Form of Underwriting Agreement
Xxxxxxx Truck Leasing Corp.
Underwriting Agreement
Underwriter Listed on Schedule II
Dear Sirs:
Xxxxxxx Truck Leasing Corp., a Delaware corporation (the "Company"),
proposes to issue and sell to you (sometimes referred to herein as the
"Underwriter"), the principal amount of its securities identified in Schedule
I hereto to be issued under a Collateral Trust Indenture, dated as of March
21, 1983 as amended by the Third Supplemental Indenture thereto, dated as of
February 20, 1986 and the Eighth Supplemental Indenture thereto dated as of
May 15, 1990, and as supplemented by the Supplemental Indenture thereto, to be
dated as of (the "Indenture"), between the Company and First Union National
Bank, as trustee (the "Trustee"). All or part, as the context may require, of
such securities are hereinafter called the "Securities".
1. Sale and Purchase of the Securities. The Company agrees to sell
to you, and you, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein
stated, agree to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the principal amount of Securities also set forth in
Schedule I hereto.
2. Payment and Delivery. Delivery by the Company of the Securities
to you and payment by you therefor by bank wire transfer of immediately
available funds to the Company shall take place at the office, on the date and
at the time specified in Schedule I hereto, which date and time may be
postponed by agreement between you and the Company or as provided in Section
10 hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date").
The Securities shall be registered in such names and shall be in
such denominations as you shall request at least three full business days
before the Closing Date and shall be made available to you for checking and
packaging, at such place as is designated by you, at least one full business
day before the Closing Date.
3. Registration Statement and Prospectus. The Company represents and
warrants to you that the Company meets the requirements for the use of Form
S-3 under the Securities Act of 1933 (the "Securities Act") and the rules and
regulations adopted thereunder, and has carefully prepared and filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (the file number of which is set forth in Schedule I hereto),
which has become effective, for the registration under the Securities Act of
the Securities. Such registration statement, as amended at the date of this
Agreement, meets the requirements set forth in Rule 415 (a)(1)(x) under the
Securities Act and complies in all other material respects with such Rule. The
Company proposes to file with the Commission pursuant to Rule 424 under the
Securities Act ("Rule 424") a supplement to the form of prospectus included in
such registration statement relating to the Securities and the plan of
distribution thereof and has previously advised you of all further information
(financial and other) with respect to the Company to be set forth therein.
Such registration statement, including the exhibits thereto, as amended
at the date of this Agreement, is hereinafter called the "Registration
Statement"; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Basic Prospectus"; and such
supplemented form of prospectus, in the form in which it shall be filed with
the Commission pursuant to Rule 424 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final Prospectus". Any preliminary
form of the Final Prospectus which has heretofore been filed pursuant to Rule
424 is hereinafter called the "Interim Prospectus". Any reference herein to
the Registration Statement, the Basic Prospectus, any Interim Prospectus or
the Final Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities Exchange Act of 1934 (the "Exchange Act") on or
before the date of this Agreement, or the issue date of the Basic Prospectus,
any Interim Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Interim
Prospectus or the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the date of this
Agreement, or the issue date of the Basic Prospectus, any Interim Prospectus
or the Final Prospectus, as the case may be, and deemed to be incorporated
therein by reference.
The Company hereby confirms that you and the dealers have been
authorized to distribute or cause to be distributed any Interim Prospectus and
are authorized to distribute the Final Prospectus (as from time to time
amended or supplemented if the Company furnishes amendments or supplements
thereto to you).
4. Representations. The Company represents to you as follows:
(a) The Commission has not issued an order preventing or
suspending the use of the Basic Prospectus or any Interim
Prospectus.
(b) The Basic Prospectus and any Interim Prospectus have
complied in all material respects with the requirements of the
Securities Act and of the rules and regulations adopted thereunder
and, as of their respective dates, did not include any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements, in light of the circumstances
under which they were made, not misleading.
