Exhibit 1 to 8-K
EXECUTION COPY
ARVINMERITOR, INC.
6 5/8% Notes Due 2007
UNDERWRITING AGREEMENT
June 26, 2002
DEUTSCHE BANK SECURITIES INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
As Representatives of the several
Underwriters named in Schedule B hereto
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, ArvinMeritor, Inc., an Indiana corporation (the
"Company"), confirms its agreement with Deutsche Bank Securities Inc. ("Deutsche
Bank") and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"),
as representatives of the several underwriters named in Schedule B hereto (the
"Underwriters"). If the firms listed in Schedule B hereto include only the firms
listed in Schedule A hereto (the "Representatives"), then the terms
"Underwriters" and "Representatives," as used herein, shall each be deemed to
refer to such firms.
The Company proposes to issue and sell debt securities of the title and
amount set forth in Schedule A hereto (the "Purchased Securities"), to be issued
under the Indenture dated as of April 1, 1998, as supplemented (the
"Indenture"), between the Company and BNY Midwest Trust Company, as Trustee.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (No. 333-58760), relating to
$750,000,000 of debt securities, and the offering thereof from time to time in
accordance with Rule 415 under the Securities Act of 1933, as amended (the "1933
Act"). Such Registration Statement has been declared effective by the
Commission, and the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act"). Such Registration Statement and the
Prospectus or Prospectuses relating to the sale of the Purchased Securities by
the Company constituting a part thereof, including all documents incorporated
therein by reference, as they may from time to time be amended or supplemented,
pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act"),
the 1933 Act or otherwise (including by means of the Prospectus Supplement (as
defined below)), are in each case collectively referred to herein as the
"Registration Statement" and the "Prospectus," respectively; provided, however,
that a supplement to the Prospectus contemplated by Section 3(a), including a
preliminary form of such a supplement to the Prospectus, if any, previously
filed with the Commission pursuant to Rule 424 of the 1933 Act (collectively, a
"Prospectus Supplement"), shall be deemed to have supplemented the Prospectus
only with respect to the offering of the Purchased Securities to which it
relates. If the Company elects to rely on Rule 434 under the 1933 Act, all
references to the Prospectus shall be deemed to include, without limitation, the
form of prospectus and the term sheet, taken together, provided to the
Representatives by the Company in reliance on such Rule 434. If the Company
files a registration statement to register a portion of the Purchased Securities
and relies on Rule 462(b) under the 1933 Act for such registration statement to
become effective upon filing with the Commission (the "Rule 462 Registration
Statement"), then any reference to "Registration Statement" herein shall be
deemed to be to both the registration statement referred to above and the Rule
462 Registration Statement, as each such registration statement may be amended
pursuant to the 1933 Act.
SECTION 1. Representations and Warranties. The Company represents and
warrants to each Underwriter as of the date hereof, as follows:
(a) The Registration Statement has been declared effective by the
Commission under the 1933 Act; no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been instituted or, to the knowledge of the Company, threatened by the
Commission; and the Registration Statement and the Prospectus, at the time the
Registration Statement became effective complied, as of the date hereof
complies, and as of the Closing Time will comply, in all material respects with
the requirements of the 1933 Act, the rules and regulations thereunder (the
"Regulations"), the 1934 Act and the rules and regulations thereunder and the
1939 Act. The Registration Statement, at the time the Registration Statement
became effective did not, and as of the date hereof does not, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading. The
Prospectus, as of its date did not, and as of the date hereof does not contain
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the representations and warranties in this subsection shall not apply (i)
to statements in or omissions from the Registration Statement or Prospectus made
in reliance upon and in conformity with information furnished to the Company in
writing by any Underwriter through the Representatives expressly for use in the
Registration Statement or Prospectus or (ii) to that part of the Registration
Statement which shall constitute the Statement of Eligibility and Qualification
under the 1939 Act (Form T-1) (the "Form T-1") of the Trustee under the
Indenture.
(b) The documents incorporated by reference in the Registration
Statement and the Prospectus, when they were filed with the Commission,
conformed in all material respects to the requirements of the 1934 Act and the
rules and regulations thereunder, and none of such documents when 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, in the light of the circumstances under which they
were made, not misleading; and any documents incorporated by reference in the
Registration Statement and the Prospectus subsequent to the date hereof will,
when filed with the Commission, conform in all
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material respects to the requirements of the 1934 Act and the rules and
regulations thereunder, and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they are made, not misleading.
