$300,000,000
Terex Corporation
7-3/8 % Senior Subordinated Notes due 2014
REGISTRATION RIGHTS AGREEMENT
November 25, 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, New York 10010-3629
Dear Sirs:
Terex Corporation, a Delaware corporation (the "Issuer"), proposes to issue
and sell to Credit Suisse First Boston LLC, Citigroup Global Markets Inc., ABN
AMRO Incorporated, Banc of America Securities LLC, Credit Lyonnais Securities
(USA) Inc. and Dresdner Kleinwort Wasserstein LLC (collectively, the "Initial
Purchasers"), upon the terms set forth in a purchase agreement dated November
10, 2003 (the "Purchase Agreement"), $300.0 million aggregate principal amount
of its 7-3/8% Senior Subordinated Notes due 2014 (the "Initial Securities") to
be unconditionally guaranteed (the "Guaranties") by 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, 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, Spinnaker Insurance Company, Telelect
Southeast Distribution, Inc., Terex Advance Mixer, Inc., Terex Financial
Services, Inc., Terex Utilities, Inc., Terex Utilities South, Inc., and Utility
Equipment, Inc. (the "Guarantors" and together with the Issuer, the "Company").
The Initial Securities will be issued pursuant to an Indenture, dated the date
hereof (the "Indenture"), among the Issuer, the Guarantors named therein and
HSBC Bank USA, as trustee (the "Trustee"). As an inducement to the Initial
Purchasers, the Company agrees with the Initial Purchasers, for the benefit of
the holders of the Initial Securities (including, without limitation, the
Initial Purchasers), the Exchange Securities (as defined below) and the Private
Exchange Securities (as defined below) (collectively, the "Holders"), as
follows:
1. Registered Exchange Offer. The Company shall, at its own cost, prepare
and, not later than 60 days after (or if the 60th day is not a business day, the
first business day thereafter) the date of original issue of the Initial
Securities (the "Issue Date"), file with the Securities and Exchange Commission
(the "Commission") a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to a proposed offer (the "Registered
Exchange Offer") to the Holders of Transfer Restricted Securities (as defined in
Section 6 hereof), who are not prohibited by any law or policy of the Commission
from participating in the Registered Exchange Offer, to issue and deliver to
such Holders, in exchange for the Initial Securities, a like aggregate principal
amount of 7-3/8 % Senior Subordinated Notes due 2014 (the "Exchange Securities")
of the Company issued under the Indenture that would be registered under the
Securities Act and identical in all material respects to the Initial Securities
(except for the transfer restrictions relating to the Initial Securities and the
provisions relating to the matters described in Section 6 hereof). The Company
shall use its best efforts to cause such Exchange Offer Registration Statement
to become effective under the Securities Act within 150 days (or if the 150th
day is not a business day, the first business day thereafter) after the Issue
Date of the Initial Securities and shall keep the Exchange Offer Registration
Statement effective for not less than 30 days (or longer, if required by
applicable law) after the date notice of the Registered Exchange Offer is mailed
to the Holders (such period being called the "Exchange Offer Registration
Period").
If the Company effects the Registered Exchange Offer, the Company will be
entitled to close the Registered Exchange Offer 30 days after the commencement
thereof provided that the Company has accepted all the Initial Securities
theretofore validly tendered in accordance with the terms of the Registered
Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Securities electing to exchange the
Initial Securities for Exchange Securities (assuming that such Holder is not an
affiliate of the Company within the meaning of the Securities Act, acquires the
Exchange Securities in the ordinary course of such Holder's business and has no
arrangements or understandings with any person to participate in the
distribution of the Exchange Securities and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer) to
trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States.
