Xxxxxxx Truck Leasing Corp.
Underwriting Agreement
April 26, 2000
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 8.250%
Collateral Trust Debentures, Series X, Due 2002, identified in
Schedule I hereto to be issued under a Collateral Trust Indenture,
dated as of March 21, 1983 as amended by the Third Supplemental
Indenture thereto, dated as of February 20, 1986, the Eighth
Supplemental Indenture thereto dated as of May 15, 1990 and the
Seventeenth Supplemental Indenture thereto dated as of March 10, 1997,
and as supplemented by the Twenty-third Supplemental Indenture thereto,
to be dated as of May 3, 2000 (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 as described above 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 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, exclusive of any amendments or supplements
thereto, (1) there shall not have been any material change in
the capital stock or long-term debt of the Company and its
subsidiaries, (2) there shall not have been any material
adverse change in the general affairs, management, financial
position or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, in each case
other than as set forth in or contemplated by the Final
Prospectus and (3) the Company and its subsidiaries shall not
have sustained any material loss or interference with their
business taken as a whole from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from
any labor dispute or any court or legislative or other
governmental action, order or decree that is not set forth in
the Final Prospectus if, in your judgment, 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) You 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 Rating Services from those
in effect at the date of this Agreement nor shall Xxxxx'x
Investors Services, Inc. or Standard & Poor's Rating Services
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, your counsel, an opinion and letter,
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, letter and proceedings shall be reasonably
satisfactory in all respects to you, and the Company shall
have furnished to your counsel such documents as they may
reasonably request for the purpose of enabling them to render
such opinion and letter.
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 dealers, at such office or
offices as you may designate, as many copies of any Interim
Prospectus and the Final Prospectus as you 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 you and to dealers (whose
names and addresses you will furnish to the Company) to whom
Securities may have been sold by you, 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 not contain any untrue
statement of a material fact or omit 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. Delivery by you 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 your
counsel in connection therewith and the preparation and
printing of "blue sky" memoranda and legal investment
memoranda, (4) the furnishing to you 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 you 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 the table and second and
fifth paragraphs following the table under the heading
"Underwriting" 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. In the event that the Underwriter is the
indemnified party, counsel selected pursuant to the preceding
sentence shall be satisfactory to the Underwriter. 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 satisfactory to the
indemnified party 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 Underwriters 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 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.
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 Xxxxx X. Xxxxxxxxxx, 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:
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CHASE SECURITIES INC.,
By:
Name:
Title:
SCHEDULE I
Underwriting Agreement dated April 26, 2000
Registration Statement No. 333-95501
Underwriter:
Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxx Xxxxxxxx
with a copy of any notice provided pursuant to Section 7(a) or 8 to:
Chase Securities Inc.
One Chase Xxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Legal Department
Title, Purchase Price and Description of Securities:
Title: 8.250% Collateral Trust Debentures,
Series X, Due 2002
Principal amount: $150,000,000
Purchase price: $149,475,000 plus accrued interest from
May 3, 2000, if any
Redemption provisions: Not redeemable prior to maturity
Other provisions: Interest payable November 1 and May 1 in
each year commencing November 1, 2000
Closing Date,
Time and Location: 10:00 a.m., May 3, 2000, Cravath, Swaine &
Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX
00000
SCHEDULE II
Principal
Amount
of
Securities
to be
Underwriter Title of Securities Purchased
Chase Securities Inc. 8.250% Collateral Trust $150,000,000
Debentures Series X, Due 2002
Total $150,000,000
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;
__________________________
* 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.
(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.
EXHIBIT B
The Company* shall furnish to the Underwriter the opinion of
Xxxxx X. Xxxxxxxxxx, 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,
an Eighth Supplemental Indenture thereto dated as of May 15,
1990 and a Seventeenth Supplemental Indenture thereto dated
as of March 10, 1997 (the "Original Indenture"), between the
Company and First Union National Bank, as successor Trustee,
the Twenty-third Supplemental Indenture dated as of May 3,
2000 (the "Supplemental Indenture") to the Original
Indenture, have been duly authorized, executed and delivered,
have been duly qualified under the Trust Indenture Act of
__________________________
* 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.
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 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
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.