(c) Since the respective dates as of which information is given in the
Prospectus, except as otherwise stated therein or contemplated thereby, there
has been no material adverse change in or affecting the general affairs,
business, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole; and except as
set forth or contemplated in the Prospectus neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or not in
the ordinary course of business) material to the Company and its subsidiaries
taken as a whole.
(d) The Company has been duly incorporated and is validly existing
under the laws of the State of Indiana, and each of Meritor Heavy Vehicle
Systems LLC, a Delaware limited liability company ("HVS"), ArvinMeritor OE, LLC,
a Delaware limited liability company ("AMOE"), Maremont Exhaust Products, Inc.,
a Delaware corporation ("Maremont"), ▇▇▇▇▇ International Holdings, LLC, a
Delaware limited liability company ("AIH"), Purolator Products NA Inc., a
Delaware corporation ("PPNA") and Roll Coater, Inc, an Indiana corporation
("RCI"), has been duly formed or incorporated, is validly existing and is in
good standing under the laws of the jurisdiction of its respective incorporation
or formation. The Company, HVS, AMOE, Maremont, AIH, PPNA and RCI each has the
requisite power and authority as a corporation or a limited liability company to
carry on its business as currently being conducted, to own, lease and operate
its properties, and is duly qualified and is in good standing as a foreign
corporation or limited liability company in each jurisdiction where such
qualification is necessary, except in such jurisdictions where the failure so to
qualify or to be in good standing would not have a material adverse effect on
the general affairs, business, properties, management, financial position or
results of operations of the Company and its subsidiaries taken as a whole
("Material Adverse Effect").
(e) All of the outstanding Common Shares of HVS and AMOE, and all of
the outstanding Common Stock of Maremont, AIH, PPNA and RCI are validly issued,
fully paid and nonassessable and not subject to any preemptive or similar
rights, and are owned by the Company, free and clear of any security interest,
mortgage, pledge, claim, lien or encumbrance (each, a "Lien"). There are no
outstanding subscriptions, rights, warrants, options, calls, commitments for
sale or Liens related to or entitling any person to purchase or otherwise to
acquire any equity interests in HVS, AMOE, Maremont, AIH, PPNA or RCI.
(f) None of the Company, HVS, AMOE, Maremont, AIH, PPNA or RCI is in
violation of its respective certificate of incorporation or by-laws or other
organizational documents or in default under any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which any of them is a party
or by which any of them or any of their properties may be bound, except for any
violations or defaults which, individually or in the aggregate, would not have a
Material Adverse Effect. The execution and delivery of this Agreement and the
Indenture and the consummation of the transactions contemplated herein and
therein have been duly authorized by all necessary corporate action; each of
this Agreement and the Indenture are, and when duly executed and delivered in
accordance with their terms, will be,
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valid and legally binding agreements of the Company and will not conflict with
or constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company is a party or by which it may be
bound or to which any of the property or assets of the Company is subject, nor
will such action result in any violation of the provisions of the Restated
Articles of Incorporation, as amended, or Bylaws of the Company or, to the best
of its knowledge, any law, administrative regulation or administrative or court
decree applicable to the Company; no consent, approval, authorization or order
of any court or governmental authority or agency is required for the
consummation by the Company of the transactions contemplated by this Agreement,
except such as have been obtained under the 1933 Act, the 1939 Act or the
Regulations and as may be required under state securities or Blue Sky laws; and
the Indenture is enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting creditors' rights generally and subject to general principles of
equity (regardless of whether enforceability is considered in a proceeding in
equity or at law).
(g) The Purchased Securities have been duly authorized for issuance and
sale pursuant to this Agreement and, when duly executed, authenticated and
delivered pursuant to the provisions of this Agreement and of the Indenture
against payment of the consideration therefor in accordance with this Agreement,
the Purchased Securities will be valid and legally binding obligations of the
Company enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting the enforcement of
creditors' rights in general and general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
and except further as enforcement thereof may be limited by (i) requirements
that a claim with respect to any Purchased Securities denominated other than in
U.S. dollars be converted into U.S. dollars at an exchange rate prevailing on a
date determined pursuant to applicable law or (ii) governmental authority to
limit, delay or prohibit the making of payments outside the United States, and
will be entitled to the benefits of the Indenture, which will be substantially
in the form heretofore delivered to you, except as supplemented to reflect the
terms of any one or more series of debt securities.
(h) The Purchased Securities and the Indenture conform in all material
respects to all statements relating thereto contained in the Prospectus and the
applicable Prospectus Supplement.
(i) No strike or labor stoppage by the employees of the Company or any
subsidiary exists, or, to the knowledge of the Company, is imminent which is
expected to have a Material Adverse Effect.
