EXHIBIT 1
EXECUTION COPY
$125,000,000
JLG INDUSTRIES, INC.
8 1/4% SENIOR NOTES DUE 2008
PURCHASE AGREEMENT
April 30, 2003
CREDIT SUISSE FIRST BOSTON LLC
DEUTSCHE BANK SECURITIES INC.
BANC ONE CAPITAL MARKETS, INC.
BMO NESBITT BURNS CORP.
CREDIT LYONNAIS SECURITIES (USA) INC.
NATCITY INVESTMENTS, INC.
SUNTRUST CAPITAL MARKETS, INC.
c/o Credit Suisse First Boston LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. JLG Industries, Inc., a Pennsylvania 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
initial "PURCHASERS") $125,000,000 principal amount of its 8 1/4% Senior Notes
due 2008 ("OFFERED SECURITIES") to be issued under an indenture dated as of May
5, 2003 (the "INDENTURE"), between the Company, the guarantors listed on
Schedule B hereto (the "GUARANTORS") and Bank of New York, as trustee (the
"TRUSTEE"). The Offered Securities will be unconditionally guaranteed (the
"GUARANTEES") on a senior unsecured basis by the Guarantors. The United States
Securities Act of 1933 is herein referred to as the "SECURITIES ACT."
The Company and the other parties thereto have entered into Amendment
No. 3 (the "FACILITIES AMENDMENT") to the terms of the credit agreement dated as
of June 17, 2002 (as amended and restated, the "CREDIT AGREEMENT") among the
Company, the subsidiaries listed on Schedule 1 therein, the lenders party
thereto, Wachovia Bank, National Association and Bank One, Michigan. The Company
and the other parties thereto have entered into Amendment No. 3 (the "OVERDRAFT
AMENDMENT" and together with the Facilities Amendment, the "AMENDMENTS") to the
terms of the credit agreement dated as of June 17, 2002 among the Company, the
borrowers party thereto and Manufacturers and Traders Trust Company. The
Amendments shall become effective concurrently with the consummation of the
issue and sale of the Offered Securities as set forth herein. The Amendments
will be in the form attached hereto as Exhibit A.
The Company will use the proceeds of the Offered Securities on the
Closing Date to repay all amounts outstanding under its revolving credit loans
under the Credit
Agreement, as provided in the Final Offering Circular (as hereinafter defined).
The Aggregate Commitment (as defined in the Facilities Amendment) under the
Credit Agreement will be reduced by $150 million.
The obligation of the Company to sell to the several Purchasers the
Offered Securities is subject to the effectiveness of the Amendments.
This Agreement, the Registration Rights Agreement (as hereinafter
defined), the Indenture and the Guaranties are referred to herein as the
"OPERATIVE DOCUMENTS".
Holders (including subsequent transferees) of the Offered Securities
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), as provided in the Final Offering Circular (as hereinafter
defined), for so long as such Offered Securities constitute "TRANSFER RESTRICTED
SECURITIES" (as defined in the Registration Rights Agreement). Pursuant to the
Registration Rights Agreement, the Company and the Guarantors will agree to file
with the Securities and Exchange Commission (the "COMMISSION") under the
circumstances set forth therein, (i) a registration statement under the
Securities Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating to the
Company's 8 1/4% Senior Notes in a like aggregate principal amount as the
Company issued under the Indenture, identical in all material respects to the
Offered Securities and registered under the Securities Act (the "EXCHANGE
SECURITIES"), to be offered in exchange for the Offered Securities (such offer
to exchange being referred to as the "EXCHANGE OFFER") and the Guaranties
thereof and (ii) in specified circumstances, a shelf registration statement
pursuant to Rule 415 under the Securities Act (the "SHELF REGISTRATION
STATEMENT" and, together with the Exchange Offer Registration Statement, the
"REGISTRATION STATEMENTS") relating to the resale by certain holders of the
Offered Securities and to use its commercially reasonable efforts to cause such
Registration Statements to be declared and remain effective and usable for the
periods specified in the Registration Rights Agreement and to consummate the
Exchange Offer. The Offered Securities and the Exchange Securities are referred
to collectively as the "SECURITIES".
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company and the Guarantors.
The Company and the Guarantors jointly and severally represent and warrant to,
and agree with, the several Purchasers (provided that the following
representations and warranties shall only be given by each Guarantor to the
extent applicable to such Guarantor) that:
(a) A preliminary offering circular relating to the Offered
Securities, dated April 29, 2003 (including any documents incorporated
by reference therein, the "PRELIMINARY OFFERING CIRCULAR"), has been
prepared by the Company. The Preliminary Offering Circular, at the date
thereof, did not contain 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. A final offering circular relating to the Offered
Securities, dated April 30, 2003 (including any documents incorporated
by reference therein, the "FINAL OFFERING CIRCULAR"), has been prepared
by the Company. The Final
2
Offering Circular, at the date hereof, does not and at the Closing Date
(as defined in Section 3 hereof) will not (and any amendment or
supplement thereto, at the date thereof and at the Closing Date, will
not), contain 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; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Preliminary Offering
Circular or the Final Offering Circular (or any amendment or supplement
thereto) based upon and in conformity with information furnished in
writing to the Company by or on behalf of any Purchaser through Credit
Suisse First Boston LLC specifically for inclusion therein, it being
understood and agreed that the only such information is that described
as such in Section 7(b). The Preliminary Offering Circular and the
Final Offering Circular, as supplemented on the date of this Agreement,
are hereinafter collectively referred to as the "OFFERING DOCUMENT".
Except as disclosed in the Offering Document, on the date of this
Agreement, the Company's Annual Report on Form 10-K most recently filed
with the Commission and all subsequent reports (collectively, the
"EXCHANGE ACT REPORTS") which have been filed by the Company with the
Commission or sent to shareholders pursuant to the Securities Exchange
Act of 1934 (the "EXCHANGE ACT") do not include any 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. 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 Company and its direct and indirect
subsidiaries has been duly organized and each is validly existing under
the laws of the jurisdiction in which it is chartered or organized.