The Company acknowledges that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Securities (as defined below) acquired for its own account
as a result of market making activities or other trading activities, for
Exchange Securities (an "Exchanging Dealer"), is required to deliver a
prospectus containing the information set forth in (a) Annex A hereto in the
foreportion thereof, (b) Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section, and (c) Annex C hereto
in the "Plan of Distribution" section of such prospectus in connection with a
sale of any such Exchange Securities received by such Exchanging Dealer pursuant
to the Registered Exchange Offer and (ii) an Initial Purchaser that elects to
sell Exchange Securities acquired in exchange for Securities constituting any
portion of an unsold allotment is required to deliver a prospectus containing
the information required by Items 507 or 508 of Regulation S-K under the
Securities Act, as applicable, in connection with such sale.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the prospectus
contained therein, in order to permit such prospectus to be lawfully delivered
by all persons subject to the prospectus delivery
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requirements of the Securities Act for such period of time as such persons must
comply with such requirements in order to resell the Exchange Securities;
provided, however, that (i) in the case where such prospectus and any amendment
or supplement thereto must be delivered by an Exchanging Dealer or an Initial
Purchaser, such period shall be the lesser of 180 days and the date on which all
Exchanging Dealers and the Initial Purchasers have sold all Exchange Securities
held by them (unless such period is extended pursuant to Section 3(j) below) and
(ii) the Company shall make such prospectus and any amendment or supplement
thereto, available to any broker dealer for use in connection with any resale of
any Exchange Securities for a period of not less than 90 days after the
consummation of the Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
such Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "Private Exchange") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Company
issued under the Indenture and identical in all material respects (including the
existence of restrictions on transfer under the Securities Act and the
securities laws of the several states of the United States, but excluding
provisions relating to the matters described in Section 6 hereof) to the Initial
Securities (the "Private Exchange Securities"). The Initial Securities, the
Exchange Securities and the Private Exchange Securities are herein collectively
called the "Securities".
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal (the "Letter of Transmittal") and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days
(or longer, if required by applicable law) after the date notice thereof is
mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York,
which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last business day on which
the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all applicable
laws.
As soon as practicable after the close of the Registered Exchange Offer or
the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities properly tendered and not
properly withdrawn pursuant to the Registered Exchange Offer and the
Private Exchange in accordance with the terms of the Exchange Offer
Registration Statement and the Letter of Transmittal filed as an exhibit
thereto;
(y) deliver to the Trustee for cancellation all the Initial Securities
so accepted for exchange; and
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(z) cause the Trustee to authenticate and deliver promptly Exchange
Securities or Private Exchange Securities, as the case may be, to each
Holder of the Initial Securities equal in aggregate principal amount to the
Initial Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be subject
to the transfer restrictions set forth in the Indenture and that all the Initial
Securities, Exchange Securities and Private Exchange Securities will vote and
consent together on all matters as one class and that none of the such
securities will have the right to vote or consent as a class separate from one
another on any matter.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no interest has been
paid on the Initial Securities, from the date of original issue of the Initial
Securities. Each Exchange Security and Private Exchange Security will bear
interest at the rate set forth thereon; provided, that interest with respect to
the period prior to the issuance thereof shall accrue at the rate or rates borne
by the Initial Securities from time to time during such period.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act or resale of the Securities or the Exchange Securities in
violation of the Securities Act, (iii) such Holder is not an "affiliate," as
defined in Rule 405 of the Securities Act, of the Company or if it is an
affiliate, such Holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iv) if such Holder
is not a broker-dealer, that it is not engaged in, and does not intend to engage
in, the distribution of the Exchange Securities and (v) if such Holder is a
broker-dealer, that it will receive Exchange Securities for its own account in
exchange for Initial Securities that were acquired as a result of market-making
activities or other trading activities and that it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will use its best
efforts to ensure that (i) any Exchange Offer Registration Statement and any
amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations thereunder, (ii) any Exchange Offer Registration Statement and
any amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
is not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Exchange Offer Registration Statement is not declared
effective within 150 days of the Issue Date (or if the 150th day is not a
business day, the first business day thereafter), (iii) any Initial Purchaser so
requests with respect to
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the Initial Securities (or the Private Exchange Securities) not eligible to be
exchanged for Exchange Securities in the Registered Exchange Offer and held by
it following consummation of the Registered Exchange Offer or (iv) any Holder
(other than an Exchanging Dealer) is not eligible to participate in the
Registered Exchange Offer and such Holder notifies the Company within 60 days
following consummation of the Registered Exchange Offer or, in the case of any
Holder (other than an Exchanging Dealer) that participates in the Registered
