EXHIBIT 4.4
$225,000,000
RBS HOLDINGS, INC.
10 1/8% SENIOR SUBORDINATED NOTES DUE 2012
PURCHASE AGREEMENT
November 19, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
WACHOVIA SECURITIES, INC.
c/o Credit Suisse First Boston Corporation,
Eleven Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
1. INTRODUCTORY. RBS Holdings, Inc., a Delaware corporation (the
"COMPANY"), which will be renamed Rexnord Corporation immediately prior to the
closing of the Acquisition (as defined below), 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") $225,000,000 principal
amount of its 10 1/8% Senior Subordinated Notes due 2012 ("OFFERED SECURITIES")
to be issued under an Indenture to be dated as of November 25, 2002 (the
"INDENTURE"), among the Company, RBS Global, Inc. ("PARENT"), each of the
entities listed on Schedule B hereto (together with Parent, the "GUARANTORS"),
and Xxxxx Fargo Bank Minnesota, National Association, as Trustee, on a private
placement basis pursuant to an exemption under Section 4(2) of the United States
Securities Act of 1933 (the "SECURITIES ACT"). Concurrently with the purchase
and sale of the Offered Securities, RBS Acquisition Corporation, a wholly owned
subsidiary of the Company, and certain other wholly owned subsidiaries of the
Company will acquire (the "ACQUISITION") the business described in the Offering
Circular (as defined below) from Invensys plc and certain of its affiliates
pursuant to and on the terms and conditions contained in the Stock Purchase
Agreement dated as of September 27, 2002 (the "STOCK PURCHASE AGREEMENT"),
between RBS Acquisition Corporation and Invensys plc and certain of its
subsidiaries. In connection therewith, the Company hereby agrees with the
several Purchasers as follows:
The holders of the Offered Securities will be entitled to the benefits of a
Registration Rights Agreement of even date herewith among the Company, the
Guarantors (as defined in paragraph 2(f) below) and the Purchasers (the
"REGISTRATION RIGHTS AGREEMENT"), pursuant to which the Company agrees to file a
registration statement with the Securities Exchange Commission (the
"COMMISSION") registering the resale of the Offered Securities under the
Securities Act.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular relating
to the Offered Securities has been prepared by the Company. Such
preliminary offering circular (the "PRELIMINARY OFFERING CIRCULAR") and
offering circular (the "OFFERING CIRCULAR"), as supplemented as of the date
of this Agreement, 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
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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 or Deutsche Bank
Securities Inc. (the "MANAGERS") specifically for use therein; it being
understood and agreed that the only such information is that described as
such in Section 7(b) hereof.
(b) [Intentionally deleted].
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Offering Document; and 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 to be so qualified individually or in the aggregate would not have
a material adverse effect on the business, condition (financial or
otherwise), properties or results of operations of the Company and the
Subsidiaries (as defined in paragraph 2(d) below) taken as a whole (a
"MATERIAL ADVERSE EFFECT").
(d) The entities listed on Schedule C hereto will be all of the
subsidiaries of the Company upon closing of the Acquisition (the
"SUBSIDIARIES"); each Subsidiary has been duly incorporated or organized
and is an existing corporation or other applicable legal entity in good
standing (to the extent such qualification exists) under the laws of the
jurisdiction of its incorporation or organization, with corporate power and
authority to own its properties and conduct its business as described in
the Offering Document, except to the extent that any failure to be in good
standing would not individually or in the aggregate have a Material Adverse
Effect; each domestic Subsidiary is duly qualified to do business as a
foreign corporation or other applicable legal entity in good standing (to
the extent such qualification exists) 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
individually or in the aggregate would not have a Material Adverse Effect;
all of the issued and outstanding capital stock of each Subsidiary has been
duly authorized and validly issued and is fully paid and nonassessable;
and, except as disclosed in the Offering Document, the capital stock of
each Subsidiary owned by the Company (after giving effect to the
Acquisition), directly or through other Subsidiaries, will be owned free
from liens, encumbrances and defects immediately following the closing of
the Acquisition.
(e) The Indenture has been duly authorized; the Offered Securities
have been duly authorized; when the Offered Securities are delivered and
paid for pursuant to this Agreement on the Closing Date (as defined in
paragraph 3 below), the Indenture will have been duly executed and
delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the description
thereof contained in the Offering Document; and the Indenture and such
Offered Securities will constitute valid and legally binding obligations of
the Company, 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.
(f) The guaranty (the"GUARANTY") to be endorsed on the Offered
Securities by each Guarantor has been duly authorized by such Guarantor,
and, on the Closing Date,
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will have been duly executed and delivered by each such Guarantor and will
conform in all material respects to the description thereof contained in
the Offering Document; when the Offered Securities have been issued,
executed and authenticated in accordance with the Indenture and delivered
to and paid for by the Purchasers in accordance with the terms of this
Agreement, the Guaranty of each Guarantor endorsed thereon will constitute
valid and legally binding obligations of such Guarantor 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.