Each of the Company and its direct and indirect subsidiaries organized
in the United States is in good standing under the laws of the
jurisdiction in which it is chartered or organized and is duly
qualified to do business as a foreign corporation under the laws of
each jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business, except in
such jurisdictions in which the failure to so qualify, in the
aggregate, would not have a Material Adverse Effect. "MATERIAL ADVERSE
EFFECT" shall mean a material adverse change in or effect on the
business, financial condition, material properties, results or
prospects, whether or not in the ordinary course of business, of the
Company and its direct and indirect subsidiaries, considered as one
enterprise.
(c) Each of the Company and its direct and indirect
subsidiaries has full power (corporate and other) to own or lease their
respective properties and conduct their respective businesses as
described in the Final Offering Circular; and each of the Company and
the Guarantors has full power (corporate and other) to enter into the
Operative Documents and to carry out all the terms and provisions
hereof and thereof to be carried out by it.
3
(d) The entities listed on Schedule C hereto are the only
active subsidiaries of the Company.
(e) The Company has an authorized, issued and outstanding
capitalization as set forth in the Final Offering Circular. All of the
issued shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and nonassessable.
(f) The issued shares of capital stock of each of the
Company's direct and indirect subsidiaries have been duly authorized
and validly issued, are fully paid and nonassessable and, except as
otherwise set forth in the Final Offering Circular, are (i) owned of
record and beneficially by the Company, either directly or through
wholly-owned subsidiaries, and (ii) except for security interests on
the common stock of each of JLG Manufacturing Europe BVBA and JLG
Europe BV granted pursuant to the Credit Agreement, are free and clear
of any pledge, lien, encumbrance, security interest, restriction on
voting or transfer, preemptive rights or other defect in title or any
claim of any third party.
(g) Except for restrictions with respect to the common stock
of each of JLG Manufacturing Europe BVBA and JLG Europe BV imposed
under the Credit Agreement, no direct or indirect subsidiary of the
Company is prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such
subsidiary's capital stock, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring any
of such subsidiary's property or assets to the Company or any other
direct or indirect subsidiary of the Company, except as provided by
applicable laws or regulations, by the Indenture, or as described in or
contemplated by the Final Offering Circular.
(h) Except for employee and director stock options or
otherwise as described in the Final Offering Circular, there are no
outstanding (i) securities or obligations of the Company convertible
into or exchangeable for any capital stock of the Company, (ii)
warrants, rights or options to subscribe for or purchase from the
Company any such capital stock or any such convertible or exchangeable
securities or obligations or (iii) obligations of the Company to issue
such shares, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options.
(i) Ernst & Young LLP, who has certified certain financial
statements of the Company and delivered its reports with respect to the
audited consolidated financial statements and schedules in the Final
Offering Circular, is and was, to the Company's knowledge, an
independent public accountant with respect to the Company within the
meaning of the Securities Act and the applicable rules and regulations
thereunder.
(j) The consolidated financial statements (including the notes
thereto) and schedules of the Company and its consolidated subsidiaries
included in the Final Offering Circular fairly present in all material
respects the financial position of
4
the Company and its consolidated subsidiaries and the results of
operations and cash flows as of the dates and for the periods specified
therein; since the date of the latest audited financial statements
included in the Final Offering Circular, there has been no change nor
any development or event involving a prospective change which has had
or could reasonably be expected to have a Material Adverse Effect; such
financial statements and schedules have been prepared in accordance
with generally accepted accounting principles in the United States
consistently applied throughout the periods involved (except as
otherwise expressly noted in the notes thereto or elsewhere in the
Final Offering Circular); and the summary or selected financial
information included in the Final Offering Circular has been fairly
extracted from the financial statements of the Company and fairly
presents in all material respects, on the basis stated in the Final
Offering Circular, the information included therein.
(k) Subsequent to the respective dates as of which information
is given in the Final Offering Circular,
(i) none of the Company and its direct and
indirect subsidiaries has incurred any material liability or
obligation, direct or contingent, or entered into any material
transaction in each case not in the ordinary course of
business;
(ii) the Company has not purchased any of its
outstanding capital stock, nor declared, paid or otherwise
made any dividend or distribution of any kind on its capital
stock other than a $0.005 per share dividend declared on April
1, 2003; and
(iii) there has not been any material change in
the capital stock, short-term debt or long-term debt of each
of the Company and its direct and indirect subsidiaries,
except in each case as described in or contemplated by the
Final Offering Circular.
(l) Each of the Company and its direct and indirect
subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with
management's general or specific authorizations;
(ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability;
(iii) access to assets is permitted only in
accordance with management's general or specific
authorization; and
5
(iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(m) The Operative Documents have been duly authorized by all
necessary corporate action of the Company and the Guarantors and, when
duly executed and delivered by the Company, the Guarantors and, as the
case may be, by the Trustee, will conform to the description thereof
contained in the Offering Document and will constitute legal, valid and
binding obligations of the Company and the Guarantors, enforceable
against the Company and the Guarantors in accordance with their terms,
except as the enforcement thereof may be limited to bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity.
(n) On the Closing Date (as hereinafter defined), the
Indenture will conform in all material respects to the requirements of
the Trust Indenture Act of 1939, as amended (the "TIA" or "TRUST
INDENTURE ACT") and the rules and regulations of the Commission
applicable to an indenture that is qualified thereunder.
(o) The Offered Securities have been duly authorized by all
necessary corporate action for issuance and sale pursuant to this
Agreement and, when executed, authenticated, issued and delivered in
the manner provided for in the Indenture and sold and paid for as
provided in this Agreement, the Offered Securities will constitute
legal, valid and binding obligations of the Company and the Guarantors
entitled to the benefits of the Indenture and enforceable against the
Company and the Guarantors in accordance with their terms and the terms
of the Indenture, except as the enforcement thereof may be limited to
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity.