(j) The financial statements included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries as of the dates
indicated and the results of their operations for the periods specified; said
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis (except as otherwise stated
therein); and the supporting schedules included or incorporated by reference in
the Registration Statement
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present fairly the information required to be stated therein. Any quarterly or
other unaudited interim financial statements included or incorporated by
reference in the Registration Statement and the Prospectus have been prepared in
compliance with the applicable requirements of the 1933 Act, the Regulations,
the 1934 Act and the rules and regulations thereunder and have been prepared on
a basis substantially consistent (except as otherwise stated therein) with that
of the applicable audited financial statements included or incorporated by
reference in the Registration Statement and the Prospectus, and such unaudited
financial statements contain all adjustments necessary to present a fair
statement of the results of operations for the periods reported. Any pro forma
financial information included or incorporated by reference in the Registration
Statement and the Prospectus has been prepared in accordance with the applicable
requirements of Rule 11-02 of Regulation S-X, 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.
(k) Other than as set forth or contemplated in the Prospectus, there
are no legal or governmental proceedings pending or, to the knowledge of the
Company, threatened to which the Company or any of its subsidiaries is or, to
the knowledge of the Company, is threatened to be a party or to which any
property of the Company or any of its subsidiaries is or is threatened to be the
subject which could individually or in the aggregate reasonably be expected to
result in a Material Adverse Effect.
(l) To the knowledge of the Company, Deloitte & Touche LLP who have
certified certain financial statements of the Company and its subsidiaries are
independent public accountants as required by the Securities Act.
(m) The Company is not and, after giving effect to this offering and
sale of the Securities, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act").
Any certificate signed by any officer of the Company and delivered to
you or counsel for the Underwriters in connection with an offering of the
Purchased Securities shall be deemed a representation and warranty by the
Company, as to the matters covered thereby, to each Underwriter participating in
such offering.
SECTION 2. Purchase and Sale. The several and not joint commitments of
the Underwriters to purchase the Purchased Securities in the respective amounts
set forth on Schedule B hereto shall be deemed to have been made on the basis of
the representations and warranties herein contained and shall be subject to the
terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Purchased
Securities to be purchased by the Underwriters shall be made at the office
specified in Schedule A hereto or at such other place as shall be agreed upon by
you and the Company, on the date and at the time so specified or such other time
as shall be agreed upon by you and the Company (such time and date being
referred to as the "Closing Time"). Payment shall be made to the Company by wire
transfer to an account designated by the Company in immediately available funds
against delivery to you for the respective accounts of the Underwriters of the
Purchased Securities to be purchased by them. Such Purchased Securities shall be
in such denominations and registered in
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such names as you may request in writing at least two business days prior to the
Closing Time. Such Purchased Securities, which may be in temporary form, will be
made available for examination and packaging by you on or before the first
business day prior to the Closing Time.
Delivery at the Closing Time of any Purchased Securities that are in
bearer form shall be effected by delivery of a single temporary global security
without coupons (the "Global Debt Security") evidencing the Purchased Securities
that are in bearer form to a common Depositary or its nominee for the accounts
of the Euroclear System ("Euroclear"), and for Clearstream Banking, S.A.
("Clearstream Banking") for credit to the respective accounts at Euroclear or
Clearstream Banking of each Underwriter or to such other accounts as such
Underwriter may direct. Any Global Debt Security shall be delivered to you not
later than the Closing Time, against payment of funds to the Company in the net
amount due to the Company for such Global Debt Security by the method and in the
form set forth in Schedule A hereto. The Company shall cause definitive
Purchased Securities in bearer form to be prepared and delivered in exchange for
such Global Debt Security in such manner and at such time as may be provided in
or pursuant to the Indenture; provided, however, that the Global Debt Security
shall be exchangeable for definitive Purchased Securities in bearer form only on
or after the date specified for such purpose in the Prospectus.
SECTION 3. Covenants of the Company. The Company covenants and agrees
with each Underwriter as follows:
(a) Immediately following the execution of this Agreement, the Company
will prepare a Prospectus Supplement setting forth the principal amount of the
Purchased Securities covered thereby and their terms not otherwise specified in
the Indenture, the names of the Underwriters participating in the offering and
the principal amount of the Purchased Securities which each severally has agreed
to purchase, the names of the Underwriters acting as Representatives in
connection with the offering, the price at which the Purchased Securities are to
be purchased by the Underwriters from the Company, the initial public offering
price, the selling concession and reallowance, if any, and such other
information as you and the Company deem appropriate in connection with the
offering of the Purchased Securities. The Company will transmit copies of the
Prospectus Supplement to the Commission for timely filing pursuant to Rule 424
of the Regulations and will furnish, not later than 48 hours prior to the
Closing Time, to the Underwriters named therein as many copies of the Prospectus
and such Prospectus Supplement as you shall reasonably request.
(b) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Purchased Securities any event
shall occur or condition exist as a result of which it is necessary to further
amend or supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in the light of
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the Regulations, the Company will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents pursuant to
the 1934 Act or otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements.
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(c) The Company will make generally available to its security holders,
in each case as soon as practicable, an earning statement (in form complying
with the provisions of Section 11(a) of the 1933 Act and the Regulations, which
need not be certified by independent certified public accountants unless
required by the 1933 Act or the Regulations) covering a twelve month period
beginning not later than the first day of the Company's fiscal quarter next
following the effective date (as defined in Rule 158 of the Regulations) of the
Registration Statement.
(d) The Company will give you notice of its intention to file any
amendment to the Registration Statement or any supplement to the Prospectus with
respect to the Purchased Securities, including those made by the filing of
documents pursuant to the 1934 Act, and will furnish you with copies of any such
amendment or supplement proposed to be filed a reasonable time in advance of
filing, and will not file any such amendment or supplement to which you or your
counsel has reasonably objected.
(e) The Company will notify each of you immediately, and confirm the
notice in writing, (i) of the filing or effectiveness of any amendment to the
Registration Statement, (ii) of the filing of any supplement to the Prospectus
with respect to the Purchased Securities, (iii) of the receipt of any comments
from the Commission with respect to the Registration Statement, the Prospectus
or any Prospectus Supplement, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus with respect to the Purchased Securities or for additional
information with respect thereto, (v) of the receipt by the Company of any
notification with respect to any suspension of the qualification of the
Purchased Securities for offer or sale in any state or jurisdiction of the
United States or the initiation or threatening of any proceeding for such
purpose and (vi) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible time.
(f) The Company will deliver to each of you as many signed and
conformed copies of the Registration Statement (as originally filed) and each
amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the Prospectus) as
you may reasonably request and will also deliver to you a conformed copy of the
Registration Statement and each amendment thereto for each of the Underwriters.
(g) The Company will endeavor, in cooperation with Sidley ▇▇▇▇▇▇ ▇▇▇▇▇
& ▇▇▇▇, counsel for the Underwriters, to qualify the Purchased Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions of the United States as you may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Purchased Securities; provided, however, that the Company shall not be
required to qualify as a foreign corporation or to take any action which would
subject it to general consent to service of process in any state in which it is
not now qualified or not now so subject. The Company will file such statements
and reports as may be required by the laws of each jurisdiction in which the
Purchased Securities have been qualified as above provided.
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(h) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file promptly all documents required to be
filed with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act.
(i) Between the date of this Agreement and the Closing Time, the
Company will not, without your prior consent, offer or sell, or enter into any
agreement to sell, any debt securities of the Company with a maturity of more
than one year (other than one or more other series of debt securities to be
issued under the Indenture, having a maturity or maturities different from the
date of maturity of the Purchased Securities, with respect to which the Company
has entered into a contract for sale on the sale day as the effective date of
this agreement).
(j) The Company will use its best efforts to permit the Purchased
Securities to be eligible for clearance and settlement through the facilities of
the Depository Trust Company ("DTC").
SECTION 4. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase the Purchased Securities pursuant to this Agreement
are subject to the accuracy of the representations and warranties on the part of
the Company herein contained, as of the date hereof and as of the Closing Time,
to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance by
the Company of all of its covenants and other obligations hereunder and to the
following further conditions:
(a) At the Closing Time (i) no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or, to the knowledge of the Company or the
Underwriters, threatened by the Commission, (ii) the rating assigned by any
nationally recognized statistical rating organization to any debt securities of
the Company subsequent to the date of this Agreement and prior to the Closing
Time shall not have been lowered and no such rating agency shall have publicly
announced during that period that it is placing any debt securities of the
Company on what is commonly termed a "watch list" for possible downgrading and
(iii) the Prospectus, together with the applicable Prospectus Supplement, shall
not contain an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(b) At the Closing Time you shall have received:
(1) The favorable opinion, dated as of the Closing Time, of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, in form and substance
satisfactory to you, to the effect that:
(i) Assuming the due authorization, execution and
delivery by the Company, the Indenture constitutes the valid
and binding agreement of the Company, and is enforceable in
accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general and general
principles of equity (regardless of whether such
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enforceability is considered in a proceeding in equity or at
law), and except further as enforcement thereof may be limited
by (i) requirements that a claim with respect to any Purchased
Securities denominated other than in U.S. dollars be converted
into U.S. dollars at an exchange rate prevailing on a date
determined pursuant to applicable law or (ii) governmental
authority to limit, delay or prohibit the making of payments
outside the United States.
