EXHIBIT 4.3
GATX FINANCIAL CORPORATION
Senior Notes Due 2011
REGISTRATION RIGHTS AGREEMENT
New York, New York
June 22, 2004
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
Banc of America Securities LLC
Calyon Securities (USA) Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
c/o Citigroup Global Markets Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
GATX Financial Corporation, a Delaware corporation (the "Company"),
proposes to issue its Senior Notes due 2011 (the "New Notes") as part of an
exchange offer (the "Initial Exchange Offer") for its outstanding 6 3/4% Notes
due March 1, 2006, 7 3/4% Notes due December 1, 2006, and 6 7/8% Notes due
December 15, 2006 (collectively, the "Old Notes"), upon the terms set forth in a
Dealer Manager Agreement (the "Dealer Manager Agreement") dated as of May 13,
2004, between the Company and you as the dealer managers (the "Dealer
Managers"), relating to the Initial Exchange Offer. The New Notes are to be
issued under an indenture (the "Indenture") dated as of November 1, 2003, as
amended by a supplemental indenture dated as of June 22, 2004 among the Company
and JPMorgan Chase Bank, as trustee (the "Trustee"). To induce the Dealer
Managers to enter into the Dealer Manager Agreement and to satisfy a condition
to your obligations thereunder, the Company agrees with you for your benefit and
the benefit of the holders (each a "Holder" and, together, the "Holders") from
time to time of the New Notes or the Exchange Notes (as hereinafter defined), as
follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Dealer Manager Agreement.
As used in this Agreement, the following capitalized defined terms shall have
the following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Additional Interest" shall have the meaning set forth in Section 5
hereto.
"Affiliate" of any specified person shall mean any other person
that, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this definition,
control of a person shall mean the power, direct or
indirect, to direct or cause the direction of the management and policies of
such person whether by contract or otherwise; and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City, New York.
"Commission" shall mean the Securities and Exchange Commission.
"Dealer Manager Agreement" shall have the meaning set forth in the
preamble hereto.
"Dealer Managers" shall have the meaning set forth in the preamble
hereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" shall mean debt securities of the Company identical
in all material respects to the New Notes (except that the additional interest
provision and the transfer restrictions shall be modified or eliminated, as
appropriate) and to be issued under the Indenture.
"Exchange Offer Registration Period" shall mean the 180-day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Company on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include any
Dealer Manager) that is a Broker-Dealer and elects to exchange for Exchange
Notes any New Notes that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company or any Affiliate of the Company).
"Expiration Date" shall have the meaning set forth in Section
2(c)(ii) hereto.
"Fee" shall have the meaning set forth in the Dealer Manager
Agreement.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall have the meaning set forth in the preamble hereto.
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"Initial Exchange Offer" shall have the meaning set forth in the
preamble hereto.
"Losses" shall have the meaning set forth in Section 7(d) hereof.
"Majority Holders" shall mean, on any date, the Holders of a
majority of the aggregate principal amount of the New Notes registered or to be
registered under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering, if any, under a Registration Statement.
"New Notes" shall have the meaning set forth in the preamble hereto.
"Old Notes" shall have the meaning set forth in the preamble hereto.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the New Notes or the Exchange Notes covered by such
Registration Statement, and all amendments and supplements thereto, including
all exhibits thereto and all material incorporated by reference therein.
"Registered Exchange Offer" shall mean the proposed offer of the
Company to issue and deliver to the Holders of the New Notes that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the New Notes, a like aggregate principal amount of the
Exchange Notes.
"Registration Default" shall have the meaning set forth in Section 5
hereto.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the New Notes or
the Exchange Notes pursuant to the provisions of this Agreement, any amendments
and supplements to such registration statement, including post-effective
amendments (in each case including the Prospectus contained therein), all
exhibits thereto and all material incorporated by reference therein.
"Settlement Date" shall mean the date on which the Initial Exchange
Offer has been consummated.