(g) On the Closing Date, the Exchange Securities (as defined in the
Registration Rights Agreement) will have been duly authorized by the
Company and the Guarantors; and when the Exchange Securities are issued,
executed and authenticated in accordance with the terms of the Exchange
Offer (as defined in the Registration Rights Agreement) and the Indenture,
the Exchange Securities will constitute valid and legally binding
obligations of the Company and the Guarantors, 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.
(h) The guaranty to be endorsed on the Exchange Securities by each
Guarantor has been duly authorized by such Guarantor; and, when issued,
will have been duly executed and delivered by each such Guarantor; and when
the Exchange Securities have been issued, executed and authenticated in
accordance with the terms of the Exchange Offer and the Indenture, the
guaranty of each Guarantor endorsed thereon will constitute valid and
legally binding obligations of such Guarantor, 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.
(i) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company or any
Subsidiary and any person (other than the Purchasers) that would give rise
to a valid claim against the Company, any Subsidiary or any Purchaser for a
brokerage commission, finder's fee or other like payment.
(j) 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 contemplated by this Agreement and the
Registration Rights Agreement in connection with the issuance and sale of
the Offered Securities by the Company, except for the order of the
Commission declaring the Exchange Offer Registration or the Shelf
Registration Statement (each as defined in the Registration Rights
Agreement) effective and such consents, approvals, authorizations, orders
or filings under state securities or Blue Sky laws that the failure to
obtain would not individually or in the aggregate have a Material Adverse
Effect.
(k) The execution, delivery and performance of the Indenture, the
Guaranty, this Agreement and the Registration Rights Agreement, and the
issuance and sale of the Offered Securities 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, any rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Company or
any Subsidiary or any of their properties, other than any such breach,
violation or default that would not
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individually or in the aggregate have a Material Adverse Effect, (ii) any
agreement or instrument to which the Company or any such Subsidiary is a
party or by which the Company or any such Subsidiary is bound or to which
any of the properties of the Company or any such Subsidiary is subject,
except for any breach or violation of any such agreement or instrument that
individually or in the aggregate wound not have a Material Adverse Effect,
or (iii) the charter or by-laws of the Company or any such Subsidiary; and
the Company has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement.
(l) This Agreement, the Stock Purchase Agreement and the Registration
Rights Agreement have been duly authorized, executed and delivered by the
Company and, to the extent applicable, the Guarantors.
(m) Except as disclosed in the Offering Document, the Company and the
Subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that individually or in the aggregate would have a
Material Adverse Effect 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 the Subsidiaries hold any leased real or personal property
under valid and enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by them.
(n) The Company and the Subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and 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 the Subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(o) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent that
could reasonably be expected to have a Material Adverse Effect.
(p) Except as disclosed in the Offering Document, the Company and the
Subsidiaries own, possess 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") necessary to conduct the
business now operated by them or presently employed by them, 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 the Subsidiaries, would individually or
in the aggregate have a Material Adverse Effect.
(q) Except as disclosed in the Offering Document, neither the Company
nor any of the Subsidiaries is in violation of any statute, any 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", owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and,
except as disclosed
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in the Offering Document, the Company has not been given notice of any
pending investigation which might lead to such a claim.
(r) Except as disclosed in the Offering Document, there are no pending
actions, suits or proceedings against or affecting the Company, any of the
Subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of the 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 Indenture, this Agreement or the Registration Rights Agreement;
and no such actions, suits or proceedings are threatened or, to the
Company's knowledge, contemplated.
(s) The financial statements included in the Offering Document present
fairly the financial position of the Company and the Subsidiaries, on a
combined basis, as of the dates shown and their results of operations and
cash flows for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting principles in
the United States applied on a consistent basis, except as disclosed
therein; and the assumptions used in preparing the pro forma financial
statements included in the Offering Document provide a reasonable basis for
presenting the significant effects attributable to the Acquisition.
(t) Except as disclosed in the Offering Document, since the date of
the latest audited financial statements included in the Offering Document
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the business, condition
(financial or otherwise), properties or results of operations of the
Company and the 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 or any
Subsidiary on any class of capital stock.
(u) The Company is not 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 the Company 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.
(v) No securities of 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 the
Exchange Act or quoted in a U.S. automated inter-dealer quotation system.