(p) On the Closing Date, the Exchange Securities will have
been duly authorized by the Company and the Guarantors; and when the
Exchange Securities are executed, authenticated, issued and delivered
in the manner provided for in the Exchange Offer and the Indenture, the
Exchange Securities will constitute legal, valid and binding
obligations of the Company and the Guarantors, enforceable in
accordance with their terms, except as the enforcement thereof may be
limited to bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity.
6
(q) Assuming the effectiveness on or before the Closing Date
of the Amendment, the issuance, offering and sale of the Offered
Securities to the Purchasers by the Company pursuant to this Agreement,
the compliance by the Company and the Guarantors with the other
provisions of the Operative Documents herein and therein set forth and
the execution and delivery of the Operative Documents do not
(i) require the consent, approval,
authorization, order, registration or qualification of, or
filing with, any governmental authority or court, or body or
arbitrator having jurisdiction over the Company or the
Guarantors, except for the order of the Commission declaring
the Exchange Offer Registration Statement or the Shelf
Registration Statement (each defined in the Registration
Rights Agreement) effective and qualification of the Indenture
under the Trust Indenture Act, or
(ii) conflict with, result in a breach or
violation of, or constitute a default under, any indenture,
mortgage, deed of trust or loan agreement, or material
agreement or material instrument to which the Company or any
of its direct or indirect subsidiaries is a party or by which
the Company or any of such subsidiaries or any of their
respective properties is bound, or with the charter or by-laws
of the Company or any of such subsidiaries, or any statute,
rule or regulation or any judgment, order or decree of any
governmental authority or court or any arbitrator applicable
to the Company or any of such subsidiaries, except for any
statute, rule or regulation or any judgment, order or decree
of any governmental authority or court or any arbitrator the
noncompliance with which would not result in a Material
Adverse Effect or adversely affect the consummation by the
Company or any of the Guarantors of the transactions
contemplated hereby.
(r) Except for the Registration Rights Agreement dated as of
June 17, 2002 between the Company and the initial purchasers
thereunder, there are no contracts, agreements or understandings
between the Company or any Guarantor and any person granting such
person the right to require the Company or such Guarantor to file a
registration statement under the Securities Act with respect to any
securities of the Company or such Guarantor or to require the Company
or such Guarantor to include such securities with the Securities and
Guaranties registered pursuant to any Registration Statement.
(s) No legal or governmental proceedings or, to the Company's
knowledge, investigations are pending to which the Company or any of
its direct and indirect subsidiaries is a party or to which the
property of the Company or any of such subsidiaries is subject that are
not described in the Preliminary Offering Circular or the Final
Offering Circular, and, to the Company's knowledge, no governmental
proceedings or investigations have been threatened against the Company
or any of such subsidiaries or with respect to any of their respective
properties, except, in each case, for such proceedings or
investigations
7
that, if the subject of an unfavorable decision, ruling or finding,
would not, singly or in the aggregate, result in a Material Adverse
Effect.
(t) Except for information required to be disclosed pursuant
to Items 402 and 403 of Regulation S-K under the Securities Act, no
relationship, direct or indirect, exists between or among the Company
or any of its direct or indirect subsidiaries, on the one hand, and the
directors, officers, shareholders, customers or suppliers of the
Company or any of its direct or indirect subsidiaries on the other
hand, that would be required by the Securities Act to be described in a
prospectus were the Offered Securities being issued and sold in a
public offering, that is not described in the Preliminary Offering
Circular and the Final Offering Circular.
(u) None of the Company and any of the Guarantors is now nor
after giving effect to the issuance of the Offered Securities and the
execution, delivery and performance of the Operative Documents and the
consummation of the transactions contemplated thereby, will be
(i) insolvent,
(ii) left with unreasonably small capital with
which to engage in its anticipated businesses or
(iii) incurring debts or other obligations beyond
its ability to pay such debts or obligations as they become
due.
(v) The Company has not distributed and, prior to the later of
(i) the Closing Date (as hereinafter defined) and (ii) the completion
of the distribution of the Offered Securities, will not distribute any
offering material in connection with the offering and sale of the
Offered Securities other than the Preliminary Offering Circular, the
Final Offering Circular or any amendment or supplement thereto.
(w) Since January 31, 2003, there has been no Material Adverse
Effect.
(x) Each of the Company and its direct and indirect
subsidiaries has good and marketable title in fee simple to all items
of real property and marketable title to all personal property owned by
each of them, in each case except as set forth in the Final Offering
Circular or the Company's filings under the Securities Act or the
Securities Exchange Act of 1934 (the "EXCHANGE ACT"), free and clear of
any pledge, lien, encumbrance, security interest or other defect or
claim of any third party, except such as do not have a Material Adverse
Effect. Any real property held by the Company or such subsidiaries are
held under valid, subsisting and enforceable leases, with such
exceptions as do not have a Material Adverse Effect.
(y) No "prohibited transaction" (as defined in Section 406 of
the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
("ERISA"), or Section 4975 of the
8
Internal Revenue Code of 1986, as amended from time to time (the
"CODE")) or "accumulated funding deficiency" (as defined in Section 302
of ERISA) or any of the events set forth in Section 4043(c) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred, exists or is
reasonably expected to occur with respect to any employee benefit plan
(as defined in Section 3(3) of ERISA) which the Company or any of the
Company's direct or indirect subsidiaries maintains, contributes to or
has any obligation to contribute to, or with respect to which the
Company or any of the Company's direct or indirect subsidiaries has any
liability, direct or indirect, contingent or otherwise (a "PLAN") which
would have a Material Adverse Effect; each Plan is in compliance in all
material respects with applicable law, including ERISA and the Code;
the Company and the Company's direct or indirect subsidiaries have not
incurred and do not expect to incur liability under Title IV of ERISA
with respect to the termination of, or withdrawal from, any Plan; and
each Plan that is intended to be qualified under Section 401(a) of the
Code is so qualified in all material respects and nothing has occurred,
whether by action or failure to act, which could reasonably be expected
to cause the loss of such qualification. No labor dispute with the
employees of the Company or any of its direct and indirect subsidiaries
exists or is threatened or imminent which could result in a Material
Adverse Effect.