(c) As of the date hereof, when the Final Prospectus is first
filed pursuant to Rule 424, when, before the Closing Date, any
amendment to the Registration Statement becomes effective, when,
before the Closing Date, any document incorporated by reference in
the Registration Statement is filed with the Commission, when any
supplement to the Final Prospectus is filed with the Commission and
at the Closing Date, (1) the Registration Statement, as amended as
of any such time, and the Final Prospectus, as amended or
supplemented as of any such time, and the Indenture will comply in
all material respects with the applicable requirements of the
Securities Act, the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the Exchange Act and the respective rules and
regulations adopted thereunder and (2) neither the Registration
Statement, as amended as of any such time, nor the Final Prospectus,
as amended or supplemented as of any such time, will contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; provided, however, that the
Company makes no representations as to (1) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification on Form T-1 of the Trustee under the
Trust Indenture Act, except statements or omissions in such
Statement made in reliance upon information furnished in writing to
the Trustee by or on behalf of the Company for use therein or (2)
statements of omissions in the Registration Statement or the Final
Prospectus (or in amendments or supplements thereto) made in
reliance upon information furnished in writing to the Company by you
expressly for use therein.
(d) The certificate delivered pursuant to paragraph (e) of
Section 5 hereof and all other documents delivered by the Company or
its representatives in connection with the issuance and sale of the
Securities were on the dates on which they were delivered, or will
be on the dates on which they are to be delivered, in all material
respects true and complete.
5. Conditions of the Underwriter's Obligations. The obligations of
the Underwriter hereunder are subject to the following conditions:
(a) The Final Prospectus shall have been filed with the
Commission pursuant to Rule 424 not later than 5:00 p.m. New York
City time on the second business day after the date hereof.
(b) No order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall be in effect and no
proceedings for such purpose shall be pending before or threatened
by the Commission.
(c) Since the respective dates as of which information is given
in the Registration Statement and the Final Prospectus, (1) there
shall not have been any material change in the capital stock or
long-term debt of the Company and its subsidiaries, (2) there shall
not have been any material adverse change in the general affairs,
management, financial position or results of operations of the
Company and its subsidiaries taken as a whole, whether or not
arising from transactions in the ordinary course of business, in
each case other than as set forth in or contemplated by the Final
Prospectus and (3) the Company and its subsidiaries shall not have
sustained any material loss or interference with their business
taken as a whole from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
any court or legislative or other governmental action, order or
decree that is not set forth in the Final Prospectus if, in the
judgment of the Underwriter, any such development referred to in
clause (1), (2) or (3) above makes it impracticable or inadvisable
to proceed with the offering or the delivery of the Securities as
contemplated by the Registration Statement and the Final Prospectus.
(d) The representations of the Company contained herein shall
be true and correct as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed
before the Closing Date, as of the date of the filing of any
document incorporated by reference therein before the Closing Date
and on and as of the Closing Date, and the Company shall have
performed all covenants and agreements herein contained to be
performed on its part at or before the Closing Date.
(e) The Underwriter shall have received on the Closing Date a
certificate, dated the Closing Date, of the Chairman of the Board or
the President and the principal financial or accounting officer of
the Company, which shall certify that (1) no order suspending the
effectiveness of the Registration Statement or prohibiting the sale
of the Securities has been issued and no proceedings for such
purpose are pending before or, to the knowledge of such officers,
threatened by the Commission and (2) the representations of the
Company contained herein are true and correct on and as of the
Closing Date with
the same effect as if made on the Closing Date and the Company has
performed all agreements herein contained to be performed on its
part at or before the Closing Date.
(f) You shall have received on the Closing Date a signed letter
from the firm of accountants identified in Exhibit A hereto, dated
the Closing Date, substantially in the form of such Exhibit.
(g) You shall have received on the Closing Date from the
counsel for the Company identified in Exhibit B hereto, an opinion,
dated the Closing Date, substantially identical to the proposed form
of opinion set forth in such Exhibit.
(h) Subsequent to the execution of this Agreement, there shall
not have been any decrease in the ratings of any of the Company's
debt securities by Xxxxx'x Investors Service, Inc. or Standard &
Poor's Corporation from those in effect at the date of this
Agreement nor shall Xxxxx'x Investors Services, Inc. or Standard and
Poor's Corporation have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of the Company's debt securities.
(i) You shall have received on the Closing Date from Cravath,
Swaine & Xxxxx, counsel for the Underwriter, an opinion and letter,
dated the Closing Date, with respect to the Company, the Indenture,
the Securities, the Registration Statement, the Final Prospectus and
this Agreement and the form and sufficiency of all proceedings taken
in connection with the authorization, sale and delivery of the
Securities. Such opinion, letter and proceedings shall be reasonably
satisfactory in all respects to you, and the Company shall have
furnished to counsel for the Underwriters such documents as they may
reasonably request for the purpose of enabling them to render such
opinion and letter.
6. Additional Agreements. The Company agrees with you as follows:
(a) Before the termination of the offering of the Securities,
not to file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus
unless the Company has first submitted a copy thereof to you within
a reasonable period of time before filing and not to file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, the Company promptly will cause
the Final Prospectus to be mailed or to be delivered to the
Commission for filing pursuant to Rule 424 and will cause the Final
Prospectus to be filed with the Commission pursuant to such Rule.
(b) As soon as the Company is advised thereof, to advise you
(1) when the Final Prospectus shall have been filed with the
Commission for filing pursuant to Rule 424, (2) when any amendment
to the Registration Statement relating to the Securities shall have
become effective, (3) of the initiation or threatening by the
Commission of any proceedings for the issuance of any order
suspending the effectiveness of the Registration Statement or the
qualification of the Indenture, (4) of the receipt by the Company or
any representative of or attorney for the Company of any other
communication from the Commission relating to the Company, the
Registration Statement, the Basic Prospectus, any Interim Prospectus
or the Final Prospectus and (5) of the receipt by the Company or any
representative of or attorney for the Company of any notification
with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will
make
every reasonable effort to prevent the issuance of any order
suspending the effectiveness of the Registration Statement or the
qualification of the Indenture and, if any such order is issued, to
obtain as soon as possible the lifting thereof.
(c) To deliver to you, without charge, (1) signed copies of the
Registration Statement and each amendment thereto which shall become
effective on or before the Closing Date (including all exhibits
filed with, or incorporated by reference in, any such document) and
(2) as many conformed copies of the Indenture and the Registration
Statement and of each amendment thereto which shall become effective
on or before the Closing Date (excluding exhibits) as you may
reasonably request.
(d) During such period as a prospectus is required by law to be
delivered by an Underwriter or dealer, to deliver, without charge,
to you and to the Underwriter and dealers, at such office or offices
as you may designate, as many copies of any Interim Prospectus and
the Final Prospectus as the Underwriters may reasonably request.
(e) During the period in which copies of the Final Prospectus
are to be delivered as provided in paragraph (d) of this Section 6,
if any event occurs as a result of which it shall be necessary to
amend or supplement the Final Prospectus in order to ensure that no
part of the Final Prospectus contains any untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein, in light of the circumstances existing when
the Final Prospectus is to be delivered to a purchaser, not
misleading, forthwith to prepare, submit to you pursuant to
paragraph (a) of this Section 6, file with the Commission and
deliver, without charge, to the Underwriter and to dealers (whose
names and addresses you will furnish to the Company) to whom
Securities may have been sold by the Underwriter, and to other
dealers upon request, either amendments or supplements to the Final
Prospectus so that the statements in the Final Prospectus, as so
amended or supplemented, will comply with the standard set forth in
this paragraph (e). Delivery by the Underwriter of any such
amendments or supplements to the Final Prospectus shall not
constitute a waiver of any of the conditions set forth in Section 5
hereof.
(f) To make generally available to the Company's security
holders, as soon as practicable but in no event later than 60 days
after the end of the 12-month period beginning at the end of the
current fiscal quarter of the Company, an earnings statement (which
need not be audited) of the Company and its subsidiaries that
satisfies the provisions of Section 11(a) of the Securities Act.
(g) To take such action as you may request in order to qualify
the Securities for offer and sale under the securities or "blue sky"
laws of such jurisdictions as you may reasonably request; provided,
however, that in no event shall the Company be obligated to subject
itself to taxation or to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction
where it is not now so subject.
