EXHIBIT 10.21
$200,000,000
H&E EQUIPMENT SERVICES L.L.C.
H&E FINANCE CORP.
11 1/8% SENIOR SECURED NOTES DUE 2012
PURCHASE AGREEMENT
June 3, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
FLEET SECURITIES, INC.
C/O CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
1. INTRODUCTORY. H&E Equipment Services L.L.C., a Louisiana limited
liability company, ("H&E") and H&E Finance Corp., a Delaware corporation ("H&E
FINANCE" and together with H&E, the "COMPANY"), propose, subject to the terms
and conditions stated herein, to co-issue and sell to Credit Suisse First Boston
Corporation ("CSFBC" or the "REPRESENTATIVE") and the several initial purchasers
named in Schedule I hereto (the initial "PURCHASERS") $200,000,000 principal
amount of its 11 1/8% Senior Secured Notes due 2012 (the "NOTES") to be issued
under an indenture, dated as of June 17, 2002 (the "INDENTURE"), between the
Company, the Guarantors (as defined below), and The Bank of New York, as Trustee
on a private placement basis pursuant to an exemption under Section 4(2) of the
United States Securities Act of 1933 (the "SECURITIES ACT"). The Company's
obligations under the Notes, including the due and punctual payment of interest
on the Notes, will be unconditionally guaranteed (the "GUARANTEE") by GNE
Investments, Inc. a Washington corporation, Great Northern Equipment, Inc., a
Montana corporation, and each of the Company's future domestic subsidiaries
(each, a "GUARANTOR" and together, the "GUARANTORS"). As used herein, the term
"OFFERED SECURITIES" shall include the Guarantees thereof by the Guarantors,
unless the context otherwise requires. Prior to the Closing Date (as defined
below) ICM Equipment Company L.L.C. ("ICM") and Head & ▇▇▇▇▇▇▇▇ Equipment,
L.L.C., ("HEAD & ▇▇▇▇▇▇▇▇") will be combined and merged with and into H&E.
Holders (including subsequent transferees) of the Offered Securities will
have the registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT"), to be dated June 17, 2002 (the "CLOSING DATE")
for so long as such Offered Securities constitute "TRANSFER RESTRICTED
SECURITIES" (as defined in the Registration Rights Agreement). Pursuant to the
Registration Rights Agreement, the Company and the Guarantors will agree to file
with the Securities and Exchange Commission (the "COMMISSION") under the
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circumstances set forth therein, (i) a registration statement under the
Securities Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating to the
Company's 11 1/8% Senior Secured Notes in a like aggregate principal amount as
the Company issued under the Indenture, identical in all material respects to
the Notes and Guarantees and registered under the Securities Act (the "EXCHANGE
NOTES" and the "EXCHANGE GUARANTEES," together the "EXCHANGE SECURITIES"), to be
offered in exchange for the Notes (such offer to exchange being referred to as
the "EXCHANGE OFFER") and the Guarantees thereof and (ii) a shelf registration
statement pursuant to Rule 415 under the Securities Act (the "SHELF REGISTRATION
STATEMENT" and, together with the Exchange Offer Registration Statement, the
"REGISTRATION STATEMENTS") relating to the resale by certain holders of the
Offered Securities and to use its commercially reasonable efforts to cause such
Registration Statements to be declared and remain effective and usable for the
periods specified in the Registration Rights Agreement and to consummate the
Exchange Offer. The Offered Securities and the Exchange Securities are referred
to collectively as the "SECURITIES". As used herein, the term "SECOND-LIEN
SECURITY DOCUMENTS" has the meaning assigned to it in the Offering Document (as
such term is defined below).
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE GUARANTORS. The
Company and each of the Guarantors, jointly and severally, represents and
warrants to, and agrees with, the Purchasers that:
(a) A preliminary offering circular and an offering circular relating
to the Offered Securities to be offered by the Company and the Guarantors
have been prepared by the Company and the Guarantors. Such preliminary
offering circular (the "PRELIMINARY OFFERING CIRCULAR") and offering
circular (the "OFFERING CIRCULAR"), as supplemented as of the date of this
Agreement, are hereinafter collectively referred to as the "OFFERING
DOCUMENT." On the date of this Agreement and as of the Closing Date, the
Offering Document does not and will not include any untrue statement of a
material fact or omit to state any 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. The
preceding sentence does not apply to statements in or omissions from the
Offering Document based upon written information furnished to the Company
by or through CSFBC specifically for use therein, it being understood and
agreed that the only such information is that described as such in Section
7(b) hereof.
(b) No order or decree preventing the use of the Offering Document, or
any order asserting that the transactions contemplated by this Agreement
are subject to the registration requirements of the Securities Act has been
issued and no proceeding for that purpose has commenced or is pending or,
to the knowledge of the Company or any of the Guarantors, is contemplated.
(c) The market-related and customer-related data and estimates
included under the captions "Summary" and "Business" in the Offering
Document are based on or derived from sources which the Company believes to
be reliable.
(d) The Notes have been duly and validly authorized by the Company and
when duly executed by the Company in accordance with the terms of the
Indenture and,
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assuming due authentication of the Notes by the Trustee, upon delivery to
the Purchasers against payment therefor in accordance with the terms
hereof, will have been validly issued and delivered, and will constitute
valid and binding obligations of the Company entitled to the benefits of
the Indenture, enforceable against the Company in accordance with their
terms, subject to the qualification that the enforceability of the
Company's obligations thereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium, and other laws relating
to or affecting creditors' rights generally and by general equitable
principles. The Notes will conform in all material respects to the
description thereof in the Offering Document.