(z) No proceeding looking toward a merger, consolidation,
liquidation or dissolution of the Company (in the case of the merger, a
merger in which the Company is not the surviving entity following such
merger) or the sale of all or substantially all of the assets of the
Company or its direct or indirect subsidiaries is pending or
contemplated.
(aa) Each of the Company and its direct and indirect
subsidiaries owns or otherwise possesses adequate rights to use all
material patents, trademarks, service marks, trade names and
copyrights, all applications and registrations for each of the
foregoing, and all other material proprietary rights and confidential
information necessary to conduct their respective businesses as
currently conducted; and none of the Company and any of its direct or
indirect subsidiaries has received any notice, or is otherwise aware,
of any infringement of or conflict with the rights of any third party
with respect to any of the foregoing which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
result in a Material Adverse Effect.
(bb) Each of the Company and its direct and indirect
subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts and
with such deductibles as are prudent in the businesses in which they
are engaged, except where the failure to have such would not have a
Material Adverse Effect; and none of the Company and any such
subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect.
9
(cc) Each of the Company and its direct and indirect
subsidiaries possesses all certificates, authorizations and permits
issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses, except
where the failure to have such would not have a Material Adverse
Effect, and none of the Company and any such subsidiary has received
any notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(dd) Environmental Matters:
(i) Each of the Company and its direct and
indirect subsidiaries is and has been in compliance with all
applicable laws, statutes, ordinances, rules, regulations,
orders, judgments, decisions, decrees, standards, legally
binding agreements and requirements ("LEGAL REQUIREMENTS")
relating to: human health and safety; the generation, use,
management, disposal or release of any hazardous or toxic
substance or waste; or the protection, cleanup or remediation
of the environment ("ENVIRONMENTAL LAW");
(ii) Each of the Company and its direct and
indirect subsidiaries has obtained and is in compliance with
the conditions of all permits, authorizations, licenses,
approvals and variances ("ENVIRONMENTAL PERMITS") necessary
under any Environmental Law for the continued conduct of their
respective businesses in the manner now conducted;
(iii) There are no past or present conditions or
circumstances, including but not limited to pending changes in
any Environmental Law or Environmental Permits, that are
likely to interfere with the conduct of the business of each
of the Company and its direct and indirect subsidiaries in the
manner now conducted or which would interfere with compliance
with any Environmental Law or Environmental Permits; and
(iv) There are no past or present conditions or
circumstances at, or arising out of, the business, assets and
properties of each of the Company and its direct and indirect
subsidiaries or any businesses, assets or properties formerly
leased, operated or owned by each of the Company and any such
subsidiary, including but not limited to onsite or off-site
disposal or release of any chemical substance, product or
waste, which has given or may give rise to: (i) liabilities or
obligations for any cleanup, remediation or corrective action
under any Environmental Law; (ii) claims arising under any
Environmental Law for personal injury, cost recovery, property
damage, or damage to natural resources; (iii) liabilities or
obligations incurred by the Company and any such subsidiary to
comply with any Environmental Law; or (iv) fines or penalties
arising under any Environmental Law;
10
except in each case for any noncompliance or
conditions or circumstances that, singly or in the aggregate,
would not result in a Material Adverse Effect.
(ee) Neither the Company nor any of the Guarantors is in
violation of its respective charter or by-laws.
(ff) Assuming the effectiveness of the Amendments, no default
exists, and no event has occurred that, with notice or lapse of time or
both, would constitute a default in the due performance and observation
of any term, covenant or condition of any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which each of the
Company and any of its direct and indirect subsidiaries is a party or
by which the Company and any such subsidiary, or any of their
respective properties, is bound which would have or which, after notice
or lapse of time or both, would have a Material Adverse Effect.
(gg) Each of the Company and its direct and indirect
subsidiaries has filed all foreign, federal, state and local tax
returns that are required to be filed or have requested extensions
thereof and have paid all taxes required to be paid by them and any
other assessment, fine or penalty levied against them, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good
faith and for which the Company retains adequate reserves and except in
each case for any noncompliance that, singly or in the aggregate, would
not result in a Material Adverse Effect.
(hh) 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.
(ii) 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.
(jj) Subject to the Purchasers' representations and warranties
and their compliance with their agreements and procedures in Section 4
of this Agreement, 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 ("REGULATION S") thereunder; and it is
not necessary to qualify an indenture in respect of the Offered
Securities under the Trust Indenture Act.
(kk) None of the Company or any Guarantor, nor any of their
respective affiliates, nor any person acting on its or their behalf (i)
has, within the six-month
11
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, by
means of any directed selling efforts within the meaning of Rule 902(c)
of Regulation S. The Company, the Guarantors, their affiliates and any
person acting on its or their behalf have complied and will comply with
the offering restrictions requirement 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.
(ll) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act (i) has imposed (or has informed the Company
or any Guarantor that it is considering imposing) any condition
(financial or otherwise) on the Company's or any Guarantor's retaining
any rating assigned to the Company or any Guarantor, any securities of
the Company or any Guarantor or (ii) has indicated to the Company or
any Guarantor that it is considering (a) the downgrading, suspension,
or withdrawal of, or any review for a possible change that does not
indicate the direction of the possible change in, any rating so
assigned or (b) other than the change in Moody's outlook from stable to
negative as of April 29, 2003, any change in the outlook for any rating
of the Company, any Guarantor or any securities of the Company or any
Guarantor.
(mm) No form of general solicitation or general advertising
(as defined in Regulation D under the Securities Act) was used by the
Company, the Guarantors or any of their respective representatives
(other than the Purchasers, as to whom the Company and the Guarantors
make no representation) in connection with the offer and sale of the
Offered Securities contemplated hereby, including, but not limited to,
articles, notices or other communications published in any newspaper,
magazine, or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising provided, however, that any press
releases filed by the Company in conformity with Rule 135c under the
Securities Act shall not constitute general solicitation or general
advertising. No securities of the same class as the Offered Securities
have been issued and sold by the Company within the six-month period
immediately prior to the date hereof.
(nn) The sale of the Offered Securities pursuant to Regulation
S is not part of a plan or scheme to evade the registration provisions
of the Securities Act.
(oo) The Offered Securities satisfy the eligibility
requirements of Rule 144A(d)(3) under the Securities Act.
12
(pp) Assuming the accuracy of the representations and
warranties of the Purchasers in Section 4 hereof and compliance by the
Purchasers with the procedures set forth in Section 4 hereof, it is not
necessary in connection with the offer, sale and delivery of the
Offered Securities to the Purchasers in the manner contemplated by this
Agreement, the Preliminary Offering Circular and the Final Offering
Circular to register any of the Offered Securities or the related
Guarantees under the Securities Act. Each certificate signed by any
officer of the Company or the Guarantors and delivered to the
Purchasers or their counsel shall be deemed to be a representation and
warranty by the Company or the Guarantors, as the case may be, to the
Purchasers as to the matters covered thereby.
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 1/2% of the principal amount thereof
plus accrued interest from May 5, 2003, 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
permanent global Securities in registered form without interest coupons (the
"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 Morgan Guaranty Trust Company of New York, Brussels
office, 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 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 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 restricted
period (as defined in Regulation S) with respect to the offering of the Offered
Securities, interests in the 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
Euroclear, Clearstream, Luxembourg or DTC, as the case may be, except in the
limited circumstances described in the Offering Document.
Payment for the Regulation S Securities and the 144A Securities shall
be made by the Purchasers in Federal (same day) funds by official check or
checks or wire transfer to an account at a bank acceptable to Credit Suisse
First Boston LLC ("CSFB") drawn to
13
the order of the Company at the offices of Cravath, Swaine & Moore LLP at 10
A.M., (New York time), on May 5, 2003, or at such other time not later than
seven full business days thereafter as CSFB 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 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. The Regulation S
Global Securities and the Restricted Global Securities will be made available
for checking at the above office of Cravath, Swaine & Moore LLP 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 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 its
distribution at any time and (ii) otherwise until 40 days after the
later of the commencement of the offering and the Closing Date, only in
accordance with Rule 903 or Rule 144A under the Securities Act ("RULE
144A"). 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.
14
(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 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.
(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 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.
5. Certain Agreements of the Company and the Guarantors. The Company
and the Guarantors agree with the several Purchasers that:
(a) The Company will advise CSFB promptly of any proposal to
amend or supplement the Final Offering Circular and will not effect
such amendment or supplementation without CSFB's 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 Final
Offering Circular 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
15
circumstances under which they were made, not misleading, the Company
promptly will notify CSFB of such event and promptly will prepare, at
its own expense, an amendment or supplement which will correct such
statement or omission. Neither CSFB's 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 CSFB copies of the Preliminary
Offering Circular, the Final Offering Circular and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as CSFB 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 CSFB (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
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 in the United
States and Canada as CSFB designates and will continue such
qualifications in effect so long as required for the resale of the
Offered Securities by the Purchasers, provided that the Company will
not be required to qualify to do business in any jurisdiction where it
is not so qualified as of the date hereof, file a general consent to
service of process in any such jurisdiction or to take any action that
would subject it to taxation in any jurisdiction in which it is not so
subject as of the date hereof.
(d) During the period of two years after the Closing Date, the
Company will, upon request, furnish to CSFB, each of the other
Purchasers and any holder of Offered Securities a copy of the
restrictions on transfer applicable to the Offered Securities.
(e) 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.
(f) During a period of two years after the Closing Date, none
of the Company or any Guarantor will 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.
(g) The Company will pay all expenses incidental to the
performance of its obligations under this Agreement, the Indenture and
the Registration Rights
16
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 (as
defined in the Registration Rights Agreement), the preparation and
printing of this Agreement, the Registration Rights Agreement, the
Offered Securities, the Indenture, the Offering Document and amendments
and supplements thereto, and any other document relating to the
issuance, offer, sale and delivery of the Offered Securities and as
applicable, the Exchange Securities; (iii) the cost of listing the
Offered Securities and qualifying the Offered Securities for trading in
The Portal(SM) Market ("PORTAL") and any expenses incidental thereto;
(iv) for any expenses (including 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
in the United States and Canada as CSFB designates and the printing of
memoranda relating thereto; (v) for any fees charged by investment
rating agencies for the rating of the Securities or the Exchange
Securities, and (vi) for 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
or reimburse the Purchasers (to the extent incurred by them) for all
travel expenses of the Purchasers and the Company's officers and
employees and any other expenses of the Purchasers and the Company in
connection with attending or hosting meetings with prospective
purchasers of the Offered Securities from the Purchasers.
(h) In connection with the offering, until CSFB 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.
(i) For a period of 90 days after the date of this Agreement,
the Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any debt securities issued or
guaranteed by the Company and having a maturity of more than one year
from the date of issue. 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 or the safe harbor of Regulation S
thereunder to cease to be applicable to the offer and sale of the
Offered Securities.
(j) At any time prior to the completion of the distribution of
the Offered Securities by the Purchasers, the Company, whenever it or
any of its direct or indirect subsidiaries publishes or makes available
to the public (by filing with any regulatory authority or securities
exchange or by publishing a press release or
17
otherwise) any information that would reasonably be expected to be
material in the context of the issuance of the Offered Securities under
this Agreement, shall promptly notify the Purchasers as to the nature
of such information or event. The Company will likewise notify the
Purchasers of (i) any decrease in the rating of the Offered Securities
or any other debt securities of the Company by any nationally
recognized statistical rating organization (as defined in Rule
436(g)(2) under the Securities Act) or (ii) any notice or public
announcement given of any intended or potential decrease in any such
rating or that any such securities rating agency has under surveillance
or review, with possible negative implications, its rating of the
Offered Securities, as soon as the Company becomes aware of any such
decrease, notice or public announcement. The Company will also deliver
to the Purchasers, as soon as available and without request, copies of
its yearly and quarterly filings under the Exchange Act.
