$300,000,000
TEREX CORPORATION
7-3/8% Senior Subordinated Notes due 2014
PURCHASE AGREEMENT
November 10, 2003
CREDIT SUISSE FIRST BOSTON LLC
CITIGROUP GLOBAL MARKETS INC.
As Representatives of the Several Purchasers,
c/o Credit Suisse First Boston LLC,
Eleven Madison Avenue,
New York, N.Y. 100 10-3629
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 7-3/8% Senior Subordinated Notes due
2014 ("Notes") to be issued under an indenture, to be dated as of November 25,
2003 (the "Indenture"), between the Company, the guarantors named therein and
HSBC Bank USA, as Trustee, which Notes will be unconditionally guaranteed by
Koehring Cranes, Inc., Payhauler Corp., Terex Cranes, Inc., Terex-RO
Corporation, Terex-Telelect, Inc., The American Crane Corporation, O&K 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, PPM Cranes, Inc., Royer Industries, Inc.,
Terex Bartell, Inc., Terex Mining Equipment, Inc. and CMI Terex Corporation, CMI
Dakota Company, CMIOIL Corporation, Fuchs Terex, Inc., Genie Access Services,
Inc., Genie China, Inc., Genie Financial Services, Inc., Genie Holdings, Inc.,
Genie Industries, Inc., Genie International, Inc., Genie Manufacturing, Inc.,
GFS Commercial LLC., GFS National, Inc., Go Credit Corporation, Lease Servicing
& Funding Corp., Product Support, Inc., Schaeff Incorporated, Telelect Southeast
Distribution, Inc., Terex Advance Mixer, Inc., Terex Financial Services, Inc.,
Terex Utilities, Inc., Terex Utilities South, Inc., Utility Equipment, 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 November 10, 2003, 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 LLC ("CSFB") or Citigroup Global Markets Inc.
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(b). Except as
disclosed in the Offering Document, the Company's Annual Report on Form
10-K most recently filed with the Securities and Exchange Commission (the
"Commission") and all subsequent reports (collectively, the "Exchange Act
Reports") which have been filed by the Company with the Commission or sent
to stockholders in either case pursuant to the Securities Exchange Act of
1934 (the "Exchange Act") did not include, as of their respective dates,
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. Such documents, when they were
filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
(b) Each of the Issuers has been duly incorporated and is an existing
corporation in good standing under the laws of the jurisdiction of its
incorporation, with the corporate power and authority to own its properties
and conduct its business as described in the Offering Document; and each of
the Issuers is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing could not
reasonably be expected, individually or in the aggregate, to have a
material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole (a "Material Adverse Effect").
(c) Each subsidiary of the Company other than the Guarantors that (i)
generates 5% or more of the revenues, (ii) generates 5% or more of the
operating income, or (iii) holds 5% or more of the assets, in each case, of
the Company and its subsidiaries on a consolidated
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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 pledges in favor of Credit Suisse First Boston, as
collateral agent for the lenders, under the Company's Amended and Restated
Credit Agreement, dated as of July 3, 2002, as amended (the "Credit
Facility"), among the Company, certain of its subsidiaries and the lenders
named therein, the capital stock of each Significant Subsidiary owned by
the Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(d) On or prior to the Closing Date the Indenture has been duly
authorized by all necessary corporate action required by the Issuers; the
Offered Securities have been duly authorized by each of the Issuers by all
necessary corporate action required by the Issuers; and when the Offered
Securities are delivered and paid for pursuant to this Agreement and the
Indenture on the Closing Date (as defined below), the Indenture will have
been duly executed and delivered by each of the Issuers, such Offered
Securities will have been duly executed, issued and delivered by each of
the Issuers and will conform in all material respects to the description
thereof contained in the Offering Document and the Indenture, assuming due
authorization, authentication, execution and delivery thereof by the
Trustee, and such Offered Securities, when executed and authenticated in
accordance with the provisions of the Indenture, will constitute valid and
legally binding obligations of each of the Issuers, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles. At the date of effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may
be, the Indenture will conform in all material respects to the requirements
of the Trust Indenture Act of 1939, as amended (the "TIA" or "Trust
Indenture Act"), and the rules and regulations of the Commission applicable
to an indenture which is qualified thereunder.