(e) The Exchange Notes have been duly and validly authorized by the
Company and if and when duly issued and authenticated in accordance with
the terms of the Indenture and delivered in accordance with the
Registration Rights Agreement, will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their terms, subject to
the qualification that the enforceability of the Company's obligations
thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(f) The Guarantees have been duly and validly authorized by the
Guarantors and when duly executed and delivered by the Guarantors in
accordance with the terms of the Indenture and upon the due execution,
authentication and delivery of the Notes in accordance with the Indenture
and the issuance of the Notes in the sale to the Purchasers contemplated by
this Agreement, will constitute valid and binding obligations of the
Guarantors, enforceable against the Guarantors in accordance with their
terms, subject to the qualification that the enforceability of the
Guarantors' obligations thereunder may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium, and other laws relating
to or affecting creditors' rights generally and by general equitable
principles. The Guarantees will conform to the description thereof in the
Offering Document.
(g) The Exchange Guarantees have been duly and validly authorized by
the Guarantors and if and when duly executed and delivered by the
Guarantors in accordance with the terms of the Indenture and upon the due
execution and authentication of the Exchange Notes in accordance with the
Indenture and the issuance and delivery of the Exchange Notes contemplated
by the Registration Rights Agreement, will constitute valid and binding
obligations of the Guarantors, entitled to the benefits of the Indenture,
enforceable against the Guarantors in accordance with their terms, subject
to the qualification that the enforceability of the Guarantors' obligations
thereunder may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium, and other laws relating to or affecting
creditors' rights generally and by general equitable principles.
(h) The Company and each of the Guarantors has been duly incorporated
or formed and is an existing corporation or limited liability company in
good standing under
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the laws of its jurisdiction of organization, with power and authority to
own its properties and conduct its business as described in the Offering
Document; and the Company and each of the Guarantors 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 so
qualify would not have a Material Adverse Effect (as such term is defined
herein).
(i) Each subsidiary of the Company and the Guarantors has been duly
incorporated and is an existing corporation in good standing under the laws
of the jurisdiction of its incorporation, with power and authority to own
its properties and conduct its business as described in the Offering
Document; and each subsidiary of the Company and the Guarantors 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 so qualify would not have a Material Adverse Effect; all of the
issued and outstanding capital stock of each subsidiary of the Company and
the Guarantors has been duly authorized and validly issued and is fully
paid and nonassessable; and the capital stock of each subsidiary owned by
the Company and the Guarantors, directly or through subsidiaries, is owned
free from material liens, encumbrances and defects.
(j) The entities listed on Schedule II hereto are the only
subsidiaries, direct or indirect, of the Company.
(k) The Indenture has been duly and validly authorized by the Company
and the Guarantors, and upon its execution and delivery and, assuming due
authorization, execution and delivery by the Trustee, will constitute the
valid and binding agreement of the Company and the Guarantors, enforceable
against the Company and the Guarantors in accordance with its terms,
subject to the qualification that the enforceability of the Company's and
the Guarantors' obligations thereunder may be limited by bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium, and other
laws relating to or affecting creditors' rights generally and by general
equitable principles; no qualification of the Indenture under the Trust
Indenture Act of 1939 (the "1939 ACT") is required in connection with the
offer and sale of the Notes contemplated hereby. The Indenture will conform
in all material respects to the description thereof in the Offering
Document.
(l) On the Closing Date, the Indenture will conform in all material
respects to the requirements of the 1939 Act, and the rules and regulations
of the Commission applicable to an indenture which is qualified thereunder.
(m) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company or any of the
Guarantors and any person that would give rise to a valid claim against the
Company, any Guarantor or any Purchaser for a brokerage commission,
finder's fee or other like payment.
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(n) The Company and each of the Guarantors has all requisite corporate
power and authority to enter into the Registration Rights Agreement and the
Second-Lien Security Documents. The Registration Rights Agreement and the
Second-Lien Security Documents have each been duly authorized by the
Company and the Guarantors and, when executed by the Company and the
Guarantors in accordance with the terms hereof and thereof, will each be
validly executed and delivered and (assuming the due execution and delivery
thereof by you), will each be a legally valid and binding obligation of the
Company and the Guarantors in accordance with the terms hereof and thereof,
enforceable against the Company and the Guarantors in accordance with their
terms, except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to
or affecting creditor's rights generally, by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), and, as to rights of indemnification and contribution,
by principles of public policy.
(o) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement, the
Indenture, the Second-Lien Security Documents or the Registration Rights
Agreement in connection with the issuance and sale of the Offered
Securities by the Company or the Guarantors except for the order of the
Commission declaring the Exchange Offer Registration Statement or the Shelf
Registration Statement (each as defined in the Registration Rights
Agreement) effective and such consents, approvals, authorizations, orders
or filings (i) as may be required to perfect upon the security interests
described in the Second-Lien Security Documents and (ii) under state
securities or Blue Sky laws.
(p) The execution, delivery and performance of the Indenture, this
Agreement, the Second-Lien Security Documents and the Registration Rights
Agreement, and the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, any applicable rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company, the Guarantors, or any of their respective
subsidiaries or any of their properties, or any agreement or instrument to
which the Company, the Guarantors, or any of their respective subsidiaries
is a party or by which the Company, the Guarantors, or any of their
respective subsidiaries is bound or to which any of the properties of the
Company, the Guarantors, or any of their respective subsidiaries is
subject, or the charter or by-laws of the Company, the Guarantors, or any
of their respective subsidiaries, and the Company and each of the
Guarantors has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement.
(q) This Agreement has been duly authorized, executed and delivered by
the Company and the Guarantors.
