consent to, nor the
Purchasers' delivery of, any such amendment or supplement shall constitute
a waiver of any of the conditions set forth in Section 6.
(b) The Company will furnish to CSFBC copies of any preliminary
offering circular, the Offering Document and all amendments and supplements
to such documents, in each case in such quantities as CSFBC reasonably
requests. At any time when the Company is not subject to Section 13 or
15(d) of the Exchange Act, the Company will promptly furnish or cause to be
furnished to CSFBC (and, upon request, to the other Purchaser) and, upon
request of holders and prospective purchasers of the Offered Securities, to
such holders and purchasers, copies of the information required to be
delivered to holders and prospective purchasers of the Offered Securities
pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto) in order to permit compliance with Rule 144A in
connection with resales by such holders of the Offered Securities. The
Company will pay the expenses of printing and distributing to the
Purchasers all such documents.
8
(c) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as CSFBC reasonably
designates and will continue such qualifications in effect so long as
required for the resale of the Offered Securities by the Purchasers.
(d) During the period of two years hereafter, the Company will furnish
to CSFBC and, upon request, to the other Purchaser, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to CSFBC and, upon
request, to the other Purchaser, as soon as available, a copy of each other
report and any definitive proxy statement of the Company filed with the
Commission under the Exchange Act, or mailed to stockholders.
(e) During the period of two years after the Closing Date, the Company
will, upon request, furnish to CSFBC and the other Purchaser and any holder
of Offered Securities a copy of the restrictions on transfer applicable to
the Offered Securities.
(f) During the period of two years after the Closing Date, the Company
will not, and will not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Offered Securities that
have been reacquired by any of them.
(g) During the period of two years after the Closing Date, each of the
Issuers will not be or become, an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of
its obligations under this Agreement and the Indenture, including (i) the
fees and expenses of the Trustee and its professional advisers; (ii) all
expenses in connection with the execution, issuance, authentication,
packaging and initial delivery of the Offered Securities, the preparation
and printing of this Agreement, the Indenture, the Offered Securities, the
Offering Document and amendments and supplements thereto, and any other
document relating to the issuance, offer, sale and delivery of the Offered
Securities; (iii) the cost of listing the Offered Securities and qualifying
the Offered Securities for trading in The PortalSM Market ("PORTAL") and
any expenses incidental thereto; (iv) the cost of any advertising approved
by the Company in connection with the issue of the Offered Securities; (v)
any expenses (including reasonable fees and disbursements of counsel)
incurred in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions as CSFBC designates and the
printing of memoranda relating thereto; (vi) any fees charged by investment
rating agencies for the rating of the Offered Securities; and (vii)
expenses incurred in distributing the Offering Document (including any
amendments and supplements thereto) to the Purchasers. The Company will
also pay for any travel expenses of the Company's officers and employees
and any other expenses of the Company in connection with attending or
hosting meetings with prospective purchasers of the Offered Securities.
(i) In connection with the offering, until CSFBC shall have notified
the Company and the other Purchaser of the completion of the resale by the
Purchasers of the Offered Securities, neither the Company nor any of its
affiliates has or will, either alone or with one or more other persons, bid
for or purchase for any account in which it or any of its affiliates has a
beneficial interest any Offered Securities or attempt to induce any person
to purchase any Offered Securities; and neither it nor any of its
affiliates will make bids or purchases for the purpose of creating actual,
or apparent, active trading in, or of raising the price of, the Offered
Securities.
9
(j) During the period beginning on the date hereof and continuing to
and including the Closing Date, none of the Issuers will offer, sell,
contract to sell, announce their intention to sell, pledge or otherwise
dispose of, directly or indirectly, any United States dollar denominated
debt securities issued or guaranteed by any of the Issuers and having a
maturity of more than one year from the date of issue. None of the Issuers
will at any time offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, any securities under circumstances where such
offer, sale, pledge, contract or disposition would cause the exemption
afforded by Section 4(2) of the Securities Act or the safe harbor of
Regulation S thereunder to cease to be applicable to the offer and sale of
the Offered Securities.
