EXHIBIT 1
Form of Underwriting Agreement
Xxxxxxx Truck Leasing Corp.
Underwriting Agreement
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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 and the Eighth Supplemental Indenture thereto dated as of May
15, 1990, and as supplemented by the ________ Supplemental Indenture thereto, to
be dated as of ____________ (the "Indenture"), between the Company and First
Union National Bank, as 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, agree
purchase from the Company, at the purchase price set forth in Schedule I hereto,
to 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,
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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 the 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
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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.
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
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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 of 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
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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 mailed or to be delivered to the
Commission for filing pursuant to Rule 424 and 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 for filing 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 the Underwriter and dealers, at such office
or offices
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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
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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 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
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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 or 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
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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, 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
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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 mailed for filing 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 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
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(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 Xxxxxxx X. Xxxxxxx, Esq., Vice President-General Counsel
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and 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:
(Name of Representatives)
---------------------------------------
By:
------------------------------------
(Title)
Acting on behalf of itself and the several Underwriters, if any, named in
Schedule II annexed hereto.
12
SCHEDULE I
Underwriting Agreement dated ____________________
Registration Statement No. _________________
Underwriter:
Title, Purchase Price and Description of Securities:
Title: ____% Collateral Trust Debentures, Series ___, due ______________
Principal amount: $__________
Purchase price: $__________ plus accrued interest from ___________,
if any
Sinking fund provisions: _________________________________
Redemption provisions: ________________________________
Other provisions: ___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
Closing Date, Time and Location: ______________________________________
______________________________________
______________________________________
Delayed Delivery Arrangements: _______________________________________________
Fee: ________________________________
Minimum principal amount of each contract: ___________________________
Maximum aggregate principal amount of all contracts: _________________
SCHEDULE II
Principal
Amount
of
Securities
to be
Underwriter Purchased
----------- ----------
$ __________
Total $ ==========
SCHEDULE III*
Delayed Delivery Contract
(Name and Address of Representatives)
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxxxxx Truck Leasing
Corp. (the "Company"), and the Company agrees to sell to the undersigned, on
__________________ (the "Delivery Date"), $______________ principal amount of
the Company's Collateral Trust Debentures (the "Securities") offered by the
Company's Final Prospectus dated ________________, receipt of a copy of which is
hereby acknowledged, at a purchase price of ___% of the principal amount
thereof, plus accrued interest, ** if any, thereon from _____________________,
to the date of payment and delivery, and on the further terms and conditions set
forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 a.m. New York City time on the Delivery Date to or upon
the order of the Company in New York Clearing House (next-day) funds, at your
office or at such other place as shall be agreed between the Company and the
undersigned upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
------------
* Include this Schedule III only if delayed delivery arrangements are used.
** Insert "amortization" in place of "interest" if zero coupon or deep
discount securities are involved.
1
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited on the date hereof, shall
not on the Delivery Date be prohibited under the laws of the jurisdiction to
which the undersigned is subject, and (2) the Company, on or before the Delivery
Date, shall have sold to certain underwriters (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Final Prospectus mentioned above.
Promptly after completion of such sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first serve basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
--------------------------------
(Name of Purchaser)
By:
--------------------------------
(Signature and Title of Officer)
--------------------------------
(Address)
Accepted:
Xxxxxxx Truck Leasing Corp.
By:____________________________
(Authorized Signature)
2
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 Financial Highlights
and 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
1
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, earnings from spun-off operations and taxes on
income, or in total or per share amounts of net earnings from
continuing operations, 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.
2
EXHIBIT B
The Company* shall furnish to the Underwriter the opinion of Xxxxxxx
X. Xxxxxxx, Esq., Vice President-General Counsel and 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 and an Eighth Supplemental
Indenture thereto dated as of May 15, 1990 (the "Original
Indenture"), between the Company and Continental Bank, National
Association, as Trustee, and the _______ Supplemental Indenture dated
as of _____________ (the "_______ 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 _______ Supplemental Indenture (the "Indenture"), and
delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement of which this
1
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 preceding 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;
(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
2
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.
-------------------------
* 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.