Exchange Offer, such Holder does not receive freely tradeable Exchange
Securities on the date of the exchange and such Holder notifies the Company
within 60 days following consummation of the Registered Exchange Offer, the
Company shall take the following actions:
(a) The Company shall, at its cost, as promptly as practicable (but in
no event more than 30 days after so required or requested pursuant to this
Section 2) file with the Commission and thereafter shall use its best
efforts to cause to be declared effective a registration statement (the
"Shelf Registration Statement" and, together with the Exchange Offer
Registration Statement, a "Registration Statement") on an appropriate form
under the Securities Act relating to the offer and sale of the Transfer
Restricted Securities by the Holders thereof from time to time in
accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act (hereinafter,
the "Shelf Registration"); provided, however, that no Holder (other than an
Initial Purchaser) shall be entitled to have the Transfer Restricted
Securities held by it covered by such Shelf Registration Statement unless
such Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
relevant Securities, for a period of up to two years (or for such longer
period if extended pursuant to Section 3(j) below) from the date of its
effectiveness or such shorter period that will terminate when all the
Securities covered by the Shelf Registration Statement (i) have been sold
pursuant thereto or (ii) are no longer restricted securities (as defined in
Rule 144 under the Securities Act, or any successor rule thereof) (the
"Shelf Registration Period"); provided, however, that the Company may
notify the Holders of its suspension of any Shelf Registration Statement
(and, upon receipt of such notice, the Holders shall not be authorized by
the Company to resell and shall not resell Securities covered by the Shelf
Registration Statement during such period of suspension) if the Board of
Directors of the Company determines in good faith that there is a valid
purpose for the suspension (all such periods of suspension may not exceed
60 days during any 365-day period), and such suspensions shall not give
rise to any right to receive Additional Interest pursuant to Section 6
hereof. The Company shall be deemed not to have used its best efforts to
keep the Shelf Registration Statement effective during the requisite period
if it voluntarily takes any action (excluding any suspension permitted in
accordance with the preceding sentence) that would result in Holders of
Securities covered thereby not being able to offer and sell such Securities
during that period, unless such action is required by applicable law.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall use its best efforts to cause the Shelf
Registration Statement and the related prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement, amendment or supplement, (i) to comply in all material respects
with the applicable requirements of the Securities Act and the rules and
regulations of the Commission and (ii) not to contain any untrue statement
of a material fact or omit to
5
state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any Registered
Exchange Offer contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that an Initial Purchaser
(with respect to any portion of an unsold allotment from the original
offering) is participating in the Registered Exchange Offer or the Shelf
Registration Statement, the Company shall use its best efforts to reflect
in each such document, when so filed with the Commission, such comments as
such Initial Purchaser reasonably may, on a timely basis, propose; (ii)
include substantially the information set forth in Annex A hereto in the
foreportion thereof, in Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section and in Annex C
hereto in the "Plan of Distribution" section of the prospectus forming a
part of the Exchange Offer Registration Statement and include the
information set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Registered Exchange Offer; (iii) if requested by
an Initial Purchaser, include the information required by Items 507 or 508
of Regulation S-K under the Securities Act, as applicable, in the
prospectus forming a part of the Exchange Offer Registration Statement;
(iv) include within the prospectus contained in the Exchange Offer
Registration Statement a section entitled "Plan of Distribution," which
shall contain a summary statement of the positions taken or policies made
by the staff of the Commission with respect to the potential "underwriter"
status of any broker-dealer that is the beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of Exchange Securities received by such broker-dealer in
the Registered Exchange Offer (a "Participating Broker-Dealer"), whether
such positions or policies have been publicly disseminated by the staff of
the Commission or such positions or policies, in the reasonable judgment of
the Initial Purchasers based upon advice of counsel (which may be in-house
counsel), represent the prevailing views of the staff of the Commission;
and (v) in the case of a Shelf Registration Statement, include the names of
the Holders, who propose to sell Securities pursuant to the Shelf
Registration Statement, as selling securityholders. In connection with the
preparation and filing of a Shelf Registration Statement, the Company may
require each Holder to agree to (1) keep confidential any material
non-public information relating to the Company received by such Holders and
not to publicly disclose such information and (ii) to abstain from trading
any securities of the Company in violation of applicable securities laws on
the basis of any such material non-public information, in each case until
such information has been made generally available to the public.
(b) The Company shall give written notice to the Initial Purchasers,
the selling Holders of the Securities and any Participating Broker-Dealer
from whom the Company has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange Offer (which notice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction
to suspend the use of the prospectus until the requisite changes have been
made):
(i) when the Registration Statement or any amendment thereto has
been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
6
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to
make changes in the Registration Statement or the prospectus in order
that the Registration Statement or the prospectus do not contain an
untrue statement of a material fact nor omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the prospectus, in light of the circumstances
under which they were made) not misleading.
