Xxxxxxx Truck Leasing Corp.
Underwriting Agreement
March 5, 1997
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 and amended by the Seventeenth Supplemental Indenture
thereto, to be dated as of March 10, 1997 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, agree 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 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 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, business prospects 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 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 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 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 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 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 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 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
(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 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: /s/ Xxxxxxx X. Xxxxxx
Vice President-Finance and Treasurer
Confirmed:
Xxxxxxx, Sachs & Co.
By: /s/ Xxxx Xxxxxx
Vice President
SCHEDULE I
Underwriting Agreement dated March 5, 1997
Registration Statement No. 333-21835
Underwriter:
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Title, Purchase Price and Description of Securities:
Title: 7.30% Collateral Trust Debentures, Series R,
due March 1, 2007
Principal amount: $75,000,000
Purchase price: $74,462,250 plus accrued interest from
March 1, 1997 , if any
Sinking fund provisions: None
Redemption provisions: At Maturity - March 1, 2007; not redeemable
prior to maturity
Other provisions: Dated March 10, 1997, interest payable March 1
and September 1 in each year commencing
September 1, 1997
Closing Date, Time and Location: March 10, 1997; 10:00 a.m.
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, Sachs & Co.
$75,000,000
Total $75,000,000
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 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 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.
EXHIBIT B
The Company* shall furnish to the Underwriter the opinion of X.
Xxxxxxxx Peet, 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 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 Seventeenth Supplemental
Indenture dated as of March 10, 1997 (the "Seventeenth
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
Seventeenth Supplemental Indenture (the "Indenture"), and
delivered to and paid for by the Underwriters 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 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, as of its date or at the date hereof, 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.
_________________________
* 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.
