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EXHIBIT 4A
X.X. XXXX TRANSPORT SERVICES, INC.
DEBT SECURITIES
TERMS AGREEMENT
Dated: September 4, 1998
X.X. Xxxx Transport Services, Inc.
615 X. X. Xxxx Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Dear Sirs:
We understand that X.X. Xxxx Transport Services, Inc., an Arkansas
corporation (the "COMPANY"), proposes to issue and sell $100,000,000 aggregate
principal amount of its Debt Securities (the "SECURITIES"). Subject to the terms
and conditions set forth herein or incorporated by reference herein, Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx Securities Inc., Xxxxxx
Xxxxxxx & Co. Incorporated, BancAmerica Securities, Inc., ABN AMRO Incorporated
and Xxxxxxxx Inc. (the "UNDERWRITERS") hereby offer to purchase such Securities.
SECTION 1. The Securities to be purchased by the Underwriters, which
are to be issued under a Senior Indenture dated as of July 1, 1993, between the
Company and LaSalle National Bank, as successor Trustee, shall have the
following terms:
Title: 7% Senior Notes due 2004 (the "NOTES").
Principal amount to be issued: $100,000,000.
Date of maturity: September 15, 2004.
Interest rate: 7%.
Interest payment dates: March 15 and September 15, commencing March
15, 1999. Interest paid on March 15, 1999, will consist of
interest accrued from the date of initial issuance of the
Notes.
Public offering price: 100% of principal amount.
Purchase price: 99.4% of principal amount (representing a .6%
underwriters' discount).
Redemption provisions: None.
Sinking fund: None.
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Delayed delivery contracts: None.
Closing date and location: September 10, 1998, at the offices of
Xxxxxx and Xxxxx, LLP, 000 Xxxx Xx., Xxxxx 0000, Xxxxxx,
Xxxxx 00000-0000.
Additional co-managers, if any: None.
Additional underwriters, if any: None.
Current ratings: Xxxxx'x Investors Services - Baa2
Standard & Poor's Corporation - BBB+
SECTION 2. Expect as provided in Section 3 below, all of the
provisions contained in the document entitled "X.X. Xxxx Transport Services,
Inc. Debt Securities, Underwriting Agreement -- Basic Provisions," dated as of
July 1, 1993 (the "UNDERWRITING AGREEMENT"), a copy of which is attached hereto
as Annex A, are incorporated herein by reference in their entirety and shall be
deemed to be a part of this Terms Agreement to the same extent as if such
provisions had been set forth in full herein. Terms used herein but not defined
herein shall have the meanings ascribed to such terms in the Underwriting
Agreement. Each Underwriter agrees, subject to the terms and provisions of this
Terms Agreement, including the terms and provisions incorporated by reference
herein, to purchase from the Company the respective principal amount of
Securities set forth opposite its name on Schedule I hereto.
SECTION 3. The provisions of the Underwriting Agreement shall be
amended as follows:
3.1 The first sentence of the second paragraph of Section 2 of the
Underwriting Agreement shall be amended by deleting such sentence in
its entirety and replacing it with the following:
Payment of the purchase price for, and delivery of, any
Securities to be purchased by the Underwriters shall be
made at the place set forth in the applicable Terms
Agreement, or at such other place as shall be agreed
upon by the Representatives and the Company, on the
third business day (unless postponed in accordance with
the provisions of Section 10) following the date of the
applicable Terms Agreement or such other time as shall
be agreed upon by the Representatives and the Company
(each such time and date being referred to as a "Closing
Time").
3.2 Section 3 of the Underwriting Agreement shall be amended by
adding the following as Section 3(j):
(j) This Agreement and the Terms Agreement have been
duly authorized, executed and delivered by the Company.
3.3 Section 3 of the Underwriting Agreement shall be amended by
adding the following as Section 3(k):
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(k) The Indentures have been duly authorized by the
Company and duly qualified under the 1939 Act and
constitute valid and binding agreements of the Company,
enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited
by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered
in a proceeding in equity or at law).
3.4 Section 4(b)(i)(11) shall be amended by deleting the entire
section and replacing it with the following:
(11) Nothing has come to our attention that would lead
us to believe that the Registration Statement or any
amendment thereto, including the Rule 430A Information
and Rule 434 Information (if applicable), (except for
financial statements, statistical data and schedules and
other financial data included or incorporated by
reference therein or omitted therefrom and the
Statements of Eligibility and Qualification on Form T-1
filed as an exhibit thereto, as to which we need make no
statement), at the time such Registration Statement or
any such amendment became effective, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading or that
the Prospectus or any amendment or supplement thereto
(except for financial statements, statistical data and
schedules and other financial data included or
incorporated by reference therein or omitted therefrom
and the Statements of Eligibility and Qualification on
Form T-1, as to which we need make no statement), at the
time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or at the
Closing Time, included or includes an untrue statement
of a material fact or omitted or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading.
3.5 Section 4(b)(i)(15) shall be amended by deleting the entire
section and replacing it with the following:
(15) Each document filed pursuant to the 1934 Act (other
than the financial statements and supporting schedules
or other financial data included or incorporated by
reference therein, as to which no opinion need be
rendered) and incorporated or deemed to be incorporated
by reference in the Prospectus complied when so filed as
to form in all material respects with the 1934 Act and
the 1934 Act Regulations.
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3.6 The references to "Fulbright & Jaworksi L.L.P." contained in
Sections 4(b)(ii) and 4(b)(iii) of the Underwriting Agreement shall
be deleted and replaced with "Xxxxxx and Xxxxx, LLP."
3.7 Section 4(d) of the Underwriting Agreement shall be amended by
deleting the entire section and replacing it with the following:
(d) You shall have received from KPMG Peat Marwick or
other independent certified public accountants
acceptable to the Representatives a letter, at the time
of the execution of the applicable Terms Agreement, in
form and substance satisfactory to the Representatives.
You shall also receive a letter, dated as of the
applicable Closing Time, reaffirming the statements made
in the letter furnished at the time of the execution of
the applicable Terms Agreement, except that the
specified date referred to shall be a date not more than
three business days prior to Closing Time.
3.8 Section 9(a)(ii) shall be amended by deleting it and replacing
it with the following:
(ii) if there has occurred any material adverse change
in the financial markets in the United States or if
there has occurred any outbreak of hostilities or
escalation thereof or other calamity or crisis, the
effect of which on the financial markets of the United
States is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities
or to enforce contracts for the sale of the Securities
or
3.9 The following shall be added as Section 1(o):
(o) Each Prospectus or Prospectus Supplement included as
part of the Registration Statement as originally filed
or as part of any amendment or supplement thereto, or
filed pursuant to Rule 424 under the 1933 Act, complied
when so filed in all material respects with the
provisions of the 1933 Act and the 1933 Act Regulations,
except that this representation and warranty does not
apply to statements or omissions from the Registration
Statement, the Prospectus or the Prospectus Supplement
made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in
writing by or on behalf of any Underwriter through
Xxxxxxx Xxxxx & Co. expressly for use therein. The
Commission has not issued any order preventing or
suspending the use of the Prospectus or Prospectus
Supplement.
SECTION 4. Any notice by the Company to the Underwriters pursuant to
this Terms Agreement shall be in writing and shall be deemed to have been duly
given if mailed or transmitted by any standard form of telecommunication address
to: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000; Attention:
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Xxxxxx X. Xxxxx. Please accept this offer by signing a copy of this Terms
Agreement in the space set forth below and returning the signed copy to us.
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
BANCAMERICA SECURITIES, INC.
ABN AMRO INCORPORATED
XXXXXXXX INC.
BY: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ XXXXXX X. XXXXX
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director, manager, US
Capital Market Services, USA & Canada
ACCEPTED:
X.X. XXXX TRANSPORT SERVICES, INC.
By: /s/ XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President,
Finance and Chief Financial Officer
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SCHEDULE I
PRINCIPAL
UNDERWRITER AMOUNT
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Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ................................. $ 30,000,000
X.X. Xxxxxx Securities Inc. ..................................... 30,000,000
Xxxxxx Xxxxxxx & Co. Incorporated ............................... 30,000,000
BancAmerica Securities, Inc. .................................... 5,000,000
ABN AMRO Incorporated ........................................... 2,500,000
Xxxxxxxx Inc. ................................................... 2,500,000
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TOTAL ....................... $ 100,000,000
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