(h) For so long as any of the Securities remain outstanding, to
supply to you copies of such financial statements and other periodic
and special reports as the Company may from time to time distribute
to the holders of any class of its capital stock and to furnish to
you copies of each annual or other report the Company shall be
required to file with the Commission.
(i) To pay, or reimburse if paid by you, whether or not the
transactions contemplated hereby are consummated or this Agreement
is terminated, all costs and expenses incident to the performance of
the obligations of the Company under this Agreement, including those
relating to (1) the preparation, printing and filing of the
Registration Statement and exhibits thereto, the Basic Prospectus,
any Interim Prospectus and the Final Prospectus, all amendments and
supplements to the Registration Statement, any Interim Prospectus
and the Final Prospectus and the printing of the Indenture, this
Agreement, and agreements with dealers relating to the offering of
the Securities, (2) the issuance of the Securities and the
preparation and delivery of certificates for the Securities, (3) the
registration or qualification of the Securities for offer and sale
under the securities or "blue sky" laws of the various jurisdictions
referred to in paragraph (g) of this Section 6 and the determination
of the legality of the Securities for investment, including the fees
and disbursements of counsel for the Underwriter in connection
therewith and the preparation and printing of "blue sky" memoranda
and legal investment memoranda, (4) the furnishing to the
Underwriter of copies of any Interim Prospectus and the Final
Prospectus and all amendments or supplements to any Interim
Prospectus and the Final Prospectus, and of the several documents
required by this Section 6 to be so furnished, including costs of
shipping and mailing, (5) any fees required by the National
Association of Securities Dealers, Inc. in connection with its
review of corporate financings, (6) the furnishing to the
Underwriter of copies of all reports and information required by
paragraph (h) of this Section 6, including costs of shipping and
mailing, (7) the fees charged by rating agencies in connection with
the rating of the Securities, (8) the fees and expenses of the
Trustee, (9) all transfer taxes, if any, with respect to the sale
and delivery of the Securities by the Company and (10) the fee, if
any, for listing the Securities on any national securities exchange.
(j) For a period ending on the later of the Closing Date or the
date on which any price restrictions on the sale of the Securities
are terminated, not to offer or sell, or announce the offering of,
any debt securities, without your prior written consent.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter
within the meaning of Section 15 of the Securities Act against any
and all losses, claims, damages and liabilities, joint or several
(including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted), to which they, or any of
them, may become subject under the Securities Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement, the Basic Prospectus, any Interim Prospectus or the Final
Prospectus, or such amendment or supplement thereto, or the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as any such untrue statement or omission
or alleged untrue statement or omission was made in (1) the
Registration Statement, the Basic Prospectus, any Interim Prospectus
or the Final Prospectus, or such amendment or supplement, in
reliance upon and in conformity with information furnished in
writing to the Company by the Underwriter expressly for use therein
or (2) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification on Form
T-1 of the Trustee under the Trust Indenture Act, except
statements or omissions in such Statement made in reliance upon
information furnished in writing to the Trustee by or on behalf of
the Company for use therein; provided, however, that such indemnity
with respect to the Basic Prospectus or any Interim Prospectus shall
not inure to the benefit of the Underwriter (or any person
controlling the Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased Securities that are the
subject thereof if such person did not receive a copy of the Final
Prospectus (not including the documents incorporated therein by
reference) at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is
required by the Securities Act and the untrue statement or omission
of a material fact contained in the Basic Prospectus or any Interim
Prospectus was corrected in the Final Prospectus, unless such
failure to deliver the Final Prospectus was a result of
noncompliance by the Company with paragraph (d) of Section 6 hereof.
(b) The Underwriter agrees to indemnify and hold harmless the
Company, each person, if any, who controls the Company within the
meaning of Section 15 of the Securities Act, each director of the
Company and each officer of the Company who signs the Registration
Statement to the same extent as the foregoing indemnity from the
Company to the Underwriter, but only insofar as such losses, claims,
damages or liabilities arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission that
was made in the Registration Statement, the Basic Prospectus, any
Interim Prospectus or the Final Prospectus, or any amendment or
supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Company by the Underwriter
expressly for use therein; provided, however, that the obligation of
the Underwriter to indemnify the Company hereunder shall be limited
to the total price at which the Securities purchased by the
Underwriter hereunder were offered to the public. The Company
acknowledges that the statements set forth in the last paragraph of
the cover page and under the heading "Underwriting" or "Plan of
Distribution" in any Interim Prospectus or the Final Prospectus
constitute the only information furnished in writing by or on behalf
of the Underwriter for inclusion in the documents referred to in the
foregoing indemnity and you confirm that such statements are
correct.
(c) Any party that proposes to assert the right to be
indemnified under this Section 7 will, promptly after receipt of
notice of commencement of any action, suit or proceeding against any
such party in respect of which a claim is to be made against an
indemnifying party under this Section 7, notify each such
indemnifying party of the commencement of such action, suit or
proceeding, enclosing a copy of all papers served, but the omission
so to notify such indemnifying party of any such action, suit or
proceeding shall not relieve it from any liability that it may have
to any indemnified party otherwise than under this Section 7. In
case any such action, suit or proceeding shall be brought against
any indemnified party and it shall notify the indemnifying party of
the commencement thereof, such indemnifying party or parties shall
be entitled to participate in, and, to the extent that it or they
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory
to such indemnified party, and after notice from the indemnifying
party or parties to such indemnified party of its or their election
so to assume the defense thereof, the indemnifying party or parties
shall not be liable to such indemnified party for any legal or other
expenses, other than reasonable costs of investigation subsequently
incurred by such indemnified party in connection with the defense
thereof. The indemnified party shall have the right to employ
separate counsel in any such action, but the fees and expenses of
such counsel shall be at the expense of such indemnified party
unless (1) the
employment of counsel by such indemnified party has been authorized
by the indemnifying party or parties, (2) the indemnified party
shall have reasonably concluded that there may be a conflict of
interest between the indemnifying party or parties and the
indemnified party in the conduct of the defense of such action (in
which case the indemnifying party or parties shall not have the
right to direct the defense of such action on behalf of the
indemnified party) or (3) the indemnifying party or parties shall
not in fact have employed counsel to assume the defense of such
action, in each of which cases the fees and expenses of separate
counsel for the indemnified party shall be at the expense of the
indemnifying party or parties. An indemnifying party shall not be
liable for any settlement of any action or claim effected without
its written consent.
8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
paragraph (a) of Section 7 hereof is applicable but for any reason is held to
be unavailable from the Company, the Company and the Underwriter shall
contribute to the aggregate losses, claims, damages and liabilities (including
any investigation, legal and other expenses incurred in connection with, and
any amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting any contribution received by the Company from
persons other than the Underwriter, such as persons who control the Company
within the meaning of the Securities Act, officers of the Company who signed
the Registration Statement and directors of the Company, who may also be
liable for contribution) to which the Company and the Underwriter may be
subject in such proportion so that the Underwriter is responsible for that
portion represented by the percentage that the underwriting discount (the
difference between the aggregate of the price or prices at which the
Securities are sold by the Underwriter and the purchase price of the
Securities set forth in Schedule I hereto) bears to the sum of such discount
and the purchase price of the Securities set forth in Schedule I thereto and
the Company is responsible for the balance; provided, however, that (a) in no
case shall the Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for
any amount in excess of the underwriting discount applicable to the Securities
purchased by the Underwriter hereunder and (b) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person, if
any, who controls the Underwriter within the meaning of the Securities Act
shall have the same rights to contribution as such Underwriter, and each
person, if any, who controls the Company within the meaning of the Securities
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (a) and (b) of
this Section 8. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be made against
another party or parties under this Section 8, notify such party or parties
from whom contribution may be sought, but the omission so to notify such party
or parties shall not relieve the party or parties from whom contribution may
be sought from any other obligation it or they may have hereunder or otherwise
than under this Section 8. No party shall be liable for contribution with
respect to any action or claim settled without its consent.