"Shelf Registration" shall mean a registration under the Act
effected pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section
3(b)(ii) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof which
covers some or all of the New
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Notes, on an appropriate form under Rule 415 under the Act, or any similar rule
that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments and the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Trustee" shall have the meaning set forth in the preamble hereto.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"underwriter" shall mean any underwriter of New Notes in connection
with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) The Company shall prepare and,
not later than 90 days following the Settlement Date (or if such 90th day is not
a Business Day, the next succeeding Business Day), shall file with the
Commission the Exchange Offer Registration Statement with respect to the
Registered Exchange Offer. The Company shall use its reasonable best efforts to
(i) cause the Exchange Offer Registration Statement to become effective under
the Act within 150 days of the Settlement Date (or if such 150th day is not a
Business Day, the next succeeding Business Day) and (ii) consummate the
Registered Exchange Offer within 180 days of the Settlement Date (or if such
180th day is not a Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange New Notes for Exchange Notes (provided that such Holder is
not an Affiliate of the Company, acquires the Exchange Notes in the ordinary
course of such Holder's business, has no arrangements or understandings with any
person to participate in the distribution of the Exchange Notes and is not
prohibited by any law, rule or policy of the Commission from participating in
the Registered Exchange Offer) to trade such Exchange Notes from and after their
receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States.
(c) In connection with the Registered Exchange Offer, the Company
shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less
than 20 Business Days and not more than 40 Business Days after the date
notice thereof is mailed to the Holders (or, in each case, longer if
required by applicable law) (the "Expiration Date");
(iii) use its reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective under the Act,
supplemented and amended
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as required under the Act to ensure that it is available for sales of
Exchange Notes by Exchanging Dealers during the Exchange Offer
Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee or an Affiliate of the Trustee;
(v) permit Holders to withdraw tendered New Notes at any
time prior to the close of business, New York time, on the last Business
Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer
Registration Statement, provide a supplemental letter to the Commission
(A) stating that the Company is conducting the Registered Exchange Offer
in reliance on the position of the Commission in Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc.
(pub. avail. June 5, 1991), and (B) including a representation that the
Company has not entered into any arrangement or understanding with any
person to distribute the Exchange Notes to be received in the Registered
Exchange Offer and that, to the Company's information and belief, each
Holder participating in the Registered Exchange Offer is acquiring the
Exchange Notes in the ordinary course of business and has no arrangement
or understanding with any person to participate in the distribution of the
Exchange Notes; and
(vii) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company shall:
(i) accept for exchange all New Notes tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance
with Section 4(t) all New Notes so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder of New Notes a principal amount of Exchange Notes equal to
the principal amount of the New Notes of such Holder so accepted for
exchange.
(e) Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Registered Exchange Offer to
participate in a distribution of the Exchange Notes (x) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in Exxon Capital Holdings Corporation (pub. avail.
May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub. avail. June 5, 1991), as
interpreted in the Commission's letter to ▇▇▇▇▇▇▇▇ & Sterling dated July 2, 1993
and similar no-action letters, and (y) must comply with the registration and
prospectus delivery requirements of the Act in connection with any secondary
resale transaction, and any secondary resale transactions by such Holder must be
covered by an effective registration statement containing the selling security
holder and plan of distribution information required by Item 507 or 508, as
applicable,
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of Regulation S-K under the Act if the resales are of Exchange Notes obtained by
such Holder in exchange for New Notes acquired by such Holder directly from the
Company or one of its Affiliates. Accordingly, each Holder participating in the
Registered Exchange Offer shall be required to provide a written representation
to the Company that, at the time of the consummation of the Registered Exchange
Offer:
(i) any Exchange Notes received by such Holder will be
acquired in the ordinary course of such ▇▇▇▇▇▇'s business;
(ii) such Holder is not engaged in, and does not intend to
engage in, and will have no arrangement or understanding with any person
to participate in the distribution of the New Notes or the Exchange Notes
within the meaning of the Act; and
(iii) such Holder is not an Affiliate of any of the Company.