(ii) Assuming due authorization, execution,
authentication and delivery, the Purchase Securities are valid
and binding obligations of the Company, and are enforceable in
accordance with their terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general and general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), and except further as enforcement thereof may be limited
by (i) requirements that a claim with respect to any Purchased
Securities denominated other than in U.S. dollars be converted
into U.S. dollars at an exchange rate prevailing on a date
determined pursuant to applicable law or (ii) governmental
authority to limit, delay or prohibit the making of payments
outside the United States, and will be entitled to the
benefits of the Indenture.
(iii) The Indenture and the Purchased Securities
conform in all material respects to the descriptions thereof
contained in the Prospectus and the applicable Prospectus
Supplement.
(iv) The Registration Statement is effective under
the 1933 Act and, to the best of their knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission.
(v) The Registration Statement and the Prospectus
(other than the financial statements and other financial and
statistical data included or incorporated by reference
therein, as to which no opinion need be rendered) comply as to
form in all material respects with the requirements of the
1933 Act, the 1939 Act (other than Form T-1, as to which no
opinion need be rendered) and the Regulations.
(vi) No consent, approval, authorization or order of
any U.S. federal or New York State court or governmental
authority or agency is required in connection with the issue
and sale by the Company of the Purchased Securities to the
Underwriters, except such as have been obtained under the 1933
Act, the Regulations or the 1939 Act and as may be required
under any state securities laws, and the execution and
delivery of this Agreement and the Indenture.
Such counsel shall also state that although such counsel does not assume
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus (except as and to the
extent described in paragraph (vi) above), nothing has come
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to their attention that would lead them to believe that the Registration
Statement (other than the financial statements and other financial and
statistical data included or incorporated by reference therein, as to which no
view need be rendered), as of the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus, supplemented by the Prospectus Supplement as of the date of
the Prospectus Supplement and at the Closing Time (other than the financial
statements and other financial and statistical data included or incorporated by
reference therein and the Form T-1, as to which no view need be rendered),
contained or contains, as the case may be, an untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(2) The favorable opinion, dated as of the Closing Time, of
▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, in form and substance
satisfactory to you, to the effect that:
(i) The Company has corporate power and authority to
own, lease and operate its properties and conduct its business
as described in the Registration Statement and the Prospectus
and to enter into and perform its obligations under the
Underwriting Agreement and the Indenture.
(ii) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the State
of Indiana.
(iii) This Agreement has been duly authorized,
executed and delivered by the Company.
(iv) The Indenture has been duly authorized, executed
and delivered by the Company.
(v) The Purchased Securities have been duly
authorized by all necessary corporate action, and have been
duly executed and authenticated as specified in the Indenture
and delivered against payment therefor pursuant to this
Agreement.
(3) The favorable opinion, dated as of the Closing Time, of
the General Counsel or an Assistant General Counsel of the Company, in
form and substance satisfactory to you, to the effect that:
(i) The Company is duly qualified as a foreign
corporation and is in good standing in the State of Michigan
and in each other jurisdiction where such qualification is
necessary, except in such jurisdictions where the failure so
to qualify or to be in good standing will not subject the
Company to any liability material to the condition, financial
or otherwise, of the Company and its subsidiaries considered
as one enterprise.
(ii) Each of HVS, AMOE, Maremont, AIH, PPNA and RCI
is a subsidiary of the Company, has been duly formed or
incorporated, as the case may be, and is validly existing and
in good standing under the laws of the State of
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its incorporation or formation and is duly qualified and is in
good standing as a foreign limited liability company or
corporation, as the case may be, in each jurisdiction where
such qualification is necessary, except in such jurisdictions
where the failure so to qualify or to be in good standing will
not subject the Company to any liability material to the
condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise; the outstanding
Common Shares of HVS and AMOE, and the outstanding Common
Stock of Maremont, AIH, PPNA and RCI are validly issued, fully
paid and nonassessable and are owned by the Company free and
clear of any Liens. None of the outstanding shares of capital
stock of any subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such
subsidiary.
(iii) To the best of his or her knowledge, none of
the Company, HVS, AMOE, Maremont, AIH, PPNA or RCI is in
violation of its charter, by-laws or similar organizational
documents, and no facts have come to his or her attention that
would lend such counsel to conclude that a default by the
Company or any subsidiary exists in the due performance or
observance of any material obligation, agreement, covenant or
condition in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that
is described or referred to in the Registration Statement or
Prospectus or incorporated therein by reference except as
would not have a Material Adverse Effect; the execution and
delivery of this Agreement and the Indenture and the
consummation of the transactions contemplated herein will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its subsidiaries is a party or, to
the best of his or her knowledge, by which it or any of them
may be bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the
Restated Articles of Incorporation, as amended, or Bylaws of
the Company or any law, administrative regulation or
administrative or court decree applicable to the Company.
(iv) Each document, if any, filed pursuant to the
1934 Act (other than the financial statements and other
financial data included or incorporated by reference therein,
as to which no opinion need be rendered) and incorporated by
reference to the Prospectus, complied when so filed as to form
in all material respects with the 1934 Act and the rules and
regulations thereunder.
(v) There is no litigation or governmental proceeding
pending or, to the best of his or her knowledge, threatened
against the Company or any of its subsidiaries which would
affect the subject matter of this Agreement or which is
required to be disclosed in the Prospectus which is not
adequately disclosed therein; and except as may be disclosed
in the Prospectus, there is no such litigation or governmental
proceeding which would have a Material Adverse Effect.
11
(vi) To the best of his or her knowledge, there are
no contracts which are required to be filed as exhibits to the
Registration Statement which are not so filed or which are
required to be disclosed in the Prospectus which are not
adequately disclosed therein; all descriptions in the
Prospectus of, contracts and other documents to which the
Company or its subsidiaries are a party conform in all
material respects to the terms of such documents to the extent
described therein.
(vii) The Indenture is qualified under the ▇▇▇▇ ▇▇▇.
(4) The favorable opinion or opinions, dated as of the Closing
Time, of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters,
with respect to the Registration Statement, the Prospectus and such
matters as the Representatives may require.
(c) At the Closing Time there shall not have been, since the date of
this Agreement, any material adverse change in or affecting the general affairs,
business, management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole, or any
development involving a prospective material adverse change in or affecting
particularly the financial condition of the Company and its subsidiaries taken
as a whole, and you shall have received a certificate of the Chief Executive
Officer or a Vice President of the Company and the Chief Financial Officer of
the Company, dated as of the Closing Time, to the effect that there has been no
such material adverse change or prospective change and to the effect that the
representations and warranties of the Company contained in Section 1 are true
and correct as of the Closing Time.
(d) You shall have received from Deloitte & Touche LLP a letter,
addressed to you and dated as of the date hereof and delivered at such time, in
form satisfactory to you and containing statements and information of the type
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference in the Prospectus; and at the Closing Time, the
Underwriters shall have received from Deloitte & Touche LLP a letter, dated as
of the Closing Time, in form satisfactory to you and to the effect that they
reaffirm the statements made in their letter dated as of the date hereof, other
than any necessary exceptions to such letter, except that the specified date
referred to shall be a date not more than 3 business days prior to the Closing
Time.
(e) At the Closing Time counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the Purchased
Securities as herein contemplated and related proceedings or in order to
evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by the Company in connection with the issuance and sale of
the Purchased Securities as herein contemplated shall be satisfactory in form
and substance to you and counsel for the Underwriters.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by you by notice to the Company at
12
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the printing and filing of the Registration Statement and all amendments
thereto, (ii) the preparation, issuance and delivery of the Purchased Securities
to the Underwriters, (iii) the fees and disbursements of the Company's counsel
and accountants, the Trustee under the Indenture and the Trustee's counsel, (iv)
the qualification of the Purchased Securities under securities laws in
accordance with the provisions of Section 3(g), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky Survey and
Legal Investment Survey, (v) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration Statement and all
amendments thereto, and of the Prospectus including all supplements and
amendments thereto, (vi) the printing and delivery to the Underwriters of copies
of the Indenture and any Blue Sky Survey and Legal Investment Survey, (vii) the
fees of rating agencies, (viii) the fees and expenses, if any, incurred in
connection with the listing of the Purchased Securities on the New York Stock
Exchange, and (ix) any fees and expenses of DTC in connection with the Purchased
Securities.
If this Agreement is terminated by you in accordance with the
provisions of Section 4 or Section 9(i), the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters, reasonably incurred in
connection with the subject matter of this Agreement. The Company shall not in
any event be liable to any of the Underwriters for loss of anticipated profits
from the transactions contemplated by this Agreement.
SECTION 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement, or the omission or
alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in the
Prospectus or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading, unless such untrue statement or
omission or such alleged untrue statement or omission was made
(i) in reliance upon and in conformity with written
information furnished to the Company by any Underwriter
through the Representatives expressly for use in the
Registration Statement or the Prospectus or (ii) in that part
of the Registration Statement which constitutes the Form T-1;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever to the extent of the aggregate
amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency or body, commenced or
13
threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) subject to subparagraph (c), against any and
all expense whatsoever as and when incurred (including the
fees and disbursements of counsel chosen by you) reasonably
incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii)
above.
This indemnity agreement shall not apply to any Underwriter or any such
person who controls any Underwriter with respect to the Prospectus to the extent
that any loss, liability, claim, damage or expense resulted from the fact that
such Underwriter, in contravention of a requirement of this Agreement or
applicable law, sold Securities to a person to whom such Underwriter failed to
send or give, at or prior to the Closing Time, a copy of the Prospectus, as then
amended or supplemented if: (i) the Company has previously furnished copies
thereof (excluding documents incorporated therein by reference), in accordance
with Section 3(d) of this Agreement at least 48 hours prior to the Closing Time,
to the Underwriters and the loss, liability, claim, damage or expense of such
Underwriter resulted from an untrue statement or omission of a material fact
contained in or omitted from the Prospectus which was corrected in the
Prospectus as, if applicable, amended or supplemented prior to the Closing Time,
and such Prospectus as amended or supplemented was required by law to be
delivered at or prior to the written confirmation of sale to such person and
(ii) the furnishing or giving by such Underwriter of such Prospectus as amended
or supplemented by the Closing Time to the party or parties asserting such loss,
liability, claim, damage or expense would have cured the defect giving rise to
such loss, liability, claim, damage or expense.
Insofar as this indemnity may permit indemnification for liabilities
under the 1933 Act of any person who is a partner of an Underwriter or who
controls an Underwriter within the meaning of Section 15 of the 1933 Act and
who, at the date of this Agreement, is a director, officer or controlling person
of the Company, such indemnity agreement is subject to the undertaking of the
Company in the Registration Statement.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement or
the Prospectus in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use in the Registration Statement or the Prospectus.
(c) In case any proceeding (including any governmental investigation or
proceeding) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to
14
either of the two preceding subsections (a) and (b), such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing but failure to so
notify an indemnifying party shall not relieve it from any liability which it
may have otherwise than on account of subsections (a) and (b) above. The
indemnifying party shall have the right to retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding and shall pay the
fees and disbursements as incurred of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and the indemnified party
shall have reasonably concluded that representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them, (iii) the indemnifying party shall not have retained counsel
reasonably satisfactory to the indemnified party within a reasonable time
following notice of the claim or (iv) the indemnified party shall have
reasonably concluded that there may be legal defenses available to it that are
different from or in addition to those available to the indemnifying party. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed periodically on a reasonable basis as agreed by the
parties. Such separate firm shall be designated in writing by you in the case of
parties indemnified pursuant to subsection (a) of this Section and by the
Company in the case of parties indemnified pursuant to subsection (b) of this
Section. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), settle any
pending or threatened proceeding in respect of which indemnification could have
been sought hereunder by such indemnified party (whether or not the indemnified
party is an actual party to such claim or action) unless such settlement
includes an unconditional release of such indemnified party from all liability
on the claims that are the subject matter of such action and does not include
any statement as to or any admission of fault, culpability or failure to act by
or on behalf of any indemnified party.
SECTION 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unavailable or insufficient by the
indemnified parties although applicable in accordance with its terms, the
Company and the Underwriters of the Purchased Securities shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Company and one or more
of such Underwriters in respect of such offering in such proportions as will
reflect the relative benefits from the offering of such Purchased Securities
received by the Company on the one hand and by such Underwriters on the other
hand, provided that if the Purchased Securities are offered by the Underwriters
at an initial public offering price set forth in a Prospectus Supplement, the
relative benefits shall be deemed to be such that the Underwriters shall be
responsible for that portion of the aggregate losses, liabilities, claims,
damages and expenses represented by the percentage that the underwriting
discount appearing in such Prospectus Supplement bears to the initial public
offering price appearing therein and the Company shall be responsible for the
balance; provided, however, that
15
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
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 that does not take account of the
equitable consideration referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified person as a result of the losses,
claims, damages and liabilities referred to in this Section 7 shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
incurred by such indemnified person in connection with any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total underwriting discounts and commissions received by such
Underwriter with respect to the offering of the Securities exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by reason
of 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute pursuant to this Section 7 are several in proportion to their
respective purchase obligations hereunder and not joint.