6. Conditions of the Obligations of the Purchasers. The obligations of the
Purchasers to purchase and pay for the Offered Securities will be subject to the
accuracy in all material respects of the representations and warranties on the
part of the Issuers herein, to the accuracy in all material respects of the
statements of officers of the Issuers made pursuant to the provisions hereof, to
the performance by the Issuers of their respective obligations hereunder and to
the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of
this Agreement, from PricewaterhouseCoopers LLP confirming that they are
independent public accountants within the meaning of the Securities Act and
the applicable published rules and regulations thereunder ("Rules and
Regulations") and stating to the effect that:
(i) in their opinion the financial statements and schedules
examined by them and included or incorporated by reference in the
Offering Document comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
related published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of the Company, and of all subsidiaries of the
Company for which such interim financial statements are provided,
inquiries of officials of the Company, and of such subsidiaries, who
have responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of this Agreement,
there was any change in the common stock or any increase in total
debt or any decrease in consolidated net current assets (working
capital) or decrease in shareholders' equity of the Company and
its consolidated subsidiaries, as compared with amounts shown on
the latest balance sheet included in the Offering Document; or
(B) for the period from the closing date of the latest
income statement included in the Offering Document to the closing
date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year and with the period of
corresponding length ended the date of the latest income
statement included in the Offering Document, in consolidated net
sales or in the total or per share amounts of consolidated net
income;
except in all cases set forth in clauses (A) and (B) above for
changes, increases or decreases which the Offering Document discloses
have occurred or may occur or which are described in such letter; and
10
(iii) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained or incorporated by reference in the Offering Document (in
each case to the extent that such dollar amounts, percentages and
other financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are derived directly
from such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
All financial statements and schedules included in material incorporated by
reference into the Offering Document shall be deemed included in the Offering
Document.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a majority
in interest of the Purchasers including CSFBC, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
issuance and sale of the Offered Securities; (ii) any downgrading in the
rating of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any material change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the judgment of a majority in interest of the
Purchasers including CSFBC, be likely to prejudice materially the sale or
distribution of the Offered Securities; (iv) any material suspension or
material limitation of trading in securities generally on the New York
Stock Exchange or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (v) any banking moratorium
declared by U.S. Federal or New York authorities; (vi) any major disruption
of settlements of securities or clearance services in the United States; or
(vii) any attack on, outbreak or escalation of major hostilities or major
acts of terrorism involving the United States, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Purchasers
including CSFBC, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the issuance and sale of and payment for the
Offered Securities.
(c) The Purchasers shall have received an opinion, dated such Closing
Date, of Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, counsel for the
Company, that:
(i) The Issuers organized under the laws of the State of Delaware
and each Significant Subsidiary organized under the laws of the State
of Delaware are corporations duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and have all
requisite corporate power and authority to own their respective
properties and carry on their respective businesses as described in
the Offering Document;
(ii) The Issuers organized under the laws of the State of
Delaware (to the extent each is a party) have taken all necessary
corporate action to duly authorize,
11
execute, deliver and perform their respective obligations under this
Agreement, the Indenture, the Offered Securities, the Exchange Notes
and the Registration Rights Agreement (collectively, the "Closing
Documents"); the Issuers organized under the laws of the State of
Delaware have taken all necessary corporate action to execute, deliver
and issue the Offered Securities; the Offered Securities have been
validly authorized, executed, issued and delivered by the Issuers
organized under the laws of the State of Delaware and each of the
Closing Documents conforms in all material respects to the description
thereof contained in the Offering Document; and each of the Closing
Documents (other than this Agreement) have been validly executed and