3. Shelf Registration. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Registered Exchange Offer as contemplated by Section 2 hereof; or (ii) for
any other reason the Registered Exchange Offer is not consummated within 180
days of the Settlement Date; or (iii) any Holder notifies the Company that it is
not eligible to participate in the Registered Exchange Offer and the Company
receives notice of such ineligibility from such Holder within 45 days after the
consummation of the Registered Exchange Offer, the Company shall effect a Shelf
Registration Statement in accordance with subsection (b) below.
(b) (i) The Company shall as promptly as practicable (but in no
event more than 45 days after so required or requested pursuant to this Section
3), file with the Commission and thereafter shall use its reasonable best
efforts to cause to be declared effective under the Act a Shelf Registration
Statement relating to the offer and sale of the New Notes by the Holders thereof
from time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement; provided, however,
that no Holder shall be entitled to have the New Notes held by it covered by
such Shelf Registration Statement unless such Holder agrees in writing to be
bound by all of the provisions of this Agreement applicable to such Holder; and
provided further that with respect to a Shelf Registration Statement required
pursuant to clause (ii) of Section 3(a), the consummation of a Registered
Exchange Offer shall relieve the Company of its obligations under this Section
3(b) but only in respect of their obligations under such clause (ii) of Section
3(a).
(ii) The Company shall use its reasonable best efforts to
keep the Shelf Registration Statement continuously effective, supplemented
and amended as required by the Act, in order to permit the Prospectus
forming part thereof to be usable by Holders for a period of two years
from the Settlement Date or such shorter period that will terminate when
all the New Notes covered by the Shelf Registration Statement (A) have
been sold pursuant to the Shelf Registration Statement or (B) are freely
tradable pursuant to Rule 144(k) (and applicable interpretations thereof
by the Commission's staff) (in any such case, such period being called the
"Shelf Registration Period"). The Company shall be deemed not to have used
its reasonable best effort to keep the Shelf Registration
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Statement effective during the requisite period if it voluntarily takes
any action that would result in Holders of New Notes covered thereby not
being able to offer and sell such New Notes during that period, unless (A)
such action is required by applicable law or (B) such action is taken by
the Company in good faith and for valid business reasons (not including
avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company promptly
thereafter complies with the requirements of Section 4(k) hereof, if
applicable.
(iii) The Company shall cause the Shelf Registration Statement
and the related Prospectus and any amendment or supplement thereto, as of
the effective date of the Shelf Registration Statement or such amendment
or supplement, (A) to comply in all material respects with the applicable
requirements of the Act and the rules and regulations of the Commission;
and (B) not to contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order
to make the statements therein (in the case of a Prospectus contained
therein, in the light of the circumstances under which they were made) not
misleading.
4. Additional Registration Procedures. In connection with any
Shelf Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company shall:
(i) furnish to you, not less than five Business Days prior
to the filing thereof with the Commission, a draft copy of any Exchange
Offer Registration Statement and any Shelf Registration Statement, and
each amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein (excluding all documents incorporated by
reference therein after the initial filing) and shall use its reasonable
best efforts to reflect in each such document, when so filed with the
Commission, such comments as you reasonably propose;
(ii) include the information set forth (A) in Annex A hereto
on the inside cover page of the Prospectus contained in the Exchange Offer
Registration Statement, (B) in Annex B hereto in a section setting forth
details of the Registered Exchange Offer, (C) in Annex C hereto in the
underwriting or plan of distribution section of such Prospectus and (D) in
Annex D hereto in the letter of transmittal delivered pursuant to the
Registered Exchange Offer; and
(iii) in the case of a Shelf Registration Statement, include
the information regarding the Holders that propose to sell New Notes
pursuant to the Shelf Registration Statement as selling security holders;
provided that the Company shall not be required to supplement or amend a
Shelf Registration Statement after it has been declared effective by the
Commission more than once per calendar month to reflect additional Holders
or changes in the number of New Notes to be sold by any Holder.
(b) The Company shall ensure that:
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(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act and the rules and
regulations thereunder; and
(ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(c) The Company shall advise you or the Holders of New Notes
covered by any Shelf Registration Statement and any Exchanging Dealer under any
Exchange Offer Registration Statement that has provided in writing to the
Company a telephone or facsimile number and address for notices, and, if
requested by you or any such Holder or Exchanging Dealer, shall confirm such
advice in writing (which notice pursuant to clauses (ii)-(v) below shall be
accompanied by an instruction to suspend the use of the Prospectus until the
Company shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when such Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission after the effective
date of such Registration Statement for any amendment or supplement to a
Registration Statement or the Prospectus or for additional information in
connection with the Registration Statement;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities included
in any Registration Statement for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(v) of the happening of any event that requires any change
in a Registration Statement or the Prospectus so that, as of such date,
the statements therein do not contain any untrue statement of a material
fact and do not omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were made)
not misleading provided that the Company shall not be required to disclose
the reasons for such change.
Upon receiving notice of the occurrence of any of the events listed
in subsections (ii) through (v) of this Section 4(c), each Holder and any
Exchanging Dealer will, upon request by the Company in writing, immediately
discontinue disposition of New Notes or Exchange Notes pursuant to a
Registration Statement until such Holder's or Exchanging Dealer's receipt of
copies of the supplemented or amended Prospectus contemplated by Section 4(k) or
until it is
8
advised in writing by the Company that use of the applicable Prospectus may
resume, and, if so directed by the Company, such Holder or Exchanging Dealer
will deliver to the Company (at the Company's expense) all copies in such
Holder's or Exchanging Dealer's possession, other than permanent file copies, of
the Prospectus covering such New Notes or Exchange Notes that was current at the
time of receipt of such notice.
(d) The Company shall use its reasonable best efforts to prevent
the issuance and, if issued, to obtain the withdrawal at the earliest
practicable time of any order suspending the effectiveness of any Registration
Statement or the qualification of the securities therein for sale in any
jurisdiction.
(e) The Company shall furnish to each Holder of New Notes covered
by any Shelf Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment thereto, and, if
the Holder so requests in writing, all material incorporated therein by
reference and all exhibits thereto.
(f) The Company shall, during the Shelf Registration Period,
promptly deliver to you and to each Holder of New Notes covered by any Shelf
Registration Statement, and any sales or placement agents or underwriters acting
on behalf of such Holder, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such person may reasonably
request. The Company consents to the use of the Prospectus or any amendment or
supplement thereto by each of the foregoing in connection with the offering and
sale of the New Notes covered by the Prospectus, or any amendment or supplement
thereto, included in the Shelf Registration Statement in accordance with
applicable law and the terms hereof.
(g) The Company shall furnish to each Exchanging Dealer that so
requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including all material
incorporated by reference therein, and, if the Exchanging Dealer so requests in
writing, all exhibits thereto (including exhibits incorporated by reference
therein).
(h) The Company shall promptly deliver to you, each Exchanging
Dealer and each other person required to deliver a Prospectus during the
Exchange Offer Registration Period, without charge, as many copies of the
Prospectus included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as any such person may reasonably request. The
Company consents to the use of the Prospectus or any amendment or supplement
thereto by you, any Exchanging Dealer and any such other person that may be
required to deliver a Prospectus following the Registered Exchange Offer in
connection with the offering and sale of the Exchange Notes covered by the
Prospectus, or any amendment or supplement thereto, included in the Exchange
Offer Registration Statement in accordance with applicable law and the terms
hereof.
(i) Prior to the Registered Exchange Offer or any other offering
of New Notes or Exchange Notes, as the case may be, pursuant to any Registration
Statement, the Company shall arrange, if necessary, for the qualification of the
New Notes or the Exchange Notes, as the case may be, for sale under the laws of
such jurisdictions as any Holder shall reasonably request
9
and will use its reasonable best efforts to maintain such qualification in
effect so long as required; provided that in no event shall the Company be
obligated to (i) qualify to do business or as a broker or dealer of securities
in any jurisdiction where it is not then so qualified, (ii) take any action that
would subject it to service of process in suits, other than those arising out of
the Registered Exchange Offer or any offering pursuant to a Shelf Registration
Statement, in any such jurisdiction where it is not then so subject or (iii)
subject itself to taxation in any jurisdiction if it is not already so subject.
(j) The Company shall cooperate with the Holders of New Notes or
Exchange Notes, as the case may be, to facilitate the timely preparation and
delivery of certificates representing New Notes or Exchange Notes to be issued
or sold pursuant to any Registration Statement free of any restrictive legends
and in such denominations and registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections
(ii) through (v) of Section 4(c) hereof, the Company shall promptly prepare a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to the purchasers of the securities
covered thereby, the Prospectus will not include an 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, in the light of the circumstances
under which they were made, not misleading; provided that, during the Exchange
Offer Registration Period, the Company shall not be required to amend or
supplement a Registration Statement or Prospectus, in the event that, and for a
period not to exceed 60 days in any consecutive 12-month period, the Company
determines in good faith that the disclosure of any such event would be
materially adverse to the Company or otherwise relates to a pending business
transaction that has not yet been publicly disclosed. In such circumstances, the
period of effectiveness of the Exchange Offer Registration Statement provided
for in Section 2 and the Shelf Registration Statement provided for in Section
3(b) shall each be extended by the number of days from and including the date of
the giving of a notice of suspension pursuant to Section 4(c) hereof to and
including the date the Holders of New Notes and Exchanging Dealers shall have
received such amended or supplemented Prospectus pursuant to this Section.
(l) (A) Not later than the effective date of the Exchange Offer
Registration Statement, the Company shall provide a CUSIP number for the
Exchange Notes registered under the Exchange Offer Registration Statement. Not
later than the date of the closing of the Exchange Offer, the Company shall
provide the Trustee with printed certificates for such Exchange Notes, free of
any restrictive legends, in a form eligible for deposit with The Depository
Trust Company ("DTC").
(B) On the first Business Day following the effective date of
any Shelf Registration Statement hereunder or as soon as possible thereafter,
the Company shall use its reasonable efforts to establish with the Trustee a
procedure by which Holders of New Notes that are "restricted securities" within
the meaning of Rule 144(a)(3) under the Securities Act may transfer their
interests therein to an "unrestricted" global security free of any stop or
restriction on DTC's system with respect to the New Notes; provided, however
that this section 4(l)(B) shall be applicable only to Holders that are named as
selling Holders in the Shelf Registration
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Statement and agree in writing to be bound by all of the provisions of this
Agreement applicable to such Holder. Upon compliance with the foregoing
requirements of this Section 4(l)(B), the Company shall provide the Trustee with
printed certificates for such New Notes in a form eligible for deposit with DTC.
In the event the Company is unable to cause DTC to take the
actions described in this Section 4(l), the Company shall take such actions as
the Majority Holders may reasonably request to provide, as soon as practicable,
a CUSIP number, if necessary, for the New Notes registered under the Shelf
Registration Statement and to cause the CUSIP number to be assigned to the New
Notes or Exchange Notes, as the case may be (or to the maximum aggregate
principal amount of the New Notes or Exchange Notes, as the case may be, to
which such number may be assigned).
(m) The Company shall comply with all applicable rules and
regulations of the Commission and shall make generally available to its security
holders as soon as practicable after the effective date of the applicable
Registration Statement an earnings statement satisfying the provisions of
Section 11(a) of the Act.
(n) The Company shall cause the Indenture to be qualified under
the Trust Indenture Act in a timely manner.
(o) The Company may require each Holder of New Notes to be sold
pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such New Notes as the
Company may from time to time reasonably require for inclusion in such Shelf
Registration Statement, and each such Holder shall promptly furnish to the
Company any additional information required in order to make the information
previously disclosed to the Company under this subsection (o) not misleading.
The Company may exclude from such Shelf Registration Statement the New Notes of
any Holder that fails to furnish such information within a reasonable time after
receiving such request.
(p) The Company shall, if requested, use its reasonable best
efforts to incorporate promptly in a Prospectus supplement or post-effective
amendment to a Shelf Registration Statement such information as a Holder of New
Notes to be sold pursuant to any Shelf Registration Statement may reasonably
provide from time to time to the Company in writing for inclusion in a
Prospectus or any Shelf Registration Statement concerning such Holder and the
distribution of such Holder's New Notes and shall make all required filings of
such Prospectus supplement or post-effective amendment as soon as reasonably
practicable after receipt of notification of the matters to be incorporated in
such Prospectus supplement or post-effective amendment; provided that the
Company shall not be obligated to make such updates more than once per month.
(q) In the case of any Shelf Registration Statement, the Company
shall enter into such agreements and take all other appropriate actions
(including, if requested, an underwriting agreement in customary form and
otherwise reasonably satisfactory to the Company) in order to expedite or
facilitate the registration or the disposition of the New Notes, and in
connection therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification provisions and procedures no less favorable than
those set forth in
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Section 7 (or such other provisions and procedures acceptable to the Majority
Holders and the Managing Underwriters, if any, with respect to all parties to be
indemnified pursuant to Section 7).
(r) In the case of any Shelf Registration Statement, the Company
shall:
(i) make reasonably available for inspection by the selling
Holders of New Notes to be registered thereunder, any underwriter
participating in any disposition pursuant to such Shelf Registration
Statement, and any attorney, accountant or other agent retained by the
selling Holders or any such underwriter, all relevant financial and other
records, pertinent corporate documents and properties of the Company and
its subsidiaries, which inspection shall be coordinated by a single
counsel selected by the Majority Holders; provided, however, that any
information that is designated in writing by the Company, in good faith,
as confidential at the time of delivery of such information shall be kept
confidential by the selling Holders or any such underwriter, attorney,
accountant or agent, unless such disclosure is made in connection with a
court proceeding or required by law, or such information becomes available
to the public generally or through a third party without an accompanying
obligation of confidentiality and without any action or omission by any
selling Holder in violation of this subsection (i);
(ii) cause the Company' officers, directors, employees,
accountants and auditors to supply all relevant information reasonably
requested by the selling Holders or any such underwriter, attorney,
accountant or agent in connection with any such Registration Statement as
is customary for similar due diligence examinations; provided, however,
that any information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such information shall
be kept confidential by the selling Holders or any such underwriter,
attorney, accountant or agent, unless such disclosure is made in
connection with a court proceeding or required by law, or such information
becomes available to the public generally or through a third party without
an accompanying obligation of confidentiality and without any action or
omission by any selling Holder in violation of this subsection (ii);
(iii) make such representations and warranties to the Holders
of New Notes registered thereunder and the underwriters, if any, in form,
substance and scope as are customarily made by the Company to underwriters
in primary underwritten offerings and covering matters including, but not
limited to, those set forth in the Dealer Manager Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the Managing Underwriters, if any) addressed
to each selling Holder and the underwriters, if any, covering such matters
as are customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such Holders and
underwriters;
(v) obtain "cold comfort" letters and updates thereof from
the independent certified public accountants of the Company (and, if
necessary, any other
12
independent certified public accountants of any subsidiary of the Company
or of any business acquired directly or indirectly by the Company for
which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each selling Holder
of New Notes registered thereunder and the underwriters, if any, in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with primary underwritten offerings;
and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders or the Managing Underwriters,
if any, including those to evidence compliance with Section 4(k) hereof
and with any customary conditions contained in the underwriting agreement
or other agreement entered into by the Company.