(w) Assuming (i) the accuracy of the representations and warranties of
the Purchasers, (ii) the Purchasers' compliance with the transfer
procedures and restrictions described in the Offering Document, (iii) the
accuracy of the representations and warranties made in accordance with the
terms of this Agreement and the Offering Document by purchasers to whom the
Purchasers initially resell Offered Securities and (iv) that purchasers to
whom Purchasers initially resell Offered Securities receive a copy of the
Offering Circular prior to, or simultaneously with, confirmation of sale,
the offer and sale of the Offered Securities by the Company to the several
Purchasers 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 and it is not necessary
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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"); PROVIDED that on the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act and the
rules and regulations of the Commission applicable to an indenture that is
qualified thereunder.
(x) 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 securities sold in reliance
on Rule 903 of Regulation S, by means of any directed selling efforts
within the meaning of Rule 902 (c) of Regulation S. 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 or
with prior written consent of the Purchasers.
(y) Neither the Company or any Subsidiary 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 Offered
Securities to violate Regulation T, Regulation U or Regulation X of the
Board of Governors of the Federal Reserve System.
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 97.25% of the principal amount thereof
plus accrued interest from November 25, 2002, to the Closing Date (as
hereinafter defined) the respective principal amounts of Offered Securities set
forth opposite the names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the Offered
Securities to be offered and sold by the Purchasers in reliance on Regulation S
(the "REGULATION S SECURITIES") in the form of one or more temporary global
Securities in registered form without interest coupons (the "TEMPORARY
REGULATION S GLOBAL SECURITIES") which will be deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") for the respective accounts
of the DTC participants for Euroclear Bank S.A./N.V., as operator of the
Euroclear System ("EUROCLEAR"), and Clearstream Banking, societe anonyme
("CLEARSTREAM, LUXEMBOURG") and registered in the name of Cede & Co., as nominee
for DTC. The Company will deliver against payment of the purchase price the
Offered Securities to be purchased by each Purchaser hereunder and to be offered
and sold by each Purchaser in reliance on Rule 144A under the Securities Act
(the "144A SECURITIES") in the form of one or more permanent global security in
definitive form without interest coupons (the "RESTRICTED GLOBAL SECURITIES")
deposited with the Trustee as custodian for DTC and registered in the name of
Cede & Co., as nominee for DTC. The Temporary Regulation S Global Securities and
the Restricted Global Securities shall be assigned separate CUSIP numbers. The
Restricted Global Securities shall include the legend regarding restrictions on
transfer set forth under "Transfer Restrictions" in the Offering Document. Until
the termination of the distribution compliance period (as described in the
Offering Document) with respect to the offering of the Offered Securities,
interests in the Temporary Regulation S Global Securities may only be held by
the DTC participants for Euroclear and Clearstream, Luxembourg. Interests in any
permanent global Securities will be held only in book-entry form through
Xxxxxxxxx,
0
Xxxxxxxxxxx, Xxxxxxxxxx or DTC, as the case may be, except in the limited
circumstances described in the Offering Document.
Payment for the Temporary Regulation S Securities and the 144A Securities
shall be made by the Purchasers in Federal (same day) funds by wire transfer to
an account of the Company or an account as the Company may direct at a bank
acceptable to the Managers, at the office of Weil, Gotshal & Xxxxxx LLP at 9:00
a.m. (New York time) on November 25, 2002, or at such other time not later than
seven full business days thereafter as the Managers and the Company determine,
such time being herein referred to as the "CLOSING DATE", against delivery to
the Trustee as custodian for DTC of (i) the Temporary Regulation S Global
Securities representing all of the Regulation S Securities for the respective
accounts of the DTC participants for Euroclear and Clearstream, Luxembourg and
(ii) the Restricted Global Securities representing all of the 144A Securities.
4. REPRESENTATIONS BY PURCHASERS; RESALE BY PURCHASERS.
(a) Each Purchaser severally represents and warrants to the Company that it
is an "accredited investor" within the meaning of Regulation D under the
Securities Act.
(b) Each Purchaser severally acknowledges that the Offered Securities have
not been registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act. Each Purchaser severally
represents and agrees that it has offered and sold the Offered Securities and
will offer and sell the Offered Securities (i) as part of their distribution at
any time and (ii) otherwise until the later of the commencement of the offering
and the Closing Date, only in accordance with Rule 144A ("RULE 144A") or Rule
903 under the Securities Act. Accordingly, neither such Purchaser nor its
affiliates, nor any persons acting on its or their behalf, have engaged or will
engage in any directed selling efforts with respect to the Offered Securities,
and such Purchaser, its affiliates and all persons acting on its or their behalf
have complied and will comply with the offering restrictions requirement of
Regulation S. Each Purchaser severally agrees that, at or prior to confirmation
of sale of the Offered Securities, other than a sale pursuant to Rule 144A, such
Purchaser will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases the Offered
Securities from it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered
or sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the date of the
commencement of the offering and the closing date, except in either
case in accordance with Regulation S (or Rule 144A if available) under
the Securities Act. Terms used above have the meanings given to them
by Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) 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 Purchasers or affiliates of the other Purchasers or with the prior
written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its affiliates will
not offer or sell the
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Offered Securities 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.