delivered by, and constitute the legal, valid and binding obligations
of, each of the Issuers (to the extent each is a party thereto),
enforceable against the Issuers in accordance with the terms thereof,
except that any rights to indemnity and contribution thereunder may be
limited by federal and state securities laws and public policy
consideration and 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;
(iii) Each of the Issuers is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Offering Document and the
consummation of the other Closing Transactions (as defined below),
will not be an "investment company" within the meaning of the
Investment Company Act of 1940, as amended;
(iv) Except for those consents as to which the failure to obtain
would not, individually or in the aggregate, have a material adverse
effect on the consummation of the relevant Closing Transaction,
neither the Company nor any Significant Subsidiary incorporated under
the laws of the State of Delaware ("Domestic Significant
Subsidiaries") is required to obtain any consent, approval,
authorization or order of, or filing with, any governmental authority
under any Applicable Law (as defined) in connection with the
consummation by the Company and the Domestic Significant Subsidiaries
of the transactions contemplated by the Closing Documents or otherwise
in connection with the execution and delivery of the Indenture and the
issuance and sale of the Offered Securities (the "Closing
Transactions"), except such as may be required under state securities
laws (with respect to which such counsel need express no opinion);
(v) The execution, delivery and performance by the Company and
its subsidiaries (to the extent each is a party thereto) of each of
the Closing Documents (including the issuance and sale of the Offered
Securities) and compliance by the Company and such subsidiaries
therewith will not conflict with, constitute a default under or
violate (i) any provision of the charter or by-laws of the Company or
any Domestic Significant Subsidiary, (ii) any provision of any
material applicable law, rule or regulation (other than state
securities and blue sky laws, as to which such counsel need express no
opinion and except that any rights to indemnity and contribution
herein may be limited by federal and state securities laws and public
policy considerations), (iii) to our knowledge, any judgment, order,
writ, injunction or decree to which the Company, its subsidiaries or
any of their respective properties are subject, or (iv) any agreement
or instrument filed as an exhibit to the Company's Exchange Act
Reports;
(vi) Such counsel has participated in the preparation of the
Offering Document and, although such counsel is not passing upon and
does not assume responsibility for the accuracy, completeness or
fairness of the Offering Document
12
(except statements made under the captions "Description of the Notes,"
"Description of Certain Indebtedness" and "Certain United States
Federal Tax Considerations" of the Offering Document insofar as they
relate to legal matters), such counsel shall state that, based upon
such participation but without independent review or verification,
nothing has come to such counsel's attention which causes it to
believe that, at any time from the date thereof through the Closing
Date, the Offering Document (except for financial statements and
related notes, and financial and statistical data and supporting
schedules included therein, as to which such counsel need express no
opinion) contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; the descriptions in the Offering
Document of statutes, legal and governmental proceedings and contracts
are accurate in all material respects and fairly present the
information required to be shown; and such counsel do not know of any
legal or governmental proceedings that were required to be described
in any of the Exchange Act Reports as of their respective dates which
are not described as required or of any contracts or documents of a
character that were required to be described in any of the Exchange
Act Reports as of their respective dates or to be filed as exhibits to
the respective Exchange Act Reports as of their respective dates which
are not described and filed as required.
(vii) Assuming the representations of the Purchasers set forth in
Section 4 of this Agreement are true, complete and correct in all
material respects and assuming compliance in all material respects by
the Purchasers with the covenants set forth in this Agreement and with
applicable federal and state securities laws and regulations in
connection with the initial resale of the Offered Securities, it is
not necessary in connection with (i) the offer, sale and delivery of
the Offered Securities by the Company to the Purchasers pursuant to
this Agreement or (ii) the resales of the Offered Securities by the
Purchasers in the manner contemplated by this Agreement, to register
the Offered Securities under the Securities Act or to qualify an
indenture in respect thereof under the Trust Indenture Act.
Such counsel may state that, as it relates to enforceability, the
opinions expressed in clause (v) are limited by (1) bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting
creditors' rights generally and (2) equitable principles of general
applicability. Such counsel may also qualify such opinion in other
respects reasonably acceptable to the Purchasers.