The remedies provided for in Sections 6 and 7 hereunder are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
SECTION 8. Representations and Warranties to Survive Delivery. All
representations and warranties contained in this Agreement, or contained in
certificates of officers of the Company submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any termination of this
Agreement, or any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of any Purchased Securities to the Underwriters.
SECTION 9. Termination. You may terminate this Agreement, immediately
upon notice to the Company, at any time at or prior to the Closing Time (i) if
there has been, since the date of this Agreement, any material adverse change in
the condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis that,
in your judgment, is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Purchased
Securities or enforce contracts for the sale of the Purchased Securities on the
terms and in the manner contemplated by this Agreement, or (iii) if trading in
any securities
16
issued or guaranteed by the Company has been suspended by the Commission or any
securities exchange or in any over-the-counter debt securities market, or if
trading generally on any of the New York Stock Exchange, the American Stock
Exchange, the Nasdaq National Market, the Chicago Board Options Exchange, the
Chicago Mercantile Exchange, the Chicago Board of Trade or any over-the-counter
debt securities market has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by either of said exchanges or by order of the Commission or any other
governmental authority, or (iv) if a general moratorium on commercial banking
activities has been declared by either Federal or New York authorities. In the
event of any such termination, the provisions of Section 5, the indemnity
agreement set forth in Section 6, the contribution provisions set forth in
Section 7, and the provisions of Section 8 and 13 shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters participating
in an offering of the Purchased Securities shall fail at the Closing Time to
purchase the Purchased Securities which it or they are obligated to purchase
hereunder (the "Defaulted Securities"), then you shall have the right, within 36
hours thereafter, to make arrangements satisfactory to the Company for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase
all of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth. If, however, during such 36 hours you shall not have
completed such arrangements for the purchase of all of the Defaulted Securities,
then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Purchased Securities, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of the
non-defaulting Underwriters; or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Purchased Securities, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement. In the event that the Company shall be entitled to but shall not
elect to exercise its rights under clause (a) and/or (b), the Company shall be
deemed to have elected to terminate this Agreement. In the event of a default by
any Underwriter or Underwriters as set forth in this Section, if the Company
does not elect to terminate this Agreement, either you or the Company shall have
the right to postpone the Closing Time for a period of time not exceeding seven
days in order that any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements may be effected.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you at your address set forth in Schedule A
hereto; notices to the Company shall be directed to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, attention of the Secretary with a copy to the
Treasurer.
17
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon you and the Company, and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the parties hereto and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties and their respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Purchased
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. Governing Law. This Agreement shall be governed by the laws
of the State of New York.
18
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and us in accordance with its terms.
Very truly yours,
ARVINMERITOR, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
DEUTSCHE BANK SECURITIES INC.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
As Representatives of the several Underwriters
By: Deutsche Bank Securities Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
19
SCHEDULE A
TERMS AGREEMENT
Underwriting Agreement dated June 26, 2002
Representative(s): Deutsche Bank Securities Inc. and ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Title of Securities: 6 5/8% Notes Due 2007
Amount of Securities: $200,000,000
Price to Public: 99.684% and accrued interest, if any, from July 1, 2002
Purchase Price: 98.309% and accrued interest, if any, from July 1, 2002
Closing -
Office for delivery of Securities:
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Office for payment for Securities:
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Date and time of Closing: July 1, 2002 at 10:00 am
Office for checking Securities:
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Underwriting commissions or other compensation:
Addresses for notices per Section 11:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4 World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Transaction Management Group
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Debt Capital Markets
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Exhibit 1 to 8-K
Execution Copy
SCHEDULE B
Underwriting Agreement dated June 26, 2002
UNDERWRITER PRINCIPAL AMOUNT OF NOTES
---------- -------------------------
Deutsche Bank Securities Inc. $ 73,000,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ 73,000,000
Incorporated
Banc of America Securities LLC 10,500,000
HSBC Securities (USA) Inc. 10,500,000
UBS Warburg LLC 10,500,000
Banc One Capital Markets, Inc. 7,500,000
Credit Lyonnais Securities (USA) Inc. 7,500,000
Comerica Securities, Inc. 7,500,000
Total $200,000,000
============