** For appropriate changes if delayed delivery arrangements are used,
see Exhibit C to the Underwriting Agreement.
3
EXHIBIT C
If delayed delivery arrangements are used, the following changes should
be made in the Underwriting Agreement of which this Exhibit C is a part (the
"Underwriting Agreement") and in Exhibit B to the Underwriting Agreement.
1. At the end of the first sentence of Section 1 of the
Underwriting Agreement, add the following:
"except that if Schedule I hereto provides for the sale of
Securities pursuant to delayed delivery arrangements, the
respective principal amounts of Securities to be purchased by
the Underwriters shall be as set forth in Schedule II hereto,
less the respective amounts of Contract Securities determined
as provided below. Securities to be purchased by the
Underwriters are herein sometimes called the 'Underwriters'
Securities' and Securities to be purchased pursuant to Delayed
Delivery Contracts (as hereinafter defined) are herein called
'Contract Securities'."
2. Add the following as a new second paragraph of Section
I of the Underwriting Agreement:
"If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the
Company pursuant to delayed delivery contracts ('Delayed
Delivery Contracts') substantially in the form of Schedule III
hereto but with such changes therein as the Company may
authorized or approve. The Underwriters will endeavor to make
such arrangements, and, as compensation therefor, the Company
will pay to the Representatives, for the account of the
Underwriters, on the Closing Date (as hereinafter defined),
the fee set forth in Schedule I hereto with respect to the
principal amount of Securities for which delayed Delivery
Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings
banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. The
Company will make Delayed Delivery Contracts in all cases
where sales of Contract Securities arranged by the
Underwriters have been approved by the Company but, except as
the Company may otherwise agree, each such Delayed Delivery
Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the total principal
amount of Contract Securities may not exceed the maximum
principal amount set forth in Schedule I hereto. The
Underwriters will not have any responsibility in respect of
the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each
Underwriter as set forth in Schedule II hereto shall be
reduced by an amount which shall bear the same proportion to
the total principal amount of Contract Securities as the
principal amount of Securities set forth opposite the name of
such Underwriter bears to the total principal amount of
Securities set forth in
1
Schedule II hereto, except to the extent that you, the
Representatives, determine that such reduction shall be
otherwise than in such proportion and so advise the Company in
writing; provided, however, that the total principal amount of
Securities to be purchased by all Underwriters shall be the
total principal amount set forth in Schedule II hereto less
the total principal amount of Contract Securities".
3. Change the three references to "Securities" in
Section 2 of the Underwriting Agreement to "Underwriters' Securities".
4. In the fourth line of Section 5(i) of the Underwriting
Agreement, replace "and" before "this Agreement" with a comma and add
"and any Delayed Delivery Contracts" after "this Agreement".
5. Add the following as a new Section 5(j) of the
Underwriting Agreement:
"(j) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities
arranged by the Underwriters have been approved by the
Company."
6. Replace the last sentence of Section 7(b) of the
Underwriting Agreement with the following sentence:
"The Company acknowledges that the statements set forth in the
last paragraph of the cover page, under the heading
'Underwriting' or 'Plan of Distribution' and, if Schedule I
hereto provides for sales of Securities pursuant to delayed
delivery arrangements, under the heading 'Delayed Delivery
Arrangements' in any Interim Prospectus or the Final
Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for
inclusion in the documents referred to in the foregoing
indemnity and you, as the Representatives, confirm that such
statements are correct."
7. Add the following between "Agreement" and "will" one line
from the end of clause (iv) of Exhibit B to the Underwriting Agreement:
"in the case of the Underwriters' Securities, or by the
purchasers thereof pursuant to Delayed Delivery Contracts, in
the case of any Contract Securities,".
8. Replace clause (vii) of Exhibit B to the Underwriting
Agreement with the following:
"(vii) the Underwriting Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and delivered by
the Company:"
9. Add "or in any Delayed Delivery Contracts" after
"Agreement" in the third line of clause (viii) and in the second line
of clause (ix) of Exhibit B to the Underwriting Agreement.
2
10. Add "or of any Delayed Delivery Contracts" after
"Agreement" in the third line of clause (ix) of Exhibit B to the
Underwriting Agreement.
3