The actions set forth in the foregoing subclauses (iii), (iv), (v) and (vi)
shall be performed at (A) the effectiveness of such Registration Statement and
each post-effective amendment thereto; and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the New Notes by Holders to the Company (or to such other person as
directed by the Company) in exchange for the Exchange Notes, the Company shall
mark, or cause to be marked, on the New Notes so exchanged that such New Notes
are being cancelled in exchange for the Exchange Notes. In no event shall the
New Notes be marked as paid or otherwise satisfied.
(t) The Company shall use its reasonable best efforts to cause the
securities covered by a Registration Statement to be rated with at least one
nationally recognized statistical rating agency, if so requested by the Majority
Holders or by any Managing Underwriters unless such securities are already so
rated.
(u) In the case of any Shelf Registration Statement, if any
Broker-Dealer shall underwrite any New Notes or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution" (within
the meaning of the Rules of Fair Practice and the By-Laws of the National
Association of Securities Dealers, Inc.) thereof, whether as a Holder of such
New Notes or as an underwriter, a placement or sales agent or a broker or dealer
in respect thereof, or otherwise, the Company shall assist such Broker-Dealer in
complying with the requirements of such Rules and By-Laws, including, without
limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of such Registration Statement, to exercise
usual standards of due diligence with respect thereto and, if any portion
of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such New Notes;
(ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in Section 7
hereof; and
13
(iii) providing such information to such Broker-Dealer as may
be required in order for such Broker-Dealer to comply with the
requirements of such Rules or By-Laws.
(v) The Company shall use its reasonable best efforts to take all
other steps necessary to effect the registration of New Notes or Exchange Notes,
as the case may be, covered by a Registration Statement as contemplated by, and
in accordance with the terms of, this Agreement.
5. Additional Interest
(a) The parties hereto acknowledge that the Holders of New Notes
or Exchange Notes, as the case may be, will suffer damages if the Company fails
to perform its obligations under Section 2 or 3 hereof and that it would not be
feasible to ascertain the extent of such damages. Accordingly, in the event
that:
(i) the Exchange Offer Registration Statement has not been
filed on or prior to the 90th day after the Settlement Date;
(ii) the Exchange Offer Registration Statement has not been
declared effective on or prior to the 150th day after the Settlement Date;
(iii) neither the Exchange Offer has been completed nor the
Shelf Registration Statement has been declared effective on or prior to
the 180th day after the Settlement Date;
(iv) the Shelf Registration Statement has not been declared
effective on or prior to the 120th day after the required or requested
time of filing pursuant to Section 3 hereof;
(v) after the Exchange Offer Registration Statement has been
declared effective, the Exchange Offer Registration Statement ceases to be
effective or usable prior to the consummation of the Registered Exchange
Offer; or
(vi) after the Shelf Registration Statement, if applicable,
has been declared effective, the Shelf Registration Statement ceases to be
effective or usable for a period of time that exceeds 60 days in the
aggregate in any 12-month period in which it is required to be effective
under this Agreement;
(each such event referred to in the foregoing clauses (i) through (v), a
"Registration Default"), then additional interest ("Additional Interest") will
accrue on the principal amount of the New Notes or the Exchange Notes affected
thereby (in addition to the stated interest on the New Notes and the Exchange
Notes), from and including the date on which any Registration Default first
occurs and while any such Registration Default has occurred and is continuing,
to but excluding the date on which all filings, declarations of effectiveness
and consummations, as the case may be, have been achieved which, if achieved on
a timely basis, would have prevented the occurrence of all of the then existing
Registration Defaults. Additional Interest will accrue at a rate of 0.25% per
annum during the 90-day period immediately following such first occurrence
14
of a Registration Default and while any such Registration Default has occurred
and is continuing, and shall increase by 0.25% per annum at the end of each
subsequent 90-day period up to a maximum of 0.50% per annum with respect to all
Registration Defaults, until the date on which all of the filings, declarations
of effectiveness and consummations referred to in the preceding sentence have
been achieved, on which date the interest rate on the applicable New Notes and
Exchange Notes will revert to the interest rate originally borne by such notes.