(r) Except as disclosed in the Offering Document, the Company, the
Guarantors, or any of their respective subsidiaries have good and
marketable title to all real properties
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and all other properties and assets owned by them, in each case free from
liens, encumbrances and defects 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, the
Guarantors, or any of their respective subsidiaries hold any leased real or
personal property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made thereof by
them.
(s) The Company, the Guarantors, and their respective subsidiaries
possess adequate certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings relating
to the revocation or modification of any such certificate, authority or
permit that, if determined adversely to the Company, the Guarantors, or any
of their respective subsidiaries, would individually or in the aggregate
have a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company, the
Guarantors, or any of their respective subsidiaries taken as a whole
("MATERIAL ADVERSE EFFECT").
(t) No labor dispute with the employees of the Company, the
Guarantors, or any of their respective subsidiaries, to the knowledge of
the Company or any of the Guarantors, is imminent that might have a
Material Adverse Effect.
(u) The Company, the Guarantors, or any of their respective
subsidiaries own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct the
business now operated by them, or presently employed by them, and have not
received any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if determined
adversely to the Company, the Guarantors, or any of their respective
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(v) Except as disclosed in the Offering Document, neither the Company,
the Guarantors, nor any of their respective subsidiaries is in violation of
any statute, any rule, regulation, decision or order of any governmental
agency or body or any court, domestic or foreign having jurisdiction over
the Company, the Guarantors or any of their respective subsidiaries or any
of their respective properties, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration
of the environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), owns or operates any real property
contaminated with any substance that is subject to any environmental laws,
is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and
neither the Company nor any Guarantor is aware of any pending investigation
which might lead to such a claim.
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(w) Except as disclosed in the Offering Document, there are no pending
actions, suits or proceedings against or affecting the Company, the
Guarantors, any of their respective subsidiaries, or any of their
respective properties that, if determined adversely to the Company, the
Guarantors, or any of their respective subsidiaries, would individually or
in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company or the Guarantors to perform
their respective obligations under the Indenture, this Agreement, the
Second-Lien Security Documents or the Registration Rights Agreement, or
which are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are threatened or, to
the Company's or any Guarantor's knowledge, contemplated.
(x) The financial statements included in the Offering Document present
fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations and cash
flows for the periods shown, and such financial statements have been
prepared in all material respects in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis;
and the assumptions used in preparing the pro forma financial statements
included in the Offering Document provide a reasonable basis for presenting
the significant effects directly attributable to the transactions or events
described therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding historical
financial statement amounts.
(y) Except as disclosed in the Offering Document, since the date of
the latest audited financial statements included in the Offering Document,
neither the Company, any Guarantor nor any of their respective subsidiaries
has sustained any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree and, there has been no material adverse change, nor to the
knowledge of the Company 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, the Guarantors and
their respective subsidiaries, and, except as disclosed in or contemplated
by the Offering Document, there has been no dividend or distribution of any
kind declared, paid or made by the Company or each of the Guarantors on any
class of its capital stock.
(z) The Company is not an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be
registered under Section 8 of the United States Investment Company Act of
1940, as amended and the rules and regulations of the Commission thereunder
(the "INVESTMENT COMPANY ACT"); and the Company is not and, after giving
effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Offering Document,
will not be an "investment company" as defined in the Investment Company
Act.
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(aa) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities exchange registered under Section 6 of the
United States Securities Exchange Act of 1934 ("EXCHANGE ACT") or quoted in
a U.S. automated inter-dealer quotation system.
(bb) The offer and sale and resale of the Offered Securities to the
Purchasers in the manner contemplated by this Agreement will be exempt from
the registration requirements of the Securities Act by reason of
Section 4(2) thereof, Regulation D thereunder and Regulation S thereunder.
(cc) Neither the Company, the Guarantors nor any of their respective
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, the
Guarantors, its affiliates and any person acting on its or their behalf
have complied and will comply with the offering restrictions requirement of
Regulation S and the sale of the Offered Securities pursuant to Regulation
S is not part of a plan or scheme to evade the registration provisions of
the Securities Act. The Company and each of the Guarantors has not entered
and will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for this Agreement.
(dd) The Offering Document contains all the information specified in,
and meeting the requirements of, Rule 144A(d)(4) under the Securities Act.
(ee) 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 the
securities registered pursuant to Registration Rights Agreement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Securities Act.
(ff) The Company, the Guarantors and each of their respective
subsidiaries carry, or are covered by, insurance in such amounts and
covering such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and as is customary
for companies engaged in similar businesses in similar industries.
(gg) No relationship, direct or indirect, required to be described
under Item 404 of Regulation S-K, exists between or among the Company on
the one hand, and the
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directors, officers or stockholders of the Company on the other hand, which
is not described in the Offering Document.
(hh) The Company is in compliance in all material respects with all
presently applicable provisions of ERISA; no "reportable event" (as defined
in ERISA), has occurred with respect to any "pension plan" (as defined in
ERISA), for which the Company would have any liability; the Company has not
incurred and does not expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"CODE"); and each "pension plan" for which the Company would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
(ii) The Company and the Guarantors have filed all material federal,
state and local income and franchise tax returns required to be filed
through the date hereof and have paid all taxes due thereon, and no tax
deficiency has been determined adversely to the Company, the Guarantors or
any of their respective subsidiaries which has had (nor does the Company or
the Guarantors have any knowledge of any tax deficiency which, if
determined adversely to the Company, the Guarantors or any of their
respective subsidiaries, might have) a Material Adverse Effect on the
Company, the Guarantors and their respective subsidiaries.