(d) The Purchasers shall have received an opinion, dated such Closing
Date, of Xxxx X Xxxxx, general counsel of the Company, to the effect that:
(i) The Issuers and each Significant Subsidiary incorporated
within the United States of America (the "Domestic Significant
Subsidiaries") have been duly incorporated and are existing
corporations in good standing under the laws of their respective
jurisdictions of incorporation, with corporate power and authority to
own their respective properties and conduct their respective
businesses as described in the Offering Documents; and the Issuers and
each Domestic Significant Subsidiary are duly qualified to do business
as foreign corporations in good standing in all other jurisdictions in
which their ownership or lease of property or the conduct of their
business requires such qualifications, except to the extent that the
failure to be so qualified and in good standing could not reasonably
be expected, individually or in the aggregate, to have a Material
Adverse Effect. Based on such counsel's review of organizational
documents (or English translations thereof) of each Significant
13
Subsidiary incorporated outside the United States of America (the
"Foreign Significant Subsidiaries") and interviews and statements of
persons who are informed as to the formation and status of the Foreign
Significant Subsidiaries, the Foreign Significant Subsidiaries have
been duly incorporated and are existing corporations in good standing
under the laws of their respective countries of organization, with
corporate power and authority to own their respective properties and
conduct their respective businesses as described in the Offering
Document; based on such counsel's review of organizational documents
(or English translations thereof) of the Foreign Significant
Subsidiaries and interviews and statements of persons who are informed
as to the formation and status of the Foreign Significant
Subsidiaries, the Foreign Significant Subsidiaries are duly qualified
to do business as foreign corporations in good standing in all other
jurisdictions in which their ownership or lease of property or the
conduct of their business requires such qualifications, except to the
extent that the failure to be so qualified and in good standing could
not reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect.
(ii) Based upon such counsel's examination of the corporate stock
books and records of each of the Domestic Significant Subsidiaries and
the corporate stock books and records (or English translations
thereof) of the Foreign Significant Subsidiaries and interviews and
statements of persons who are informed as to the status of the Foreign
Significant Subsidiaries, all outstanding shares of the capital stock
of the Company and each Significant Subsidiary have been duly
authorized and validly issued, are fully paid and nonassessable and
conform in all material respects to the description thereof contained
in the Exchange Act Reports; and the securityholders of each the
Issuers have no preemptive rights with respect to the Offered
Securities;
(iii) Except for those agreements referred to in the
representation set forth in Section 2(f) hereof, there are no
contracts, agreements or understandings known to such counsel between
any of the Issuers and any person granting such person the right to
require any of the Issuers to file a registration statement under the
Act with respect to any securities of any of the Issuers owned or to
be owned by such person or to require any of the Issuers to include
such securities in securities being registered pursuant to any other
registration statement filed by any of the Issuers under the
Securities Act;
(iv) Except for those consents as to which the failure to obtain
would not, individually or in the aggregate, have a material adverse
effect on the consummation of the relevant Transaction, no consent,
approval, authorization or order of, or filing with, any governmental
agency or body or any court is required to be obtained or made by the
Company or any Significant Subsidiary under any Applicable Law for the
consummation of the Transactions or otherwise in connection with the
sale of the Offered Securities, except such as may be required under
state securities laws (with respect to which such counsel need express
no opinion);
(v) The execution and delivery of, and performance by, each of
the Company and its subsidiaries (to the extent each is a party
thereto) of its obligations under, each of the Transaction Documents
(including the issuance and sale of the Offered Securities) will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any Applicable Law or order known to
such counsel of any governmental agency or body or any court having
jurisdiction over the Company or any Significant Subsidiary or any of
their respective properties (except that any rights to indemnity and
contribution herein may be limited by federal and state securities
laws and public policy considerations), or any agreement or instrument
to
14
which the Company or any Significant Subsidiary is a party or by which
the Company or any Significant Subsidiary is bound or to which any of