(k) The Company will use its best efforts to cause the Offered
Securities to be designated PORTAL market securities in accordance with
the rules and regulations adopted by the National Association of Notes
Dealers, Inc. relating to trading in PORTAL and to be eligible for
clearance and settlement through DTC.
(l) The Company will apply the net proceeds from the sale of
the Offered Securities as set forth under "Use of Proceeds" in the
Final Offering Circular.
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 and each Guarantor herein, to the accuracy of the statements of officers
of the Company and each Guarantor made pursuant to the provisions hereof, to the
performance by the Company and each Guarantor 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 condition
(financial or other), business, properties or results of operations of
the Company and its direct and indirect subsidiaries taken as one
enterprise which, in the judgment of a majority in interest of the
Purchasers including CSFB, 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
18
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 judgment
of a majority in interest of the Purchasers including CSFB, 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 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 judgment of a
majority in interest of the Purchasers including CSFB, 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 opinions, dated the
Closing Date, of Thomas D. Singer, Senior Vice President and General
Counsel of the Company and Covington & Burling, outside counsel for the
Company, in form and substance satisfactory to the Purchasers, to the
effect set forth in Exhibit B hereto.
(d) The Purchasers shall have received from Cravath, Swaine &
Moore LLP, 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 CSFB may require, and the Company and each Guarantor shall have
furnished to such counsel such documents as they 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 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 dates of the most recent financial
statements in the Final Offering Circular 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
19
Company and its direct and indirect subsidiaries taken as a whole
except as set forth in or contemplated by the Final Offering Circular
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 Amendments shall have become effective.
The Company will furnish the Purchasers with such conformed copies of
such opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFB may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder,
whether in respect of a Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company and the Guarantors
will jointly and severally 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 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
the Exchange Act Reports, 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 the 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 each 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 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 CSFB 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 provided, further, that with
respect to any untrue statement or alleged untrue statement in, or omission or
alleged omission from, the Preliminary Offering Circular, the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Purchaser that sold the Offered Securities concerned to the person asserting any
such losses, claims, damages or liabilities, to the extent that such sale was an
initial resale by such Purchaser and any such loss, claim, damage or liability
of such Purchaser results from the fact that
20
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Final Offering Circular (exclusive of any material included therein but not
attached thereto) if the Company had previously furnished copies thereof on a
timely basis and in a sufficient number to such Purchaser.
(b) Each Purchaser will severally and not jointly indemnify
and hold harmless the Company, the Guarantors, their directors and
officers and each person, if any, who controls the Company or any
Guarantor 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 through CSFB specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by the Company or any Guarantor 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
the following information in the Offering Document furnished on behalf
of each Purchaser: (i) the over-allotment and stabilizing descriptions
appearing in the tenth paragraph under the caption "Plan of
Distribution"; (ii) the information appearing in the eleventh paragraph
under the caption "Plan of Distribution"; (iii) the information
appearing in the sixth paragraph (including subsections (i), (ii) and
(iii)) under the caption "Plan of Distribution"; and (iv) the
information appearing in the first sentence of the third paragraph
under the caption "Plan of Distribution"; and (v) the information
appearing in the sixth paragraph under the caption "Notice to Canadian
Residents"; 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 or any Guarantor's failure to perform its
obligations under Section 5(a) of this Agreement.
(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 failure to
notify the indemnifying party shall not relieve it from any liability
that it may have under subsection (a) or (b) above except to the extent
that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further
that the failure to notify the
21
indemnifying party shall not relieve it from any liability that it may
have to an 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, culpability 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 and the
Guarantors 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 and the Guarantors 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 and the Guarantors 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 and the Guarantors bear to the total discounts and commissions
received by the Purchasers from the Company and the Guarantors 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 and the Guarantors
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
22
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 discounts and commissions
such Purchaser received in connection with the purchase of the Offered
Securities 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.
(e) The obligations of the Company or any Guarantor under this
Section shall be in addition to any liability which the Company or any
Guarantor 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 Company or any Guarantor 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 Offered Securities hereunder and the aggregate
principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, CSFB 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 Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to CSFB 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 or any of the Guarantors, 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, the Guarantors or their 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, the Guarantors or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment
23
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 and the Guarantors shall remain responsible for
the expenses to be paid or reimbursed by it pursuant to Section 5 and the
respective obligations of the Company, the Guarantors 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 it
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 LLC, Eleven Madison Avenue, New
York, N.Y. 10010-3629, Attention: Transactions Advisory Group, or, if sent to
the Company, will be mailed, delivered or telegraphed and confirmed to it at JLG
Industries, Inc., 1 JLG Drive, McConnellsburg, Pennsylvania 17233-9533,
Attention: General Counsel, with a copy to Covington & Burling, 1201
Pennsylvania Avenue, NW, Washington, DC 20004-2401, Attention: W. Andrew Jack,
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 third sentences of Section 5(b) hereof against the Company as if such
holders were parties thereto.
12. 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.
13. Representation of Purchasers. CSFB will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by CSFB will be binding on all the Purchasers.
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 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.
24
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 Company and the several
Purchasers in accordance with its terms.
Very truly yours,
JLG INDUSTRIES, INC.
By /s/ James H. Woodward, Jr.
-------------------------------------
Name: James H. Woodward, Jr.
Title: Executive VP & CFO
ACCESS FINANCIAL SOLUTIONS, INC.
By /s/ James H. Woodward, Jr.
-------------------------------------
Name: James H. Woodward, Jr.
Title: President
FULTON INTERNATIONAL, INC.
By /s/ James H. Woodward, Jr.
-------------------------------------
Name: James H. Woodward, Jr.