(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 July 3, 2002, among the Company, Robert Wilkerson, S. Ward Bushnell,
F. Roger Brown, the Wilkerson Limited Partnership, and the Bushnell Limited
Partnership and (b) that certain Registration Rights Agreement, dated
August 28, 2003, by and between the Company and SDC Prague, s.r.o., 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
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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, by each of the Company and
its subsidiaries (to the extent each is a party thereto), each of the other
Transaction Documents (with the exception of the Exchange Notes) has been,
or as of the Closing Date will have been, assuming due authorization,
authentication, execution and delivery thereof by the Trustee, to the
extent applicable, executed and delivered by each of the Company and its
subsidiaries (to the extent each is a party thereto), and each Transaction
Document conforms or will conform in all material respects to the
descriptions thereof contained in the Offering Document and each
Transaction Document (other than this Agreement), assuming due
authorization, authentication, execution and delivery thereof by the
Trustee, to the extent applicable, is or will constitute valid and legally
binding obligations of the Company and its subsidiaries (to the extent each
is a party thereto), enforceable in accordance with its respective terms,
except that any rights to indemnity and contribution may be limited by
federal and state securities laws and public policy considerations and
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
(j) Except as disclosed in the Offering Document, the Company and its
Significant Subsidiaries have good title to all real properties and all
other properties and assets owned by them that are material to the Company
and its subsidiaries taken as a whole, in each case free from liens and
encumbrances that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them; and except as
disclosed in the Offering Document, the Company and its Significant
Subsidiaries hold any leased real or personal property that is material to
the Company and its subsidiaries taken as a whole under
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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 no such actions, suits or
proceedings are threatened in writing or, to the Company's knowledge,
contemplated.
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(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 Genie Holdings, 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 audited 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, will not be an "investment company" as defined in the Investment
Company Act.
(s) No securities of the Company or any of its subsidiaries the same
class (within the meaning of Rule 144A(d)(3) under the Securities Act) as
the Offered Securities are listed on any national securities exchange
registered under Section 6 of Exchange Act or quoted in a U.S. automated
inter-dealer quotation system.
(t) Assuming the representations of the Purchasers set forth in
Section 4 below are true and correct and that the Purchasers comply in all
material respects with applicable federal and state securities laws and
regulations in connection with the initial resale of the Offered
Securities, the offer and sale of the Offered Securities in the manner
contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof and
Regulation S thereunder; and it is not necessary to qualify an indenture in
respect of the Offered Securities under the TIA.
(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.
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(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.
(x) The Company's "disclosure controls and procedures" (as defined as
Rule 13a15 of the Exchange Act) are reasonably designed to ensure that
information required to be disclosed by the Company in the reports that it
files or submits under the Exchange Act is recorded, processed, summarized
and reported in accordance with the Exchange Act and the rules and
regulations thereunder. The Company has carried out evaluations, under the
supervision and with the participation of the Company's management, of the
effectiveness of the design and operation of the Company's disclosure
controls and procedures in accordance with Rule 13a-15 of the Exchange Act.
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 97.36% of the principal amount thereof
plus accrued interest from November 25, 2003 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 CSFB at the office of
Skadden, Arps, Slate, Meagher & Flom LLP at 9:00 A.M. (New York time), on
November 25, 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
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 an "accredited investor" within the meaning of Regulation D
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
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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
only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in
investment activity (within the meaning of section 21 of the Financial
Services and Markets Act 2000 (the "FSMA")) received by it in connection
with the issue or sale of any Offered Securities in circumstances in which
section 21(1) of the FSMA does not apply to the Issuers; 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 (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 CSFB promptly of any proposal to amend or
supplement the Offering Document and will not effect such amendment or
supplementation without CSFB's consent, which consent shall not be
unreasonably withheld or delayed. If, at
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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 CSFB 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 CSFB '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 CSFB copies of any preliminary
offering circular, the Offering Document and all amendments and supplements
to such documents, in each case in such quantities as CSFB 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 CSFB (and, upon request, to 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 as CSFB 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 CSFB and, upon request, to the other Purchasers, 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 CSFB and, upon
request, to the other Purchasers, 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 CSFB and the other Purchasers 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
9
listing the Offered Securities and qualifying the Offered Securities for
trading in The Portals'" 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 CSFB designates and the printing of memoranda
relating thereto; (vi) any fees charged by investment rating agencies for
the rating of the Offered Securities; and (vii) expenses incurred in
distributing the Offering Document (including any amendments and
supplements thereto) to the Purchasers. The Company will also pay for any
travel expenses of the Company's officers and employees and any other
expenses of the Company in connection with attending or hosting meetings
with prospective purchasers of the Offered Securities.