(jj) Since the date as of which information is given in the
Preliminary Offering Memorandum through the date hereof, and except as may
otherwise be disclosed or contemplated in the Offering Document, neither
the Company nor the Guarantors have (i) issued or granted any securities,
(ii) incurred any liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the ordinary course of
business or (iv) declared or paid any dividend on its capital stock.
(kk) The Company and the Guarantors (i) make and keep accurate books
and records and (ii) maintain internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to their respective assets is
permitted only in accordance with management's authorization and (D) the
reported accountability for their respective assets is compared with
existing assets at reasonable intervals.
(ll) Neither the Company, the Guarantors nor any of their respective
subsidiaries (i) is in violation of its charter or by-laws, (ii) is in
default in any respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to which
any of its properties or assets is
9
subject or (iii) is in violation in any respect of any applicable law,
ordinance, governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any license,
permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of its
business, except, with regard to (ii) and (iii) of this paragraph, for such
defaults, violations or failures that would not reasonably be expected to
have a Material Adverse Effect on the Company, the Guarantors or any of
their respective subsidiaries.
(mm) Neither the Company, the Guarantors nor any of their respective
subsidiaries, nor to the knowledge of the Company, the Guarantors or any of
their respective subsidiaries, any director, officer, agent, employee or
other person associated with or acting on behalf of the Company, the
Guarantors or any of their respective subsidiaries, has used any corporate
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or employee
from corporate funds; violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(nn) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of
the Notes), will violate or result in a violation of Section 7 of the
Exchange Act, or any regulation promulgated thereunder, including, without
limitation, Regulations T, U, and X of the Board of Governors of the
Federal Reserve System.
(oo) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Securities
Act (i) has imposed (or has informed the Company or any Guarantor that it
is considering imposing) any condition (financial or otherwise) on the
Company's or any Guarantor's retaining any rating assigned to the Company
or any Guarantor, any securities of the Company or any Guarantor or (ii)
has indicated to the Company or any Guarantor that it is considering (a)
the downgrading, suspension, or withdrawal of, or any review for a possible
change that does not indicate the direction of the possible change in, any
rating so assigned or (b) any change in the outlook for any rating of the
Company, any Guarantor or any securities of the Company or any Guarantor.
(pp) The representations and warranties contained in the Second-Lien
Security Documents are true and correct in all material respects.
(qq) The Note Liens (as defined in the Offering Document) have been
duly perfected as to all Collateral (as defined in the Offering Document)
and are free from all liens except Permitted Liens (as defined in the
Offering Document).
(rr) Except for Permitted Liens, the Collateral is not under the
control or in the possession of any holder of a lien on such Collateral.
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(ss) No financing statements are on file in favor or any person except
for those relating to Permitted Liens.
(tt) To the extent any holder of a security interest securing
floor-plan financing arrangements has released or subordinated such
interest, as to any property, for the benefit of the holders of Priority
Liens (as defined in the Offering Document) or consented to a junior lien
on any property for the benefit of such holders, it has likewise agreed to
release, subordinate or consent, as to such property, for the benefit of
the Collateral Agent (as defined in the Offering Document).
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree to purchase from the Company, at a purchase
price of 96.763% of the principal amount thereof plus accrued interest from June
17, 2002 to the Closing Date (as hereinafter defined), $200,000,000 principal
amount of the Offered Securities.
The Purchasers have advised the Company that it will make offers (the
"EXEMPT RESALES") of the Offered Securities purchased hereunder on the terms set
forth in the Offering Document, as amended or supplemented, solely to (i)
persons whom the Purchasers reasonably believe to be "qualified institutional
buyers" as defined in Rule 144A under the Securities Act ("QIBS"), and (ii)
persons permitted to purchase the Offered Securities in offshore transactions in
reliance upon Regulation S under the Securities Act (each, a "REGULATION S
PURCHASER") (such persons specified in clauses (i) and (ii) being referred to
herein as the "ELIGIBLE PURCHASERS").
Delivery to the Purchasers of and payment for the Offered Securities shall
be made at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "CLOSING LOCATION") at 9:00 A.M., New York City time, on the
Closing Date. The Closing Location and the Closing Date may be varied by
agreement between the Representative and the Company. A meeting will be held at
the Closing Location on the New York Business Day next preceding the Closing
Date, at which meeting the final drafts of the documents to be delivered will be
available for review by the parties hereto. For the purposes of this Section 3,
"NEW YORK BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
The Offered Securities to be purchased by the Purchasers hereunder will be
represented by one or more definitive global Notes in book-entry form, which
will be deposited by or on behalf of the Company with The Depository Trust
Company ("DTC") or its designated custodian. The Company and the Guarantors will
deliver the Offered Securities to the Purchasers, for the account of the
Purchasers, against payment by or on behalf of the Purchasers of the purchase
price therefor by wire transfer in immediately available funds, by causing DTC
to credit the Offered Securities to the account of the Purchasers at DTC. The
Company will cause the certificates representing the Notes to be made available
to the Purchasers for checking at least 24 hours prior to the Closing Date at
the office of DTC or its designated custodian.
4. REPRESENTATIONS BY PURCHASERS; RESALE BY PURCHASERS
11
(a) Each Purchaser severally represents and warrants to the Company
and the Guarantors that it is an "accredited investor" within the meaning
of Regulation D under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be offered or
sold within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S or pursuant to an exemption
from the registration requirements of the Securities Act. Each Purchaser
severally represents and agrees that it has offered and sold the Offered
Securities, and will offer and sell the Offered Securities (i) as part of
its distribution at any time and (ii) otherwise until 40 days after the
later of the commencement of the offering and the Closing Date, only in
accordance with Rule 903 or Rule 144A under the Securities Act ("RULE
144A"). Accordingly, neither such Purchaser nor its affiliates, nor any
persons acting on its or their behalf, have engaged or will engage in any
directed selling efforts with respect to the Offered Securities, and such
Purchaser, its affiliates and all persons acting on its or their behalf
have complied and will comply with the offering restrictions requirement of
Regulation S. Each Purchaser severally agrees that, at or prior to
confirmation of sale of the Offered Securities, other than a sale pursuant
to Rule 144A, such Purchaser will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that
purchases the Offered Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered
under the U.S. Securities Act of 1933 (the "Securities Act")
and may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons (i) as
part of their distribution at any time or (ii) otherwise
until 40 days after the later of the date of the
commencement of the offering and the closing date, except in
either case in accordance with Regulation S (or Rule 144A if
available) under the Securities Act. Terms used above have
the meanings given to them by Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement with
respect to the distribution of the Offered Securities except for any such
arrangements with the other Purchasers or affiliates of the other
Purchasers or with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its affiliates
will not offer or sell the Offered Securities in the United States by means
of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act, including, but not limited
to (i) any advertisement, article, notice or other communication published
in any newspaper, magazine or similar media or broadcast over
12
television or radio, or (ii) any seminar or meeting whose attendees have
been invited by any general solicitation or general advertising. Each
Purchaser severally agrees, with respect to resales made in reliance on
Rule 144A of any of the Offered Securities, to deliver either with the
confirmation of such resale or otherwise prior to settlement of such resale
a notice to the effect that the resale of such Offered Securities has been
made in reliance upon the exemption from the registration requirements of
the Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees that (i) it
has not authorized the notes to be offered to the public in the United
Kingdom, within the meaning of the Public Offers of Securities Regulations
1995, as amended, and no Offering Document may be passed on to any person
in the United Kingdom unless that person is of a kind described in Article
19 of the Financial Services and Markets Act 2000 (Financial Promotion)
Order 2001 or is a person to whom the document may otherwise lawfully be
issued or passed on. The Offering Document is only directed at persons
having professional experience in matters relating to investments and the
offering described in the Offering Document is only available to such
persons and only such persons will be permitted to participate in the
offering. Persons who do not have professional experience in matters
relating to investments should not rely on the Offering Document. All
applicable provisions of the Financial Services and Markets Act 2000, as
amended, must be complied with in respect of anything done in relation to
the notes in, from or otherwise involving the United Kingdom.
5. CERTAIN AGREEMENTS OF THE COMPANY, THE GUARANTORS, ICM AND HEAD &
▇▇▇▇▇▇▇▇. The Company and each of the Guarantors, jointly and severally, agrees
with the several Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to amend or
supplement the Offering Document and will not effect such amendment or
supplementation without CSFBC's consent. If, at any time prior to the
completion of the resale of the Offered Securities by the Purchasers, any
event occurs as a result of which the Offering Document as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any such time to amend or supplement
the Offering Document to comply with any applicable law, the Company
promptly will notify CSFBC of such event and promptly will prepare, at its
own expense, an amendment or supplement which will correct such statement
or omission or effect such compliance. Neither CSFBC's consent to, nor the
Purchasers' delivery to offerees or investors of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(b) The Company will furnish to CSFBC copies of any preliminary
offering circular, the Offering Document and all amendments and supplements
to such documents, in each case as soon as available and in such quantities
as CSFBC reasonably requests. At any time when the Company is not subject
to Section 13 or 15(d) of the Exchange Act, the Company will promptly
furnish or cause to be furnished to CSFBC
13
(and, upon request, to each of the other Purchasers) and, upon request of
holders and prospective purchasers of the Offered Securities, to such
holders and purchasers, copies of the information required to be delivered
to holders and prospective purchasers of the Offered Securities pursuant to
Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto) in order to permit compliance with Rule 144A in connection with
resales by such holders of the Offered Securities. The Company will pay the
expenses of printing and distributing to the Purchasers all such documents.
(c) The Company and the Guarantors will arrange for the qualification
of the Offered Securities for sale and the determination of their
eligibility for investment under the laws of such jurisdictions in the
United States and Canada as CSFBC designates and will continue such
qualifications in effect so long as required for the resale of the Offered
Securities by the Purchasers, PROVIDED that neither the Company nor any
Guarantor will be required to qualify as a foreign corporation or to file a
general consent to service of process in any such state.
(d) During the period of five years hereafter, the Company and the
Guarantors will furnish to CSFBC and, upon request, to each of 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
and the Guarantors will furnish to CSFBC and, upon request, to each of the
other Purchasers (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company and the Guarantors mailed to
stockholders, and (ii) the information required to be provided to the
trustee for the Offered Securities pursuant to the Indenture.
(e) During the period of two years after the Closing Date, the Company
will, upon reasonable request, furnish to CSFBC, each of 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 are
restricted securities (as defined in Rule 144 under the Securities Act)
that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the Company
will not be or become, an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act.
(h) To furnish the Purchasers and those persons identified by the
Purchasers to the Company as many copies of the Offering Document, and any
amendments or supplements thereto, as the Purchasers may reasonably request
for the time period specified in Section 5(i). Subject to the Purchasers'
compliance with its representations and warranties and agreements set forth
in Section 4 hereof, the Company and the Guarantors consent to the use of
the Offering Document, and any amendments and
14
supplements thereto required pursuant hereto, by the Purchasers in
connection with Exempt Resales.