(c) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, at least one
copy of the Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder
so requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer and each
Initial Purchaser, and to any other Holder who so requests, without charge,
at least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if any Initial Purchaser or any such Holder requests, all
exhibits thereto (including those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus (including
each preliminary prospectus) included in the Shelf Registration Statement
and any amendment or supplement thereto as such person may reasonably
request. The Company consents, subject to the provisions of this Agreement,
to the use of the prospectus or any amendment or supplement thereto by each
of the selling Holders of the Securities in connection with the offering
and sale of the Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
(g) The Company shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement and any amendment or supplement
thereto as such persons may reasonably request. The Company consents,
7
subject to the provisions of this Agreement, to the use of the prospectus
or any amendment or supplement thereto by any Initial Purchaser, if
necessary, any Exchanging Dealer, any Participating Broker-Dealer and such
other persons required to deliver a prospectus following the Registered
Exchange Offer in connection with the offering and sale of the Exchange
Securities covered by the prospectus, or any amendment or supplement
thereto, included in such Exchange Offer Registration Statement.
(h) Prior to any public offering of the Securities, pursuant to any
Registration Statement, the Company shall register or qualify or cooperate
with the Holders of the Securities included therein and their respective
counsel in connection with the registration or qualification of the
Securities for offer and sale under the securities or "blue sky" laws of
such states of the United States as any Holder of the Securities reasonably
requests in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the
Securities covered by such Registration Statement; provided, however, that
the Company shall not be required to (i) qualify to do business in any
jurisdiction where it is not then so qualified or (ii) take any action
which would subject it to service of process or to taxation in any
jurisdiction where it is not then so subject.
(i) The Company shall cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates representing
the Securities to be sold pursuant to any Registration Statement free of
any restrictive legends and in such denominations and registered in such
names as the Holders may request a reasonable period of time prior to sales
of the Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above during the period for which the Company
is required to maintain an effective Registration Statement, the Company
shall promptly prepare and file a post-effective amendment to the
Registration Statement or a supplement to the related prospectus and any
other required document so that, as thereafter delivered to Holders of the
Securities or purchasers of Securities, the prospectus will not contain an
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
If the Company notifies the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer in accordance with
paragraphs (ii) through (v) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made,
then the Initial Purchasers, the Holders of the Securities and any such
Participating Broker-Dealers shall suspend use of such prospectus, and the
period of effectiveness of the Shelf Registration Statement provided for in
Section 2(b) above and the Exchange Offer Registration Statement provided
for in Section 1 above shall each be extended by the number of days from
and including the date of the giving of such notice to and including the
date when the Initial Purchasers, the Holders of the Securities and any
known Participating Broker-Dealer shall have received such amended or
supplemented prospectus pursuant to this Section 3(j).
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for
the Initial Securities, the Exchange Securities or the Private
Exchange Securities, as the case may be, and provide the applicable
trustee with printed certificates for the Initial Securities, the
Exchange Securities or the Private Exchange Securities, as the case
may be, in a form eligible for deposit with The Depository Trust
Company.
8
(l) The Company will comply in all material respects with all
rules and regulations of the Commission to the extent and so long as
they are applicable to the Registered Exchange Offer or the Shelf
Registration and will make generally available to its security holders
(or otherwise provide in accordance with Section 11(a) of the
Securities Act) an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act, no later than 45 days after the
end of a 12-month period (or 90 days, if such period is a fiscal year)
beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of the Registration Statement,
which statement shall cover such 12-month period.
(m) To the extent required by applicable law, the Company
shall cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended, in a timely manner and
containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require
the appointment of a new trustee under the Indenture, the Company
shall appoint a new trustee thereunder pursuant to the applicable
provisions of the Indenture.
(n) The Company may require each Holder of Securities to be
sold pursuant to the Shelf Registration Statement to furnish to
the Company such information regarding the Holder and the
distribution of the Securities as the Company may from time to
time reasonably require for inclusion in the Shelf Registration
Statement, and the Company may exclude from such registration the
Securities of any Holder that unreasonably fails to furnish such
information within a reasonable time (but not more than ten days)
after receiving such request.
(o) The Company shall enter into such customary agreements
(including, if requested in the case of a Shelf Registration, an
underwriting agreement in customary form) and take all such other
action, if any, as any Holder of the Securities shall reasonably
request in order to facilitate the disposition of the Securities
pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Company shall
(i) make reasonably available for inspection by the Holders of
the Securities named in the Shelf Registration Statement, any
underwriter participating in any disposition pursuant to the
Shelf Registration Statement and any attorney, accountant or
other agent retained by the Holders of the Securities named in
the Shelf Registration Statement or any such underwriter all
relevant financial and other records, pertinent corporate
documents and properties of the Company and (ii) cause the
Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested
by the Holders of the Securities named in the Shelf Registration
Statement or any such underwriter, attorney, accountant or agent
retained by the Holders of the Securities named in the Shelf
Registration Statement in connection with the Shelf Registration
Statement, in each case, as shall be reasonably necessary to
enable such persons, to conduct a reasonable investigation within
the meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information gathering
shall be coordinated on behalf of the Initial Purchasers by you
and on behalf of the other parties by one counsel designated by
and on behalf of such other parties as described in, and subject
to the provisions of, Section 4 hereof.