(e) 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.
5. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the several
Purchasers that:
(a) The Company will advise the Managers promptly of any proposal to
amend or supplement the Offering Document and will not effect such
amendment or supplementation without the Managers' consent. 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 in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any such time to amend
or supplement the Offering Document to comply with any applicable law, the
Company promptly will notify the Managers 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 the Managers'
consent to, nor the Purchasers' delivery to offerees or investors 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 the Managers copies of any Preliminary
Offering Circular, the Offering Document and all amendments and supplements
to such documents, in each case as soon as available and in each case as
soon as available and in such quantities as the Managers reasonably
request. 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 the Managers and, upon request, to each of the other
Purchasers 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
9
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.
(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 states in the United States as the
Managers designate and will continue such qualifications in effect so long
as required for the resale of the Offered Securities by the Purchasers;
PROVIDED that (i) the Company shall in no event be required to continue in
effect any such qualification for a period of more than 180 days after the
Closing Date, (ii) the Company will not be required to qualify as a foreign
corporation or to file a general consent to service of process in any such
state and (iii) the Company will not be required to subject itself to
taxation (other than any nominal amount) in any such jurisdiction if not
otherwise so subject.
(d) During the period ending on the first date after the Closing Date
on which there are no Offered Securities outstanding, the Company will
furnish to the Purchasers as soon as practicable after the end of each
fiscal year a copy of its annual report to shareholders for such year.
(e) During the period of two years after the Closing Date, the Company
will, upon request, furnish to the Managers, each of the other Purchasers
and any holder of Offered Securities a copy of the restrictions on transfer
applicable to the 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, which
constitute "restricted securities" under Rule 144, that have been
reacquired by any of them.
(g) During the period of two years after the Closing Date, the Company
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, the Indenture and the Registration
Rights Agreement, including (i) the fees and expenses of the Trustee and
its professional advisers; (ii) all expenses in connection with the
execution, issue, authentication, packaging and initial delivery of the
Offered Securities and, as applicable, the Exchange Securities, the
Offering Document and amendments and supplements thereto; (iii) the cost of
qualifying the Offered Securities for trading in The Portal(SM) Market
("PORTAL") of The Nasdaq Stock Market, Inc. and any reasonable expenses
incidental thereto, (iv) the cost of any advertising approved by the
Company in connection with the issue of the Offered Securities, (v) for any
expenses (including reasonable fees and disbursements of counsel) incurred
in connection with qualification of the Offered Securities or the Exchange
Securities for sale under the laws of such jurisdictions as the Managers
reasonably designate, (vi) for any fees charged by investment rating
agencies for the rating of the Securities or the Exchange Securities and
(vii) for expenses incurred in distributing preliminary offering circulars
and the Offering Document (including any amendments and supplements
thereto) to the Purchasers. All travel expenses of the Purchasers and the
officers and employees of the Company or the Subsidiaries and any other
expenses of the Purchasers, the Company or the Subsidiaries in connection
with attending or hosting meetings with prospective purchasers of the
Offered Securities will be shared between the Company and the Purchasers,
with 60% of such expenses being borne by the Company
10
and 40% being borne, on a pro rata basis, by the Purchasers.
(i) In connection with the offering, until the Managers shall have
notified the Company and the other Purchasers of the completion of the
resale 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.
(j) For a period of 180 days after the date of the initial offering of
the Offered Securities by the Purchasers, the Company will not offer, sell,
contract to sell, pledge, or otherwise dispose of, directly or indirectly,
any United States dollar-denominated debt securities issued or guaranteed
by the Company and having a maturity of more than one year from the date of
issue without the prior written consent of Credit Suisse First Boston
Corporation. The Company will not 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 to cease to be applicable to the offer and sale of the
Securities.