(i) During such period as, in the reasonable opinion of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, an Offering Document is required by law to be delivered in
connection with Exempt Resales by the Purchasers and in connection with
market-making activities of the Purchasers for so long as any Offered
Securities are outstanding, (i) not to make any amendment or supplement to
the Offering Document of which the Purchasers shall not previously have
been advised or to which the Purchasers shall reasonably object after being
so advised unless such amendment or supplement is, in the opinion of the
Company or its advisors, necessary of advisable and (ii) to prepare
promptly, upon the Purchasers' reasonable request, any amendment or
supplement to the Offering Document which may be necessary or advisable in
connection with such Exempt Resales or such market-making activities.
(j) If, during the period referred to in Section 5(i) above, any event
shall occur or condition shall exist as a result of which, in the opinion
of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, it becomes necessary to amend or supplement the
Offering Document in order to make the statements therein, in the light of
the circumstances when such Offering Document is delivered to an Eligible
Purchaser, not misleading, or if, in the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, it is
necessary to amend or supplement the Offering Document to comply with any
applicable law, forthwith to prepare an appropriate amendment or supplement
to such Offering Document so that the statements therein, as so amended or
supplemented, will not, in the light of the circumstances when it is so
delivered, be misleading, or so that such Offering Document will comply
with applicable law, and to furnish to the Purchasers and such other
persons as the Purchasers may designate such number of copies thereof as
the Purchasers may reasonably request
(k) Each of the Company and the Guarantors jointly and severally agree
to pay all expenses incidental to the performance of its obligations under
this Agreement, the Indenture and the Registration Rights Agreement,
including: (i) the fees and expenses of the Trustee and its professional
advisers; (ii) all expenses in connection with the execution, issue,
authentication, packaging and initial delivery of the Offered Securities
and, as applicable, the Exchange Securities (as defined in the Registration
Rights Agreement), the preparation and printing of this Agreement, the
Registration Rights Agreement, the Offered Securities, the Indenture, the
Offering Document and amendments and supplements thereto, and any other
document relating to the issuance, offer, sale and delivery of the Offered
Securities and as applicable, the Exchange Securities; (iii) the cost of
qualifying the Offered Securities for trading in The Private Offering,
Resales and Trading Automatic Linkages (PORTAL) Market(SM) ("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)
for any expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities or the Exchange
Securities for sale under the laws of such jurisdictions in the United
States and Canada as CSFBC designates and the printing of memoranda
relating thereto; (vi) for any fees charged by investment rating agencies
for
15
the rating of the Securities or the Exchange Securities; and (vii) for
expenses incurred in distributing preliminary offering circulars and the
Offering Document (including any amendments and supplements thereto) to the
Purchasers; provided, however, that other than as set forth in clause (v),
the Company shall not be required to pay any fees or disbursals of the
Purchasers' professional advisors. The Company and the Guarantors will also
pay or reimburse the Purchasers (to the extent incurred by them) for all
reasonable travel expenses of the Purchasers and the Company's officers and
employees and any other expenses of the Purchasers and the Company in
connection with attending or hosting meetings with prospective purchasers
of the Offered Securities from the Purchasers.
(l) In connection with the offering, until CSFBC shall have notified
the Company and the other Purchasers of the completion of the resale of the
Offered Securities, neither the Company nor any of its affiliates has or
will, either alone or with one or more other persons, bid for or purchased
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.
(m) For a period of 180 days after the date of the initial offering of
the Offered Securities by the Purchasers, the Company and each of the
Guarantors will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any United States dollar-denominated
debt securities issued or guaranteed by the Company or any Guarantor and
having a maturity of more than one year from the date of issue except
issuances of Offered Securities pursuant to the conversion or exchange of
convertible or exchangeable securities or the exercise of warrants or
options, in each case outstanding on the date hereof, grants of employee
stock options pursuant to the terms of a plan in effect on the date hereof,
issuances of Offered Securities pursuant to the exercise of such options or
the exercise of any other employee stock options outstanding on the date
hereof. Neither the Company nor any Guarantor 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.
(n) The Company will apply the net proceeds from the sale of the
Offered Securities to be sold by it hereunder substantially in accordance
with the description set forth in the Offering Document under the caption
"Use of Proceeds."
(o) Except as stated in this Agreement and in the Offering Document,
neither the Company, the Guarantors nor any of their respective affiliates
have taken, nor will any of them take, directly or indirectly, any action
designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
or any of the Guarantors to facilitate the sale or resale of the Offered
Securities. Except as permitted by the Securities Act, the Company and the
Guarantors
16
will not distribute any offering material in connection with resales of the
Offered Securities.
(p) The Company and the Guarantors will use their commercially
reasonable efforts to permit the Offered Securities to be designated PORTAL
securities in accordance with the rules and regulations adopted by the
National Association of Securities Dealers, Inc. relating to trading in
PORTAL and to permit the Offered Securities to be eligible for clearance
and settlement through DTC.
(q) The Company and the Guarantors have complied and will comply with
all provisions of Florida Statutes Section 517.075 relating to issuers
doing business with Cuba.
(r) The Company and the Guarantors agree not to sell, offer for sale
or solicit offers to buy or otherwise negotiate in respect of any security
(as defined in the Securities Act), that would be integrated with the sale
of the Offered Securities in a manner that would require the registration
under the Securities Act of the sale to the Purchasers or the resale of the
Offered Securities.
