Exhibit 1
XXXX-XXXXXX AUTOMOTIVE, INC.
(a Delaware corporation)
$ 200,000,000
6 1/2% Senior Notes due 2009
$ 200, 000,000
7 1/8% Senior Notes due 2029
TERMS AGREEMENT
Dated: February 17, 1999
Xxxx-Xxxxxx Automotive, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Dear Sirs:
We (the "Representatives") understand that Xxxx-Xxxxxx Automotive, Inc., a
Delaware corporation (the "Company"), proposes to issue and sell $200,000,000
aggregate principal amount of its 6 1/2% Senior Notes due 2009 (the Senior Notes
due 2009) and $200,000,000 aggregate principal amount of its 7 1/8% Senior
Notes due 2029 (the Senior Notes due 2029) (collectively, the "Underwritten
Securities"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company has agreed to sell to the
underwriters named below (the "Underwriters"), and the Underwriters have agreed,
severally and not jointly, to purchase from the Company, the respective amounts
of Notes due 2009 and Notes due 2029 set forth below opposite their respective
names at the purchase prices set forth below.
Underwriter Principal Amount Principal Amount
of Notes of Notes
due 2009 due 2029
Xxxxxxx Lynch, Xxxxxx,
Xxxxxx & Xxxxx Incorporated
70,000,000 70,000,000
Xxxxxx Xxxxxxx & Co. Incorporated
70,000,000 70,000,000
Chase Securities Inc.
20,000,000 20,000,000
First Chicago Capital Markets, Inc
20,000,000 20,000,000
NationsBanc Xxxxxxxxxx Securities LLC
20,000,000 20,000,000
Total..............$200,000,000 $200,000,000
============ ============
The Underwritten Securities shall have the following terms:
Title of Debt Securities: 6 1/2% Senior Notes due 2009
7 1/8% Senior Notes due 2029
Currency: U.S. dollars
Principal amount to be issued:
$200,000,000 Notes due 2009
$200,000,000 Notes due 2029
Current ratings: Xxxxx'x Investors Service, Inc. Baa2;
Standard & Poor's Corporation BBB+
Interest rate: 6 1/2% Notes due 2009
7 1/8% Notes due 2029
Gross Spread: Notes due 2009: .65%
Notes due 2029: .875%
Interest Payment Dates: February 15 and August 15,
beginning August 15, 1999
Regular Record Dates: February 1 or August 1
Stated Maturity Dates: Notes due 2009: February 15, 2009
Notes due 2029: February 15, 2029
Optional Redemption: Redemption at option of Company, in whole at any time,
or in part from time to time, at a redemption price
equal to the greater of : (1) 100% of such Notes
principal amount and (2) the sum of the present values
of the remaining scheduled payments of principal and
interest discounted to the date of redemption on a
semi-annual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Treasury Rate plus 15
basis points in the case of the Notes due 2009, and 25
basis points in the case of the Notes due 2029, plus,
in either case, accrued and unpaid interest on the
principal amount being redeemed to such redemption
date.
Sinking fund requirements: None
Initial public offering price 99.064%, plus accrued interest, if any, or
amortized original issue for Notes due 2009: discount, if any, from February
22, 1999, if settlement occurs after that date.
Purchase price for Notes 98.414%, plus accrued interest, if any, or amortized
original issue due 2009: discount, if any, from February 22, 1999 (payable in
immediately available funds).
Initial public offering price 98.602%, plus accrued interest, if any, or
amortized original issue for Notes due 2029: discount, if any, from February
22, 1999, if settlement occurs after that date.
Purchase price for Notes 97.727%, plus accrued interest, if any, or amortized
original issue due 2029: discount, if any, from February 22, 1999 (payable in
immediately available funds).
Form: Book-entry represented by global securities deposited with The Depository
Trust Company.
Ranking: Senior, unsecured obligations of the Company.
Closing Date and Location: February 22, 1999, at the offices of Shearman &
Sterling, New York, New York.
All the provisions contained in the agreement attached as Annex A hereto
entitled "Xxxx-Xxxxxx Automotive, Inc. Debt Securities Underwriting Agreement
Basic Provisions" are hereby incorporated by reference in their entirety herein
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 defined in such
document are used herein as therein defined.
If the foregoing is in accordance with your understanding of our agree-
ment,please sign a copy of this Terms Agreement in the space set forth below and
return the signed copy to us.
Very truly yours,
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: XXXXXX XXXXXXX & CO. INCORPORATED
By /s/
Name:
Title:
For themselves and as Representatives
of the other Underwriters named herein.
Accepted:
XXXX-XXXXXX AUTOMOTIVE, INC.
By /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President and Treasurer
Annex A
to Terms
Agreement
XXXX-XXXXXX AUTOMOTIVE, INC.
(a Delaware corporation)
Debt Securities
UNDERWRITING AGREEMENT BASIC PROVISIONS
Xxxx-Xxxxxx Automotive, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell up to $400,000,000 aggregate principal amount of its
senior debt securities (the "Senior Securities") or its subordinated debt
securities (the "Subordinated Securities"), or both, from time to time on terms
to be determined at the time of sale. The Senior Securities will be issued
under an indenture dated as of February 15, 1999 (the "Senior Indenture")
between the Company and The First National Bank of Chicago, trustee. The
Subordinated Securities, if any, would be issued under an indenture to be
entered into (the "Subordinated Indenture") between the Company and The First
National Bank of Chicago, trustee. Each issue of Senior Securities, and
Subordinated Securities may vary, as applicable, as to aggregate principal
amount, maturity date, interest rate or formula and timing of payments thereof,
redemption provisions and sinking fund requirements, if any, and any other
variable terms which the Senior Indenture or the Subordinated Indenture, as the
case may be, contemplates may be set forth in the Senior Securities and
Subordinated Securities as issued from time to time. The Senior Securities and
the Subordinated Securities may be offered either together or separately.
This is to confirm the arrangements with respect to the purchase of
Underwritten Securities from the Company by the Representatives and the several
Underwriters listed in the applicable terms agreement entered into between the
Representatives and the Company of which this Underwriting Agreement is Annex A
thereto (the "Terms Agreement"). With respect to any particular Terms
Agreement, the Terms Agreement, together with the provisions hereof incorporated
therein by reference, is herein referred to as the "Agreement." Terms defined
in the Terms Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No. 333-66879),
including a prospectus, relating to certain of the Senior and/or Subordinated
Securities (including the Underwritten 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"), and has filed such amendments thereto as may have been
required to the date of the Terms Agreement. Such registration statement as
amended has been declared effective by the Commission, and the Senior Indenture
has been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). As provided in Section 3(a), a prospectus supplement reflecting the
terms of the Underwritten Securities, the terms of the offering thereof and the
other matters set forth therein has been prepared and will be filed pursuant to
Rule 424 under the 1933 Act. Such prospectus supplement, in the form first
filed after the date hereof pursuant to Rule 424, is herein referred to as the
"Prospectus Supplement." Such registration statement, as amended at the date
hereof, including the exhibits thereto and the documents incorporated by
reference therein, is herein called the "Registration Statement," and the basic
prospectus included therein relating to all offerings of securities under the
Registration Statement, as supplemented by the Prospectus Supplement, is herein
called the "Prospectus," except that, if such basic prospectus is amended or
supplemented on or prior to the date on which the Prospectus Supplement is first
filed pursuant to Rule 424, the term "Prospectus" shall refer to the basic
prospectus as so amended or supplemented and as supplemented by the Prospectus
Supplement, in either case including the documents filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), that are incorporated by reference therein. The term "preliminary
prospectus supplement" means each preliminary prospectus supplement specifically
relating to the Underwritten Securities and previously filed pursuant to Rule
424(b), including all documents incorporated by reference therein filed under
the 1934 Act. If the Company files a registration statement with the Commission
pursuant to Rule 462(b) (the "Rule 462(b) Registration Statement") of the rules
and regulations of the 1933 Act (the "1933 Act Regulations"), then, after such
filing, all references to the "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement.
Section 1. Representations and Warranties. The Company represents and
warrants to the Representatives and to each Underwriter named in a Terms
Agreement as of the date thereof and as of the related Closing Time (each a
"Representation Date"), as follows:
(a) The Company meets the requirements for use of Form S-3 under the
1933 Act and the Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the applicable Representation
Date, complied and will comply in all material respects with the requirements of
the 1933 Act, the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act Regulations").
The Registration Statement, at the time the Registration Statement became
effective and as of the applicable Representation Date, did not, 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 not
misleading. The Prospectus, at the time the Registration Statement became
effective and as of the applicable Representation Date, did not, and will 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 light of the circumstances
under which they were made, not misleading; except that the representations and
warranties in this subsection shall not apply to statements in or omissions from
the Registration Statement or Prospectus made in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives expressly for use in the Registration
Statement or Prospectus or to that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification under the 1939
Act (Form T-1) of the Trustees under the Senior Indenture.
(b) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or
hereafter are filed with the Commission, complied and will comply, as the case
may be, in all material respects with the requirements of the 1934 Act and the
rules and regulations thereunder (the "1934 Act Regulations") and, when read
together and with the other information in the Prospectus, at the time the
Registration Statement became effective and at the time any amendments thereto
become effective or hereafter during the period specified in Section 3(b), did
not 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) (A) Deloitte & Touche LLP, who have certified the financial
statements of the Company and the schedules included or incorporated by
reference in the Registration Statement and Prospectus, and (B) KPMG Peat
Marwick, who have certified the financial statements of NSK-Warner Kabushiki
Kaisha ("NSK-Warner") included or incorporated by reference in the Registration
Statement and the Prospectus, are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(d) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement and any Terms
Agreement; and each of this Agreement and any Terms Agreement has been duly
authorized, executed and delivered by the Company.
(e) The consolidated financial statements and the related notes of
the Company and its Subsidiaries (as defined below) included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of the Company and its Subsidiaries as of the dates indicated
and the consolidated results of operations and cash flows of the Company and its
Subsidiaries for the periods specified. Such financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved (except as set forth in the
notes thereto) and subject, in the case of any interim statements, to normal
year-end audit adjustments. The financial statement schedules, if any, included
in the Registration Statement present fairly the information required to be
stated therein. The selected financial data included or incorporated by
reference in the Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited consolidated
financial statements included or incorporated by reference in the Registration
Statement. The pro forma financial information included or incorporated by
reference in the Prospectus present fairly the information shown therein, has
been prepared in accordance with the applicable requirements of Rule 11-02 of
Regulation S-X, has been properly compiled on the pro forma bases described
therein, 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.
(f) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware with corporate power
and authority under such laws to own, lease and operate its properties and
conduct its business as described in the Prospectus. The Company is duly
qualified to transact business as a foreign corporation and is in good standing
in each other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification necessary,
except to the extent that the failure to so qualify or be in good standing would
not have a material adverse effect on the Company and the Subsidiaries,
considered as one enterprise.
(g) The Company's only subsidiaries are set forth in Annex B hereto
(each such corporation is referred to herein as a "Subsidiary" and,
collectively, the "Subsidiaries"). Each Subsidiary is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation with corporate power and authority under such
laws to own, lease and operate its properties and conduct its business; and each
Subsidiary is duly qualified to transact business as a foreign corporation and
is in good standing in each other jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so qualify or
be in good standing would not have a material adverse effect on the Company and
the Subsidiaries, considered as one enterprise. All of the outstanding shares
of capital stock of each Subsidiary have been duly authorized and validly issued
and are fully paid and non-assessable and are owned by the Company, directly or
through one or more of the Subsidiaries, in the percentages set forth in Exhibit
B hereto, free and clear of any pledge, lien, security interest, charge, claim,
equity or encumbrance of any kind.
(h) The Company had at the date indicated a duly authorized and
outstanding capitalization as set forth in the Prospectus under the caption
"Capitalization."
(i) The Indenture has been duly authorized by the Company, will be
substantially in the form heretofore delivered to you and, when duly executed
and delivered by the Company and the Trustee, will constitute a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as 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); and the Indenture conforms to the
descriptions thereof in the Prospectus.
(j) The Underwritten Securities have been duly authorized for
issuance and sale pursuant to this Agreement (or will have been so authorized
prior to each issuance of Underwritten Securities) and, when executed,
authenticated, issued and delivered in the manner provided for in the Indenture
and sold and paid for as provided in this Agreement, the Underwritten Securities
will constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the Company in accordance with
their terms, except as 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 law); and the Underwritten Securities, the Senior
Indenture and the Subordinated Indenture conform to the descriptions thereof in
the Prospectus.
(k) All of the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; no holder thereof is or will be subject to personal liability by
reason of being such a holder; and none of the outstanding shares of capital
stock of the Company was issued in violation of the preemptive rights of any
stockholder of the Company.
(l) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as described in the
Registration Statement and Prospectus, there has not been (i) any material
adverse change in the condition (financial or otherwise), results of operations,
business affairs or business prospects of the Company and the Subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, (ii) any transaction entered into by the Company or any Subsidiary,
other than in the ordinary course of business, that is material to the Company
and the Subsidiaries, considered as one enterprise, or (iii) any dividend or
distribution of any kind declared, paid or made by the Company on its capital
stock, other than regular quarterly cash dividends declared or paid on its
Common Stock.
(m) Neither the Company nor any of its Subsidiaries is in violation of its
certificate of incorporation or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to which
it is a party or by which it may be bound or to which any of its properties may
be subject, except for such defaults that would not have a material adverse
effect on the condition (financial or otherwise), results of operations,
business affairs or business prospects of the Company and the Subsidiaries,
considered as one enterprise. The execution and delivery of this Agreement and
the Indenture by the Company, the issuance and delivery of the Underwritten
Securities, the consummation by the Company of the transactions contemplated in
this Agreement and in the Registration Statement and compliance by the Company
with the terms of this Agreement and the Indenture, have been duly authorized by
all necessary corporate action on the part of the Company and do not violate and
will not result in any violation of the certificate of incorporation or by-laws
of the Company or any Subsidiary, and do not and will not conflict with, or
result in a breach of any of the terms or provisions of, or constitute a 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 Subsidiary under
(i) any indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any Subsidiary is a party or by which any of
them may be bound or to which any of their properties may be subject, except for
such conflicts, breaches or defaults or liens, charges or encumbrances that in
the aggregate would not have a material adverse effect on the condition
(financial or otherwise), results of operations, business affairs or business
prospects of the Company and the Subsidiaries, considered as one enterprise or
(ii) any existing applicble law, rule, regulation, judgment, order or decree of
any government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any Subsidiary or any of their
respective properties, except for such conflicts, breaches or defaults or liens,
charges or encumbrances that in the aggregate would not have a material adverse
effect on the condition (financial or otherwise), results of operations,
business affairs or business prospects of the Company and the Subsidiaries,
considered as one enterprise.
(n) No authorization, approval, consent or license of, or any
material filing with, any government, governmental instrumentality or court,
domestic or foreign (other than under the 1933, the 1933 Act Regulations, the
1939 Act and the securities or Blue Sky laws of the various states), is legally
required for the valid authorization, issuance, sale and delivery of the
Underwritten Securities or for the execution, delivery or performance of the
Indenture by the Company.
(o) Except as disclosed or incorporated by reference in the
Prospectus, there is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending or, to
the knowledge of the Company, threatened against the Company or any Subsidiary
that is required to be disclosed in the Prospectus or that could result in any
material adverse change in the condition (financial or otherwise), results of
operations, business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise, or that could reasonably be expected
to adversely affect the consummation of the transactions contemplated by this
Agreement.
(p) There are no contracts or documents of a character required
pursuant to the 1933 Act to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that are not
described and filed as required.
(q) The Company and the Subsidiaries each has good and marketable
title to all properties and assets described in the Prospectus as owned by it,
free and clear of all liens, charges, encumbrances or restrictions, except such
as (i) are described in the Prospectus or (ii) are neither material in amount
nor materially significant in relation to the business of the Company and the
Subsidiaries, considered as one enterprise; all of the leases and subleases
material to the business of the Company and the Subsidiaries, considered as one
enterprise, and under which the Company or any Subsidiary holds properties
described in the Prospectus, are in full force and effect, and neither the
Company nor any Subsidiary has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any
Subsidiary under any of the leases or subleases mentioned above, or affecting or
questioning the rights of such corporation to the continued possession of the
leased or subleased premises under any such lease or sublease.
(r) The Company and the Subsidiaries each owns, possesses or has
obtained all material governmental licenses, permits, certificates, consents,
orders, approvals and other authorizations, and has made all filings with all
governmental authorities, necessary to own or lease, as the case may be, and to
operate its properties and to carry on its business as presently conducted, and
neither the Company nor any Subsidiary has received any notice of proceedings
relating to revocation or modification of any such licenses, permits,
certificates, consents, orders, approvals or authorizations, which, singly or in
the aggregate, if not so owned, possessed or obtained or the subject of an
unfavorable ruling, decision or finding, could materially adversely affect the
condition (financial or otherwise), results of operations, business affairs or
business prospects of the Company and the Subsidiaries, considered as one
enterprise.
(s) The Company and the Subsidiaries each owns or possesses, or can
acquire on reasonable terms, adequate patents, patent licenses, trademarks,
service marks and trade names necessary to carry on its business as presently
conducted, and neither the Company nor any Subsidiary has received any notice of
infringement of or conflict with asserted rights of others with respect to any
patents, patent licenses, trademarks, service marks or trade names that in the
aggregate, if the subject of an unfavorable decision, ruling or finding, could
reasonably be expected to materially adversely affect the condition (financial
or otherwise), results of operations, business affairs or business prospects of
the Company and the Subsidiaries, considered as one enterprise.
(t) Except as disclosed in the Prospectus, to the best knowledge of
the Company, no labor problem exists with its employees or with employees of the
Subsidiaries or is imminent that could reasonably be expected to materially
adversely affect the Company and the Subsidiaries, considered as one enterprise
and, to the knowledge of the Company, except as disclosed in the Prospectus, the
Company is not aware of any material existing or imminent labor dispute by the
employees of any of its or the Subsidiaries' principal customers that could be
expected to materially adversely affect the Company and the Subsidiaries,
considered as one enterprise.
(u) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected to,
cause or result in stabilization or manipulation of the price of the
Underwritten Securities.
(v) Except as disclosed in or incorporated by reference in the
Prospectus and except as would not individually or in the aggregate have a
material adverse effect on the condition (financial or otherwise), results of
operations, business affairs or business prospects of the Company and the
Subsidiaries, considered as one enterprise, (i) the Company and the Subsidiaries
are each in compliance with all applicable Environmental Laws, (ii) the Company
and the Subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with their
requirements, (iii) there are no pending or threatened Environmental Claims
against the Company or any Subsidiary, and (iv) there are no circumstances with
respect to any property or operations of the Company or the Subsidiaries that
could reasonably be anticipated to form the basis of an Environmental Claim
against the Company or the Subsidiaries.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any judicial
or administrative interpretation thereof including any judicial or
administrative order, consent decree or judgment, relating to the environment,
health, safety or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority. "Environmental
Claims" means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law.
(w) All United States federal income tax returns of the Company (and
any of the Subsidiaries, if not included in the Company's U.S. consolidated
federal income tax return) required by law to be filed have been properly
prepared and filed, and all taxes shown on such returns or otherwise assessed
which are due and payable have been paid. All of the Company's United States
federal tax returns (and any of the Subsidiaries' tax returns if applicable) for
taxable periods through and including the 1992 federal taxable year have been
audited by the Internal Revenue Service or the statute of limitations for such
taxable years has run and thus, all taxes for such periods have been finally
determined (excluding the effect of any net operating loss or credit carryovers
to such periods). All other tax returns of the Company and the Subsidiaries
required to be filed pursuant to applicable foreign, state, local or other law
have been filed, except insofar as the failure to file such returns would not
have a material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and the
Subsidiaries, considered as one enterprise. The Company and the Subsidiaries
have paid (or there has been paid on their behalf) all taxes which are due and
for which no tax return is required. There are no liens on any of the Company's
or the Subsidiaries' assets for taxes, other than for taxes which have accrued
but which are not yet due and payable. Neither the Company nor any Subsidiary
is liable for any taxes that are imposed on any other person or corporation
(other than for taxes imposed on the Company or the Subsidiaries), except as set
forth in Treasury Regulation 1.1502-6 with respect to prior consolidated groups
of which the Company or its subsidiaries were members.
(x) With respect to each employee benefit plan, program and
arrangement (including, without limitation, any "employee benefit plan" as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA")) maintained or contributed to by the Company or any
Subsidiary, or with respect to which the Company or any Subsidiary could incur
any liability under ERISA (collectively, the "Benefit Plans"), no event has
occurred and, to the best knowledge of the Company, there exists no condition or
set of circumstances, in connection with which the Company or any Subsidiary
could be subject to any liability under the terms of such Benefit Plans,
applicable law (including, without limitation, ERISA and the Internal Revenue
Code of 1986, as amended (the "Code")) or any applicable agreement (including,
without limitation, the agreement dated as of January 14, 1993 (the "PBGC
Agreement"), among the Pension Benefit Guaranty Corporation (the "PBGC"), the
Company and Xxxx-Xxxxxx Security Corporation ("BWSC")), that could materially
adversely affect the condition (financial or otherwise), results of operations,
business affairs or business prospects of the Company and the Subsidiaries,
considered as one enterprise. The Company is in compliance in all respects with
its obligations under the PBGC Agreement.
Any certificate signed by any officer of the Company or any Subsidiary and
delivered to the Representatives or counsel for the Underwriters in connection
with an offering of Underwritten Securities shall be deemed a representation and
warranty by the Company to each Underwriter participating in such offering as to
the matters covered thereby.
Section 2. Purchase and Sale. The obligations of the Underwriters to
purchase, and the Company to sell, the Underwritten Securities shall be
evidenced by the Terms Agreement. The Terms Agreement specifies the principal
amount of the Senior Securities or Subordinated Securities, or both, the names
of the Underwriters participating in the offering (subject to substitution as
provided in Section 10 hereof) and the principal amount of Underwritten
Securities which each Underwriter severally has agreed to purchase, the purchase
price to be paid by the Underwriters for the Underwritten Securities, the
initial public offering price, if any, of the Underwritten Securities, any
delayed delivery arrangements and any terms of the Underwritten Securities not
already specified in the Indenture pursuant to which they are being issued
(including, but not limited to, designations, denominations, current ratings,
interest rates or formulas and payment dates, maturity dates, redemption
provisions and sinking fund requirements).
The several commitments of the Underwriters to purchase Underwritten
Securities pursuant to the Terms Agreement 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, the Underwritten
Securities to be purchased by the Underwriters shall be made at the offices of
Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other place as shall be agreed upon by the Representatives and the Company, at
10:00 A.M., New York City time, on the third business day (unless postponed in
accordance with the provisions of Section 10) following the date of the 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").
Unless otherwise specified in the Terms Agreement, payment shall be made to the
Company by wire transfer in immediately available funds against delivery to the
Representatives for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. The Underwritten Securities
shall be in such denominations ($1,000 or an integral multiple thereof) and
registered in such names as the Representatives may request in writing at least
two business days before the applicable Closing Time. The Underwritten
Securities, which may be in temporary form, will be made available in New York
City for examination and packaging by the Representatives on or before the first
business day prior to Closing Time.
If authorized by the Terms Agreement, the Underwriters named therein may
solicit offers to purchase Underwritten Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts") substantially in the
form of Annex C hereto with such changes therein as the Company may approve. As
compensation for arranging Delayed Delivery Contracts, the Company will pay to
the Representatives at Closing Time, for the accounts of the Underwriters, a fee
equal to that percentage of the principal amount of Senior Securities for which
Delayed Delivery Contracts are made at Closing Time as is specified in the Terms
Agreement. Any Delayed Delivery Contracts are to be with institutional
investors of the types set forth in the Prospectus. At Closing Time the Company
will enter into Delayed Delivery Contracts (for not less than the minimum
principal amount of Senior Securities per Delayed Delivery Contract specified in
the applicable Terms Agreement) with all purchasers proposed by the Underwriters
and previously approved by the Company as provided below, but not for an
aggregate principal amount of Senior Securities in excess of that specified in
the Terms Agreement. The Underwriters will not have any responsibility for the
validity or performance of Delayed Delivery Contracts.
The Representatives shall submit to the Company, at least three business
days prior to Closing Time, the names of any institutional investors with which
it is proposed that the Company will enter into Delayed Delivery Contracts and
the principal amount of Senior Securities to be purchased by each of them, and
the Company will advise the Representatives, at least two business days prior to
Closing Time, of the names of the institutions with which the making of Delayed
Delivery Contracts is approved by the Company and the principal amount of Senior
Securities to be covered by each such Delayed Delivery Contract.
The principal amount of Senior Securities agreed to be purchased by the
respective Underwriters pursuant to the Terms Agreement shall be reduced by the
principal amount of Senior Securities covered by Delayed Delivery Contracts, as
to each Underwriter as set forth in a written notice delivered by the
Representatives to the Company; provided, however, that the total principal
amount of Senior Securities to be purchased by all Underwriters shall be in the
total amount of Senior Securities covered by the applicable Terms Agreement,
less the principal amount of Senior Securities covered by Delayed Delivery
Contracts.
Section 3. Covenants of the Company. The Company covenants with the
Representatives, and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) Immediately following the execution of the Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal amount
of Senior Securities covered thereby and their terms not otherwise specified in
the Senior Indenture, pursuant to which the Senior Securities are being issued,
the names of the Underwriters participating in the offering and the principal
amount of Senior Securities which each severally has agreed to purchase, the
names of the Underwriters acting as co-managers in connection with the offering,
the price at which the Underwritten 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 the Representatives and the Company deem appropriate in
connection with the offering of the Underwritten Securities. The Company will
promptly transmit copies of the Prospectus to the Commission for filing
pursuant to Rule 424 of the Regulations and will furnish to the Underwriters
named therein as many copies of any preliminary prospectus supplement and such
Prospectus as the Representatives shall reasonably request.
(b) At any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Underwritten Securities, the Company
will notify the Representatives immediately, and confirm such notice in writing,
of (i) the effectiveness of any amendment to the Registration Statement, (ii)
the mailing or the delivery to the Commission for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the
receipt of any comments from the Commission with respect to the Registration
Statement, the Prospectus or any supplement to the Prospectus, (iv) any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and (v)
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of any order presenting or suspending the use of
any preliminary prospectus supplement, or of the qualification of the
Underwritten Securities for offering or sale in any jurisdiction, or of the
institution or threatening of any proceeding for any such purposes. The Company
will use every reasonable effort to prevent the issuance of any such stop order
or of any order preventing or suspending such use and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(c) The Company has furnished or will furnish to the Representatives and
counsel for the Representatives, without charge, as many copies (including at
least one signed copy) of the Registration Statement (as originally filed) and
of all amendments thereto, whether filed before or after the Registration
Statement becomes effective, copies of all exhibits and documents filed
therewith (including documents incorporated by reference into the Prospectus
pursuant to Item 12 and Rule 412) and signed copies of all consents and
certificates of experts, as you may reasonably request and has furnished or will
furnish to you, for each other Underwriter, one conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(including documents incorporated by reference into the Prospectus but without
exhibits).
(d) The Company will comply in all material respects with the 1933
Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and
the 1939 Act and the 1939 Act Regulations so as to permit the completion of the
distribution of the Underwritten Securities as contemplated in this Agreement
and in the Prospectus. If, at any time when a prospectus is required by the
1933 Act or the 1933 Regulations to be delivered in connection with sales of the
Underwritten Securities, any event shall occur or condition exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or counsel
for the Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of either such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly upon becoming aware of such event or condition 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 and
Prospectus comply with such requirements.
(e) The Company will use its best efforts in cooperation with the
Underwriter to qualify the Underwritten Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions as the
Representatives may designate; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. The
Company will use its best efforts in cooperation with the Underwriters to
maintain such qualifications in effect for as long as may be required for the
distribution of the Underwritten Securities. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in
which the Underwritten Securities have been qualified as above provided. The
Company will also supply the Representatives with such information as is
necessary for the determination of the legality of the Underwritten Securities
for investment under the laws of such jurisdictions as the Representatives may
request.
(f) With respect to each sale of Underwritten Securities, the Company
will make generally available to its security holders as soon as practicable,
but not later than 90 days after the close of the period covered thereby,
earning statements of the Company (in form complying with the provisions of Rule
158 of the 1933 Act Regulations) covering a period of 12 months beginning, in
each case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158) of the Registration
Statement relating to Underwritten Securities.
(g) The Company will use the net proceeds received by it from the
sale of the Underwritten Securities in the manner specified in the Prospectus
under the caption "Use of Proceeds."
(h) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act in connection with the sale of the Underwritten
Securities, 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 the Terms Agreement or the Closing Time with
respect to the Underwritten Securities covered thereby, the Company will not,
without the Representatives' prior consent, offer or sell, or enter into any
agreement to sell, any debt securities issued or guaranteed by the Company with
a maturity of more than one year in any public offering (other than the
Underwritten Securities), including additional Senior Securities. This
limitation is not applicable to the public offering of tax-exempt securities
guaranteed by the Company.
(j) At any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Underwritten Securities, the Company
will give the Representatives notice of its intention to file any amendment to
the Registration Statement or any amendment or supplement to the Prospectus,
whether pursuant to the 1934 Act, the 1933 Act or otherwise, will furnish the
Representatives with copies of any such amendment or supplement or other
documents proposed to be filed a reasonable time in advance of filing, and will
not file any such amendment or supplement or other documents in a form to which
the Representatives or counsel for the Underwriters shall reasonably object in
writing.
(k) If the Company elects to rely upon Rule 462(b), the Company shall both
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933
Act Regulations by the earlier of (i) 10:00 P.M. Eastern time on the date of the
Terms Agreement and (ii) the time confirmations are sent or given, as specified
by Rule 462(b).
Section 4. Payment of Expenses. The Company will pay and bear all costs
and expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including, financial statements and exhibits), as
originally filed and as amended, any preliminary prospectus and the Prospectus
and any amendments or supplements thereto, and the cost of furnishing copies
thereof to the Underwriters, (ii) the preparation, printing and distribution of
this Agreement, the Terms Agreement, the Indenture and the Underwritten
Securities and the Blue Sky Survey (which shall not be typeset), (iii) the
delivery of the Underwritten Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel and accountants, (v) the qualification of
the Underwritten Securities under applicable securities laws in accordance with
Section 3(e) and any filing for review of the offering with the National
Association of Securities Dealers, Inc., including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters solely in
connection therewith and in connection with the preparation of any Blue Sky
Survey and Legal Investment Survey, (vi) the listing fees and expenses incurred
in connection with listing the Underwritten Securities on the New York Stock
Exchange, (vii) any fees charged by rating agencies for rating the Underwritten
Securities and (viii) the fees and expenses of the Trustee, including the fees
and disbursements of counsel for the Trustee, in connection with the Indenture
and the Underwritten Securities.
If this Agreement is terminated by the Representatives in accordance with
the provisions of Section 5 or Section 9(a)(i), the Company shall reimburse the
Underwriters named in the Terms Agreement for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of Shearman & Xxxxxxxx
as counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. In addition to the
execution and delivery of the Terms Agreement, the obligations of the several
Underwriters to purchase and pay for the Underwriters Securities that they have
respectively agreed to purchase hereunder are subject to the accuracy of the
representations and warranties of the Company as of each Representation Date
contained herein or in certificates of any officer of the Company or any
Subsidiary delivered pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following further
conditions:
(a) At the applicable Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or shall
be pending or, to the knowledge of the Company, shall be contemplated by the
Commission.
(b) At the applicable Closing Time, the Representatives shall have
received:
(1) A signed opinion of Xxxxxxxx, Lipton, Xxxxx & Xxxx, special counsel
for the Company, dated as of Closing Time, together with signed or reproduced
copies of such opinion for each of the other Underwriters, in form and substance
reasonably satisfactory to counsel for the Underwriters, in the form set forth
in Exhibit A hereto.
(2) A signed opinion of Xxxxxxx X. Xxxxxxxx, Esq., Vice President,
Secretary and General Counsel for the Company, dated as of the Closing Time,
together with signed or reproduced copies of such opinion for each of the other
Underwriters, in form and substance reasonably satisfactory to counsel for the
Underwriters, in the form set forth in Exhibit B hereto.
(3) A signed opinion of NSK-Warner's Japanese counsel, dated as of the
Closing Time, together with signed or reproduced copies of such opinion for each
of the other Underwriters, in form and substance reasonably satisfactory to
counsel for the Underwriters, in the form set forth in Exhibit C hereto.
(4) The favorable opinion of Xxxxxxxx & Xxxxxxxx, counsel for the
Underwriters, dated as of the Closing Time, together with signed or reproduced
copies of such opinion for each of the other Underwriters, to the effect that
the opinions delivered pursuant to Section 5(b)(i), 5(b)(2) and 5(b)(3) hereof
appear on their face to be appropriately responsive to the requirements of this
Agreement except, specifying the same, to the extent waived by you, and with
respect to the incorporation and legal existence of the Company, this Agreement,
the Indenture, the Registration Statement, the Prospectus and such other related
matters as you may require. In giving such opinion such counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of the
State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to you. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and the Subsidiaries and certificates of
public officials.
(c) At the Closing Time, (i) the Registration Statement and the
Prospectus, as they may then be amended or supplemented, shall comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the 1939 Act Regulations, and neither the
Registration Statement nor the Prospectus, as they may then be amended or
supplemented, shall 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 not misleading, (ii) there shall not have been, since the
respective dates as of which information is given in the Registration Statement,
any material adverse change in the condition (financial or otherwise), results
of operations, business affairs or business prospects of the Company and the
Subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, (iii) no action, suit or proceeding at law or in
equity shall be pending or, to the knowledge of the Company, threatened against
the Company or any Subsidiary that would be required to be set forth in the
Prospectus other than as set forth therein and no proceedings shall be pending
or, to the knowledge of the Company, threatened against the Company or any
Subsidiary before or by any federal, state or other commission, board or
administrative agency wherein an unfavorable decision, ruling or finding could
materially adversely affect the condition (financial or otherwise), results of
operations, business affairs or business prospects of the Company and the
Subsidiaries, considered as one enterprise, other than as set forth in the
Prospectus, (iv) the Company shall have complied with all agreements and
satisfied all conditions set forth in this Agreement on its part to be performed
or satisfied at or prior to the Closing Time and (v) the other representations
and warranties of the Company set forth in Section 1 shall be accurate as though
expressly made at and as of the Closing Time. At the Closing Time, you shall
have received a certificate of the President or a Vice President, and the
Treasurer or an Assistant Treasurer, of the Company, dated as of the Closing
Time, to such effect.
(d) At the time that this Agreement is executed by the Company, you shall
have received from Deloitte & Touche LLP a letter, dated such date, in form and
substance satisfactory to you, together with signed or reproduced copies of such
letter for each of the other Underwriters, confirming that they are independent
public accountants with respect to the Company within the meaning of the 1933
Act and the applicable published 1933 Act Regulations, and stating in effect
that:
(i) in their opinion, the audited financial statements and the related
financial statement schedules included or incorporated by reference in the
Registration Statement and the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act and the
1933 Act Regulations;
(ii) on the basis of procedures (but not an examination in accordance with
generally accepted auditing standards) consisting of a reading of the unaudited
interim consolidated financial statements of the Company included or
incorporated by reference in the Registration Statement and the Prospectus
(collectively, the "10-Q Financials"), a reading of the latest available
unaudited interim consolidated financial statements of the Company, a reading of
the minutes of all meetings of the stockholders and directors of the Company and
the Subsidiaries and each Committee of the Company's Board of Directors and of
each Committee of the Board of Directors of any Subsidiary since January 1,
1998, inquiries of certain officials of the Company and the Subsidiaries
responsible for financial and accounting matters, and such other inquiries and
procedures as may be specified in such letter, nothing came to their attention
that caused them to believe that:
(A) the 10-Q Financials incorporated by reference in the Registration
Statement and the Prospectus do not comply as to form in all material respects
with the accounting requirements of the 1934 Act and the 1934 Act Regulations
applicable to unaudited financial statements included in Form 10-Q or any
material modifications should be made to the 10-Q Financials included or
incorporated by reference in the Registration Statement and the Prospectus for
them to be in conformity with generally accepted accounting principles;
(B) at December 31, 1998 and at a specified date not more than three days
prior to the date of this Agreement, there was any change in the capital stock
of the Company and the Subsidiaries or any decrease in the consolidated net
current assets or stockholders' equity of the Company and the Subsidiaries or
any increase in long-term debt of the Company and the Subsidiaries, in each case
as compared with amounts shown in the latest consolidated balance sheet included
or incorporated by reference in the Registration Statement, except in each case
for changes, decreases or increases that the Registration Statement discloses
have occurred or may occur; or
(C) for the period from October 1, 1998 to December 31, 1998 and for the
period from January 1, 1999 to a specified date not more than three days prior
to the date of this Agreement, there was any decrease in net sales, equity in
affiliate earnings and other income, earnings before interest and finance
charges and income taxes or net earnings, in each case as compared with the
comparable period in the preceding year;
(iii) based upon the procedures set forth in clause (ii) above and a
reading of the Selected Historical Financial Data included in the Registration
Statement and a reading of the financial statements from which certain of such
data were derived, nothing has come to their attention that gives them reason to
believe that the Selected Historical Financial Data included in the Registration
Statement do not comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations, that the
information set forth therein is not fairly stated in relation to the financial
statements from which it was derived or that the financial statements not
included in the Registration Statement from which certain of such data were
derived are not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited financial
statements included in the Registration Statement; and
(iv) they are unable to and do not express any opinion on the Pro Forma
Financial Data (the "Pro Forma Statement") included or incorporated by reference
in the Registration Statement or on the pro forma adjustments applied to the
historical amounts included in the Pro Forma Statement; however, for purposes of
such letter they have:
(A) read the Pro Forma Statement;
(B) made inquiries of certain officials of the Company who have
responsibility for financial and accounting matters about the basis for their
determination of the pro forma adjustments and whether the Pro Forma Statement
complies as to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X; and
(C) proved the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the Pro Forma Statement; and
on the basis of such procedures, and such other inquiries and procedures as may
be specified in such letter, nothing came to their attention that caused them to
believe that the Pro Forma Statement included or incorporated by reference in
the Registration Statement does not comply as to form in all material respects
with the applicable requirements of Rule 11-02 of Regulation S-X or that the pro
forma adjustments have not been properly applied to the historical amounts in
the compilation of those statements;
(v) in addition to the procedures referred to in clause (ii) above, they
have performed other specified procedures, not constituting an audit, with
respect to certain amounts, percentages, numerical data and financial
information appearing in the Registration Statement, which have previously been
specified by you and which shall be specified in such letter, and have compared
certain of such items with, and have found such items to be in agreement with,
the accounting and financial records of the Company.
(e) At the time that this Agreement is executed by the Company, you shall
have received from KPMG Peat Marwick a letter, dated such date, in form and
substance satisfactory to you, together with signed or reproduced copies of such
letter for each of the other Underwriters, confirming that they are independent
public accountants with respect to the NSK-Warner within the meaning of the 1933
Act and applicable published 1933 Act Regulations, and stating in effect that:
(i) in their opinion, the audited financial statements and the related
financial statement schedules for NSK-Warner included or incorporated by
reference in the Registration Statement and the Prospectus comply as to form in
all material respects with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations;
(ii) they have read the latest available unaudited interim consolidated
financial statements of NSK-Warner, the minutes of all meetings of the
stockholders and directors of NSK-Warner and each Committee of the Board of
Directors since April 1, 1998, inquired of certain officials of NSK-Warner
responsible for financial and accounting matters, and made such other inquiries
and performed such other procedures as may be specified in such letter, and
officials of NSK-Warner stated that:
(A) at December 31, 1998 and at a specified date not more than three days
prior to the date of this Agreement, there was no change in the common stock of
NSK-Warner or decrease in the net current assets or stockholders' equity of
NSK-Warner or increase in the notes payable or long-term debt of NSK-Warner, in
each case as compared with amounts shown in the latest balance sheet included or
incorporated by reference in the Registration Statement; or
(B) for the period from April 1, 1998 to December 31, 1998 and from
January 1, 1999 to a specified date not more than three days prior to the date
of this Agreement, there was no decrease in sales, earnings before income taxes
or net earnings, in each case as compared with the corresponding period in the
preceding year.
(f) At the Closing Time, you shall have received from each of Deloitte &
Touche LLP and KPMG Peat Marwick a letter, in form and substance satisfactory to
you and dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letters furnished pursuant to Sections 5(d) and 5(e),
respectively, except that the specified date referred to shall be a date not
more than five days prior to the Closing Time.
(g) Subsequent to the execution and delivery of any Terms Agreement and
prior to the Closing Time, there shall not have been any downgrading, nor any
notice given of any intended or potential downgrading or of a possible change
that does not indicate the direction of the possible change, in the rating
accorded any of the Company's securities, including the Underwritten Securities,
by any "nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the 1933 Act.
(h) At the applicable Closing Time, counsel for the Underwriters
shall have been furnished with all such documents, certificates and opinions as
they may reasonably request for the purpose of enabling them to pass upon the
issuance and sale of the Underwritten Securities as herein contemplated and
related proceedings or in order to evidence the accuracy 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 Underwritten Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
If any of the conditions specified in this Section shall not have been
fulfilled when and as required by this Agreement to be fulfilled, this Agreement
may be terminated by the Representatives by notice to the Company at any time at
or prior to the applicable Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof. Notwithstanding any such termination, the provisions of Sections 6, 7
and 8 shall remain in effect.
Section 6. Indemnification of Underwriters. (a) (1) 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 or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), and all documents incorporated therein by reference, 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 an untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) 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;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, 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, except as otherwise provided by Section 6(d); and
(iii) against any and all expense whatsoever, as incurred (including
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;
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(2) Insofar as this indemnity agreement 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
or Section 20 of the 1934 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 under
Item 17 thereof.
(b) Indemnification of Company, Directors and its Officers. Each
Underwriter severally 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 or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 6(a) above, counsel to the indemnified parties shall be selected by the
Representatives in the case of parties indemnified pursuant to Sections 6(b)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying party or parties be
liable for the fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, which consent shall not be unreasonably withheld, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 45 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request for fees and expenses of
counsel prior to the date of such settlement.
Section 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the
Underwritten Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Underwritten Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Underwritten Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus.
The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact related to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each 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 or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the principal amount of Underwritten Securities set forth opposite
their respective names in Schedule A hereto and not joint.
Section 8. Representations, Warranties and Agreements to Survive Delivery.
The representations, warranties, indemnities, agreements and other statements of
the Company or its officers set forth in or made pursuant to this Agreement will
remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Company, any Underwriter or any person who controls
any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, and will survive delivery of and payment for the Underwritten
Shares.
Section 9. Termination. (a) The Representatives may terminate this
Agreement, by notice to the Company, at any time prior to the applicable Closing
Time (i) if there has been, since the date of the Terms Agreement or since the
respective dates as of which information is given in the Registration Statement,
any material adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and the Subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States, or any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective adverse change in national or international political,
financial or economic conditions, in each case 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 Underwritten Securities or
enforce contracts for the sale of the Underwritten Securities, or (iii) if
trading in any securities of the Company has been suspended by the Commission or
the New York Stock Exchange, or if trading generally on the American Stock
Exchange or the New York Stock Exchange or on the Nasdaq has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by such exchange or
by such system or by order of the Commission, the New York Stock Exchange, the
NASD or any other governmental authority, or (iv) if a banking moratorium has
been declared by either Federal, New York or Illinois authorities. For purposes
of this Section 9(a), the deployment of a Level 1 trading halt by the New York
Stock Exchange in and of itself shall not constitute a material limitation on
trading on such exchanges or by such system.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4. Notwithstanding any such termination, the
provisions of Sections 1, 6, 7 and 8 shall remain in effect.
Section 10. Default. If one or more of the Underwriters participating in
an offering of Senior Securities shall fail at the applicable Closing Time to
purchase the Underwritten Securities that it or they are obligated to purchase
under the applicable Terms Agreement (the "Defaulted Securities"), then the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, satisfactory to the Company to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms set forth in this Agreement and the applicable Terms Agreement. If,
however, during such 24 hours the 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 Underwritten Securities to
be purchased pursuant to the Terms Agreement, the non-defaulting Underwriters
named in such Terms Agreement shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
thereunder bear to the underwriting obligations of all such non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of the Underwritten Securities to be purchased
pursuant to such Terms Agreement, the Terms Agreement shall terminate without
any liability on the part of any non-defaulting Underwriters.
As used in this Section only, the aggregate amount or aggregate principal
amount of Underwritten Securities shall mean the aggregate principal amount of
any Senior Securities or Subordinated Securities included in the relevant
Underwritten Securities.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the Terms Agreement.
In the event of a default by any Underwriter or Underwriters as set forth
in this Section, either the Representatives or the Company shall have the right
to postpone the applicable Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section.
Section 11. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed to the Representatives at Xxxxxxx
Xxxxx & Co., World Financial Center North Tower, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000, Attention: Xxxxxx X. Xxxxxx, and Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X.
Xxxxxxxxxxx; notices to the Company shall be directed to it at 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: General Counsel.
Section 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Company and any Underwriter who becomes a party hereto, 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 or thereto 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 Underwritten Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement shall be governed by
the laws of the State of New York. Specified times of the day refer to New York
City time.
Section 14. Counterparts. The Terms Agreement may be executed in one or
more counterparts, and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
NYDOCS01/552960 4
ANNEX A
XXXX-XXXXXX AUTOMOTIVE, INC.
(a Delaware corporation)
$ ___,000,000
__ % Senior Notes due 20__
$ ___, 000,000
__ % Senior Notes due 20__
TERMS AGREEMENT
Dated: February __ , 1999
Xxxx-Xxxxxx Automotive, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Dear Sirs:
We (the "Representatives") understand that Xxxx-Xxxxxx Automotive, Inc., a
Delaware corporation (the "Company"), proposes to issue and sell $ _______
aggregate principal amount of its __% Senior Notes due 20__ (the "Notes due
20__") and $_______ aggregate principal amount of its __% Senior Notes due 20__
(the "Notes due 20__") (collectively, the "Underwritten Securities"). Subject
to the terms and conditions set forth herein or incorporated by reference
herein, the Company has agreed to sell to the underwriters named below (the
"Underwriters"), and the Underwriters have agreed, severally and not jointly, to
purchase from the Company, the respective amounts of Notes due 20__ and Notes
due 20__ set forth below opposite their respective names at the purchase prices
set forth below.
Underwriter Principal Principal
Xxxxxx Xxxxxx
of Notes of Notes
due 20__ due 20__
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Chase Securities Inc.
First Chicago Capital Markets, Inc
Nations Bank Xxxxxxxxxx Securities LLC
Total $ $
The Underwritten Securities shall have the following terms:
Title of Debt Securities: __% Senior Notes due 20__
__% Senior Notes due 20__
Currency: U.S. dollars
Principal amount to be issued:
$ __________ Notes due 20__
$ __________ Notes due 20__
Current ratings: Xxxxx'x Investors Service, Inc. ;
Standard & Poor's Corporation .
Interest rate: __% Senior Notes due 20__.
__% Senior Notes due 20__.
Spread:
Interest Payment Dates: February __ and August __, beginning August __,
1999
Regular Record Dates: January 15 or July 15
Stated Maturity Dates: Senior Notes due 20__: February __, 20__
Senior Notes due 20__: February __, 20__
Optional Redemption: Redemption at option of Company, in whole at any
time, or in part from time to time, at a
redemption price equal to the greater of : (1)
100% of such Notes principal amount and (2) the
sum of the present values of the remaining
scheduled payments of principal and interest
discounted to the date of redemption on a semi-
annual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Treasury Rate plus
__ basis points in the case of the Notes due 20__,
and __ basis points in the case of the Notes due
20__, plus, in either case, accrued and unpaid
interest on the principal amount being redeemed to
such redemption date.
Sinking fund requirements: None
Delayed Delivery Contracts: authorized
Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %
Initial public offering price for Notes due 20__: __%, plus accrued interest,
if any, or amortized original issue discount, if any, from February __, 1999.
Purchase price for Notes due 20__: __%, plus accrued interest, if any, or
amortized original issue discount, if any, from February __, 1999 (payable in
immediately available funds).
Initial public offering price for Notes due 20__: __%, plus accrued interest,
if any, or amortized original issue discount, if any, from February __, 1999.
Purchase price for Notes due 20__: __%, plus accrued interest, if any, or
amortized original issue discount, if any, from February __, 1999 (payable in
immediately available funds).
Form: Book-entry represented by global securities deposited with The Depository
Trust Company.
Ranking: Senior, unsecured obligations of the Company.
