Exhibit 1
MERITOR AUTOMOTIVE, INC.
6.80% Notes Due February 15, 2009
UNDERWRITING AGREEMENT
February 19, 1999
To the Representative or Representatives
named in Schedule A hereto of the
Underwriters named in Schedule B
hereto
Ladies and Gentlemen:
The undersigned Meritor Automotive, Inc., a Delaware corporation (the
"Company"), confirms its agreement with the several underwriters named in
Schedule B hereto (the "Underwriters") as set forth below. If the firm or firms
listed in Schedule B hereto include only the firm or firms listed in Schedule A
hereto (the "Representatives"), then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms.
The Company proposes to issue and sell debt securities of the title and
amount set forth in Schedule A hereto (the "Purchased Securities"), to be issued
under the Indenture dated as of April 1, 1998 (the "Indenture") between the
Company and The Chase Manhattan Bank, as Trustee.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3, as amended by Amendment No.
1 dated as of June 2, 1998 (No. 333-49777), relating to $500,000,000 of debt
securities, and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933, as amended (the "1933 Act"). Such
Registration Statement has been declared effective by the Commission, and the
Indenture has been qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act"). Such Registration Statement and the Prospectus or Prospectuses
relating to the sale of the Purchased Securities by the Company constituting a
part thereof, including all documents incorporated therein by reference, as from
time to time may be amended or supplemented, pursuant to the Securities Exchange
Act of 1934, as amended (the "1934 Act"), the 1933 Act or otherwise (including
by means of the Prospectus Supplement (as defined below)), are in each case
collectively referred to herein as the "Registration Statement" and the
"Prospectus", respectively; provided, however, that a supplement of the
Prospectus contemplated by Section 3(a), including a
preliminary form of such a supplement of the Prospectus, if any, previously
filed with the Commission pursuant to Rule 424 of the 1933 Act (collectively, a
"Prospectus Supplement"), shall be deemed to have supplemented the Prospectus
only with respect to the offering of the Purchased Securities to which it
relates and such Prospectus Supplement shall be the only supplement included in
the terms "Registration Statement" or "Prospectus". If the Company elects to
rely on Rule 434 under the 1933 Act, all references to the Prospectus shall be
deemed to include, without limitation, the form of prospectus and the term
sheet, taken together, provided to the Representatives by the Company in
reliance on such Rule 434. If the Company files a registration statement to
register a portion of the Purchased Securities and relies on Rule 462(b) under
the 1933 Act for such registration statement to become effective upon filing
with the Commission (the "Rule 462 Registration Statement"), then any reference
to "Registration Statement" herein shall be deemed to be to both the
registration statement referred to above (No. 333-49777) and the Rule 462
Registration Statement, as each such registration statement may be amended
pursuant to the 1933 Act.
SECTION 1. Representations and Warranties. The Company represents and
warrants to each Underwriter as of the date hereof, as follows:
(a) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective complied, and as of the
date hereof complies, in all material respects with the requirements of
the 1933 Act, the rules and regulations thereunder (the "Regulations"),
the 1934 Act and the rules and regulations thereunder and the 1939 Act.
The Registration Statement, at the time the Registration Statement
became effective did not, and as of the date hereof does not, contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, at the time the Registration
Statement became effective did not, and as of the date hereof does not,
contain an untrue statement of a material fact or omit 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;
provided, however, that the representations and warranties in this
subsection shall not apply (i) to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representatives expressly for use in the
Registration Statement or Prospectus or (ii) to that part
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of the Registration Statement which shall constitute the Statement of
Eligibility and Qualification under the 1939 Act (Form T-1) (the "Form
T-1") of the Trustee under the Indenture.
(b) Any documents incorporated by reference in the
Registration Statement and the Prospectus subsequent to the date hereof
will, when filed with the Commission, conform in all material respects
to the requirements of the 1934 Act and the rules and regulations
thereunder, and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby, there has been no
material adverse change in the condition, financial or otherwise, or
the results of operations of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business.
(d) Each of the Company, Meritor Heavy Vehicle Systems, LLC, a
Delaware limited liability company ("HVS"), and Meritor Light Vehicle
Systems, Inc., a Delaware corporation ("LVS"), has been duly formed or
incorporated, as the case may be, is validly existing and in good
standing under the laws of the State of Delaware and has the requisite
corporate power and authority to carry on its business as currently
being conducted, to own, lease and operate its properties, and each is
duly qualified and is in good standing as a foreign limited liability
company or corporation, as the case may be, in each jurisdiction
wherein the character of the property owned or held under lease by it
makes such qualification necessary, except in such jurisdictions where
the failure so to qualify or to be in good standing will not subject
the Company to any liability material to the condition, financial or
otherwise, of the Company and its subsidiaries considered as one
enterprise.
(e) All of the outstanding Common Shares of HVS and all of the
outstanding Common Stock of LVS are validly issued, fully paid and
nonassessable and not subject to any preemptive rights, and are owned
by the Company, free and clear of any security interest, mortgage,
pledge, claim, lien or encumbrance (each, a "Lien"). There are no
outstanding subscriptions, rights, warrants, options, calls,
commitments for sale or Liens related to or
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entitling any person to purchase or otherwise to acquire any equity
interests in HVS or LVS.
(f) None of the Company, HVS or LVS is in violation of its
respective certificate of incorporation or by-laws or other
organizational documents or in default under any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which any
of them is a party or by which any of them or any of their properties
may be bound, except for any violations or defaults which, individually
or in the aggregate, would not have a material adverse effect on the
financial position or consolidated financial statements of the Company
and its subsidiaries taken as a whole. The execution and delivery of
this Agreement, the Delayed Delivery Contracts (as defined below), if
any, and the Indenture and the consummation of the transactions
contemplated herein and therein have been duly authorized by all
necessary corporate action; each of this Agreement and the Indenture
are, and when duly executed and delivered in accordance with their
terms, the Delayed Delivery Contracts, if any, will be, valid and
legally binding agreements of the Company and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company is
a party or by which it may be bound or to which any of the property or
assets of the Company is subject, nor will such action result in any
violation of the provisions of the Restated Certificate of
Incorporation, as amended, or By-Laws of the Company or, to the best of
its knowledge, any law, administrative regulation or administrative or
court decree applicable to the Company; and no consent, approval,
authorization or order of any court or governmental authority or agency
is required for the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required under
the 1933 Act, the 1939 Act, the Regulations or state securities or Blue
Sky laws.
(g) The Purchased Securities have been duly authorized for
issuance and sale pursuant to this Agreement and, when duly executed,
authenticated and delivered pursuant to the provisions of this
Agreement and of the Indenture against payment of the consideration
therefor in accordance with this Agreement, the Purchased Securities
will be valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or
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similar laws relating to or affecting the enforcement of creditors'
rights in general and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or
at law), and will be entitled to the benefits of the Indenture, which
will be substantially in the form heretofore delivered to you, except
as supplemented to reflect the terms of any one or more series of debt
securities.
(h) The Purchased Securities and the Indenture conform in all
material respects to all statements relating thereto contained in the
Prospectus and the applicable Prospectus Supplement.
(i) No strike or labor stoppage by the employees of the
Company or any subsidiary exists, or, to the knowledge of the Company,
is imminent which is expected to have a material adverse effect upon
the conduct of the business, or the earnings, operations or condition,
financial or otherwise, of the Company and its subsidiaries, considered
as one enterprise.
(j) The financial statements (other than quarterly or other
unaudited interim financial statements) included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their
operations for the periods specified; said financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis (except as otherwise stated
therein); and the supporting schedules included or incorporated by
reference in the Registration Statement present fairly the information
required to be stated therein. Any quarterly or other unaudited interim
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus have been prepared in
compliance with the applicable requirements of the 1933 Act, the
Regulations, the 1934 Act and the rules and regulations thereunder and
have been prepared on a basis substantially consistent (except as
otherwise stated therein) with that of the applicable audited financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus, and such unaudited financial statements
contain all adjustments necessary to present a fair statement of the
results of operations for the periods reported. The pro forma financial
information included or incorporated by reference in the Registration
Statement and the Prospectus has been prepared in accordance with the
applicable requirements of Rule 11-02 of Regulation S-X,
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and in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances
referred to therein.
Any certificate signed by any officer of the Company and delivered to
you or counsel for the Underwriters in connection with an offering of the
Purchased Securities shall be deemed a representation and warranty by the
Company, as to the matters covered thereby, to each Underwriter participating in
such offering.
SECTION 2. Purchase and Sale. The several and not joint commitments of
the Underwriters to purchase the Purchased Securities in the respective amounts
set forth on Schedule B hereto shall be deemed to have been made on the basis of
the representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Purchased
Securities to be purchased by the Underwriters shall be made at the office
specified in Schedule A hereto or at such other place as shall be agreed upon by
you and the Company, on the date and at the time so specified or such other time
as shall be agreed upon by you and the Company (such time and date being
referred to as the "Closing Time"). Payment shall be made to the Company by wire
transfer to an account designated by the Company in immediately available funds
against delivery to you for the respective accounts of the Underwriters of the
Purchased Securities to be purchased by them. Such Purchased Securities shall be
in such denominations and registered in such names as you may request in writing
at least two business days prior to the Closing Time. Such Purchased Securities,
which may be in temporary form, will be made available for examination and
packaging by you on or before the first business day prior to the Closing Time.
Delivery at the Closing Time of any Purchased Securities that are in
bearer form shall be effected by delivery of a single temporary global security
without coupons (the "Global Debt Security") evidencing the Purchased Securities
that are in bearer form to a common Depositary for Xxxxxx Guaranty Trust Company
of New York, Brussels office, as operator of the Euroclear System ("Euroclear"),
and for Centrale de Livraison de Valeurs Mobilieres S.A. ("CEDEL") for credit to
the respective accounts at Euroclear or CEDEL of each Underwriter or to such
other accounts as such Underwriter may direct. Any Global Debt Security shall be
delivered to you not later than the Closing Time, against payment of funds to
the Company in the net amount due to the Company for such Global Debt Security
by the method and in the form set forth in Schedule A
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hereto. The Company shall cause definitive Purchased Securities in bearer form
to be prepared and delivered in exchange for such Global Debt Security in such
manner and at such time as may be provided in or pursuant to the Indenture;
provided, however, that the Global Debt Security shall be exchangeable for
definitive Purchased Securities in bearer form only on or after the date
specified for such purpose in the Prospectus.
If authorized in Schedule A hereto, the Underwriters named therein may
solicit offers to purchase debt securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") substantially in the form of
Exhibit I hereto with such changes therein as the Company may approve. Any
Purchased Securities purchased pursuant to Delayed Delivery Contracts as
hereinafter provided are herein referred to as "Contract Securities". As
compensation for arranging Delayed Delivery Contracts, the Company will pay to
you at the Closing Time, for the accounts of the Underwriters, a fee equal to
that percentage of the principal amount of Contract Securities for which Delayed
Delivery Contracts are made at the Closing Time as is specified in Schedule A
hereto. At the Closing Time the Company will enter into Delayed Delivery
Contracts with all purchasers proposed by the Underwriters and previously
approved by the Company as provided below, but not for an aggregate principal
amount of Contract Securities in excess of that specified in Schedule A hereto.
The Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
Delayed Delivery Contracts are to be only with such investors and in
such amounts as are approved by the Company. You are to submit to the Company at
least three business days prior to the Closing Time, the names of any investors
with which it is proposed that the Company will enter into Delayed Delivery
Contracts and the principal amount of Contract Securities to be purchased by
each of them, and the Company will advise you, at least two business days prior
to the Closing Time, of the names of the investors with which the making of
Delayed Delivery Contracts is approved by the Company and the principal amount
of Contract Securities to be covered by each such Delayed Delivery Contract.
If the Company executes and delivers Delayed Delivery Contracts, the
aggregate principal amount of Contract Securities will be deducted from the
aggregate principal amount of the Purchased Securities to be purchased by the
several Underwriters and the principal amount of the Purchased Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
principal amount of the Purchased Securities set forth opposite each
Underwriter's name in Schedule B hereto, except to the extent that the
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Representatives determine that such reduction shall be otherwise than pro rata
and so advise the Company in writing; provided, however, that the aggregate
principal amount of Purchased Securities to be purchased by all Underwriters
shall be the aggregate principal amount of the Purchased Securities less the
aggregate principal amount of Contract Securities.
SECTION 3. Covenants of the Company. The Company covenants with each of
you and with each Underwriter as follows:
(a) Immediately following the execution of this Agreement, the
Company will prepare a Prospectus Supplement setting forth the
principal amount of the Purchased Securities covered thereby and their
terms not otherwise specified in the Indenture, the names of the
Underwriters participating in the offering and the principal amount of
the Purchased Securities which each severally has agreed to purchase,
the names of the Underwriters acting as Representatives in connection
with the offering, the price at which the Purchased Securities are to
be purchased by the Underwriters from the Company, the initial public
offering price, the selling concession and reallowance, if any, any
delayed delivery arrangements, and such other information as you and
the Company deem appropriate in connection with the offering of the
Purchased Securities. The Company will transmit copies of the
Prospectus Supplement to the Commission for timely filing pursuant to
Rule 424 of the Regulations and will furnish to the Underwriters named
therein as many copies of the Prospectus and such Prospectus Supplement
as you shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933
Act to be delivered in connection with sales of the Purchased
Securities any event shall occur or condition exist as a result of
which it is necessary to further amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading in the light of circumstances
existing at the time it is delivered to a purchaser or if it shall be
necessary at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of
the 1933 Act or the Regulations, the Company will promptly prepare and
file with the Commission such amendment or supplement, whether by
filing documents pursuant to the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements.
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(c) The Company will make generally available to its security
holders, in each case as soon as practicable, an earning statement (in
form complying with the provisions of Section 11(a) of the 1933 Act and
the Regulations, which need not be certified by independent certified
public accountants unless required by the 1933 Act or the Regulations)
covering a twelve month period beginning not later than the first day
of the Company's fiscal quarter next following the effective date (as
defined in Rule 158 of the Regulations) of the Registration Statement.
(d) The Company will give you notice of its intention to file
any amendment to the Registration Statement or any supplement to the
Prospectus with respect to the Purchased Securities, other than those
made by the filing of documents pursuant to the 1934 Act, will furnish
you with copies of any such amendment or supplement proposed to be
filed a reasonable time in advance of filing, and will not file any
such amendment or supplement in a form to which you or your counsel has
reasonably objected.
(e) The Company will notify each of you immediately, and
confirm the notice in writing, (i) of the filing or effectiveness of
any amendment to the Registration Statement, (ii) of the mailing or the
delivery to the Commission for filing of any supplement to the
Prospectus with respect to the Purchased Securities, (iii) of the
receipt of any comments from the Commission with respect to the
Registration Statement, the Prospectus or any Prospectus Supplement,
(iv) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
with respect to the Purchased Securities or for additional information
with respect thereto, (v) of the receipt by the Company of any
notification with respect to any suspension of the qualification of the
Purchased Securities for offer or sale in any state or jurisdiction of
the United States or the initiation or threatening of any proceeding
for such purpose and (vi) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make
every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(f) The Company will deliver to each of you as many signed and
conformed copies of the Registration Statement (as originally filed)
and each amendment thereto
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(including exhibits filed therewith or incorporated by reference
therein and documents incorporated by reference in the Prospectus) as
you may reasonably request and will also deliver to you a conformed
copy of the Registration Statement and each amendment thereto for each
of the Underwriters.
(g) The Company will endeavor, in cooperation with you, to
qualify the Purchased Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States as you may designate, and will maintain such
qualifications in effect for as long as may be required for the
distribution of the Purchased Securities; provided, however, that the
Company shall not be required to qualify as a foreign corporation or to
take any action which would subject it to general consent to service of
process in any state in which it is not now qualified or not now so
subject. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Purchased
Securities have been qualified as above provided.
(h) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all
documents required to be filed with the Commission pursuant to Section
13 or 14 of the 1934 Act.
(i) Between the date of this Agreement and the Closing Time,
the Company will not, without your prior consent, offer or sell, or
enter into any agreement to sell, any debt securities of the Company
with a maturity of more than one year.
SECTION 4. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase the Purchased Securities pursuant to this Agreement
are subject to the accuracy of the representations and warranties on the part of
the Company herein contained, as of the date hereof and as of the Closing Time,
to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance by
the Company of all of its covenants and other obligations hereunder and to the
following further conditions:
(a) At the Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or, to the
knowledge of the Company or the Underwriters, threatened by the
Commission, (ii) the rating assigned by any nationally recognized
statistical
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rating organization to any debt securities of the Company as of the
date of this Agreement shall not have been lowered since that date and
no such rating agency shall have publicly announced since that date
that it is placing any debt securities of the Company on what is
commonly termed a "watch list" for possible downgrading and (iii) the
Prospectus, together with the applicable Prospectus Supplement, shall
not contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
(b) At the Closing Time you shall have received:
(1) The favorable opinion, dated as of the Closing
Time, of Xxxxxxxxxx & Xxxxx LLP, counsel for the Company, in form and
substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of Delaware.
(ii) The Company has corporate power and
authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement.
(iii) This Agreement and the Delayed
Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company.
(iv) The Indenture has been duly authorized,
executed and delivered by the Company and constitutes the
valid and binding agreement of the Company, enforceable in
accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general and general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
(v) The Purchased Securities have been duly
authorized by all necessary corporate action and, when duly
executed and authenticated as specified in the Indenture and
delivered against payment therefor pursuant to this Agreement
and any applicable Delayed Delivery Contract, will be valid
and binding obligations of the Company, enforceable
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in accordance with their terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general and general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), and will be entitled to the benefits of the Indenture.
(vi) The Indenture and the Purchased
Securities conform in all material respects to the
descriptions thereof contained in the Prospectus and the
applicable Prospectus Supplement.
(vii) The Indenture is qualified under the
1939 Act.
(viii) The Registration Statement is
effective under the 1933 Act and, to the best of their
knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued
under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(ix) The Registration Statement and the
Prospectus (other than the financial statements and other
financial and statistical data included or incorporated by
reference therein, as to which no opinion need be rendered)
comply as to form in all material respects with the
requirements of the 1933 Act, the 1939 Act (other than Form
T-1, as to which no opinion need be rendered) and the
Regulations.
(x) Each document, if any, filed pursuant to
the 1934 Act (other than the financial statements and other
financial and statistical data included or incorporated by
reference therein, as to which no opinion need be rendered)
and incorporated by reference in the Prospectus, complied when
so filed as to form in all material respects with the 1934 Act
and the rules and regulations thereunder.
(xi) No consent, approval, authorization or
order of any court or governmental authority or agency is
required in connection with the issue and sale by the Company
of the Purchased Securities to the Underwriters, except such
as may be required under the 1933 Act, the Regulations, the
1939 Act and any state securities laws, and to the best of
their knowledge and information, the execution and
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delivery of this Agreement, the Delayed Delivery Contracts,
if any, and the Indenture and the consummation of the
transactions contemplated herein will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument known to them
to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound, nor
will such action result in any violation of the provisions of
the Restated Certificate of Incorporation, as amended, or
By-Laws of the Company, or to the best of their knowledge any
law, administrative regulation or administrative or court
decree applicable to the Company.
Such counsel shall also state that although such counsel does
not assume responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus (except as and to the extent described in paragraph (vi)
above), nothing has come to their attention that would lead them to
believe that the Registration Statement (other than the financial
statements and other financial and statistical data included or
incorporated by reference therein, as to which no view need be
rendered), as of the time it 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, as amended or
supplemented at the Closing Time (other than the financial statements
and other financial and statistical data included or incorporated by
reference therein, as to which no view need be rendered), contains an
untrue statement of a material fact 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.
(2) The favorable opinion, dated as of the Closing
Time, of the General Counsel or an Assistant General Counsel of the
Company, in form and substance satisfactory to you, to the effect that:
(i) The Company is duly qualified as a foreign
corporation and is in good standing in the State of Michigan
and in each other jurisdiction wherein the character of the
property owned or held under lease by it makes such
qualification necessary, except in
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such jurisdictions where the failure so to qualify or to be
in good standing will not subject the Company to any liability
material to the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise.
(ii) Each of HVS and LVS is a subsidiary of the
Company, has been duly formed or incorporated, as the case may
be, and is validly existing and in good standing under the
laws of the State of Delaware and is duly qualified and is in
good standing as a foreign limited liability company or
corporation, as the case may be, in each jurisdiction wherein
the character of the property owned or held under lease by it
makes such qualification necessary, except in such
jurisdictions where the failure so to qualify or to be in good
standing will not subject the Company to any liability
material to the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise; the
outstanding Common Shares of HVS and the outstanding Common
Stock of LVS are validly issued, fully paid and nonassessable
and are owned by the Company free and clear of any Liens.
(iii) The execution and delivery of this Agreement,
the Delayed Delivery Contracts, if any, and the Indenture and
the consummation of the transactions contemplated herein will
not conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its subsidiaries is a party or, to
the best of his or her knowledge, by which it or any of them
may be bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the
Restated Certificate of Incorporation, as amended, or By-Laws
of the Company or any law, administrative regulation or
administrative or court decree applicable to the Company.
(iv) There is no litigation or governmental
proceeding pending or, to the best of his or her knowledge,
threatened against the Company or any of its subsidiaries
which would affect the subject matter of this Agreement and
the Delayed Delivery Contracts, if any, or which is required
to be
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disclosed in the Prospectus which is not adequately disclosed
therein; and except as may be disclosed in the Prospectus,
there is no such litigation or governmental proceeding which
would have a material adverse effect on the financial position
or consolidated financial statements of the Company and its
subsidiaries as a whole.
(v) To the best of his or her knowledge, there are no
contracts which are required to be filed as exhibits to the
Registration Statement which are not so filed or which are
required to be disclosed in the Prospectus which are not
adequately disclosed therein.
(3) The favorable opinion or opinions, dated as of
the Closing Time, of Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters, with respect to the incorporation of the Company, the
validity of the Purchased Securities delivered at the Closing Time, the
Registration Statement, the Prospectus and such other related matters
as the Representatives may require.
(c) At the Closing Time there shall not have been, since the
date of this Agreement, any material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries considered
as one enterprise, or any development involving a prospective material
adverse change in or affecting particularly the financial condition of
the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, and you shall have
received a certificate of the Chief Executive Officer or a Vice
President of the Company, dated as of the Closing Time, to the effect
that there has been no such material adverse change or prospective
change and to the effect that the representations and warranties of the
Company contained in Section 1 are true and correct as of the Closing
Time.
(d) You shall have received from Deloitte & Touche LLP a
letter, addressed to you and dated as of the Closing Time and delivered
at such time, in form satisfactory to you and concerning such matters
as you shall reasonably request.
(e) At the Closing Time counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Purchased Securities as herein contemplated
and related proceedings or in order to evidence the accuracy
15
and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Purchased Securities as herein contemplated shall be
satisfactory in form and substance to you and counsel for the
Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by you by notice to the Company at any time at or prior to the Closing Time, and
such termination shall be without liability of any party to any other party
except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and all amendments
thereto, (ii) the preparation, issuance and delivery of the Purchased Securities
to the Underwriters, (iii) the fees and disbursements of the Company's counsel
and accountants, the Trustee under the Indenture and the Trustee's counsel, (iv)
the qualification of the Purchased Securities under securities laws in
accordance with the provisions of Section 3(g), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky Survey and
Legal Investment Survey, (v) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration Statement and all
amendments thereto, and of the Prospectus, (vi) the printing and delivery to the
Underwriters of copies of the Indenture and any Blue Sky Survey and Legal
Investment Survey, (vii) the fees of rating agencies and (viii) the fees and
expenses, if any, incurred in connection with the listing of the Purchased
Securities on the New York Stock Exchange, if any.
If this Agreement is terminated by you in accordance with the
provisions of Section 4 or Section 9(i), the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters, reasonably incurred in
connection with the subject matter of this Agreement. The Company shall not in
any event be liable to any of the Underwriters for loss of anticipated profits
from the transactions contemplated by this Agreement.
SECTION 6. Indemnification. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the 1933 Act as follows:
16
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus
or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, unless such
untrue statement or omission or such alleged untrue statement or
omission was made (i) in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives expressly for use in the Registration Statement or the
Prospectus or (ii) in that part of the Registration Statement which
constitutes the Form T-1;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) subject to subparagraph (c), against any and all expense
whatsoever as and when incurred (including the fees and disbursements
of counsel chosen by you) reasonably incurred in investigating,
preparing or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above.
This indemnity is subject to the condition that, insofar as it relates
to any untrue statement or omission, or any alleged untrue statement or
omission, made in the Prospectus, it shall not inure to the benefit of any
Underwriter from whom the person asserting the claim purchased the Purchased
Securities (or to the benefit of any person who controls such Underwriter) if a
copy of the Prospectus (excluding documents incorporated by reference therein),
as amended or supplemented prior to the written confirmation mentioned below,
was not delivered to such person at or prior to the written
17
confirmation of the sale of such Purchased Securities and the untrue statement
or omission or alleged untrue statement or omission was corrected in the
Prospectus as supplemented or amended at the time of such confirmation.
Insofar as this indemnity may permit indemnification for liabilities
under the 1933 Act of any person who is a partner of an Underwriter or who
controls an Underwriter within the meaning of Section 15 of the 1933 Act and
who, at the date of this Agreement, is a director, officer or controlling person
of the Company, such indemnity agreement is subject to the undertaking of the
Company in the Registration Statement.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement or
the Prospectus in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use in the Registration Statement or the Prospectus.
(c) In case any proceeding (including any governmental investigation or
proceeding) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding subsections (a)
and (b), such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
but failure to so notify an indemnifying party shall not relieve it from any
liability which it may have otherwise than on account of subsections (a) and (b)
above. The indemnifying party shall have the right to retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements as incurred of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and the indemnified party
shall have reasonably concluded that representation of both parties by
18
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm (in addition to local counsel) for all such indemnified parties
and that all such fees and expenses shall be reimbursed periodically on a
reasonable basis as agreed by the parties. Such separate firm shall be
designated in writing by you in the case of parties indemnified pursuant to
subsection (a) of this Section and by the Company in the case of parties
indemnified pursuant to subsection (b) of this Section. No indemnifying party
shall, without the prior written consent of the indemnified party (which consent
shall not be unreasonably withheld), settle any pending or threatened proceeding
in respect of which indemnification could have been sought hereunder by such
indemnified party (whether or not the indemnified party is an actual party to
such claim or action) unless such settlement includes an unconditional release
of such indemnified party from all liability on the claims that are the subject
matter of such action.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters of the Purchased Securities shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and one or more of such
Underwriters in respect of such offering in such proportions as will reflect the
relative benefits from the offering of such Purchased Securities received by the
Company on the one hand and by such Underwriters on the other hand, provided
that if the Purchased Securities are offered by the Underwriters at an initial
public offering price set forth in a Prospectus Supplement, the relative
benefits shall be deemed to be such that the Underwriters shall be responsible
for that portion of the aggregate losses, liabilities, claims, damages and
expenses represented by the percentage that the underwriting discount appearing
in such Prospectus Supplement bears to the initial public offering price
appearing therein and the Company shall be responsible for the balance;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as such Underwriter, and each
19
director of the Company, each officer of the Company who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
SECTION 8. Representations and Warranties to Survive Delivery. All
representations and warranties contained in this Agreement, or contained in
certificates of officers of the Company submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any termination of this
Agreement, or any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of any Purchased Securities to the Underwriters.
SECTION 9. Termination. You may terminate this Agreement, immediately
upon notice to the Company, at any time at or prior to the Closing Time (i) if
there has been, since the date of this Agreement, any material adverse change in
the condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in your reasonable judgment, is material and adverse, which makes it
impracticable to market the Purchased Securities or enforce contracts for the
sale of the Purchased Securities, or (iii) if trading in the Common Stock of the
Company has been suspended by the Commission or a national securities exchange,
or if trading generally on either the New York Stock Exchange or the Nasdaq
National Market has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been required,
by either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either
Federal or New York authorities. In the event of any such termination, the
provisions of Section 5, the indemnity agreement set forth in Section 6, the
contribution provisions set forth in Section 7, and the provisions of Section 8
and 13 shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters participating
in an offering of the Purchased Securities shall fail at the Closing Time to
purchase the Purchased Securities which it or they are obligated to purchase
hereunder (the "Defaulted Securities"), then you shall have the right, within 24
hours thereafter, to make arrangements satisfactory to the Company for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth. If, however,
20
during such 24 hours you shall not have completed such arrangements for the
purchase of all of the Defaulted Securities, then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of the Purchased
Securities to be purchased pursuant to this Agreement, the
non-defaulting Underwriters named in this Agreement shall be obligated
severally to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all such non-defaulting Underwriters (or in
such other proportions as the Representatives may specify), or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of the Purchased
Securities to be purchased pursuant to this Agreement, this Agreement
shall terminate, without any liability on the part of any
non-defaulting Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
In the event of a default by any Underwriter or Underwriters as set
forth in this Section, either you or the Company shall have the right to
postpone the Closing Time, subject to termination of this Agreement as provided
in subsection (b) above, for a period of time not exceeding seven days in order
that any required changes in the Registration Statement or Prospectus or in any
other documents or arrangements may be effected.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you at your address set forth in Schedule A
hereto; notices to the Company shall be directed to it at 0000 Xxxx Xxxxx Xxxx,
Xxxx, Xxxxxxxx, 00000-0000, attention of the Secretary with a copy to the
Treasurer.
21
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon you and the Company, and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties and their respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Purchased
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. Governing Law. This Agreement shall be governed by
the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and us in accordance with its terms.
Very truly yours,
MERITOR AUTOMOTIVE, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------
Xxxxxx X. Xxxxx
Vice President and
Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
THE UNDERWRITERS NAMED IN SCHEDULE B HERETO
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
----------------------
Xxxxxxx X. Xxxxx
Vice President
22
SCHEDULE A
TERMS AGREEMENT
Underwriting Agreement dated February 19, 1999
Representative(s): Xxxxxx Xxxxxxx & Co. Incorporated
Title of Securities: 6.80% Notes Due February 15, 2009
Amount of Securities: $500,000,000
Price to Public:
99.553% and accrued interest, if any, from February 24, 1999
Purchase Price:
98.903% and accrued interest, if any, from February 24, 1999
Delayed Delivery - NONE
Fee:
Minimum principal amount of each Contract:
Maximum aggregate principal amount of all Contracts:
Closing -
Office for delivery of Securities:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Office for payment for Securities:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Date and time of Closing: 10:00 a.m., February 24, 1999
Office for checking Securities:
Xxxxxxxxxx & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Underwriting commissions or other compensation:
Addresses for notices per Section 11:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Attention: 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
SCHEDULE B
Underwriting Agreement dated February 19, 1999
Principal
Amount of
Underwriter Notes
----------- ------------
Xxxxxx Xxxxxxx & Co. Incorporated $292,500,000
Bear, Xxxxxxx & Co. Inc. 42,500,000
X.X. Xxxxxx Securities Inc. 42,500,000
Xxxxxxx Xxxxx Barney Inc. 42,500,000
Warburg Dillon Read LLC 42,500,000
Deutsche Bank Securities Inc. 12,500,000
First Chicago Capital Markets, Inc. 12,500,000
Scotia Capital Markets (USA) Inc. 12,500,000
------------
Total $500,000,000
============
EXHIBIT I
MERITOR AUTOMOTIVE, INC.
(a Delaware corporation)
[Title of Security]
DELAYED DELIVERY CONTRACT
[Date]
MERITOR AUTOMOTIVE, INC.
0000 Xxxx Xxxxx Xxxx
Xxxx, Xxxxxxxx 00000-0000
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Meritor Automotive,
Inc., a Delaware corporation (the "Company"), and the Company agrees to sell to
the undersigned on _________________, ____ (the "Delivery Date"), _____________
principal amount of the Company's _______________________ (the "Securities"),
offered by the Company's Prospectus dated ___________, ____, as supplemented by
its Prospectus Supplement dated __________________, ____, receipt of which is
hereby acknowledged, at a purchase price of ___% of the principal amount
thereof, plus accrued interest from _________________, ____, to the Delivery
Date, and on the further terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company on the Delivery Date by wire
transfer of immediately available funds to an account designated by the Company,
upon delivery to the undersigned, at the office of [name and address] or at such
other place as the undersigned and the Company shall agree, of the Securities to
be purchased by the undersigned in definitive form and in such authorized
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than two
full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before _______________, ____,
shall have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Underwriting Agreement dated ______________, ____, between the Company and the
Underwriters less the
principal amount thereof covered by this and other similar contracts. The
obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payment for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which govern
such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Securities in excess of
$_____________ and that the acceptance of any Delayed Delivery Contract is in
the Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance on a copy
hereof and mail or deliver a signed copy hereof to the undersigned at the
address set forth below. This
will become a binding contract between the Company and the undersigned when such
copy is so mailed or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
_________________________
(Name of Purchaser)
By:______________________
(Title)
_________________________
_________________________
(Address)
Accepted as of the date first above written:
MERITOR AUTOMOTIVE, INC.
By:_________________________
PURCHASER - PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed is as
follows: (Please print.)
Telephone No.
Name (including Area Code)
---- ---------------------