(s) The Company and the Guarantors agree to comply with all the terms
and conditions of the Registration Rights Agreement and the Second-lien
Security Documents and all agreements set forth in the representation
letters of the Company and the Guarantors to DTC relating to the approval
of the Offered Securities by DTC for "book entry" transfer; PROVIDED, that
this agreement to so comply shall remain in effect only until the
Registration Rights Agreement, the Second-Lien Security Documents and the
representation letters have been executed by all parties thereto and have
each become a binding agreement enforceable against each party thereto.
(t) The Company and the Guarantors agree that prior to any
registration of the Offered Securities pursuant to the Registration Rights
Agreement, or at such earlier time as may be required, the Indenture shall
be qualified under the 1939 Act and any necessary supplemental indentures
will be entered into in connection therewith, PROVIDED that the agreement
set forth in this paragraph shall remain in effect until the Registration
Rights Agreement has been executed by all parties thereto and has become a
binding agreement enforceable against each party thereto.
(u) The Company and the Guarantors will do and perform all things
required or necessary to be done and performed under this Agreement by them
prior to the Closing Date, and to satisfy all conditions precedent to the
Purchasers' obligations hereunder to purchase the Offered Securities.
(v) The Company shall have furnished or caused to be furnished to you
on the Closing Date a certificate of an officer of the Company satisfactory
to you as to the authorization, execution and delivery of each of the
agreements listed in the Offering Circular in the section entitled "Certain
Relationships and Related Transactions." Such certificate shall also have
execution copies of all such agreements attached to it.
17
6. CONDITIONS OF THE OBLIGATIONS OF THE PURCHASERS. The obligations of the
several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company and the Guarantors herein, to the accuracy of the statements of officers
of the Company and the Guarantors made pursuant to the provisions hereof, to the
performance by the Company and the Guarantors 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, of each of KPMG LLP ("KPMG"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP ("AA")
and Hawthorn, Waymouth & ▇▇▇▇▇▇▇ L.L.P. ("HAWTHORN") in form and
substance reasonably satisfactory to the Purchasers concerning the
financial information set forth in the Offering Document.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company, the
Guarantors and their respective subsidiaries which, in the reasonable
judgment of a majority in interest of the Purchasers including the CSFBC,
is material and adverse and makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for the
Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating) or
any announcement that the Company has been placed on negative outlook;
(iii) any change in U.S. or international financial, political or economic
conditions or currency exchange rates or exchange controls as would, in the
reasonable judgment of a majority in interest of the Purchasers including
CSFBC, be likely to prejudice materially the success of the proposed issue,
sale or distribution of the Offered Securities, whether in the primary
market or in respect of dealings in the secondary market; (iv) any material
suspension or material limitation of trading in securities generally on the
New York Stock Exchange, or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (v) any banking
moratorium declared by U.S. Federal or New York authorities; (vi) any major
disruption of settlements of securities or (vii) any attack on, outbreak or
escalation of hostilities or acts of terrorism involving the United States,
any declaration of war by Congress or any other national or international
calamity or emergency if, in the reasonable judgment of a majority in
interest of the Purchasers including CSFBC, the effect of any such attack,
outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated the Closing
Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company and the Guarantors,
addressed to the
18
Purchasers and dated the Closing Date, in a form reasonably acceptable to
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and the Purchasers.
(d) The Purchasers shall have received opinions, dated the Closing
Date, of local counsel for the Company in the states of Louisiana,
Washington and Montana, in a form reasonably acceptable to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
and the Purchasers.
(e) The Purchasers shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel
for the Purchasers, such opinion or opinions, dated the Closing Date, with
respect to the incorporation of the Company, the validity of the Offered
Securities, the Offering Document, the exemption from registration for the
offer and sale of the Offered Securities by the Company to the several
Purchasers and the resales by the several Purchasers as contemplated hereby
and other related matters as CSFBC may require, and the Company shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters, with reference to same
in the Offering Circular.
(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 Company and each Guarantor in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that as of the Closing Date: (i) the
representations and warranties of the Company and each Guarantor in this
Agreement are true and correct in all material respects; (ii) the Company
and each Guarantor has complied with all agreements in all material
respects and satisfied all conditions on its part to be performed or
satisfied hereunder in all material respects at or prior to the Closing
Date; (iii) subsequent to the respective dates of the most recent financial
statements in the Offering Document there has been no material adverse
change, nor any development or event that would constitute a Material
Adverse Effect except as set forth in or contemplated by the Offering
Document or as described in such certificate and (iv) such other matters as
CSFBC may reasonably require.
(g) The Purchasers shall have received letters, dated the Closing
Date, of each of KPMG and Hawthorne which meet 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.
(h) All transactions listed in the section entitled "The Transactions"
shall be consummated prior to the Closing Date in a manner reasonably
satisfactory to the Purchasers.
The Company and each Guarantor will furnish the Purchasers with such
conformed copies of such opinions, certificates, letters and documents as the
Purchasers reasonably request. CSFBC may in its sole discretion waive on behalf
of the Purchasers compliance with any conditions to the obligations of the
Purchasers hereunder.