Closing Date and Location: February __, 1999, New York, New York.
All the provisions contained in the document attached as Annex A hereto
entitled "Xxxx-Xxxxxx Automotive, Inc. Debt Securities Underwriting Agreement
Basic Provisions" are hereby incorporated by reference in their entirety herein
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 defined in such
document are used herein as therein defined.
If the foregoing is in accordance with your understanding of our agreement,
please sign a copy of this Terms Agreement in the space set forth below and
return the signed copy to us.
Very truly yours,
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By
Name:
Title:
By: XXXXXX XXXXXXX & CO. INCORPORATED
By
Name:
Title:
For themselves and as Representatives
of the other Underwriters named herein.
Accepted:
XXXX-XXXXXX AUTOMOTIVE, INC.
By
Name:
Title:
ANNEX B
SUBSIDIARIES
Percent of
Capital Stock
Beneficially Owned by
Xxxx-Xxxxxx Automotive,
Name of Subsidiary Inc. or the Subsidiaries
Xxxx-Xxxxxx Automotive Powertrain Systems Corporation 100
Xxxx-Xxxxxx Automotive South Asia Corporation 100
Xxxxx-Xxxxxx Pvt. Limited. 60
Huazhong Warner Transmission Company, Ltd. 60
Xxxx-Xxxxxx Automotive PTS Korea
Service Corporation 100
Xxxx-Xxxxxx Automotive Powdered Metals Corporation 100
Xxxx-Xxxxxx Automotive Diversified Transmission
Products Corporation 100
Xxxx-Xxxxxx Automotive Air/Fluid Systems Corporation 100
Xxxx-Xxxxxx Automotive Air/Fluid Systems
Corporation of Michigan 100
Xxxx-Xxxxxx Automotive Air/Fluid Systems Holding Corporation100
Xxxx-Xxxxxx Automotive Air/Fluid Systems Europe S.A.S. 90
Xxxx-Xxxxxx Automotive Air/Fluid Systems, Tulie SA100
Xxxx-Xxxxxx Automotive Xxxxx TEC Corporation 100
Xxxx-Xxxxxx Automotive (Canada) Ltd. 100
Xxxx-Xxxxxx Automotive Japan Corporation 100
Xxxx-Xxxxxx Automotive K.K. 100
Xxxx-Xxxxxx Automotive Taiwan Co., Ltd. 000
X.X. Componentes Mexicanos de Transmissiones S.A. de C.V. 86
Xxxxx TEC Europe, Sp.A 100
Xxxx-Xxxxxx Automotive Foreign Sales Corporation 100
BWA Merger Corp. 100
Xxxx-Xxxxxx Automotive Automatic Transmission Systems Corporation 100
Xxxx-Xxxxxx Automotive Europe Corporation 100
XX Xxxxxx, Xxxx & Xxxxxxx 63
Xxxx-Xxxxxx Automotive GmbH 51
BWA Europa V&V GmbH 100
Xxxx-Xxxxxx Automotive Europe GmbH 100
3K Warner Turbosystems GmbH 100
Borg & Xxxx Torque Systems, Inc. 100
Xxxx-Xxxxxx Automotive NW Corporation 100
Xxxx-Xxxxxx Automotive Korea, Inc. 60
Creon Insurance Agency, Ltd. 100
Creon Trustees, Ltd. 100
ANNEX C
XXXX-XXXXXX AUTOMOTIVE, INC.
(a Delaware corporation)
[Title of Securities]
DELAYED DELIVERY CONTRACT
, 19
XXXX-XXXXXX AUTOMOTIVE, INC.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Xxxx-Xxxxxx Automotive, Inc.
(the "Company"), and the Company agrees to sell to the undersigned on
19 ("Delivery Date"), principal amount of the
Company's [insert title of security] (the "Securities"), offered by the
Company's Prospectus dated , 19 , as supplemented by its Prospectus
Supplement dated , 19 , receipt of which is hereby acknowledged
at a purchase price of [ ]% of the principal amount thereof, plus accrued
interest from , 19 , 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 or its order by certified or
official bank check in New York Clearing House funds at the office of, on the
Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned in definitive form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than three 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 , 19 ,
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
Terms Agreement dated , 19 between the Company and the
Underwriters. 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 payments 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 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 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 its 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.
Xxxx-Xxxxxx Automotive, Inc.
By
(Title)
PURCHASER PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the Representatives of the Purchaser with
whom details of delivery on the Delivery Date may be discussed are as follows:
(Please print.)
Name
Telephone No.
(including
Area Code)
Exhibit A
Pursuant to Section 5(b)(1) of the Underwriting Agreement Basic Provisions,
Xxxxxxxx, Lipton, Xxxxx & Xxxx, special counsel for the Company, shall furnish
to the Representative an opinion to the effect that:
(i) The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware with corporate power
and authority under such laws to own, lease and operate its properties and
conduct its business as described in the Prospectus.
(ii) The Indenture pursuant to which Underwritten Securities are being
issued has been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery by the Trustee, constitutes a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as 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).
(iii) The Underwritten Securities have been duly authorized by the
Company and, assuming that the Underwritten Securities have been duly
authenticated by the Trustee in the manner described in its certificate
delivered to you today (which fact such counsel need not determine by an
inspection of the Underwritten Securities), the Underwritten Securities have
been duly executed, issued and delivered by the Company and constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except as
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).
(iv) The Indenture has been duly qualified under the 1939 Act.
(v) The Underwritten Securities and the Indenture conform in all material
respects as to legal matters to the descriptions thereof in the Prospectus.
(vi) This Agreement and the Delayed Delivery Contracts, if any, have been
duly authorized, executed and delivered by the Company.
(vii) The statements made in the Prospectus under "Description of the
Notes," to the extent that they constitute matters of law or legal conclusions,
have been reviewed by such counsel and fairly present the information disclosed
therein in all material respects.
(viii) The execution and delivery of this Agreement and the Indenture by
the Company, the issuance and delivery of the Underwritten Securities, the
consummation by the Company of the transactions contemplated in this Agreement
and in the Registration Statement and compliance by the Company with the terms
of this Agreement and the Indenture do not and will not result in any violation
of the certificate of incorporation or by-laws of the Company.
(ix) The Registration Statement is effective under the 1933 Act; any
required filing of the Prospectus or any supplement thereto pursuant to
Rule 424(b) has been made in the manner and within the time period required by
Rule 424(b); and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are
contemplated under the 1933 Act.
(x) The Registration Statement and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement thereto
(except for the financial statements and other financial or statistical data
included therein or omitted therefrom, as to which such counsel need express no
opinion), as of their respective effective or issue dates, complied as to form
in all material respects to the requirements of the 1933 Act and the 1933 Act
Regulations and the Indenture and the Statement of Eligibility of the Trustee on
Form T-1 filed with the Commission as part of the Registration Statement appear
on their face to have been appropriately responsive in all material respects to
the requirements of the 1939 Act and the 1939 Act Regulations.
(xi) The documents incorporated by reference in the Prospectus (except for
the financial statements and other financial or statistical data included
therein or omitted therefrom, as to which such counsel need express no opinion,
and except to the extent that any statement therein is modified or superseded in
the Prospectus), as of the dates they were filed with the Commission, complied
as to form in all material respects to the requirements of the 1934 Act and the
1934 Act Regulations.
(xii) Such counsel have participated in the preparation of the
Registration Statement and Prospectus except for the documents incorporated by
reference in the Registration Statement and the Prospectus, and in conferences
with officers and other representatives of the Company, representatives of the
independent public accountants for the Company, and with your representatives
and your counsel at which the contents of the Registration Statement, the
Prospectus, and related matters were discussed and have reviewed the documents
incorporated by reference in the Registration Statement and Prospectus and,
although such counsel need not pass upon or assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and the documents incorporated by
reference in the Prospectus (except for the opinions set forth in clause (v)),
and based on the foregoing, no facts have come to the attention of such counsel
to lead such counsel to believe (A) that the Registration Statement or any
amendment thereto (except for the financial statements and other financial or
statistical data included therein or omitted therefrom and the Statement of
Eligibility of the Trustee on Form T-1, as to which such counsel need express no
opinion), at the time the Registration Statement or any such amendment became
effective or at the date of the Terms Agreement, 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 (B) that
the Prospectus or any amendment or supplement thereto (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no opinion), 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 aterial fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
Such opinion shall be to such further effect with respect to other legal matters
relating to this Agreement, the Delayed Delivery Contracts, if any, and the sale
of the Underwritten Securities pursuant to this Agreement as counsel for the
Underwriters may reasonably request. In giving such opinion, such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of New York, the federal law of the United States and the corporate
law of the State of Delaware, either upon opinions of other counsel, who shall
be counsel reasonably satisfactory to counsel for the Underwriters, in which
case the opinion shall state that they believe the Underwriters and they are
entitled to so rely, or upon unofficial compilations of the laws of such
jurisdictions. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its Subsidiaries and certificates of
public officials.