the properties of the Company or any Significant Subsidiary is
subject, or the charter or by-laws of the Company or any Significant
Subsidiary, and each of the Issuers has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by
this Agreement;
(vi) This Agreement has been duly authorized, executed and
delivered by each of the Issuers. Each of the other Transaction
Documents has been or will be duly authorized, executed and delivered
by each of the Company and its subsidiaries (to the extent each is a
party thereto); the Offered Securities have been duly authorized,
executed, authenticated, issued and delivered by each of the Issuers
and each of the Transaction Documents conforms in all material
respects to the description thereof contained in the Offering
Document; and each of the Transaction Documents (other than this
Agreement) constitutes or will constitute valid and legally binding
obligations of the each of the Company and its subsidiaries (to the
extent each is a party thereto) enforceable in accordance with its
respective terms, except that any rights to indemnity and contribution
thereunder may be limited by federal and state securities laws and
public policy considerations and 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;
(vii) While such counsel is not passing upon and does not assume
responsibility for, and shall not be deemed to have independently
verified the accuracy, completeness or fairness of the statements
contained in the Offering Document (except statements made under the
captions "Description of the Notes" and "Description of Certain
Indebtedness" of the Offering Document insofar as they relate to legal
matters), such counsel shall state that no facts have come to such
counsel's attention in the course of participating with officers and
representatives of the Company in the preparation of the Offering
Document (except for financial statements and schedules and other
financial and statistical data contained therein, as to which such
counsel need express no opinion) to lead it to believe that any part
of the Offering Document, as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; or that the Offering Document, as of its date
or as of the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; the descriptions in the
Offering Document of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel does not know of
any legal or governmental proceedings that were required to be
described in any of the Exchange Act Reports as of their respective
dates which are not described as required or of any contracts or
documents of a character that were required to be described in any of
the Exchange Act Reports as of their respective dates or to be filed
as exhibits to the respective Exchange Act Reports as of their
respective dates which are not described or filed as required.
Such counsel may state that, as it relates to enforceability, the
opinions expressed in clause (vi) are limited by (1) bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting
creditors' rights generally and (2) equitable principles of general
applicability. Such counsel may also qualify such opinion in other
respects reasonably acceptable to the Purchasers.
15
(e) The Purchasers shall have received from Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, counsel for the Purchasers, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the Company,
the validity of the Offered Securities, the Offering Document, the
exemption from registration for the offer and sale of the Offered
Securities by the Company to the several Purchasers and the resales by the
several Purchasers as contemplated hereby and other related matters as
CSFBC may require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(f) The Purchasers shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the each of the Issuers in which such
officers, to the best of their knowledge after reasonable investigation,
shall state that the representations and warranties of such Issuer in this
Agreement are true and correct, that such Issuer has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, and that, subsequent
to the date of the most recent financial statements in the Offering
Document, there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries, taken as a whole, except as set forth in or
contemplated by the Offering Document or as described in such certificate.
(g) The Purchasers shall have received letters, dated the Closing
Date, of PricewaterhouseCoopers LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not later than the date of this Agreement
for the purposes of this subsection.
(h) The Company, the Guarantors and the Trustee shall have entered
into the Indenture and you shall have received counterparts, conformed as
executed, thereof.
(i) The Company and the Guarantors shall have entered into the
Registration Rights Agreement and you shall have received counterparts,
conformed as executed, thereof.
(j) The Offered Securities shall have been designated PORTAL
securities in accordance with the rules and regulations adopted by the NASD
relating to trading in the PORTAL market.
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder.