(q) In the case of any Shelf Registration, the Company, if
requested by any Holder of Securities named in the Shelf
Registration Statement, shall cause (i) its counsel to deliver an
opinion and updates thereof relating to the Securities in
customary form addressed to such Holders and the managing
underwriters, if any, thereof and dated, in the case of the
9
initial opinion, the effective date of such Shelf Registration
Statement (it being agreed that the matters to be covered by such
opinion shall include, without limitation, the due incorporation
and good standing of the Company and its subsidiaries; the
qualification of the Company and its subsidiaries to transact
business as foreign corporations; the due authorization,
execution and delivery of the relevant agreement of the type
referred to in Section 3(o) hereof; assuming due authorization,
authentication, execution and delivery thereof by the Trustee,
the due authorization, execution, and issuance, and the validity
and enforceability, of the applicable Securities; the absence of
material legal or governmental proceedings involving the Company
and its subsidiaries; the absence of governmental approvals
required to be obtained in connection with the Shelf Registration
Statement, the offering and sale of the applicable Securities, or
any agreement of the type referred to in Section 3(o) hereof; the
compliance in all material respects as to form of such Shelf
Registration Statement and any documents incorporated by
reference therein and of the Indenture with the requirements of
the Securities Act and the Trust Indenture Act, respectively;
and, as of the date of the opinion and as of the effective date
of the Shelf Registration Statement or most recent post-effective
amendment thereto, as the case may be, the absence from such
Shelf Registration Statement and the prospectus included therein,
as then amended or supplemented, and from any documents
incorporated by reference therein of an untrue statement of a
material fact or the omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading (in the case of any such documents, in the
light of the circumstances existing at the time that such
documents were filed with the Commission under the Exchange Act);
(ii) its officers to execute and deliver all customary documents
and certificates and updates thereof requested by any
underwriters of the applicable Securities and (iii) its
independent public accountants and the independent public
accountants with respect to any other entity for which financial
information is provided in the Shelf Registration Statement to
provide to the selling Holders of the applicable Securities and
any underwriter therefor a comfort letter in customary form and
covering matters of the type customarily covered in comfort
letters in connection with primary underwritten offerings,
subject to receipt of appropriate documentation as contemplated,
and only if permitted, by Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if
requested by any Initial Purchaser or any known Participating
Broker-Dealer, the Company shall cause (i) its counsel to deliver
to such Initial Purchaser or such Participating Broker-Dealer a
signed opinion in the form set forth in Sections 6(c) and (d) of
the Purchase Agreement with such changes as are customary in
connection with the preparation of a Registration Statement and
(ii) its independent public accountants to deliver to such
Initial Purchaser or such Participating Broker-Dealer a comfort
letter, in customary form, meeting the requirements as to the
substance thereof as set forth in Section 6(a) of the Purchase
Agreement, with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is
to be consummated, upon delivery of the Initial Securities by
Holders to the Company (or to such other Person as directed by
the Company) in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be, the Company
shall mark, or caused to be marked, on the Initial Securities so
exchanged that such Initial Securities are being canceled in
exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be; in no event shall the Initial
Securities be marked as paid or otherwise satisfied.
(t) The Company will use its best efforts to (a) if the
Initial Securities have been rated prior to the initial sale of
such Initial Securities, confirm that such ratings will
10
apply to the Securities covered by a Registration Statement, or
(b) if the Initial Securities were not previously rated, cause
the Securities covered by a Registration Statement to be rated
with the appropriate rating agencies, if so requested by Holders
of a majority in aggregate principal amount of Securities covered
by such Registration Statement, or by the managing underwriters,
if any.
(u) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a
member of an underwriting syndicate or selling group or "assist
in the distribution" (within the meaning of the Conduct Rules
(the "Rules") of the National Association of Securities Dealers,
Inc. ("NASD")) thereof, whether as a Holder of such Securities or
as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, the Company will assist
such broker-dealer in complying with the requirements of such
Rules, including, without limitation, by (i) if such Rules,
including Rule 2720, shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to participate
in the preparation of the Registration Statement relating to such
Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated
by such Registration Statement is an underwritten offering or is
made through a placement or sales agent, to recommend the yield
of such Securities, (ii) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof and (iii) providing
such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of
the Rules.