Title: President
JLG EQUIPMENT SERVICES, INC.
By /s/ James H. Woodward, Jr.
-------------------------------------
Name: James H. Woodward, Jr.
Title: Vice Treasurer
JLG MANUFACTURING, LLC
By /s/ James H. Woodward, Jr.
-------------------------------------
Name: James H. Woodward, Jr.
Title: Executive VP, CFO
GRADALL INDUSTRIES, INC.
By /s/ James H. Woodward, Jr.
-------------------------------------
Name: James H. Woodward, Jr.
Title: VP
THE GRADALL COMPANY
By /s/ James H. Woodward, Jr.
-------------------------------------
Name: James H. Woodward, Jr.
Title: VP
25
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
DEUTSCHE BANK SECURITIES INC.
BANC ONE CAPITAL MARKETS, INC.
BMO NESBITT BURNS CORP.
CREDIT LYONNAIS SECURITIES (USA) INC.
NATCITY INVESTMENTS, INC.
SUNTRUST CAPITAL MARKETS, INC.
Acting on behalf of themselves
and as the Representative of
the several Purchasers
BY CREDIT SUISSE FIRST BOSTON LLC
By /s/ James E. Nappo
-----------------------
Name: James E. Nappo
Title: Director
26
Exhibit A
[FORM OF AMENDMENT]
Ex. A
Exhibit B
FORM OF COVINGTON & BURLING/ THOMAS D. SINGER OPINION
To be allocated between Covington & Burling and Thomas D. Singer,
General Counsel of the Company, as reasonably acceptable to Cravath, Swaine &
Moore LLP.
1. Each of the Company and the Guarantors has been
duly organized and each is validly existing
under the laws of the jurisdiction in which it
is chartered or organized.
2. Each of the Company the Guarantors organized in
the United States is in good standing under the
laws of the jurisdiction in which it is
chartered or organized and is duly qualified to
do business as a foreign corporation under the
laws of each jurisdiction which requires such
qualification wherein it owns or leases
material properties or conducts material
business, except in such jurisdictions in which
the failure to be in such good standing or to
so qualify, in the aggregate, would not have a
Material Adverse Effect.
3. The Company and each Guarantor has full
corporate power to own or lease its properties
and conduct its businesses as described in the
Final Offering Circular, to enter into the
Operative Documents and to carry out their
obligations thereunder.
4. To our knowledge, (a) there is no action, suit
or proceeding before any court or
administrative body pending or threatened
against or affecting the Company (i) asserting
the invalidity of the Operative Documents or
the Offered Securities; (ii) seeking to prevent
the consummation of the transactions
contemplated by the Operative Documents; or
(iii) that would be likely to impair materially
the ability of the Company to perform its
obligations under the Operative Documents; and
(b) there is no action, suit or proceeding
before any court or administrative body pending
or threatened against or affecting the Company
that would be required to be described in a
prospectus filed pursuant to the Securities Act
of 1933, as amended (the "Securities Act") that
is not described in the Final Offering
Circular.
5. The issued shares of capital stock of each of
the Guarantors have been duly authorized and
validly
Ex. B
issued, are fully paid and nonassessable and
are (i) owned of record and beneficially by
the Company, either directly or through
wholly-owned subsidiaries, and (ii) are free
and clear of any pledge, lien, encumbrance,
security interest, restriction on voting or
transfer, preemptive rights or other defect
in title or any claim of any third party.
6. The Purchase Agreement has been duly
authorized, executed and delivered by the
Company and each Guarantor.
7. The Indenture and the Registration Rights
Agreement have been duly authorized, executed
and delivered by the Company and the Guarantors
and (in the case of the Indenture, assuming the
due authorization, execution and delivery
thereof by the Trustee) constitute legal, valid
and binding obligations of the Company and the
Guarantors, enforceable against them in
accordance with their terms.
8. The Offered Securities are in the form
contemplated by the Indenture, have been duly
authorized by all necessary corporate action
for issuance and sale pursuant to the Purchase
Agreement and, when executed, authenticated,
issued and delivered in the manner provided for
in the Indenture and paid for as provided in
this Agreement, the Offered Securities will
constitute legal, valid and binding obligations
of the Company entitled to the benefits of the
Indenture and enforceable against the Company
in accordance with their terms and the terms of
the Indenture.
9. The Exchange Securities 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 and the
Indenture, the Exchange Securities will be
entitled to the benefits of the Indenture and
will be the valid and legally binding
obligations of the Company and the Guarantors,
enforceable in accordance with their terms.
10. The Guaranty to be endorsed on the Offered
Securities by each Guarantor has been duly
authorized by such Guarantor, and has been duly
executed and delivered by each such Guarantor
and conforms to the description thereof
contained in the Final Offering
Ex. B - 2
Circular. 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 its terms.
11. 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 will conform to the
description thereof contained in the Final
Offering Circular. 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 its
terms.
12. The statements in the Final Offering Circular
under the captions "Description of Notes,"
"Registered Exchange Offer; Registration
Rights" and "Certain United States Federal Tax
Considerations", insofar as such statements
constitute summaries of legal matters or
documents, fairly summarize the matters
referred to therein.
13. In reliance on the representations, warranties
and covenants of the Company and the Purchasers
in the Purchase Agreement and assuming the
compliance by all parties with the offering
procedures set forth in the Purchase Agreement,
(i) the offer, sale and delivery of the Offered
Securities and the Guarantees by the Company
and the Guarantors to the several Purchasers
pursuant to this Agreement or (ii) the resales
of the Offered Securities and the Guarantees by
the several Purchasers in the manner
contemplated by this Agreement is exempt from
the registration requirements of the Securities
Act and it is not necessary to qualify the
Indenture under the Trust Indenture Act.
14. The issuance, offering and sale of the Offered
Securities to the Purchasers by the Company
pursuant to the Purchase Agreement and the
compliance by the
Ex. B - 3
Company and the Guarantors with the Operative
Documents do not require the consent,
approval, authorization, order, registration
or qualification of, or filing with, any
governmental authority or court, or body or
arbitrator having jurisdiction over the
Company or any Guarantor, excluding state
securities laws.