7. Indemnification and Contribution. (a) Each of the Issuers, jointly and
severally, will indemnify and hold harmless each Purchaser against any losses,
claims, damages or liabilities, joint or several, to which such Purchaser may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Offering Document, or any amendment or supplement thereto,
or any related preliminary offering circular, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Purchaser for any legal or other expenses reasonably
incurred by such Purchaser in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability (or actions in respect
thereof) arises out of or is based upon an untrue statement or alleged untrue
16
statement in or omission or alleged omission from any of such documents in
conformity with written information furnished to the Company by any Purchaser
through CSFBC specifically for use therein, it being understood and agreed that
the only such information consists of the information described as such in
subsection (b) below.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless each of the Issuers against any losses, claims, damages or
liabilities to which such Issuers may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Offering Document, or any amendment or supplement thereto, or any related
preliminary offering circular, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in conformity with information furnished to the Company
by such Purchaser through CSFBC specifically for use therein, and will
reimburse each Issuer for any legal or other expenses reasonably incurred
by the Issuers in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Purchaser consists of (i) the following information in the Offering
Document furnished on behalf of each Purchaser: the second to last
paragraph at the bottom of the cover page concerning the terms of the
offering by the Purchasers, and the information concerning over-allotments
and stabilizing appearing in the eighth paragraph under the caption of
"Plan of Distribution"; and
(ii) the following information in the Offering Document furnished
on behalf of the Purchasers:
The initial purchasers and their respective affiliates
provide, and have in the past provided, certain financial and
investment advisory services to us. Banks affiliated with some of
the initial purchasers are lenders under our bank credit
facilites. As a result, such banks will receive a portion of the
proceeds from the offering of the notes. See "Use of Proceeds".
Credit Suisse First Boston, an affiliate of Credit Suisse First
Boston Corporation, is a lender and the Administrative Agent
under our bank credit facilities and Xxxxxxx Xxxxx Barney Inc. or
one of its affiliates is a lender, joint lead arranger and
syndication agent under our bank credit facilities. The decision
of these initial purchasers to distribute the notes was made
independent of the lenders with which these initial purchasers
are affiliated, which lenders had no involvement in determining
whether or when to distribute the notes under this offering or
the terms of the offering. These initial purchasers, exclusive of
the proceeds they or their affiliates will receive from the
proceeds of the notes, will not receive any benefit from this
offering other than the discount to the offering price described
in this offering circular.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. In no event shall an indemnifying party
be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of
any pending or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action. An indemnifying party
shall not be liable for any settlement of any proceeding effected without
its prior written consent.
17
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Issuers on the one hand and the Purchasers on the other
from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Issuers
on the one hand and the Purchasers on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Issuers on the one hand and the
Purchasers on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received
by the Issuers bear to the total discounts and commissions received by the
Purchasers from the Issuers under this Agreement. The relative fault shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Issuers or the Purchasers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d),
no Purchaser shall be required to contribute any amount in excess of the
amount by which the total price at which the Offered Securities purchased
by it were resold exceeds the amount of any damages which such Purchaser
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The Purchasers'
obligations in this subsection (d) to contribute are several in proportion
to their respective purchase obligations and not joint. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
18
(e) The obligations of the Issuers under this Section shall be in
addition to any liability which the Issuers may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Purchaser within the meaning of the Securities Act or the
Exchange Act; and the obligations of the Purchasers under this Section
shall be in addition to any liability which the respective Purchasers may
otherwise have and shall extend, upon the same terms and conditions to each
person, if any, who controls the Issuers within the meaning of the
Securities Act or the Exchange Act.