6. CONDITIONS OF THE OBLIGATIONS OF THE PURCHASERS. The obligations of the
several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of
this Agreement, of Ernst & Young LLP in form and substance reasonably
satisfactory to the Purchasers concerning the financial and other
information with respect to the Company set forth 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 business, condition (financial or
otherwise), properties or results of operations of the Company and the
Subsidiaries taken as a whole which, in the reasonable judgment of a
majority-in-interest of the Purchasers, including the Managers, is material
and adverse and makes it impractical or inadvisable to proceed with
completion of the offering or the sale of and payment for 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 Securities 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) or any announcement
that the Company has been placed on negative outlook; (iii) any change in
U.S. or international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the reasonable
judgment of a majority-in-interest of the Purchasers, including the
Managers, be likely to prejudice materially the success of the proposed
issue, sale or distribution of the Offered Securities, whether in the
primary market or in respect of dealings in the secondary market; (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
11
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 hostilities or act of
terrorism involving the United States, any declaration of war by Congress
or any other national or international calamity or emergency if, in the
reasonable judgment of a majority-in-interest of the Purchasers, including
the Managers, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the offering or sale of and payment for the
Offered Securities.
(c) The Purchasers shall have received (i) an opinion, dated the
Closing Date, of Xxxxxx & Xxxxxxx, counsel for the Company, substantially
in the form attached hereto as Exhibit A and (ii) in such jurisdictions as
may be reasonably requested by the Managers, opinions, dated the Closing
Date, of local counsel to the Company in such jurisdictions substantially
in the form attached hereto as Exhibit B.
(d) The Purchasers shall have received from Cravath, Swaine & Xxxxx,
counsel for the Purchasers, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company, the validity of the
Offered Securities, the Offering Circular, 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 the Managers may require,
and the Company shall have furnished to such counsel such documents as they
reasonably request for the purpose of enabling them to pass upon such
matters.
(e) 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 Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that the representations and warranties of the Company in this Agreement
are true and correct, that the Company has complied in all material
respects with all agreements and satisfied in all material respects 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 business, condition (financial or
otherwise), properties or results of operations of the Company and the
Subsidiaries taken as a whole, except as set forth in or contemplated by
the Offering Document or as described in such certificate.
(f) The Purchasers shall have received a letter, dated the Closing
Date, of Ernst & Young 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 more than three days prior to the Closing
Date for the purposes of this subsection.
(g) The Acquisition shall have occurred or shall occur substantially
simultaneously with the closing of the purchase and sale of the Offered
Securities.
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. The Managers may in their sole discretion waive on behalf of the
Purchasers compliance with any conditions to the obligations of the Purchasers
hereunder, whether in respect of an Optional Closing Date or otherwise.
12
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Purchaser, its partners, directors and officers and each
person, if any, who controls such Purchaser within the meaning of Section 15 of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such Purchaser may become subject, under the Securities Act or
the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
breach of any of the representations and warranties of the Company contained
herein or 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 necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, including any losses, claims, damages or liabilities
arising out of or based upon the Company's failure to perform its obligations
under Section 5(a) of this Agreement, 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 (i) the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Purchaser through the Managers 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 and (ii) with respect to
any untrue statement or alleged untrue statement in, or omission or alleged
omission from, any preliminary offering circular, the foregoing indemnity
agreement with respect to such preliminary offering circular shall not inure to
the benefit of a Purchaser (or its partners, directors, officers or controlling
persons) from whom the person asserting any such losses, claims, damages or
liabilities purchased Offered Securities in the initial resale of the Offered
Securities if a court of competent jurisdiction finds, pursuant to a final,
nonappealable order or judgment, that (A) other than as a result of
noncompliance by the Company with Section 5(b) hereof, a copy of the Offering
Circular was not sent or given by or on behalf of such Purchaser to such person
at or prior to the written confirmation of the sale of the Offered Securities to
such person and (B) the Offering Circular would have cured the defect giving
rise to such losses, claims, damages or liabilities.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or the Exchange 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 the alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Purchaser specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; PROVIDED, HOWEVER, that the Purchasers shall not be liable for any
losses, claims, damages or liabilities arising out of or based upon the
Company's failure to perform its obligations under Section 5(a) of this
Agreement. The parties agree that the only such information furnished by any
Purchaser consists of the following information in the Offering Document
furnished on behalf of each Purchaser; the first and last paragraphs under the
caption "Plan of Distribution".
13
(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. 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 (i) an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault or failure to act by or on behalf of any indemnified party.
(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 Company 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 Company 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 Company 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 Company bear to the total discounts and commissions received by the
Purchasers from the Company 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 Company 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 discounts and commissions
received by such Purchaser exceed 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.
(e) The obligations of the Company under this Section shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions,
14
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 Company within the meaning
of the Securities Act or the Exchange Act.