19
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and each Guarantor,
jointly and severally, shall indemnify and hold harmless each Purchaser, its
partners, directors and officers and each person, if any, who controls such
Purchaser within the meaning of Section 15 of the Securities Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Purchaser may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any breach of any of the
representations and warranties of the Company or any Guarantor contained herein
or any untrue statement or alleged untrue statement of any material fact
contained in the Offering Document, or any amendment or supplement thereto, or
any related preliminary offering circular, or arise out of or are based upon the
omission or alleged omission to state therein a material fact 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, including any
losses, claims, damages or liabilities arising out of or based upon the
Company's or any Guarantor's failure to perform its obligations under Section
5(a) of this Agreement, and will reimburse each Purchaser for 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 neither the Company nor any Guarantor will
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Purchaser through CSFBC, 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 the Company, each Guarantor and their respective directors and officers
and each person, if any, who controls the Company and each Guarantor within the
meaning of Section 15 of the Securities Act, against any losses, claims, damages
or liabilities to which the Company or any Guarantor may become subject, under
the Securities Act or the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Offering Document, or any amendment or supplement thereto,
or any related preliminary offering circular, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact 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, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Purchaser through CSFBC, and will reimburse legal or other expenses reasonably
incurred by the Company and any Guarantor in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Purchaser consists of the following information in the Offering
Document furnished on behalf of each Purchaser: the third, fourth, ninth, tenth,
eleventh, twelfth, thirteenth and fourteenth paragraphs in the Offering Document
under the section entitled "Plan of Distribution" (the "PURCHASER INFORMATION");
PROVIDED, HOWEVER, if the Purchasers delivered to the Company or any Guarantor
corrected Purchaser Information, the Purchasers shall not be liable for any
losses, claims, damages or
20
liabilities arising out of or based upon the Company's or any Guarantor's
failure to perform its obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes 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 failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Guarantors on the one hand and the Purchasers on the other from the offering of
the Offered Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Guarantors on the one hand and the
Purchasers on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Guarantors on the one hand and the Purchasers on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and the Guarantors bear to
the total discounts and commissions received by the Purchasers from the Company
and the Guarantors under this Agreement. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, any Guarantor 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
21
sentence of this subsection (d) shall be deemed to include legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the amount by
which the total discounts, fees and commissions received by such Purchaser
exceeds the amount of any damages which such Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. The Purchasers' obligations in this subsection (d) to
contribute are several in proportion to their respective purchase obligations
and not joint.
(e) The obligations of the Company and each Guarantor under this Section
shall be in addition to any liability which the Company and each Guarantor may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Purchaser within the meaning of the Securities
Act or the Exchange Act; and the obligations of the Purchasers under this
Section shall be in addition to any liability which the respective Purchasers
may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Company within the meaning of the Securities
Act or the Exchange Act.
8. DEFAULT OF PURCHASERS. If any Purchaser or Purchasers default in their
obligations to purchase Offered Securities and the aggregate principal amount of
Offered Securities that such defaulting Purchaser or Purchasers agreed but
failed to purchase does not exceed 10% of the total principal of Offered
Securities, CSFBC may make arrangements satisfactory to the Company for the
purchase of such Offered Securities by other persons, including any of the
non-defaulting Purchasers, but if no such arrangements are made by the Closing
Date, the non-defaulting Purchasers shall be obligated severally, in proportion
to their respective commitments hereunder, to purchase the Offered Securities
that such defaulting Purchasers agreed but failed to purchase. If any Purchaser
or Purchasers so default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to CSFBC and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Purchaser or the
Company, except as provided in Section 9. The defaulting Purchase or Purchasers
shall be required to reimburse the Company 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. As used in this
Agreement, the term "Purchaser" includes any person substituted for a Purchaser
under this Section. Nothing herein will relieve a defaulting Purchaser from
liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, the Guarantors or their respective officers and of the several
Purchasers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Purchaser, the Company, the
Guarantors or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment 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
22
consummated, the Company and the Guarantors shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5(k) and the
respective obligations of the Company, the Guarantors and the Purchasers
pursuant to Section 7 shall remain in effect. If the purchase of the Offered
Securities by the Purchasers is not consummated for any reason other than
because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in Section 6(b)(iv), (v), (vi) or (vii), the
Company and the Guarantors will reimburse the Purchasers for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if sent
to the Purchasers will be mailed, delivered or telegraphed and confirmed to the
Purchasers, c/o Credit Suisse First Boston Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇.▇. 10010-3629, Attention: Investment Banking Department -
Transactions Advisory Group, or, if sent to the Company or any Guarantor, will
be mailed, delivered or telegraphed and confirmed to it at H&E Equipment
Services L.L.C. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Chief Financial Officer; 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 and the Guarantors as
if such holders were parties thereto.
12. REPRESENTATION OF PURCHASERS. You will act for the several Purchasers
in connection with this purchase, and any action under this Agreement taken by
you will be binding upon all the Purchasers.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company and each Guarantor 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.
23
If the foregoing is in accordance with the Purchasers' understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company, the Guarantors
and the several Purchasers in accordance with its terms.
Very truly yours,
H&E EQUIPMENT SERVICES L.L.C.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CEO and President
H&E FINANCE CORP.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CEO and President
HEAD & ▇▇▇▇▇▇▇▇ EQUIPMENT, L.L.C.
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CEO and President
ICM EQUIPMENT COMPANY L.L.C.
By ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
GNE INVESTMENTS, INC.
By ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman
24
GREAT NORTHERN EQUIPMENT, INC.
By ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman
25
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
FLEET SECURITIES, INC.
Acting on behalf of themselves
and as the representatives of
the several Purchasers
By CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
26
SCHEDULE I
PRINCIPAL AMOUNT OF
OFFERED SECURITIES
-------------------
PURCHASER
---------
Credit Suisse First Boston Corporation........................ $140,000,000
Banc of America Securities LLC................................ 40,000,000
Fleet Securities, Inc......................................... 20,000,000
------------
Total............................... $200,000,000
============
27
SCHEDULE II
LIST OF SUBSIDIARIES
H&E EQUIPMENT SERVICES L.L.C.:
H&E Finance Corp.
GNE Investments, Inc.
Great Northern Equipment, Inc.
H&E FINANCE CORP.:
None
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