8. Default of Purchasers. If either of the Purchasers defaults in its
obligation to purchase Offered Securities hereunder and the aggregate principal
amount of Offered Securities that such defaulting Purchaser agreed but failed to
purchase does not exceed 10% of the total principal amount of Offered
Securities, CSFBC may make arrangements satisfactory to the Company for the
purchase of such Offered Securities by other persons, including the other
Purchaser, but if no such arrangements are made by the Closing Date, the
non-defaulting Purchaser shall be obligated to purchase the Offered Securities
that such defaulting Purchaser agreed but failed to purchase. If one Purchaser
so defaults and the aggregate principal amount of Offered Securities with
respect to which such default occurs exceeds 10% of the total principal amount
of Offered Securities and arrangements satisfactory to CSFBC and the Company for
the purchase of such Offered Securities by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of the non-defaulting Purchaser or the Company, except as provided in
Section 9. As used in this Agreement, the term "Purchaser" includes any person
substituted for a Purchaser under this Section. Nothing herein will relieve the
defaulting Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
each of the Issuers or its officers and of the several Purchasers set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of any Purchaser, the Issuers or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Offered Securities by the Purchasers is not consummated, the Issuers shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 and the respective obligations of the Issuers and the Purchasers
pursuant to Section 7 shall remain in effect; if any Offered Securities have
been purchased hereunder, the Issuers shall remain responsible for the expenses
to be paid or reimbursed by them pursuant to Section 5 and the respective
obligations of the Issuers and the Purchasers pursuant to Section 7 shall remain
in effect, and the representations and warranties in Section 2 and all other
obligations under Section 5 shall also remain in effect. If the purchase of the
Offered Securities by the Purchasers is not consummated other than solely
because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (C), (D) or (E) of Section 6(b), the
Company will reimburse the Purchasers for all out-of-pocket expenses (including
fees and disbursements of counsel) reasonably incurred by them in connection
with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Purchasers will be mailed, delivered or telegraphed and confirmed to the
Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Madison Avenue,
New York, N.Y. 10010-3629, Attention: Investment Banking Department -
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at Terex Corporation, 000 Xxxx Xxxx
Xxxx, Xxxxxxxx, XX 00000, Attention: Xxxx X Xxxxx; provided, however, that any
19
notice to a Purchaser pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder, except that holders of Offered Securities shall be
entitled to enforce the agreements for their benefit contained in the second and
third sentences of Section 5(b) hereof against the Company as if such holders
were parties thereto.
12. Representation of Purchasers. You will act for the several Purchasers
in connection with the transactions contemplated by this Agreement, and any
action under this Agreement taken by the Purchasers jointly or by CSFBC will be
binding on each of the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of laws.
EACH OF THE ISSUERS HEREBY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE
FEDERAL AND STATE COURTS IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
20
If the foregoing is in accordance with the Purchasers' understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Issuers and the several
Purchasers in accordance with its terms.
Very truly yours,
TEREX CORPORATION
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Senior Vice President
KOEHRING CRANES, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
PAYHAULER CORP.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
TEREX CRANES, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
TEREX-RO CORPORATION
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
TEREX-TELELECT, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
THE AMERICAN CRANE CORPORATION
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
O&K XXXXXXXXX & XXXXXX, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
AMIDA INDUSTRIES, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
CEDARAPIDS, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
STANDARD XXXXXX, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
STANDARD XXXXXX PRODUCTS, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
BL-PEGSON (USA), INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
XXXXXXX AMERICA, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
XXXXXXX ENGINEERING, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
EARTHKING, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Secretary
FINLAY HYDRASCREEN USA, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
POWERSCREEN HOLDINGS USA, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
POWERSCREEN INTERNATIONAL LLC
By: Powerscreen North America, Inc.,
Managing Member
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
POWERSCREEN NORTH AMERICA, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
POWERSCREEN USA, LLC
By: Powerscreen Holdings USA, Inc.,
Managing Member
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
XXXXX INDUSTRIES, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
TEREX XXXXXXX, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
TEREX PAVING, INC.
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
CMI TEREX CORPORATION
By /s/ Xxxx X Xxxxx
-------------------------
Name: Xxxx X Xxxxx
Title: Vice President
The foregoing Purchase Agreement is hereby confirmed and accepted as of the date
first above written.
Credit Suisse First Boston Corporation
Xxxxxxx Xxxxx Xxxxxx Inc.
By: Credit Suisse First Boston Corporation
By /s/ Xxxxx X. Xxxxxx, Xx.
------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Managing Director
Acting on behalf of themselves
and as the Representatives of
the several Purchasers
SCHEDULE A
Principal Amount of
Initial Purchaser Offered Securities
----------------- -------------------
Credit Suisse First Boston Corporation.........................$116,000,000
Xxxxxxx Xxxxx Barney Inc.........................................60,000,000
ABN AMRO Incorporated.............................................6,000,000
Dresdner Kleinwort Xxxxxxxxxxx-Grantchester, Inc. ................6,000,000
PNC Capital Markets, Inc..........................................6,000,000
Fleet Securities, Inc.............................................6,000,000
Total...................................$200,000,000
============
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