(v) The Company shall use its best efforts to take all other steps
necessary to effect the registration of the Securities covered by a
Registration Statement contemplated hereby.
4. Registration Expenses. The Company shall bear all fees and expenses
incurred by it in connection with the performance of its obligations under
Sections 1 through 3 hereof (including the reasonable fees and expenses, if any,
of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Initial Purchasers,
incurred in connection with the Registered Exchange Offer, which fees and
expenses shall not exceed $10,000), whether or not the Registered Exchange Offer
or a Shelf Registration is filed or becomes effective, and, in the event of a
Shelf Registration, shall bear or reimburse the Holders of the Securities
covered thereby for the reasonable fees and disbursements of not more than one
firm of counsel designated by the Holders of a majority in principal amount of
the Initial Securities covered thereby to act as counsel for the Holders of the
Initial Securities in connection therewith.
5. Indemnification. (a) The Company agrees to indemnify and hold harmless
each Holder of the Securities, any Participating Broker-Dealer and each person,
if any, who controls such Holder or such Participating Broker-Dealer within the
meaning of the Securities Act or the Exchange Act (each Holder, any
Participating Broker-Dealer and such controlling persons are referred to
collectively as the "Holder Indemnified Parties") from and against any losses,
claims, damages or liabilities, joint or several, or any actions in respect
thereof (including, but not limited to, any losses, claims, damages, liabilities
or actions relating to purchases and sales of the Securities) to which each
Holder Indemnified Party may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement or in a
prospectus contained in a Registration Statement (a "Prospectus") or in any
amendment or supplement thereto or in any preliminary prospectus relating to a
Shelf Registration Statement, or arise out of, or are based upon, the omission
or alleged omission to state therein a
11
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse, as incurred, the Indemnified
Parties for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that (i) the Company
shall not be liable in any such case to the extent that such loss, claim,
damage, liability or actions in respect thereof arises out of or is based upon
any untrue statement or alleged untrue statement or omission or alleged omission
made in a Registration Statement or Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Shelf Registration in
reliance upon and in conformity with written information pertaining to such
Holder or its distribution and furnished to the Company by or on behalf of such
Holder specifically for inclusion therein and (ii) with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus relating to a Shelf Registration Statement, the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Holder or Participating Broker-Dealer from whom the person asserting any such
losses, claims, damages, liabilities or actions in respect thereof purchased the
Securities concerned, to the extent that a prospectus relating to such
Securities was required to be delivered by such Holder or Participating
Broker-Dealer under the Securities Act in connection with such purchase and any
such loss, claim, damage, liability or action in respect thereof of such Holder
or Participating Broker-Dealer results from the fact that there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Securities to such person, a copy of the final prospectus if the Company
had previously furnished copies thereof to such Holder or Participating
Broker-Dealer; provided further, however, that this indemnity agreement will be
in addition to any liability which the Company may otherwise have to such Holder
Indemnified Party. The Company shall also indemnify underwriters, their officers
and directors and each person who controls such underwriters within the meaning
of the Securities Act or the Exchange Act to the same extent as provided above
with respect to the indemnification of the Holders of the Securities if
requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act from
and against any losses, claims, damages or liabilities or any actions in respect
thereof, to which the Company or any such controlling person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in a
Registration Statement or Prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, in each
case only to the extent that such untrue statement or omission or alleged untrue
statement or omission was made in reliance upon and in conformity with written
information pertaining to such Holder or its distribution and furnished to the
Company by or on behalf of such Holder specifically for inclusion therein; and,
subject to the limitation set forth in the immediately preceding clause, shall
reimburse, as incurred, the Company for any legal or other expenses reasonably
incurred by the Company or any such controlling person in connection with
investigating or defending any loss, claim, damage, liability or action in
respect thereof. This indemnity agreement will be in addition to any liability
which such Holder may otherwise have to the Company or any of its controlling
persons.
(c) Promptly after receipt by an indemnified party under this Section 5 of
notice of the commencement of any action or proceeding (including a governmental
investigation), such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 5, notify the
indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not, relieve the indemnifying party from any liability
that it may have under subsection (a) or (b) above except to the extent that it
has been materially prejudiced
12
(through the forfeiture of substantive rights or defenses) by such failure; and
provided further that the failure to notify the 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 reasonably
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 5 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, other than reasonable costs of investigation. In no event shall an
indemnifying party be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action and does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party. An
indemnifying party shall not be liable for any settlement of any proceeding
effected without its prior written consent.