Exhibit B
Pursuant to Section 5(b)(2) of the Underwriting Agreement Basic Provisions,
Xxxxxxx X. Xxxxxxxx, Esq., Vice President, Secretary and General Counsel for the
Company, shall furnish to the Representatives an opinion to the effect that:
(i) Each Subsidiary listed on Schedule 1 hereto (the "Material Domestic
Subsidiaries") is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation with corporate
power and authority under such laws to own, lease and operate its properties and
conduct its business.
(ii) Each of the Company and the Material Domestic Subsidiaries is duly
qualified to transact business as a foreign corporation and is in good standing
in each other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification necessary,
except to the extent that the failure to so qualify or be in good standing would
not have a material adverse effect on the Company and the Subsidiaries,
considered as one enterprise.
(iii) All of the outstanding shares of capital stock of each Material
Domestic Subsidiary have been duly authorized and validly issued and are fully
paid and non-assessable; all of the shares of capital stock of such Material
Domestic Subsidiary are owned by the Company, directly or through one or more of
the Subsidiaries, in the percentages set forth in Schedule 1 hereto and the
shares of capital stock of NSK-Warner owned by the Company are owned by the
Company, directly or through one or more of the Subsidiaries, free and clear of
any consensual pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind; no holder thereof is subject to personal liability by
reason of being such a holder and none of such shares was issued in violation of
the preemptive rights of any stockholder of the Material Domestic Subsidiaries.
(iv) The authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectus Supplement under the heading "Capitalization."
(v) Such counsel does not know of any statutes or regulations, or any
pending or threatened legal or governmental proceedings, required under the 1933
Act to be described in the Prospectus that are not described as required, nor of
any contracts or documents of a character required under the 1933 Act or 1933
Act Regulations to be described or referred to in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration Statement that are
not described, referred to or filed as required.
(vi) Except with respect to financial covenants (as to which such counsel
need express no opinion), no default exists in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, loan agreement, note, lease or other agreement or instrument that is
described or referred to in the Registration Statement or the Prospectus or
filed as an exhibit to the Registration Statement (except for such defaults that
would not have a material adverse effect on the condition (financial or
otherwise), results of operations, business affairs or business prospects of the
Company and its Subsidiaries, considered as one enterprise).
(vii) The execution and delivery of this Agreement and the Indenture
by the Company, the issuance and delivery of the Underwritten Securities, the
consummation by the Company of the transactions contemplated in this Agreement
and in the Registration Statement and compliance by the Company with the terms
of this Agreement and the Indenture do not and will not result in any violation
of the certificate of incorporation or by-laws of the Company or any Material
Subsidiary, and do not and will not conflict with, or result in a breach of any
of the terms or provisions of, or constitute a 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 Material Subsidiary under (A) any existing
applicable law, rule or regulation (other than the securities or Blue Sky laws
of the various states, as to which such counsel is not requested to express an
opinion), (B) any judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any Subsidiary or any of their properties, or (C) any indenture,
mortgage or loan agreement, or any other agreement or instrument known to such
counsel, to which the Company or any Material Subsidiary is a party or by which
it may be bound or to which any of its properties may be subject, including the
Formation Agreement between Xxxx-Xxxxxx Corporation and Nippon Seiko, K.K.,
dated as of April 18, 1964, and any agreements related thereto, including but
not limited to the Shareholders Agreement Concerning the Management of
NSK-Warner, dated September 25, 1964, between Xxxx-Xxxxxx Corporation and Nippon
Seiko, K.K. (except for such conflicts, breaches or defaults or liens, charges
or encumbrances that would not have a material adverse effect on the condition
(financial or otherwise), results of operations, business affairs or business
prospects of the Company and its Subsidiaries, considered as one enterprise).
(viii) The descriptions in the Prospectus of the statutes, regulations,
legal or governmental proceedings, contracts and other documents therein
described are accurate and fairly summarize the information required to be
shown.
(ix) No authorization, approval, consent or license of any government,
governmental instrumentality or court, domestic or foreign (other than under the
1933 Act or 1933 Act Regulations, the 1939 Act and the securities or Blue Sky
laws of the various states), is required for the valid authorization, issuance,
sale and delivery of the Underwritten Securities.
(x) Such counsel has participated in the preparation of the Registration
Statement and Prospectus, in the preparation of the documents incorporated by
reference in the Registration Statement and the Prospectus and in conferences
with officers and other representatives of the Company, representatives of the
independent public accountants for the Company, and with your representatives
and your counsel at which the contents of the Registration Statement, the
Prospectus and the documents incorporated by reference in the Prospectus and
related matters were discussed and, although such counsel need not pass upon or
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus and the
documents incorporated by reference in the Prospectus (except for the opinion
set forth in clause (viii)), and based upon the foregoing, no facts have come to
the attention of such counsel to lead her to believe (A) that the Registration
Statement or any amendment thereto (except for the financial statements and
other financial or statistical data included therein or omitted therefrom and
the Statement of Eligibility of the Trustee on Form T-1, as to which such
counsel need express no opinion), at the time the Registration Statement or any
such amendment became effective or at the time an Annual Report on Form 10-K was
filed (whichever is later), or at the date of the Terms Agreement, 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,
(B) that the Prospectus or any amendment or supplement thereto (except for the
financial statements and other financial or statistical data included therein or
omitted therefrom, as to which such counsel need express no opinion), 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, or (C) that the
documents incorporated by reference in the Prospectus (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom, as to which such counsel need express no opinion, and except to the
extent that any statement therein is modified or superseded in the Prospectus),
as of the dates they were filed with the Commission, 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.
Such opinion shall be to such further effect with respect to other legal
matters relating to this Agreement and the sale of the Underwritten Securities
pursuant to this Agreement as counsel for the Underwriters may reasonably
request.
In giving such opinion, such counsel may rely, as to all matters governed
by the laws of jurisdictions other than the law of the State of Illinois, the
Federal law of the United States and the corporate law of the State of Delaware,
upon opinions of other counsel, who shall be counsel reasonably satisfactory to
counsel for the Underwriters, in which case the opinion shall state that they
believe the Underwriters and they are entitled to so rely. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the
Company and the Subsidiaries and certificates of public officials.
Schedule 1 to
Exhibit B
Material Subsidiaries
Percent of Capital Stock Beneficially Owned by Xxxx-Xxxxxx Automotive, Inc. or
the Subsidiaries
Material Domestic Subsidiary
Xxxx-Xxxxxx Automotive Diversified
Transmission Products Corporation 100
Xxxx-Xxxxxx Automotive Xxxxx TEC
Corporation 100
Xxxx-Xxxxxx Automotive Europe
Corporation 100
Xxxx-Xxxxxx Automotive Japan
Corporation 100
Xxxx-Xxxxxx Automotive Automatic
Transmission Systems Corporation 100
Xxxx-Xxxxxx Automotive Powertrain
Systems Corporation 100
Xxxx-Xxxxxx Automotive Air/Fluid Systems
Corporation 100
Material Foreign Subsidiary
Xxxx-Xxxxxx Automotive GmbH 100
Xxxx-Xxxxxx Automotive K.K. 100
Exhibit C
Pursuant to Section 5(b)(3) of the Underwriting Agreement Basic Provisions
Agreement, NSK-Warner's Japanese counsel shall furnish to the Representatives an
opinion substantially to the effect that:
(i) NSK-Warner is a corporation duly organized, validly existing and in
good standing under the laws of Japan with corporate power and authority under
such laws to own, lease and operate its properties and conduct its business.
(ii) All of the outstanding shares of capital stock of NSK-Warner have been
duly authorized and validly issued and are fully paid and non-assessable.