15. The issuance, offering and sale of the Offered
Securities to the Purchasers by the Company
pursuant to the Purchase Agreement and the
compliance by the Company and the Guarantors
with the Operative Documents do not conflict
with, result in a breach or violation of, or
constitute a default under, (a) any agreement
to which the Company or any Guarantor is bound
that has been filed as an exhibit to the
Company's annual report on Form 10-K for the
year ended July 31, 2002 or any filings made by
the Company under the Exchange Act since that
date; (b) the Purchase and Sale Agreement dated
as of April 26, 2002 between Access Financial
Solutions, Inc. and Wells Fargo Equipment
Finance, Inc.; (c) subject to the effectiveness
of the Amendments, the Credit Agreement and the
Amended and Restated Financing Agreement by and
among the Company, its subsidiaries listed
therein, and Manufacturers and Traders Trust
Company; (d) agreements related to the recent
sale of receivables to GE Dealer Finance; (e)
the charter or by-laws of the Company or any
Guarantor; or (f) any statute, rule or
regulation or any judgment, order or decree of
any governmental authority or court or any
arbitrator applicable to the Company or any of
the Guarantors.
16. The Indenture conforms in all material respects
to the requirements of the Trust Indenture Act
and the rules and regulations of the Commission
applicable to an indenture which is qualified
thereunder.
17. Neither the Company nor any of its Guarantors
is in violation of its respective charter or
by-laws.
18. No default exists, and no event has occurred
that, with notice or lapse of time or both,
would constitute a default in the due
performance and observation of any obligation,
agreement, term, covenant or condition
contained in any indenture, loan agreement,
mortgage, deed of trust, lease or other
agreement or instrument
Ex. B - 4
that is material to the Company and its
direct and indirect subsidiaries, taken as a
whole, to which each of the Company and any
of its direct and indirect subsidiaries is a
party or by which the Company and any such
subsidiary, or any of their respective
properties, is bound.
19. Except for the Registration Rights Agreement
dated as of June 17, 2002 between the Company
and the initial purchasers thereunder, there
are no contracts, agreements or understandings
between the Company or any Guarantor and any
person granting such person the right to
require the Company or such Guarantor to file a
registration statement under the Securities Act
with respect to any securities of the Company
or such Guarantor or to require the Company or
such Guarantor to include such securities with
the Securities and Guaranties registered
pursuant to any Registration Statement.
20. The Company and each Guarantor is not an
"investment company", and is not a company
"controlled" by an "investment company", within
the meaning of the Investment Company Act,
without taking account of any exemption arising
out of the number of holders of the securities
of the Company.
In addition Covington & Burling shall include in its opinion or a separate
letter with language substantially to the effect of the following:
In our capacity as counsel to the Company, we have examined a
copy of the Final Offering Circular. We have also reviewed and
participated in discussions concerning the preparation of the Final
Offering Circular with certain officers and employees of the Company,
with its auditors and with representatives of and counsel to the
Purchasers. The limitations inherent in the independent verification of
factual matters and in the role of outside counsel are such, however,
that we cannot and do not assume any responsibility for the accuracy,
completeness or fairness of any of the statements made in the Final
Offering Circular, except as set forth in the paragraphs relating to
the sections of the Final Offering Circular encaptioned "Description of
the Notes," "Registered Exchange Offer; Registration Rights" and
"Certain United States Federal Tax Consequences" in our opinion
addressed to you, dated the date hereof.
Subject to the limitations set forth in the immediately
preceding paragraph, we advise you that, on the basis of the
information we gained in the course of performing the services referred
to above, no facts came to our attention which gave us reason to
believe that the Final Offering Circular (other than the financial
statements and schedules and other financial data included therein or
Ex. B - 5
omitted therefrom, as to which we have not been requested to express a
view), as of its date or the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
Ex. B - 6
SCHEDULE A
PRINCIPAL AMOUNT OF
MANAGER OFFERED SECURITIES
-------
Credit Suisse First Boston LLC ...................... $ 81,250,000
Deutsche Bank Securities Inc. ....................... 25,000,000
Banc One Capital Markets, Inc. ...................... 3,750,000
BMO Nesbitt Burns Corp .............................. 3,750,000
Credit Lyonnais Securities (USA) Inc. ............... 3,750,000
NatCity Investments, Inc. ........................... 3,750,000
SunTrust Capital Markets, Inc. ...................... 3,750,000
------------
Total .......................................... $125,000,000
============
SCHEDULE B
Subsidiary Guarantors
Access Financial Solutions, Inc.
Fulton International, Inc.
JLG Equipment Services, Inc.
JLG Manufacturing, LLC
Gradall Industries, Inc.
The Gradall Company
SCHEDULE C
Active Subsidiaries
Subsidiary Place of Incorporation
---------- ----------------------
Access Financial Solutions, Inc. Maryland
Fulton International, Inc. Delaware
Gradall Industries, Inc. Delaware
The Gradall Company Ohio
JLG Deutschland, GmbH Germany
JLG Equipment Services, Inc. Pennsylvania
JLG Equipment Services Ltd. Hong Kong
JLG Europe BV Netherlands
JLG France Sarl France
JLG Industries (Italia) S.r.L. Italy
JLG Industries (Norge) AS Norway
JLG Industries (Proprietary) Ltd. South Africa
JLG Industries (United Kingdom) Ltd. United Kingdom
JLG Latino Americana Ltda. Brazil
JLG Manufacturing, LLC Pennsylvania
JLG Polska Sp z.o.o. Poland
JLG Properties (Australia) Pty. Ltd. Australia
JLG Sverige AB Sweden
JLG Manufacturing Europe BVBA Belgium
JLG Manufacturing Services Europe Maatschap Belgium
Platforma Elevadoras JLG Iberica S.L. Spain