(d) If the indemnification provided for in this Section 5 is unavailable or
insufficient to hold harmless an indemnified party under subsections (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 (or actions in respect thereof) referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other from the exchange of the Securities
pursuant to the Registered Exchange Offer, or (ii) if the allocation provided by
the foregoing clause (i) 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 indemnifying party or
parties on the one hand and the indemnified party or parties on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as well as any
other relevant equitable considerations. The relative fault of the parties 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 such indemnifying party on
the one hand or such Holder or such indemnified party, on the other, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such 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 any other provision of this Section 5(d), the
Holders of the Securities shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by such Holders from the
sale of the Securities pursuant to a Registration Statement exceeds the amount
of damages which such Holders have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. 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
13
such fraudulent misrepresentation. For purposes of this paragraph (d), each
person, if any, who controls such Holder Indemnified Party within the meaning of
the Securities Act or the Exchange Act shall have the same rights to
contribution as such Holder Indemnified Party and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the sale of
the Securities pursuant to a Registration Statement and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances. (a) Additional interest
(the "Additional Interest") with respect to the Initial Securities shall be
assessed as follows if any of the following events occur (each such event in
clauses (i) through (iii) below, a "Registration Default"):
(i) If by January 24, 2004 (or if such day is not a business day,
the first business day thereafter) neither the Exchange Offer
Registration Statement nor a Shelf Registration Statement has been
filed with the Commission;
(ii) If by May 23, 2004 (or if such day is not a business day,
the first business day thereafter) neither the Registered Exchange
Offer is consummated nor, if required in lieu thereof, the Shelf
Registration Statement is declared effective by the Commission; or
(iii) If after either the Exchange Offer Registration Statement
or the Shelf Registration Statement is declared effective (A) such
Registration Statement thereafter ceases to be effective; or (B) such
Registration Statement or the related prospectus ceases to be usable
(except as permitted in paragraph (b)) in connection with resales of
Transfer Restricted Securities during the periods specified herein, in
either case, during the period the applicable registration statement
must remain effective under this Agreement, because either (1) any
event occurs as a result of which the related prospectus forming part
of such Registration Statement would 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, or (2) it shall be necessary to amend such
Registration Statement or supplement the related prospectus, to comply
with the Securities Act or the Exchange Act or the respective rules
thereunder.
Additional Interest shall accrue on the Initial Securities over and above the
interest set forth in the title of the Securities from and including the date on
which any such Registration Default shall occur to but excluding the date on
which all such Registration Defaults have been cured, at a rate of 0.50% per
annum.
(b) A Registration Default referred to in Section 6(a)(iii)(B) hereof
shall be deemed not to have occurred and be continuing in relation to a
Shelf Registration Statement or the related prospectus if (i) such
Registration Default has occurred solely as a result of (x) the filing of a
post-effective amendment to such Shelf Registration Statement to
incorporate annual audited financial information with respect to the
Company where such post-effective amendment is not yet effective and needs
to be declared effective to permit Holders to use the related prospectus or
(y) other material events, with respect to the Company that would need to
be described in such Shelf Registration Statement or the related prospectus
and (ii) in the case of clause (y), the Company is proceeding promptly and
in good faith to amend or supplement such Shelf Registration
14
Statement and related prospectus to describe such events; provided,
however, that in any case if such Registration Default occurs for a
continuous period in excess of 30 days, Additional Interest shall be
payable in accordance with the above paragraph from the day such
Registration Default occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to clause (i),
(ii) or (iii) of Section 6(a) above will be payable in cash on the regular
interest payment dates with respect to the Initial Securities. The amount
of Additional Interest will be determined by multiplying the applicable
Additional Interest rate by the principal amount of the Initial Securities,
multiplied by a fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period (determined on
the basis of a 360-day year comprised of twelve 30-day months), and the
denominator of which is 360.
(d) "Transfer Restricted Securities" means each Security until (i) the
date on which such Transfer Restricted Security has been exchanged by a
person other than a broker-dealer for a freely transferable Exchange
Security in the Registered Exchange Offer, (ii) following the exchange by a
broker-dealer in the Registered Exchange Offer of an Initial Security for
an Exchange Security, the date on which such Exchange Security is sold to a
purchaser who receives from such broker-dealer on or prior to the date of
such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement, (iii) the date on which such Initial Security has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on which
such Initial Securities is distributed to the public pursuant to Rule 144
under the Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act.