8. DEFAULT OF PURCHASERS. If any Purchaser or Purchasers default in their
obligations to purchase Securities hereunder and the aggregate principal amount
of the Offered Securities that such defaulting Purchaser or Purchasers agreed
but failed to purchase does not exceed 10% of the total principal amount of the
Offered Securities, the Managers may make arrangements satisfactory to the
Company for the purchase of such Offered Securities by other persons, including
any of the Purchasers, but if no such arrangements are made by the Closing Date,
the non-defaulting Purchasers shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Securities that such
defaulting Purchasers agreed but failed to purchase. If any Purchaser or
Purchasers so default and the aggregate principal amount of the Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of the Offered Securities and arrangements
satisfactory to the Managers 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 any
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 a defaulting
Purchaser from liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Company 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 Company 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 Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Purchasers pursuant to Section 7 shall remain
in effect. If the purchase of the Offered Securities by the Purchasers is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv), (v), (vi) or (vii) 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 Xxxxxxx Xxxxxx,
Xxx Xxxx, XX, 00000-0000, Attention: Transactions Advisory Group, or, if sent to
the Company, will be mailed, delivered or telegraphed and confirmed to it at
0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate
Secretary, with a copy to Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000-0000, Attention: Xxxx Xxxxx, Esq.; PROVIDED, HOWEVER, that any 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
15
third sentences of Section 5(b) hereof against the Company as if such holders
were parties hereto.
12. REPRESENTATION OF PURCHASERS. The Managers will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by the Managers will be binding upon all 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.
The Company and Purchasers hereby submit 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.
16
If the foregoing is in accordance with the Purchasers' understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
RBS HOLDINGS, INC.
By /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
The foregoing Purchase Agreement is hereby confirmed and accepted as of the date
first above written.
CREDIT SUISSE FIRST
BOSTON CORPORATION
By /s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
DEUTSCHE BANK SECURITIES INC.
By /s/ Xxxxxxx X. Xxxxxx, Xx.
------------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: MD Managing Director
By /s/ Xxxx Xxxxxx
-------------------------------------------
Name: Xxxx Xxxxxx
Title: MD Managing Director
WACHOVIA SECURITIES, INC.
By /s/ Xxxxx X. Xxxxxx III
----------------------------------------
Name: Xxxxx X. Xxxxxx III
Title: Vice President
SCHEDULE A
PRINCIPAL AMOUNT OF
PURCHASER OFFERED SECURITIES
--------- -------------------
Credit Suisse First Boston Corporation ....................... $ 103,500,000
Deutsche Bank Securities Inc. ................................ $ 103,500,000
Wachovia Securities, Inc. .................................... $ 18,000,000
------------------------------------------------------------------------------
Total $ 225,000,000
SCHEDULE B
SUBSIDIARY GUARANTORS
NAME JURISDICTION
---- ------------
1. PT Components Inc. Delaware
2. RAC-I, Inc. Delaware
3. RBS Acquisition Corporation Delaware
4. RBS China Holdings, L.L.C. Delaware
5. RBS North America, Inc. Delaware
6. Rexnord North America Holdings, Inc. Delaware
7. Rexnord Germany-1 Inc. Delaware
8. Rexnord International Inc. Delaware
9. Xxxxxxx Xxxx Licensco Inc. Delaware
10. X.X. Xxxx Inc. Delaware
11. Prager Incorporated Louisiana
12. Addax Inc. Nebraska
13. Clarkson Industries Inc. New York
14. Rexnord Ltd. Nevada
15. Rexnord Puerto Rico Inc. Nevada
16. Betzdorf Chain Co. Inc. Wisconsin
SCHEDULE C
SUBSIDIARIES
NAME JURISDICTION
---- ------------
1. PT Components Inc. Delaware
2 RAC-I, Inc. Delaware
3. RBS Acquisition Corporation Delaware
4. RBS China Holdings, L.L.C. Delaware
5. RBS North America, Inc. Delaware
6. Rexnord North America Holdings, Inc. Delaware
7. Rexnord Germany-1 Inc. Delaware
8. Rexnord International Inc. Delaware
9. Xxxxxxx Xxxx Licensco Inc. Delaware
10. X.X. Xxxx Inc. Delaware
11. Prager Incorporated Louisiana
12. Addax Inc. Nebraska
13. Clarkson Industries Inc. New York
14. Rexnord Ltd. Nevada
15. Rexnord Puerto Rico Inc. Nevada
16. Betzdorf Chain Co. Inc. Wisconsin
17. Rexnord Australia Pty Ltd. Australia
18. Rexnord NV Belgium
19. Rexnord Correntes Ltda. Brazil
20. Rexnord do Brasil Industrial Ltda Brazil
21. Rexnord Canada Limited Canada
22. Changzhou Xxxxxx Jianglang Transmissions Co. Ltd. China
23. Rexnord Conveyor Products (WuXi) Co. Limited China
24. Xxxxxxx Drives Ltd. England and Wales
25. Xxxxx Xxxxxx France Sales S.A.R.L. France
26. Xxxxx Xxxxxx SA France
27. Rexnord France S.A.R.L. France-RCS Creteil
28. Rexnord GmbH Germany
29. Rexnord Kette GmbH Germany
30. Rexnord M.C.C. Deutschland Kette GmbH Germany
31. Rexnord Xxxxxxx GmbH & Co. KG Germany
32. Xxxxxxx GmbH Germany
33. Marbett 2 S.r.l. Italy
34. Rexnord Marbett SpA Italy
35. Rexnord Industrial SA de CV Mexico
36. Rexnord SA de CV Mexico
37. M.C.C. Holding B.V. The Netherlands
38. M.C.C. Nederland B.V. The Netherlands
39. Precision Moulding Components Nederland B.V. The Netherlands
40. Rexnord B.V. The Netherlands
41. Rexnord A/S Norway
42. Rexnord AB Sweden
43. Xxxxx Xxxxxx International (Switzerland) AG Switzerland
EXHIBIT A
FORM OF OPINION OF XXXXXX & XXXXXXX
1. Each of the Company and the Guarantors incorporated in Delaware
or
New York (the "Covered Guarantors") is a corporation validly existing and in
good standing under the laws of its jurisdiction of incorporation, with the
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Offering Circular. Based solely on
certificates from public officials, we confirm that each of the Company and the
Guarantors is qualified to do business in the jurisdiction of its incorporation
as set forth on Schedule B to the Agreement.