9. Termination. This Agreement may be terminated by you by so
notifying the Company (in writing or by telephone or telegraph confirmed in
writing) at any time,
(a) prior to the earliest of (1) 11:00 a.m., New York City
time, on the business day following the day when the Final
Prospectus shall have been mailed for filing with the Commission
pursuant to Rule 424, (2) the time of release by the Underwriter for
publication of the first newspaper advertisement that is
subsequently published with
respect to the Securities and (3) the time when the Securities are
first generally offered by the Underwriter to dealers by letter or
telegram;
(b) at or prior to the Closing Date if, in your judgment
proceeding with the public offering or payment for and delivery of
the Securities is rendered impracticable or inadvisable because (1)
additional material governmental restrictions, not in force and
effect on the date hereof, shall have been imposed upon trading in
securities generally or minimum or maximum prices shall have been
generally established on the New York Stock Exchange, or trading in
securities generally shall have been suspended on such Exchange or a
general banking moratorium shall have been established by Federal or
New York State authorities, (2) any event shall have occurred or
shall exist which makes untrue or incorrect in any material respect
any material statement or information contained in the Registration
Statement or the Final Prospectus or which is not reflected in the
Registration Statement or the Final Prospectus but should be
reflected therein in order to make the statements or information
contained therein not misleading in any material respect or (3)
there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or
other calamity or crisis that affects adversely the marketability of
the Securities; or
(c) at or prior to the Closing Date, if any of the conditions
specified in Section 5 hereof shall not have been fulfilled when and
as required by this Agreement.
If this Agreement is terminated pursuant to any of the provisions
hereof, the Company shall not be under any liability (except as otherwise
provided herein) to you and you shall not be under any liability to the
Company, except that (a) if this Agreement is terminated by you because of any
failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company will reimburse
you for all reasonable out-of-pocket expenses (including the fees and
disbursements of your counsel) incurred by you and (b) if you have failed or
refused to purchase the Securities agreed to be purchased by you hereunder,
without some reason sufficient to justify your cancellation or termination of
your obligations hereunder, you shall not be relieved of liability to the
Company for damages occasioned by your default.
10. Default of Underwriter. If you shall fail (other than for a
reason sufficient to justify the termination of this Agreement) to purchase on
the Closing Date the Securities agreed to be purchased by you, you may find
one or more substitute underwriters to purchase such Securities or make such
other arrangements as you may deem advisable within 24 hours after the Closing
Date.
The provisions of this Section 10 shall not in any way affect your liability
arising out of a default. A substitute underwriter hereunder shall become an
Underwriter for all purposes of this Agreement.
11. Miscellaneous. The reimbursement, indemnification and
contribution agreements contained in Sections 6(i), 7 and 8 hereof and the
representations and agreements of the Company in this Agreement shall remain
in full force and effect regardless of (a) any termination of this Agreement
except insofar as such termination renders the performance of such agreements,
other than those in Section 6(i), 7 and 8, inappropriate, (b) any
investigation made by or on behalf of the Underwriter or controlling person or
by or on behalf of the Company or any controlling person, director or officer
and (c) delivery of and payment for the Securities under this Agreement.
This Agreement has been and is made solely for the benefit of the
Underwriter and the Company, and their respective successors and assigns, and,
to the extent expressed herein, for the benefit of persons controlling the
Underwriter or the Company, directors and officers of the Company and their
respective successors and assigns, and no other person, partnership,
association or corporation shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" shall not include any
purchaser of Securities from the Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing and
mailed or delivered, or by telephone or telegraph if subsequently confirmed in
writing, to you at the address specified in Schedule I hereto, and to the
Company at One Xxxxxxx Plaza, 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
attention Xxxxx X. Xxxxxxxxxx, Esq., Vice President-General Counsel and
Secretary.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
Please confirm that the foregoing correctly sets forth the agreement
between us.
Very truly yours,
XXXXXXX TRUCK LEASING CORP.,
By:
--------------------------------
(Title)
Confirmed:
(Name of Representatives)
--------------------------------
By:
-----------------------------
(Title)
Acting on behalf of itself and the several Underwriters,
if any, named in Schedule II annexed hereto.
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Underwriter:
Title, Purchase Price and Description of Securities:
Title: % Collateral Trust Debentures, Series , due
Principal amount: $
Purchase price: $ plus accrued interest from , if any
Sinking fund provisions:
Redemption provisions:
Other provisions: ---------------------------------------------------
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Closing Date, Time and Location: --------------------------------------
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SCHEDULE II
Principal
Amount
of
Securities
to be
Underwriter Purchased
----------- ---------
$
Total $
EXHIBIT A
At the Closing Date,* the Company's Independent Accountants shall
furnish to the Underwriter a letter or letters (which may refer to letters
previously delivered to the Underwriter), dated as of the Closing Date, in
form and substance satisfactory to the Underwriter, confirming that they are
independent accountants within the meaning of the Securities Act and the
Exchange Act and the respective applicable published rules and regulations
thereunder, that the response to Item 10 of the Registration Statement is
correct insofar as it relates to them and stating in effect that:
(a) in their opinion the audited financial statements and financial
statement schedules included or incorporated in the Registration
Statement and the Final Prospectus and reported on by them comply as to
form in all material respects with the applicable accounting requirements
of the Exchange Act and the published rules and regulations thereunder
with respect to financial statements and financial statement schedules
included or incorporated in annual reports on Form 10-K under the
Exchange Act;
(b) on the basis of a reading of the "Five Year Selected Financial
Data" included or incorporated in the Registration Statement and the
Final Prospectus and the latest unaudited financial statements made
available by the Company and its subsidiaries; carrying out certain
specified procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal matters
of significance with respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the stockholders, directors and
executive committees of the Company and Xxxxxxx Leasing Corp.; and
inquiries of certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its subsidiaries as
to transactions and events subsequent to the date of the most recent
financial statements included or incorporated in the Registration
Statement and the Final Prospectus, nothing came to their attention which
caused them to believe that:
(1) the amounts in the unaudited "Summary Financial Data", if
any, included or incorporated in the Final Prospectus, the amounts
in the unaudited Financial Highlights and the amounts in the
unaudited "Five Year Selected Financial Data" included or
incorporated in the Registration Statement and the Final Prospectus,
do not agree with the corresponding amounts in the audited financial
statements from which such amounts were derived;
(2) any unaudited financial statements included or
incorporated in the Registration Statement and the Final Prospectus
do not comply as to form in all material respects with applicable
accounting requirements and with the published rules and regulations
of the Commission with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not fairly
presented (except as permitted by Form 10-Q) in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated in the Registration Statement
and the Final Prospectus;
--------
* All capitalized terms used herein shall have the meanings ascribed to
them in the Underwriting Agreement of which this Exhibit A is a part.
(3) with respect to the period subsequent to the date of the
most recent financial statements included or incorporated in the
Registration Statement and the Final Prospectus, there were any
changes, at a specified date not more than five business days prior
to the date of the letter, in the equipment financing obligations or
the long-term debt of the Company and its subsidiaries consolidated
or capital stock of the Company or decreases in the consolidated
shareholders' equity of the Company and its subsidiaries as compared
with the amounts shown on the most recent consolidated balance sheet
included or incorporated in the Registration Statement and the Final
Prospectus, or for the period from the date of the most recent
financial statements included or incorporated in the Registration
Statement and the Final Prospectus to such specified date there were
any decreases, as compared with the corresponding period in the
preceding year, in consolidated earnings before interest expenses,
earnings from spun-off operations and taxes on income, or in total
or per share amounts of net earnings from continuing operations, of
the Company and its subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company as to
the significance thereof unless said explanation is not deemed
necessary by the Underwriter; and
(c) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company) set forth in the
Registration Statement, as amended, and the Final Prospectus, as
amended or supplemented, and in Exhibit 12 to the Registration
Statement, including the information included or incorporated in
Items 1, 6 and 7 of the Company's Annual Report on Form 10-K
incorporated therein or in "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in any of the Company's Quarterly Reports on Form 10-Q
incorporated therein, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation.