7. Rules 144 and 144A. The Company shall use its best efforts to file the
reports required to be filed by it under the Securities Act and the Exchange Act
in a timely manner and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Initial Securities, make
publicly available other information so long as necessary to permit sales of
their securities pursuant to Rules 144 and 144A. The Company covenants that it
will take such further action as any Holder of Initial Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Initial Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company will provide a copy of this
Agreement to prospective purchasers of Initial Securities identified to the
Company by the Initial Purchasers upon request. Upon the request of any Holder
of Initial Securities, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations. If any of the Transfer Restricted Securities
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
administer the offering ("Managing Underwriters") will be selected by the
Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities to be included in such offering with the consent of the Company,
which consent shall not be unreasonably withheld.
No person may participate in any underwritten registration hereunder unless
such person (i) agrees to sell such person's Transfer Restricted Securities on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such
15
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents.
(b) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, first-class mail, facsimile
transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current address
given by such Holder to the Company.
(2) if to the Initial Purchasers:
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, NY 10010-3629
Fax No.: (212) 325-8278
Attention: Transactions Advisory Group
with a copy to:
Skadden, Arps, Slate, Meagher and Flom LLP
Four Times Square
New York, New York 10036
Attention: Mark C. Smith, Esq.
Fax No.: (212) 735-2000
(3) if to the Company, at its address as follows:
Terex Corporation
500 Post Road East
Suite 320
Westport, Connecticut 06880
Attention: Eric I Cohen, Esq.
Fax No.: (203) 227-1647
with a copy to:
Bryan Cave LLP
1290 Avenue of the Americas
New York, New York 10104
Attention: Stuart A. Gordon, Esq.
Fax No.: (212) 541-1360
16
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(c) No Inconsistent Agreements. The Company hereby agrees that any
Registration Statement shall, unless otherwise agreed upon by the Initial
Purchasers, include only those Securities required to be included thereunder
pursuant to the terms of this Agreement. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding upon each of
the parties and their respective successors and assigns.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing 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.
(h) Severability. If any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(i) Securities Held by the Company or its Affiliates. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Company or its
affiliates (other than subsequent Holders of Securities if such subsequent
Holders are deemed to be affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
(j) Agent for Service; Submission to Jurisdiction; Waiver of Immunities. By
the execution and delivery of this Agreement, the Company (i) acknowledges that
it has, by separate written instrument, irrevocably designated and appointed
Terex Corporation (and any successor entity), as its authorized agent upon which
process may be served in any suit or proceeding arising out of or relating to
this Agreement that may be instituted in any federal or state court in the State
of New York or brought under federal or state securities laws, and acknowledges
that Terex Corporation has accepted such designation, (ii) submits to the
nonexclusive jurisdiction of any such court in any such suit or proceeding, and
(iii) agrees that service of process upon Terex Corporation and written notice
of said service to the Company shall be deemed in every respect effective
service of process upon it in any such suit or proceeding. The Company further
agrees to take any and all action, including the execution and filing of any and
all such documents and instruments, as may be necessary to continue
17
such designation and appointment of Terex Corporation in full force and effect
so long as any of the Securities shall be outstanding. To the extent that the
Company may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, it hereby irrevocably waives such immunity in respect of this
Agreement, to the fullest extent permitted by law.
18
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the several Initial Purchasers, the Issuer and the Guarantors in accordance with
its terms.
Very truly yours,
TEREX CORPORATION
By:/s/ Eric I Cohen
-----------------------
Name: Eric I Cohen
Title: Senior Vice President
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
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
SPINNAKER INSURANCE COMPANY
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: Senior Vice President
<page>
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON LLC
CITIGROUP GLOBAL MARKETS INC.
By: CREDIT SUISSE FIRST BOSTON LLC
By: /s/ James T. Glerum, Jr.
------------------------------
Name: James T. Glerum, Jr.
Title: Managing Director
Acting on behalf of themselves
and as the Representatives of
the several Purchasers
<page>
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
<page>
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account in
exchange for Securities, where such Initial Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
<page>
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 180 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until ______________, 200_,
all dealers effecting transaction in the Exchange Securities may be required to
deliver a prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Securities. Any broker-dealer that resells Exchange Securities that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
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( 1)In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
<page>
ANNEX D
________CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ____________________________________________
Address: ____________________________________________
____________________________________________
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.