(i) In connection with the offering, until CSFB shall have notified
the Company and the other Purchasers 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:
(1) 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) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 100, Interim Financial Information, on the unaudited financial
statements in the Exchange Act Reports;
10
(iii) 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) the unaudited financial statements included in the
Exchange Act Reports do not comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the related published Rules and Regulations or
any material modifications should be made to such unaudited
financial statements for them to be in conformity with generally
accepted accounting principles;
(B) 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
long-term debt of the Company and its consolidated subsidiaries,
or at the date of the latest available balance sheet read by such
accountants, there was any decrease in consolidated net current
assets (working capital) or decrease in stockholders' equity of
the Company and its consolidated subsidiaries, as compared with
amounts shown on the latest balance sheet included in the
Offering Document; or
(C) 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 income from operations or net income;
except in all cases set forth in clauses (A), (B) and (C) above for
changes, increases or decreases which the Offering Document discloses
have occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained or incorporated by reference in the Offering Document (in
each case to the extent that such dollar amounts, percentages and
other financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are derived directly
from such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
All financial statements and schedules included in material incorporated by
reference into the Offering Document shall be deemed included in the Offering
Document.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the
11
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as one enterprise
which, in the judgment of a majority in interest of the Purchasers
including 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 positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any material change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of a majority
in interest of the Purchasers including CSFB, be likely to prejudice
materially the issuance, sale or redistribution of the Offered Securities,
(iv) any material suspension or material limitation of trading in
securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of trading
of any securities of the Company on any exchange or in the over-the-counter
market; (v) any banking moratorium declared by U.S. Federal or New York
authorities; (vi) any major disruption of settlements of securities or
clearance services in the United States or (vii) any attack on, outbreak or
escalation of major hostilities or major acts of terrorism involving the
United States, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of a
majority in interest of the Purchasers including 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 an opinion, dated such Closing
Date, of Bryan Cave 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, 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;
12
(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 Bank Credit
Facility and Bank Amendment" 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
13
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.
14
(ii) Based upon such counsel's examination of the corporate stock
books and records of each of the Domestic Significant Subsidiaries and
the corporate stock books and records (or English translations
thereof) of the Foreign Significant Subsidiaries and interviews and
statements of persons who are informed as to the status of the Foreign
Significant Subsidiaries, all outstanding shares of the capital stock
of the Company and each Significant Subsidiary have been duly
authorized and validly issued, are fully paid and nonassessable and
conform in all material respects to the description thereof contained
in the Exchange Act Reports; and the securityholders of each the
Issuers have no preemptive rights with respect to the Offered
Securities;
(iii) Except for those agreements referred to in the
representation set forth in Section 2(f) hereof, there are no
contracts, agreements or understandings known to such counsel between
any of the Issuers and any person granting such person the right to
require any of the Issuers to file a registration statement under the
Act with respect to any securities of any of the Issuers owned or to
be owned by such person or to require any of the Issuers to include
such securities in securities being registered pursuant to any other
registration statement filed by any of the Issuers under the
Securities Act;
(iv) Except for those consents as to which the failure to obtain
would not, individually or in the aggregate, have a material adverse
effect on the consummation of the relevant Transaction, no consent,
approval, authorization or order of, or filing with, any governmental
agency or body or any court is required to be obtained or made by the
Company or any Significant Subsidiary under any Applicable Law for the
consummation of the Transactions or otherwise in connection with the
sale of the Offered Securities, except such as may be required under
state securities laws (with respect to which such counsel need express
no opinion);
(v) The execution and delivery of, and performance by, each of
the Company and its subsidiaries (to the extent each is a party
thereto) of its obligations under, each of the Transaction Documents
(including the issuance and sale of the Offered Securities) will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any Applicable Law or order known to
such counsel of any governmental agency or body or any court having
jurisdiction over the Company or any Significant Subsidiary or any of
their respective properties (except that any rights to indemnity and
contribution herein may be limited by federal and state securities
laws and public policy considerations), or any agreement or instrument
to 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
15
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 Bank Credit
Facility and Bank Amendment" 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, State,
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 I Purchasers as contemplated hereby and other related matters as
CSFB 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
16
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 a letter, 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 more than three days prior to the
Closing Date for the purposes of this subsection, and except that:
a. Such letter shall also state that
(i) in their opinion the financial statements and schedules
examined by them and included in the Company's Form 8-K/A dated
September 13, 2002 (the "Form 8-K/A"), 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) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review
of interim financial information as described in Statement of
Auditing Standards No. 71, Interim Financial Information, on the
unaudited financial statements in the Form 8-K/A; they have
compared specified dollar amounts (or percentages derived from
such dollar amounts) and other financial information contained in
the Form 8-K/A 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 or Genie Holdings, Inc. and its subsidiaries subject
to the internal controls of the accounting system of the Company
Genie Holdings, Inc. 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; and
(iii) Nothing came to their attention that caused them to
believe that the unaudited pro forma condensed financial
statements included in the Form 8-K/A do not comply as to form in
all material respects with the applicable accounting requirements
of rule 11-02 of regulation S-X and that the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of those statements.; and
(iv) that they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in Statement
of Auditing Standards No. 100, Interim Financial Information, on
the unaudited financial statements in the Company's quarterly
report on Form 10-Q, for the calendar quarter ended September 30,
2003 (the "Third Quarter 10-Q").
(h) The Company, the Guarantors and the Trustee shall have entered
into the Indenture and you shall have received counterparts, conformed as
executed, thereof.
17
(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.
(k) The Amended and Restated Credit Agreement, dated as of July 3,
2002, as amended (the "Credit Facility"), among the Company, certain of its
subsidiaries and the lenders named therein, shall have been further amended
substantially in the form described in the Offering Circular.
(l) The Company shall have filed the Third Quarter 10-Q. The specified
dollar amounts of the net sales; income from operations, net income (loss);
net cash provided by operating activities; capital expenditures;
depreciation; amortization; notes payable and current portion of long-term
debt; and cash and cash equivalents (the "Line Items") for the three months
and nine months ended on September 30, 2003, as disclosed in the Company's
Third Quarter 10-Q, shall not have changed adversely by more than two
percent (2%) of such Line Items as set forth in Exhibit 99.1 to the Current
Report on Form 8-K/A dated October 23, 2003, which report is incorporated
by reference to the Offering Circular.
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.
7. Indemnification and Contribution. (a) Each of the Issuers, jointly and
severally, will indemnify and hold harmless each Purchaser, its partners,
directors and officers, and each person, if any, who controls such Purchaser
within the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities, joint or several, to which such Purchaser may
become subject, under the Securities Act or 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 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.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless each of the Issuers, their respective directors and officers and
each person, if any who controls any Issuer within the meaning of Section
15 of the Securities Act, 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
18
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 CSFB specifically for use therein, and will
reimburse each Issuer for any legal or other expenses reasonably incurred
by the Issuers in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Purchaser consists of (i) the following information in the Offering
Document furnished on behalf of each Purchaser: the second to last
paragraph at the bottom of the cover page concerning the terms of the
offering by the Purchasers, and the information concerning over-allotments
and stabilizing appearing in the eighth paragraph under the caption of
"Plan of Distribution"; and
(ii) the following information in the Offering Document furnished
on behalf of the Purchasers:
The initial purchasers and their respective affiliates provide,
and have in the past provided, certain financial and investment
advisory services to us. Banks affiliated with some of the
initial purchasers are lenders under our bank credit facilities.
As a result, such banks will receive a portion of the proceeds
from the offering of the notes. See "Use of Proceeds". Credit
Suisse First Boston, an affiliate of Credit Suisse First Boston
LLC, is a lender and the Administrative Agent under our bank
credit facilities and Citigroup Global Markets Inc. or one of its
affiliates is a lender, joint lead arranger and syndication agent
under our bank credit facilities. The decision of these initial
purchasers to distribute the notes was made independent of the
lenders with which these initial purchasers are affiliated, which
lenders had no involvement in determining whether or when to
distribute the notes under this offering or the terms of the
offering. These initial purchasers, exclusive of the proceeds
they or their affiliates will receive from the proceeds of the
notes, will not receive any benefit from this offering other than
the discount to the offering price described in this offering
circular.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the failure 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 except to the extent
that it has been materially prejudiced (through the forfeiture of the
substantive rights or defenses) by such failure; and provided further that
failure to notify the indemnifying party shall not relieve it from any
liability 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. 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
19
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 (a) 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 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. 1f 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, CSFB 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 abut 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 CSFB and the Company for
the purchase of such Offered Securities by other persons are not made
20
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% 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 CSFB 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.
21
If the foregoing is in accordance with the Purchasers' understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Issuers and the several
Purchasers in accordance with its terms.
Very truly yours,
TEREX CORPORATION
By: /s/ Eric I Cohen
-------------------------
Name: Eric I Cohen
Title: Senior Vice President, Secretary and
General Counsel
As the Guarantors,
KOEHRING CRANES, INC.
PAYHAULER CORP.
PPM CRANES, INC.
TEREX CRANES, 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.
TEREX BARTELL, INC,
TEREX MINING EQUIPMENT, INC.
CMI TEREX CORPORATION
CM DAKOTA COMPANY
CMIOIL CORPORATION
FUCHS TEREX, INC.
GENIE ACCESS SERVICES, INC.
GENIE CHINA, INC.
GENIE FINANCIAL SERVICES, INC.
GENIE HOLDINGS, INC.
GENIE INDUSTRIES, INC.
GENIE INTERNATIONAL, INC.
GENIE MANUFACTURING, INC.
GFS COMMERCIAL LLC.
GFS NATIONAL, INC.
GO CREDIT CORPORATION
LEASE SERVICING & FUNDING CORP.
PRODUCT SUPPORT, INC.
SCHAEFF INCORPORATED
TELELECT SOUTHEAST DISTRIBUTION, INC.
TEREX ADVANCE MIXER, INC.
TEREX FINANCIAL SERVICES, INC.
TEREX UTILITIES, INC.
TEREX UTILITIES SOUTH, INC.
UTILITY EQUIPMENT, INC.
By: /s/ Eric I Cohen
-------------------------
Name: Eric I Cohen
Title: Vice President and Secretary
The foregoing Purchase Agreement Is hereby confirmed and accepted as of the due
first above written.
CREDIT SUISSE FIRST BOSTON LLC
CITIGROUP GLOBAL MARKETS INC.
By: CREDIT SUISSE FIRST BOSTON LLC
By: /s/ James T. Glerun, Jr.
- -----------------------------------
Name: James T. Glerun, Jr.
Title: Managing Director
Acting on behalf of themselves
and as the Representatives of
the several Purchasers
SCHEDULE A
Principal Amount of
Initial Purchaser Offered Securities
----------------- -------------------
Credit Suisse First Boston Corporation.......... $ 180,000,000
Citigroup Global Markets Inc.................... 60,000,000
ABN AMRO Incorporated........................... 30,000,000
Banc of America Securities LLC.................. 18,000,000
Credit Lyonnais Securities (USA) Inc............ 6,000,000
Dresdner Kleinwort Wasserstein Securities....... 6,000,000
Total........................... $ 300,000,000
=============
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT