$300,000,000
TEREX CORPORATION
10 3/8% Senior Subordinated Notes due 2011
PURCHASE AGREEMENT
March 22, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON SMITH BARNEY 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. $300,000,000 principal amount of its 10 3/8% Senior Subordinated Notes due
2011 ("Notes") to be issued under an indenture, to be dated as of March 29, 2001
(the "Indenture"), between the Company, the guarantors named therein and United
States Trust Company of New York, as Trustee, which Notes will be
unconditionally guaranteed by Koehring Cranes, Inc., Payhauler Corp., PPM
Cranes, Inc., Terex Cranes, Inc., Terex Mining Equipment, Inc., Terex-RO
Corporation, Terex-Telelect, Inc., The American Crane Corporation , O&K
Orenstein & Koppel, Inc., Amida Industries, Inc., Cedarapids, Inc., Standard
Havens, Inc., Standard Havens Products, Inc., BL-Pegson (USA), Inc., Benford
America, Inc., Coleman Engineering, Inc., EarthKing, Inc., Finlay Hydrascreen
USA, Inc., Powerscreen Holdings USA, Inc., Powerscreen International LLC,
Powerscreen North America, Inc., Powerscreen USA, LLC, Royer Industries, Inc.
and Terex Bartell, Inc. (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 March 16, 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") 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 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 and restated as of August
23, 1999, 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; the Offered Securities have been duly authorized by each of the
Issuers by all necessary corporate action; 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, authenticated, 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 and such
Offered Securities 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
as of December 9, 1994, by and among Randolph W. Lenz, David J. Langevin,
Marvin B. Rosenberg and the Company, (b) that certain Warrant Registration
Rights Agreement, dated as of December 20, 1993, by and among the Company
and the parties signatory thereto, (c) that certain Registration Rights
Agreement, dated May 9, 1995, between the Company, Jefferies & Company,
Inc., and Dillon, Read & Co. Inc., and (d) that certain Agreement, dated as
of November 2, 1995, between the Company and Randolph W. Lenz, 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.
(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, 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) 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.
(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 the consummation of the other
Transactions; 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 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 and the consummation of the other Transactions, 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 in all material respects 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 97.25% of the principal amount thereof
plus accrued interest from March 29, 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.
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, Meagher & Flom LLP at 9:00 A.M. (New York time), on March
29, 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 Act 1986 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 Act 1986 (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 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 only (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.
(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 preliminary offering circulars and 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.
(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
disclose have occurred or may occur or which are described in
such letter; and
(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 (A) any change, or any development or event that
could reasonably be expected to result in a change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, which, in the judgment of a
majority in interest of the Purchasers including CSFBC, is material and
adverse to the Company and its subsidiaries taken as a whole and makes it
impractical or inadvisable to proceed with completion of the offering or
the sale of and payment for the Offered Securities; (B) 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 in effect on
the date of this Agreement 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); (C) any
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; (D) any banking
moratorium declared by U.S. Federal or New York authorities; or (E) any
outbreak or escalation of major hostilities in which the United States is
involved, 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 outbreak, escalation, 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 an opinion, dated such Closing
Date, of Robinson Silverman Pearce Aronsohn & Berman 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, 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 (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 Eric I Cohen, 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
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 obligation 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
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.
(e) The Purchasers shall have received from Skadden, Arps, Slate,
Meagher & Flom 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
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
current bank credit facilities and will be lenders under our
amended bank credit facilities. As a result, such banks will
receive a portion of the proceeds from the offering of the
notes. See "Use of Proceeds". In addition, Credit Suisse
First Boston, an affiliate of Credit Suisse First Boston
Corporation, is the Administrative Agent under our bank
credit facilities and Salomon Smith Barney Inc. will be the
joint lead arranger and syndication agent under our amended
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 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.
(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.
(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, 500 Post Road
East, Westport, CT 06880, Attention: Eric I. Cohen; 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
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.
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..................................
Name: Eric I Cohen
Title: Senior Vice President
KOEHRING CRANES, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
PAYHAULER CORP.
By..................................
Name: Eric I Cohen
Title: Vice President
PPM CRANES, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
TEREX CRANES, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
TEREX MINING EQUIPMENT, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
TEREX-RO CORPORATION
By..................................
Name: Eric I Cohen
Title: Vice President
TEREX-TELELECT, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
THE AMERICAN CRANE CORPORATION
By..................................
Name: Eric I Cohen
Title: Vice President
O&K ORENSTEIN & KOPPEL, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
AMIDA INDUSTRIES, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
CEDARAPIDS, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
STANDARD HAVENS, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
STANDARD HAVENS PRODUCTS, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
BL-PEGSON (USA), INC.
By..................................
Name: Eric I Cohen
Title: Vice President
BENFORD AMERICA, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
COLEMAN ENGINEERING, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
EARTHKING, INC.
By..................................
Name: Eric I Cohen
Title: Secretary
FINLAY HYDRASCREEN USA, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
POWERSCREEN HOLDINGS USA, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
POWERSCREEN INTERNATIONAL LLC
By: Powerscreen North America,
Inc., Managing Member
By..................................
Name: Eric I Cohen
Title: Vice President
POWERSCREEN NORTH AMERICA, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
POWERSCREEN USA, LLC
By: Powerscreen Holdings USA,
Inc., Managing Member
By..................................
Name: Eric I Cohen
Title: Vice President
ROYER INDUSTRIES, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
TEREX BARTELL, INC.
By..................................
Name: Eric I Cohen
Title: Vice President
The foregoing Purchase Agreement is hereby confirmed and accepted as of the date
first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
SALOMON SMITH BARNEY INC.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By.............................................
Name:
Title:
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..................... $ 132,000,000
Salomon Smith Barney Inc................................... 132,000,000
ABN AMRO Incorporated...................................... 9,000,000
Credit Lyonnais Securities (USA) Inc....................... 9,000,000
Fleet Securities, Inc...................................... 9,000,000
PNC Capital Markets, Inc................................... 9,000,000
Total............................................$ 300,000,000
================
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT