Xxxxxxx Truck Leasing Corp.
Underwriting Agreement
March 29, 1999
Underwriter Listed on Schedule II
Dear Sirs:
Xxxxxxx Truck Leasing Corp., a Delaware corporation (the
"Company"), proposes to issue and sell to you (sometimes referred to
herein as the "Underwriter"), the principal amount of its securities
identified in Schedule I hereto to be issued under a Collateral Trust
Indenture, dated as of March 21, 1983 as amended by the Third
Supplemental Indenture thereto, dated as of February 20, 1986, the
Eighth Supplemental Indenture thereto dated as of May 15, 1990, and
the Seventeenth Supplemental Indenture dated as of March 10, 1997, and
as supplemented by the Nineteenth Supplemental Indenture thereto, to
be dated as of April 5, 1999 (the "Indenture"), between the Company
and First Union National Bank, as successor trustee (the "Trustee").
All or part, as the context may require, of such securities are
hereinafter called the "Securities".
1. Sale and Purchase of the Securities. The Company agrees to
sell to you, and you, on the basis of the representations, warranties
and agreements herein contained, but subject to the terms and
conditions herein stated, agrees to purchase from the Company, at the
purchase price set forth in Schedule I hereto, the principal amount
of Securities also set forth in Schedule I hereto.
2. Payment and Delivery. Delivery by the Company of the
Securities to you and payment by you therefor by bank wire transfer
of immediately available funds to the Company shall take place at the
office, on the date and at the time specified in Schedule I hereto,
which date and time may be postponed by agreement between you and the
Company or as provided in Section 10 hereof (such date and time of
delivery and payment for the Securities being herein called the
"Closing Date").
The Securities shall be registered in such names and shall be in
such denominations as you shall request at least three full business
days before the Closing Date and shall be made available to you for
checking and packaging, at such place as is designated by you, at
least one full business day before the Closing Date.
3. Registration Statement and Prospectus. The Company
represents and warrants to you that the Company meets the requirements
for the use of Form S-3 under the Securities Act of 1933 (the
"Securities Act") and the rules and regulations adopted thereunder,
and has carefully prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3
(the file number of which is set forth in Schedule I hereto), which
has become effective, for the registration under the Securities Act
of the Securities. Such registration statement, as amended at the
date of this Agreement, meets the requirements set forth in Rule 415
(a)(1)(x) under the Securities Act and complies in all other material
respects with such Rule. The Company proposes to file with the
Commission pursuant to Rule 424 under the Securities Act ("Rule 424")
a supplement to the form of prospectus included in such registration
statement relating to the Securities and the plan of distribution
thereof and has previously advised you of all further information
(financial and other) with respect to the Company to be set forth
therein. Such registration statement, including the exhibits thereto,
as amended at the date of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus in the form in which it
appears in the Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented) is hereinafter
called the "Final Prospectus". Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424 is
hereinafter called the "Interim Prospectus". Any reference herein to
the Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act
of 1934 (the "Exchange Act") on or before the date of this Agreement,
or the issue date of the Basic Prospectus, any Interim Prospectus or
the Final Prospectus, as the case may be; and any reference herein to
the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Interim Prospectus
or the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the date of this
Agreement, or the issue date of the Basic Prospectus, any Interim
Prospectus or the Final Prospectus, as the case may be, and deemed to
be incorporated therein by reference.
The Company hereby confirms that you and dealers have been
authorized to distribute or cause to be distributed any Interim
Prospectus and are authorized to distribute the Final Prospectus (as
from time to time amended or supplemented if the Company furnishes
amendments or supplements thereto to you).
4. Representations. The Company represents to you as follows:
(a) The Commission has not issued an order preventing or
suspending the use of the Basic Prospectus or any Interim
Prospectus.
(b) The Basic Prospectus and any Interim Prospectus have
complied in all material respects with the requirements of the
Securities Act and of the rules and regulations adopted thereunder
and, as of their respective dates, did not include any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements, in light of the circumstances
under which they were made, not misleading.
(c) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424, when, before the Closing Date, any
amendment to the Registration Statement becomes effective, when,
before the Closing Date, any document incorporated by reference in
the Registration Statement is filed with the Commission, when any
supplement to the Final Prospectus is filed with the Commission and
at the Closing Date, (1) the Registration Statement, as amended as
of any such time, and the Final Prospectus, as amended or
supplemented as of any such time, and the Indenture will comply in
all material respects with the applicable requirements of the
Securities Act, the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the Exchange Act and the respective rules and
regulations adopted thereunder and (2) neither the Registration
Statement, as amended as of any such time, nor the Final
Prospectus, as amended or supplemented as of any such time, will
contain 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 not misleading; provided,
however, that the Company makes no representations as to (1) that
part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification on Form T-1 of the
Trustee under the Trust Indenture Act, except statements or
omissions in such Statement made in reliance upon information
furnished in writing to the Trustee by or on behalf of the Company
for use therein or (2) statements of omissions in the Registration
Statement or the Final Prospectus (or in amendments or supplements
thereto) made in reliance upon information furnished in writing to
the Company by you expressly for use therein.
(d) The certificate delivered pursuant to paragraph (e) of
Section 5 hereof and all other documents delivered by the Company
or its representatives in connection with the issuance and sale of
the Securities were on the dates on which they were delivered, or
will be on the dates on which they are to be delivered, in all
material respects true and complete.
(e) Each of the Company and Xxxxxxx Leasing Corp. has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to
own its properties and conduct its business as described in the
Final Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business.
(f) The Collateral Trust Indenture dated as of March 21, 1983,
as amended by the Third Supplemental Indenture thereto dated as of
February 20, 1986, the Eighth Supplemental Indenture thereto dated
May 15, 1990, and the Seventeenth Supplemental Indenture thereto
dated as of March 10, 1997 (the "Original Indenture"), between the
Company and First Union National Bank, as successor Trustee, have
been duly authorized, executed and delivered and constitute legal,
valid and binding instruments enforceable against the Company in
accordance with their terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect), and the Securities have been duly
authorized and, when executed and authenticated in accordance with
the provisions of the Original Indenture, as supplemented by the
Nineteenth Supplemental Indenture to be dated as of April 5, 1999,
and delivered to and paid for by the Underwriter pursuant to this
Agreement, will constitute legal, valid and binding obligations of
the Company entitled to the benefits of the Indenture.
(g) There is no pending or threatened action, suit or
proceeding before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its
subsidiaries, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Final Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and the
statements included or incorporated in the Final Prospectus
describing any legal proceedings or material contracts or
agreements relating to the Company fairly summarize such matters.
(h) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(i) No consent, approval authorization or order of any court
or governmental agency or body is required for the consummation of
the transactions contemplated in this Agreement, except such as
have been obtained under the Securities Act and such as may be
required under the "blue sky" laws of any jurisdiction in
connection with the purchase and distribution of the Securities by
the Underwriter and such other approvals (specified in such
opinion) as have been obtained.
(j) Neither the issue and sale of the Securities, nor the
consummation of any other of the transactions contemplated in the
Underwriting Agreement nor the fulfillment of the terms of the
Underwriting Agreement will conflict with, result in a breach of,
or constitute a default under the charter or bylaws of the Company
or the terms of any indenture or other agreement or instrument
known to such counsel and to which the Company or any of its
subsidiaries is a party or bound, or any order or regulation known
to such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Company or any of its subsidiaries.
5. Conditions of the Underwriter's Obligations. The obligations
of the Underwriter hereunder are subject to the following conditions:
(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 not later than 5:00 p.m. New York
City time on the second business day after the date hereof.
(b) No order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall be in effect and no
proceedings for such purpose shall be pending before or threatened
by the Commission.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, (1)
there shall not have been any material change in the capital stock
or long-term debt of the Company and its subsidiaries, (2) there
shall not have been any material adverse change in the general
affairs, management, financial position or results of operations
of the Company and its subsidiaries taken as a whole, whether or
not arising from transactions in the ordinary course of business,
in each case other than as set forth in or contemplated by the
Final Prospectus and (3) the Company and its subsidiaries shall not
have sustained any material loss or interference with their
business taken as a whole from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action,
order or decree that is not set forth in the Final Prospectus if,
in the judgment of the Underwriter, any such development referred
to in clause (1), (2) or (3) above makes it impracticable or
inadvisable to proceed with the offering or the delivery of the
Securities as contemplated by the Registration Statement and the
Final Prospectus.
(d) The representations of the Company contained herein shall
be true and correct as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed
before the Closing Date, as of the date of the filing of any
document incorporated by reference therein before the Closing Date
and on and as of the Closing Date, and the Company shall have
performed all covenants and agreements herein contained to be
performed on its part at or before the Closing Date.
(e) The Underwriter shall have received on the Closing Date
a certificate, dated the Closing Date, of the Chairman of the Board
or the President and the principal financial or accounting officer
of the Company, which shall certify that (1) no order suspending
the effectiveness of the Registration Statement or prohibiting the
sale of the Securities has been issued and no proceedings for such
purpose are pending before or, to the knowledge of such officers,
threatened by the Commission and (2) the representations of the
Company contained herein are true and correct on and as of the
Closing Date with the same effect as if made on the Closing Date
and the Company has performed all agreements herein contained to
be performed on its part at or before the Closing Date.
(f) You shall have received on the Closing Date a signed
letter from the firm or accountants identified in Exhibit A hereto,
dated the Closing Date, substantially in the form of such Exhibit.
(g) You shall have received on the Closing Date from the
counsel for the Company identified in Exhibit B hereto, an opinion,
dated the Closing Date, substantially identical to the proposed
form of opinion set forth in such Exhibit.
(h) Subsequent to the execution of this Agreement, there shall
not have been any decrease in the ratings of any of the Company's
debt securities by Xxxxx'x Investors Service, Inc. or Standard &
Poor's Corporation from those in effect at the date of this
Agreement nor shall Xxxxx'x Investors Services Inc. or Standard and
Poor's Corporation have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of the Company's debt securities.
(i) You shall have received on the Closing Date from Cravath,
Swaine & Xxxxx, counsel for the Underwriter, an opinion, dated the
Closing Date, with respect to the Company, the Indenture, the
Securities, the Registration Statement, the Final Prospectus and
this Agreement and the form and sufficiency of all proceedings
taken in connection with the authorization, sale and delivery of
the Securities. Such opinion and proceedings shall be reasonably
satisfactory in all respects to you, and the Company shall have
furnished to counsel for the Underwriters such documents as they
may reasonably request for the purpose of enabling them to render
such opinion.
6. Additional Agreements. The Company agrees with you as
follows:
(a) Before the termination of the offering of the Securities,
not to file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus
unless the Company has first submitted a copy thereof to you within
a reasonable period of time before filing and not to file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, the Company promptly will cause
the Final Prospectus to be filed with the Commission pursuant to
such Rule.
(b) As soon as the Company is advised thereof, to advise you
(1) when the Final Prospectus shall have been filed with the
Commission pursuant to Rule 424, (2) when any amendment to the
Registration Statement relating to the Securities shall have become
effective, (3) of the initiation or threatening by the Commission
of any proceedings for the issuance of any order suspending the
effectiveness of the Registration Statement or the qualification
of the Indenture, (4) of the receipt by the Company or any
representative of or attorney for the Company of any other
communication from the Commission relating to the Company, the
Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus and (5) of the receipt by the
Company or any representative of or attorney for the Company 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. The Company
will make every reasonable effort to prevent the issuance of any
order suspending the effectiveness of the Registration Statement
or the qualification of the Indenture and, if any such order is
issued, to obtain as soon as possible the lifting thereof.
(c) To deliver to you, without charge, (1) signed copies of
the Registration Statement and each amendment thereto which shall
become effective on or before the Closing Date (including all
exhibits filed with, or incorporated by reference in, any such
document) and (2) as many conformed copies of the Indenture and the
Registration Statement and of each amendment thereto which shall
become effective on or before the Closing Date (excluding exhibits)
as you may reasonably request.
(d) During such period as a prospectus is required by law to
be delivered by an Underwriter or dealer, to deliver, without
charge, to you and to such Underwriters and dealers, at such office
or offices as you may designate, as many copies of any Interim
Prospectus and the Final Prospectus as the Underwriters may
reasonably request.
(e) During the period in which copies of the Final Prospectus
are to be delivered as provided in paragraph (d) of this Section
6, if any event occurs as a result of which it shall be necessary
to amend or supplement the Final Prospectus in order to ensure that
no part of the Final Prospectus contains any untrue statement of
a material fact or omits to state a material fact necessary to make
the statements therein, in light of the circumstances existing when
the Final Prospectus is to be delivered to a purchaser, not
misleading, forthwith to prepare, submit to you pursuant to
paragraph (a) of this Section 6, file with the Commission and
deliver, without charge, to the Underwriter and to dealers (whose
names and addresses you will furnish to the Company) to whom
Securities may have been sold by the Underwriter, and to other
dealers upon request, either amendments or supplements to the Final
Prospectus so that the statements in the Final Prospectus, as so
amended or supplemented, will comply with the standard set forth
in this paragraph (e). Delivery by the Underwriter of any such
amendments or supplements to the Final Prospectus shall not
constitute a waiver of any of the conditions set forth in Section
5 hereof.
(f) To make generally available to the Company's security
holders, as soon as practicable but in no event later than 60 days
after the end of the 12-month period beginning at the end of the
current fiscal quarter of the Company, an earnings statement (which
need not be audited) of the Company and its subsidiaries that
satisfies the provisions of Section 11(a) of the Securities Act.
(g) To take such action as you may request in order to qualify
the Securities for offer and sale under the securities or "blue
sky" laws of such jurisdictions as you may reasonably request;
provided, however, that in no event shall the Company be obligated
to subject itself to taxation or to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(h) For so long as any of the Securities remain outstanding,
to supply to you copies of such financial statements and other
periodic and special reports as the Company may from time to time
distribute to the holders of any class of its capital stock and to
furnish to you copies of each annual or other report the Company
shall be required to file with the Commission.
(i) To pay, or reimburse if paid by you, whether or not the
transactions contemplated hereby are consummated or this Agreement
is terminated, all costs and expenses incident to the performance
of the obligations of the Company under this Agreement, including
those relating to (1) the preparation, printing and filing of the
Registration Statement and exhibits thereto, the Basic Prospectus,
any Interim Prospectus and the Final Prospectus, all amendments and
supplements to the Registration Statement, any Interim Prospectus
and the Final Prospectus and the printing of the Indenture, this
Agreement, and agreements with dealers relating to the offering of
the Securities, (2) the issuance of the Securities and the
preparation and delivery of certificates for the Securities, (3)
the registration or qualification of the Securities for offer and
sale under the securities or "blue sky" laws of the various
jurisdictions referred to in paragraph (g) of this Section 6 and
the determination of the legality of the Securities for investment,
including the fees and disbursements of counsel for the Underwriter
in connection therewith and the preparation and printing of "blue
sky" memoranda and legal investment memoranda, (4) the furnishing
to the Underwriter of copies of any Interim Prospectus and the
Final Prospectus and all amendments or supplements to any Interim
Prospectus and the Final Prospectus, and of the several documents
required by this Section 6 to be so furnished, including costs of
shipping and mailing, (5) any fees required by the National
Association of Securities Dealers, Inc. in connection with its
review of corporate financings, (6) the furnishing to the
Underwriter of copies of all reports and information required by
paragraph (h) of this Section 6, including costs of shipping and
mailing, (7) the fees charged by rating agencies in connection with
the rating of the Securities, (8) the fees and expenses of the
Trustee, (9) all transfer taxes, if any, with respect to the sale
and delivery of the Securities by the Company and (10) the fee, if
any, for listing the Securities on any national securities
exchange.
(j) For a period ending on the later of the Closing Date or
the date on which any price restrictions on the sale of the
Securities are terminated, not to offer or sell, or announce the
offering of, any debt securities, without your prior written
consent.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter
within the meaning of Section 15 of the Securities Act against any
and all losses, claims, damages and liabilities, joint or several
(including any investigation, legal and other expenses incurred,
as incurred, in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted), to which
they, or any of them, may become subject under the Securities Act,
the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, any
Interim Prospectus or the Final Prospectus, or such amendment or
supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, except insofar as
any such untrue statement or omission or alleged untrue statement
or omission was made in (1) the Registration Statement, the Basic
Prospectus, any Interim Prospectus or the Final Prospectus, or such
amendment or supplement, in reliance upon and in conformity with
information furnished
in writing to the Company by the Underwriter expressly for use
therein or (2) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification on Form
T-1 of the Trustee under the Trust Indenture Act, except statements
or omissions in such Statement made in reliance upon information
furnished in writing to the Trustee by or on behalf of the Company
for use therein; provided, however, that such indemnity with
respect to the Basic Prospectus or any Interim Prospectus shall not
inure to the benefit of the Underwriter (or any person controlling
the Underwriter) from whom the person asserting any such loss,
claim, damage or liability purchased Securities that are the
subject thereof if such person did not receive a copy of the Final
Prospectus (not including the documents incorporated therein by
reference) at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is
required by the Securities Act and the untrue statement or omission
of a material fact contained in the Basic Prospectus or any Interim
Prospectus was corrected in the Final Prospectus, unless such
failure to deliver the Final Prospectus was a result of
noncompliance by the Company with paragraph (d) of Section 6
hereof.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act, each director of the
Company and each officer of the Company who signs the Registration
Statement to the same extent as the foregoing indemnity from the
Company to the Underwriter, but only insofar as such losses,
claims, damages or liabilities arise out of or are based upon any
untrue statement or omission or alleged untrue statement or
omission that was made in the Registration Statement, the Basic
Prospectus, any Interim Prospectus of the Final Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriter expressly for use therein; provided, however, that the
obligation of the Underwriter to indemnify the Company hereunder
shall be limited to the total price at which the Securities
purchased by the Underwriter hereunder were offered to the public.
The Company acknowledges that the statements set forth in the last
paragraph of the cover page and under the heading "Underwriting"
or "Plan of Distribution" in any Interim Prospectus or the Final
Prospectus constitute the only information furnished in writing by
or on behalf of the Underwriter for inclusion in the documents
referred to in the foregoing indemnity and you confirm that such
statements are correct.
(c) Any party that proposes to assert the right to be
indemnified under this Section 7 will, promptly after receipt of
notice of commencement of any action, suit or proceeding against
any such party in respect of which a claim is to be made against
an indemnifying party under this Section 7, notify each such
indemnifying party of the commencement of such action, suit or
proceeding, enclosing a copy of all papers served, but the omission
so to notify such indemnifying party of any such action, suit or
proceeding shall not relieve it from any liability that it may have
to any indemnified party otherwise than under this Section 7. In
case any such action, suit or proceeding shall be brought against
any indemnified party and it shall notify the indemnifying party
of the commencement thereof, such indemnifying party or parties
shall be entitled to participate in, and, to the extent that it or
they shall wish, jointly with any other indemnifying party
similarly notified subject to the immediately succeeding sentence,
to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party or
parties to such indemnified party of its or their election so to
assume the defense thereof, the indemnifying party or parties shall
not be liable to such indemnified party for any legal or other
expenses, other than reasonable costs of investigation subsequently
incurred by such indemnified party in connection with the defense
thereof. The indemnified party shall have the right to employ
separate counsel in any such action, but the fees and expenses of
such counsel shall be at the expense of such indemnified party
unless (1) the employment of counsel by such indemnified party has
been authorized by the indemnifying party or parties, (2) the
indemnified party shall have reasonably concluded that there may
be a conflict of interest between the indemnifying party or parties
and the indemnified party in the conduct of the defense of such
action (in which case the indemnifying party or parties shall not
have the right to direct the defense of such action on behalf of
the indemnified party) or (3) the indemnifying party or parties
shall not in fact have employed counsel to assume the defense of
such action, in each of which cases the fees and expenses of
separate counsel for the indemnified party shall be at the expense
of the indemnifying party or parties. An indemnifying party shall
not be liable for any settlement of any action or claim effected
without its written consent.
8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided
for in paragraph (a) of Section 7 hereof is applicable but for any
reason is held to be unavailable from the Company, the Company and the
Underwriter shall contribute to the aggregate losses, claims, damages
and liabilities (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting
any contribution received by the Company from persons other than the
Underwriter, such as persons who control the Company within the
meaning of the Securities Act, officers of the Company who signed the
Registration Statement and directors of the Company, who may also be
liable for contribution) to which the Company and the Underwriter may
be subject in such proportion so that the Underwriter is responsible
for that portion represented by the percentage that the underwriting
discount (the difference between the aggregate of the price or prices
at which the Securities are sold by the Underwriter and the purchase
price of the Securities set forth in Schedule I hereto) bears to the
sum of such discount and the purchase price of the Securities set
forth in Schedule I thereto and the Company is responsible for the
balance; provided, however, that (a) in no case shall the Underwriter
(except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any
amount in excess of the underwriting discount applicable to the
Securities purchased by the Underwriter hereunder and (b) no person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who controls the
Underwriter within the meaning of the Securities Act shall have the
same rights to contribution as such Underwriter, and each person, if
any, who controls the Company within the meaning of the Securities
Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the
same rights to contribution as the Company, subject in each case to
clauses (a) and (b) of this Section 8. Any party entitled to
contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or
parties under this Section 8, notify such party or parties from whom
contribution may be sought, but the omission so to notify such party
or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may
have hereunder or otherwise than under this Section 8. No party shall
be liable for contribution with respect to any action or claim settled
without its consent.
9. Termination. This Agreement may be terminated by you by so
notifying the Company (in writing or by telephone or telegraph
confirmed in writing) at any time,
(a) prior to the earliest of (1) 11:00 a.m., New York City
time, on the business day following the day when the Final
Prospectus shall have been filed with the Commission pursuant to
Rule 424, (2) the time of release by the Underwriter for
publication of the first newspaper advertisement that is
subsequently published with respect to the Securities and (3) the
time when the Securities are first generally offered by the
Underwriter to dealers by letter or telegram;
(b) at or prior to the Closing Date if, in your judgment
proceeding with the public offering or payment for and delivery of
the Securities is rendered impracticable or inadvisable because (1)
additional material governmental restrictions, not in force and
effect on the date hereof, shall have been imposed upon trading in
securities generally or minimum or maximum prices shall have been
generally established on the New York Stock Exchange, or trading
in securities generally shall have been suspended on such Exchange
or a general banking moratorium shall have been established by
Federal or New York State authorities, (2) any event shall have
occurred or shall exist which makes untrue or incorrect in any
material respect any material statement or information contained
in the Registration Statement or the Final Prospectus or which is
not reflected in the Registration Statement or the Final Prospectus
but should be reflected therein in order to make the statements or
information contained therein not misleading in any material
respect or (3) there shall have occurred any material adverse
change in the financial markets or any outbreak or escalation of
hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis that affects adversely
the marketability of the Securities; or
(c) at or prior to the Closing Date, if any of the conditions
specified in Section 5 hereof shall not have been fulfilled when
and as required by this Agreement.
If this Agreement is terminated pursuant to any of the provisions
hereof, the Company shall not be under any liability (except as
otherwise provided herein) to you and you shall not be under any
liability to the Company, except that (a) if this Agreement is
terminated by you because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions
of this Agreement, the Company will reimburse you for all reasonable
out-of-pocket expenses (including the fees and disbursements of your
counsel) incurred by you and (b) if you have failed or refused to
purchase the Securities agreed to be purchased by you hereunder,
without some reason sufficient to justify your cancellation or
termination of your obligations hereunder, you shall not be relieved
of liability to the Company for damages occasioned by your default.
10. Default of Underwriter. If you shall fail (other than for
a reason sufficient to justify the termination of this Agreement) to
purchase on the Closing Date the Securities agreed to be purchased by
you, you may find one or more substitute underwriters to purchase such
Securities or make such other arrangements as you may deem advisable
within 24 hours after the Closing Date.
The provisions of this Section 10 shall not in any way affect your
liability arising out of a default. A substitute underwriter
hereunder shall become an Underwriter for all purposes of this
Agreement.
11. Miscellaneous. The reimbursement, indemnification and
contribution agreements contained in Sections 6(i), 7 and 8 hereof and
the representations and agreements of the Company in this Agreement
shall remain in full force and effect regardless of (a) any
termination of this Agreement except insofar as such termination
renders the performance of such agreements, other than those in
Section 6(i), 7 and 8, inappropriate, (b) any investigation made by
or on behalf of the Underwriter or controlling person or by or on
behalf of the Company or any controlling person, director or officer
and (c) delivery of and payment for the Securities under this
Agreement.
This Agreement has been and is made solely for the benefit of the
Underwriter and the Company, and their respective successors and
assigns, and, to the extent expressed herein, for the benefit of
persons controlling the Underwriter or the Company, directors and
officers of the Company and their respective successors and assigns,
and no other person, partnership, association or corporation shall
acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include any purchaser of
Securities from the Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing and
mailed or delivered, or by telephone or telegraph if subsequently
confirmed in writing, to you at the address specified in Schedule I
hereto, and to the Company at One Xxxxxxx Plaza, 0000 Xxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, attention X. Xxxxxxxx Xxxx, III, Esq.,
Assistant General Counsel and Assistant Secretary.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
Please confirm that the foregoing correctly sets forth the
agreement between us.
Very truly yours,
XXXXXXX TRUCK LEASING CORP.
By:____________________________
(Title)
Confirmed:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
_______________________________________
By:___________________________________
(Title)
SCHEDULE I
Underwriting Agreement dated March 29, 1999
Registration Statement No. 33-67682
Underwriter:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx
Title, Purchase Price and Description of Securities:
Title: 6.75% Collateral Trust Debentures,
Series T, due April 5, 2006
Principal amount: $100,000,000
Purchase price: $99,375,000
Redemption provisions: Not redeemable prior to maturity
Other provisions: Interest payable April 5 and October 5
in each year commencing October 5, 1999
Closing Date, Time and Location: 10:00 a.m., April 5, 1999,
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Delayed Delivery Arrangements: None
Fee: N/A
Minimum principal amount of each contract: N/A
Maximum aggregate principal amount of all contracts: N/A
SCHEDULE II
Principal
Amount
of
Securities
to be
Underwriter Purchased
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $100,000,000
Total $100,000,000
EXHIBIT A
At the Closing Date,* the Company's Independent Accountants shall
furnish to the Underwriter a letter or letters (which may refer to
letters previously delivered to the Underwriter), dated as of the
Closing Date, in form and substance satisfactory to the Underwriter,
confirming that they are independent accountants within the meaning
of the Securities Act and the Exchange Act and the respective
applicable published rules and regulations thereunder, that the
response to Item 10 of the Registration Statement is correct insofar
as it relates to them and stating in effect that:
(a) in their opinion the audited financial statements and
financial statement schedules included or incorporated in the
Registration Statement and the Final Prospectus and reported on by
them comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the published rules
and regulations thereunder with respect to financial statements and
financial statement schedules included or incorporated in annual
reports on Form 10-K under the Exchange Act;
(b) on the basis of a reading of the "Five Year Selected
Financial Data" included or incorporated in the Registration
Statement and the Final Prospectus and the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not
an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter;
a reading of the minutes of the meetings of the stockholders,
directors and executive committees of the Company and Xxxxxxx
Leasing Corp.; and inquiries of certain officials of the Company
who have responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent financial statements
included or incorporated in the Registration Statement and the
Final Prospectus, nothing came to their attention which caused them
to believe that:
(1) the amounts in the unaudited "Summary Financial Data",
if any, included or incorporated in the Final Prospectus, the
amounts in the unaudited "Five Year Selected Financial Data"
included or incorporated in the Registration Statement and the
Final Prospectus, do not agree with the corresponding amounts
in the audited financial statements from which such amounts were
derived;
(2) any unaudited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus do not comply as to form in all material respects
with applicable accounting requirements and with the published
rules and regulations of the Commission with respect to
financial statements included or incorporated in quarterly
reports on Form 10-Q under the Exchange Act; and said unaudited
financial statements are not fairly presented (except as
permitted by Form 10-Q) in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated in the Registration Statement and the
Final Prospectus;
(3) with respect to the period subsequent to the date of
the most recent financial statements included or incorporated
in the Registration Statement and the Final Prospectus, there
were any changes, at a specified date not more than five
business days prior to the date of the letter, in the equipment
financing obligations or the long-term debt of the Company and
its subsidiaries consolidated or capital stock of the Company
or decreases in the consolidated shareholders' equity of the
Company and its subsidiaries as compared with the amounts shown
on the most recent consolidated balance sheet included or
incorporated in the Registration Statement and the Final
Prospectus, or for the period from the date of the most recent
financial statements included or incorporated in the
Registration Statement and the Final Prospectus to such
specified date there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated
earnings before interest expenses and taxes on income, or in
total or per share amounts of net earnings, of the Company and
its subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Underwriter; and
(c) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company) set forth in the
Registration Statement, as amended, and the Final Prospectus, as
amended or supplemented, and in Exhibit 12 to the Registration
Statement, including the information included or incorporated in
Items 1,6 and 7 of the Company's Annual Report on Form 10-K
incorporated therein or in "Management's Discussion and Analysis
of Financial Condition and Results of Operations" included or
incorporated in any of the Company's Quarterly Reports on Form 10-Q
incorporated therein, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation.
____________
* All capitalized terms used herein shall have the meanings
ascribed to them in the Underwriting Agreement of which this Exhibit
A is a part.
EXHIBIT B
The Company* shall furnish to the Underwriter the opinion of X.
Xxxxxxxx Xxxx, III, Esq., Assistant General Counsel and Assistant
Secretary of the Company, dated the Closing Date, to the effect that:
(i) each of the Company and Xxxxxxx Leasing Corp. (the
"Subsidiary") has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus, and is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or
conducts material business;
(ii) all the outstanding shares of capital stock of the
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and all outstanding shares of capital
stock of the Subsidiary are owned by the Company either directly
or through wholly-owned subsidiaries free and clear of any
perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interests, claims, liens or
encumbrances;
(iii) the Company's authorized equity capitalization is as
set forth in the Final Prospectus; the Securities conform to the
description thereof contained in the Final Prospectus; and, if the
Securities are to be listed on the New York Stock Exchange,
authorization therefor has been given, subject to official notice
of issuance and evidence of satisfactory distribution, or the
Company has filed a preliminary listing application and all
required supporting documents with respect to the Securities with
the New York Stock Exchange and such counsel has no reason to
believe that the Securities will not be authorized for listing,
subject to official notice of issuance and evidence of satisfactory
distribution;
(iv) the Collateral Trust Indenture dated as of March 21, 1983
as supplemented and amended by a Third Supplemental Indenture
thereto dated as of February 20, 1986, an Eighth Supplemental
Indenture thereto dated May 15, 1990 and a Seventeenth Supplemental
Indenture thereto dated as of March 10, 1997 (the "Original
Indenture"), between the Company and First Union National Bank, as
successor Trustee, and the Nineteenth Supplemental Indenture dated
as of April 5, 1999 (the "Nineteenth Supplemental Indenture") to
the Original Indenture, have been duly authorized, executed and
delivered, have been duly qualified under the Trust Indenture Act
of 1939, and constitute legal, valid and binding instruments
enforceable against the Company in accordance with their terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect), and the
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Original
Indenture, as supplemented and amended by the Nineteenth
Supplemental Indenture (the "Indenture"), and delivered to and paid
for by the Underwriter pursuant to the Underwriting Agreement of
which this Exhibit B is a part (the "Underwriting Agreement"), will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture;
(v) to the best knowledge of such counsel,there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries, of a character required to
be disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and there is no franchise,
contract or other document of a character required to be described
in the Registration Statement or Final Prospectus, or to be filed
as an exhibit, which is not described or filed as required;
and the statements included or incorporated in the Final
____________
* All capitalized terms used and not otherwise defined herein shall
have the meanings ascribed to them in the Underwriting Agreement of
which this Exhibit B is a part.
Prospectus describing any legal proceedings or material contracts
or agreements relating to the Company fairly summarize such
matters;
(vi) the Registration Statement and any amendments thereto have
become effective under the Securities Act; to the best knowledge
of such counsel, no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued, no proceedings
for that purpose have been instituted or threatened, and the
Registration Statement, the Final Prospectus and each amendment
thereof or supplement thereto as of their respective effective or
issue dates (other than the financial statements and other
financial and statistical information contained therein as to which
such counsel need express no opinion) complied as to form in all
material respects with the applicable requirements of the
Securities Act and the Exchange Act and the respective rules and
regulations adopted thereunder, and such counsel has no reason to
believe that the Registration Statement, or any amendment thereof,
at the time it became effective, contained any untrue statement of
a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus, as amended or
supplemented, includes any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading;
(vii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated in the Underwriting
Agreement, except such as have been obtained under the Securities
Act and such as may be required under the "blue sky" laws of any
jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriter and such other approvals
(specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions contemplated in the
Underwriting Agreement nor the fulfillment of the terms of the
Underwriting Agreement will conflict with, result in a breach of,
or constitute a default under the charter or bylaws of the Company
or the terms of any indenture or other agreement or instrument
known to such counsel and to which the Company or any of its
subsidiaries is a party or bound, or any order or regulation known
to such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the
Company or any of its subsidiaries; and
(x) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the applications of laws of any jurisdiction other than the
State of Delaware or the United States, to the extent deemed proper
and specified in such opinion, upon the opinion of other counsel of
good standing believed to be reliable and who are satisfactory to
counsel for the Underwriter; and (B) as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the
Company and public officials.