EXHIBIT B
The Company* shall furnish to the Underwriter the opinion of Xxxxx
X. Xxxxxxxxxx, Esq., Vice President-General Counsel and Secretary of the
Company, dated the Closing Date, to the effect that:
(i) each of the Company and Xxxxxxx Leasing Corp. (the
"Subsidiary") has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction in
which it is chartered or organized, with full corporate power and
authority to own its properties and conduct its business as
described in the Final Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification wherein
it owns or leases material properties or conducts material business;
(ii) all the outstanding shares of capital stock of the
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and all outstanding shares of capital
stock of the Subsidiary are owned by the Company either directly or
through wholly-owned subsidiaries free and clear of any perfected
security interest and, to the knowledge of such counsel, after due
inquiry, any other security interests, claims, liens or
encumbrances;
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the Securities conform to the
description thereof contained in the Final Prospectus; and, if the
Securities are to be listed on the New York Stock Exchange,
authorization therefor has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the Company
has filed a preliminary listing application and all required
supporting documents with respect to the Securities with the New
York Stock Exchange and such counsel has no reason to believe that
the Securities will not be authorized for listing, subject to
official notice of issuance and evidence of satisfactory
distribution;
(iv) the Collateral Trust Indenture dated as of March 21, 1983
as supplemented and amended by a Third Supplemental Indenture
thereto dated as of February 20, 1986 and an Eighth Supplemental
Indenture thereto dated as of May 15, 1990 (the "Original
Indenture"), between the Company and Continental Bank, National
Association, as Trustee, and the Supplemental Indenture
dated as of (the " Supplemental Indenture") to
the Original Indenture, have been duly authorized, executed and
delivered, have been duly qualified under the Trust Indenture Act of
1939, and constitute legal, valid and binding instruments
enforceable against the Company in accordance with their terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect), and the
Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Original
Indenture, as supplemented and amended by the Supplemental
Indenture (the "Indenture"), and delivered to and paid for by the
Underwriters pursuant to the Underwriting Agreement of which this
Exhibit B is a part (the "Underwriting
-----------------------
* All capitalized terms used and not otherwise defined herein shall have
the meanings ascribed to them in the Underwriting Agreement of which this
Exhibit B is a part.
Agreement"), will constitute legal, valid and binding obligations of
the Company entitled to the benefits of the Indenture;
(v) to the best knowledge of such counsel, there is no pending
or threatened action, suit or preceding before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries, of a character required to
be disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and there is no franchise,
contract or other document of a character required to be described
in the Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required; and the
statements included or incorporated in the Final Prospectus
describing any legal proceedings or material contracts or agreements
relating to the Company fairly summarize such matters;
(vi) the Registration Statement and any amendments thereto have
become effective under the Securities Act; to the best knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement, as amended, has been issued, no proceedings
for that purpose have been instituted or threatened, and the
Registration Statement, the Final Prospectus and each amendment
thereof or supplement thereto as of their respective effective or
issue dates (other than the financial statements and other financial
and statistical information contained therein as to which such
counsel need express no opinion) complied as to form in all material
respects with the applicable requirements of the Securities Act and
the Exchange Act and the respective rules and regulations adopted
thereunder, and such counsel has no reason to believe that the
Registration Statement, or any amendment thereof, at the time it
became effective, contained any untrue statement of a material fact
or omitted to state any material fact required to be stated therein
or necessary to make the statements therein not misleading or that
the Final Prospectus, as amended or supplemented, includes any
untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(vii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(viii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated in the Underwriting
Agreement, except such as have been obtained under the Securities
Act and such as may be required under the "blue sky" laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriter and such other approvals (specified in
such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions contemplated in the
Underwriting Agreement nor the fulfillment of the terms of the
Underwriting Agreement will conflict with, result in a breach of, or
constitute a default under the charter or bylaws of the Company or
the terms of any indenture or other agreement or instrument known to
such counsel and to which the Company or any of its subsidiaries is
a party or bound, or any order or regulation known to such counsel
to be applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
subsidiaries; and
(x) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the applications of laws of any jurisdiction other than the State of
Delaware or the United States, to the extent deemed proper and specified in
such opinion, upon the opinion of other counsel of good standing believed to
be reliable and who are satisfactory to counsel for the Underwriter; and (B)
as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials.