2. The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
3. The Indenture has been duly authorized, executed and delivered by
the Company and each of the Covered Guarantors and is the legally valid and
binding agreement of the Company and each of the Covered Guarantors, enforceable
against the Company and each of the Covered Guarantors 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.
4. The Offered Securities have been duly authorized by the Company,
and when executed, issued and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by you in accordance with the terms of
the Purchase Agreement, the Offered Securities will be legally valid and binding
obligations of the Company, enforceable against the Company 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.
5. The Guarantees to be endorsed on the Offered Securities have been
duly authorized by each of the Covered Guarantors and, when duly endorsed on the
Offered Securities in accordance with the terms of the Indenture will, upon the
due execution, authentication and issuance of the Offered Securities by the
Company against payment therefor in accordance with the Indenture and the
Purchase Agreement, be legally valid and binding obligations of each of the
Covered Guarantors, enforceable against each of the Covered Guarantors 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.
6. The Registration Rights Agreement has been duly authorized,
executed and delivered by the Company and each of the Covered Guarantors and is
the legally valid and binding agreement of the Company and each of the Covered
Guarantors, enforceable against the Company and each of the Covered Guarantors
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.
7. The
Stock Purchase Agreement has been duly authorized, executed
and delivered by RBS Acquisition Corporation and is the legally valid and
binding obligation of such company, enforceable against it in accordance with
its terms, subject to bankruptcy, insolvency,
2
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
8. No registration of the Offered Securities or the Guarantees under
the Securities Act, and no qualification of the Indenture under the Trust
Indenture Act of 1939, is required for the purchase of the Offered Securities by
you or the initial resale of the Offered Securities by you, in each case, in the
manner contemplated by the Purchase Agreement and the Offering Circular. We
express no opinion, however, as to when or under what circumstances any Offered
Securities initially sold by you may be reoffered or resold.
9. No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required for the issuance and
sale of the Offered Securities or Guarantees and the use of the proceeds
therefrom as described in the Offering Circular by the General Corporation Law
of the State of Delaware, any federal or
New York statute, rule or regulation,
except (w) such as may be required under state securities laws, "Blue Sky" laws
or related regulations, (x) those that have been obtained or made and are in
full force and effect, (y) those that would not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect and (z)
the order of the Commission declaring the Exchange Offer Registration Statement
or the Shelf Registration Statement effective.
10. The Indenture meets the requirements for qualification under the
Trust Indenture Act of 1939 and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder.
11. The execution and delivery by the Company and the Guarantors of
the Indenture, the Purchase Agreement, the Registration Rights Agreement and the
issuance and sale of the Offered Securities and Guarantees on the date hereof
will not (w) result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any of the agreements (as set forth on
SCHEDULE 1 hereto) which have been identified to us by the Company as being all
of the agreements to which the Company or any of its subsidiaries is a party, or
to which any of their respective businesses or assets is subject, that are
material to the financial condition or results of operations of the Company and
its subsidiaries taken as a whole (the "Material Agreements"), (x) result in a
violation by the Company or any of the Guarantors of their respective
Certificates of Incorporation or Bylaws, (y) violate any Federal or
New York
statute, rule or regulation applicable to the Company or any of the Guarantors
(other than antitrust laws, state securities laws, "Blue Sky" laws and related
regulations and, except to the extent covered by the following paragraph, any
antifraud laws), except as in the case of clauses (w) and (y), for such breaches
and violations as would not, individually or in the aggregate, be reasonably
expected to result in a Material Adverse Effect or (z) require any consents,
approvals, authorizations or orders of, or filings with, any Federal or New York
court or governmental agency or body, having jurisdiction over the Company or
any Guarantor or any of their properties, except as may be required under state
securities laws, "Blue Sky" laws and related regulations in connection with the
sale of the Offered Securities and Guarantees and except for such consents,
approvals, authorizations or orders the failure to obtain which would not,
individually or in the aggregate, be reasonably expected to result in a Material
Adverse Effect.
12. The Company is not, and after giving effect to the offering and
the application of the proceeds therefrom as described in the Final Offering
Memorandum, will not be required to be registered as an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
3
13. The descriptions in the Offering Document contained under the
headings, "The Acquisition" and "The Credit Facilities," insofar as such
statements constitute a summary of legal matters, documents or proceedings
referred to therein, are accurate in all material respects.
In addition, we have participated in conferences with officers and
other representatives of the Company, representatives of the independent public
accountants for the Company and your representatives, at which the contents of
the Offering Circular and related matters were discussed. Although we are not
passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in or omitted from the
Offering Circular, and have not made any independent check or verification
thereof, we advise you that, during the course of such participation, no facts
came to our attention that caused us to believe that the Offering Circular, as
of its date, contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; it being
understood that we express no belief with respect to the financial statements,
schedules, or other financial data included in, or omitted from, the Offering
Circular.
EXHIBIT B
FORM OF LOCAL COUNSEL OPINION
[Letterhead of Local Counsel]
November 25, 2002
Credit Suisse First Boston Corporation,
as Representative of the Purchasers,
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
The Purchasers party to the Purchase Agreement referred to below
Ladies and Gentlemen:
We have acted as special counsel in the State of [ ] (the "STATE") to
Rexnord Corporation, formerly known as RBS Holdings, Inc., a Delaware
corporation (the "ISSUER"), and each of the subsidiaries of the Issuer listed on
Schedule I hereto (the "COVERED GUARANTORS") that have guaranteed the
obligations of the Issuer under the Indenture (as defined below). This opinion
is delivered pursuant to Section 6(c)(ii) of the Purchase Agreement. Each
capitalized term used but not defined herein shall have the meaning assigned to
such term in the Credit Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the following
documents, including all exhibits and schedules thereto:
(i) the Purchase Agreement dated as of November 19, 2002 (the
"Purchase Agreement"), among Credit Suisse First Boston
Corporation, Deutsche Bank Securities Inc., Wachovia
Securities, Inc. collectively, the "Purchasers") and the
Issuer;
(ii) the Indenture dated as of November 25, 2002 (the "Indenture"),
among Xxxxx Fargo Bank Minnesota, National Association, the
Issuer and the guarantors party thereto, including the Covered
Guarantors, and the securities issued thereunder on the date
hereof (the "Offered Securities"); and
(iii) the Registration Rights Agreement dated as of November 25,
2002 (the "Registration Rights Agreement"), among Credit
Suisse First Boston Corporation, as representative of the
Purchasers, the Issuer and the guarantors party thereto,
including the Covered Guarantors.
2
The documents described in (i) through (iv) above are collectively
referred to herein as the "DOCUMENTS". In addition, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of such
records, agreements, instruments and other documents, and have made such other
investigations, as we have deemed necessary for the purpose of this opinion. In
rendering this opinion to you, we have assumed that there has occurred due
execution and delivery of the Documents by each party thereto other than the
Covered Guarantors.
Subject to the assumptions set forth herein, we are of the opinion
that:
(i) Each Covered Guarantor has been duly incorporated and is an
existing corporation in good standing under the laws of the State, with
corporate power and authority to own its properties.
(ii) The Indenture (including the guaranty of the Covered
Guarantors contained therein) and the Registration Rights Agreement have
been duly authorized, executed and delivered by each Covered Guarantor, and
the Indenture (including the guaranty of the Covered Guarantors contained
therein) and the Registration Rights Agreement constitute valid and legally
binding obligations of the Covered Guarantors enforceable 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.
(iii) The execution, delivery and performance of the Indenture and
the Registration Rights Agreement and the issuance and sale of the Offered
Securities 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, (A) any statute, any rule, regulation or order
of any governmental agency or body or any court in the State having
jurisdiction over any Covered Guarantor or any of their properties or (B)
the charter or by-laws of any Covered Guarantor.
We are admitted to practice in the State. We express no opinion as to
matters under or involving the laws of any jurisdiction other than laws of the
United States and the State and its political subdivisions.
This opinion may only be relied upon by each of you.
Very truly yours,