(b) The Company shall notify the Trustee immediately upon its
knowledge of the happening of each and every Registration Default. The Company
shall pay the Additional Interest due on the New Notes or Exchange Notes, as the
case may be, by depositing with the Trustee (which shall not be the Company for
these purposes), in trust, for the benefit of the Holders entitled thereto,
prior to 11:00 A.M. on the next interest payment date specified in the
Indenture, sums sufficient to pay the Additional Interest then due. The
Additional Interest due shall be payable on each interest payment date specified
by the Indenture to the record holders entitled to receive the interest payment
to be made on such date.
(c) The parties hereto agree that the Additional Interest provided
for in this Section 5 constitutes a reasonable estimate of the damages that will
be suffered by Holders of New Notes or Exchange Notes by reason of the happening
of any Registration Default.
(d) All of the Company's obligations set forth in this Section 5
shall survive the termination of this Agreement.
6. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2,
3, and 4 hereof and, in connection with any Shelf Registration Statement, shall
reimburse the Holders for the reasonable fees and disbursements of one firm or
counsel designated by the Majority Holders to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Dealer Managers for the reasonable fees and
disbursements of counsel acting in connection therewith, which reimbursement to
the Dealer Managers shall not exceed an aggregate amount of $10,000. Anything
contained herein to the contrary notwithstanding, the Company shall not have any
obligation whatsoever in respect of any underwriters' discounts or commissions,
brokerage commissions, dealers' selling concessions, transfer taxes or, except
as otherwise expressly set forth herein, any other selling expenses incurred in
connection with the underwriting, offering or sale of New Notes or Exchange
Notes by or on behalf of any person.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Holder of New Notes or Exchange Notes, as the
case may be, covered by any Registration Statement (including each Dealer
Manager and, with respect to any Prospectus delivery as contemplated in Section
4(h) hereof, each Exchanging Dealer), the directors, officers, employees and
agents of each such Holder and each person who controls any such Holder within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which any of the foregoing
may become subject under the 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 (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in
15
such Registration Statement as originally filed or in any amendment thereof, or
in any preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein (in the case of a Prospectus, in the
light of the circumstances under which they were made) not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any such Holder specifically for inclusion
therein and provided, further, that with respect to any untrue statement or
omission of a material fact made in any preliminary Prospectus, the indemnity
agreement contained in this Section 7(a) shall not inure to the benefit of any
indemnified party under this indemnity agreement from whom the person asserting
any such loss, claim, damage or liability purchased the New Notes or Exchange
Notes concerned to the extent that any such loss, claim, damage or liability of
such party occurs under the circumstance where (i) the Company had previously
furnished copies of the Prospectus to such indemnified party in accordance with
the terms hereof and prior to the written confirmation of the sale of such New
Notes or Exchange Notes, as applicable, to such person, (ii) to the extent
required by applicable law, a copy of the final Prospectus was not sent or given
to such person at or prior to the written confirmation of the sale of such New
Notes or Exchange Notes, as applicable, to such person and (iii) the untrue
statement in or omission from the preliminary Prospectus was corrected in the
final Prospectus. This indemnity agreement shall be in addition to any liability
which the Company may otherwise have.
The Company also agrees to indemnify as provided in this Section
7(a) or contribute as provided in Section 7(d) hereof to Losses of each
underwriter of New Notes, registered under a Shelf Registration Statement, their
directors, officers, employees or agents and each person who controls such
underwriter on substantially the same basis as that of the indemnification of
the selling Holders provided in this Section 7(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(q) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Dealer Manager and, with respect to any Prospectus delivery as
contemplated in Section 4(h) hereof, each Exchanging Dealer), severally and not
jointly, agrees to indemnify and hold harmless the Company, and each of its
directors and officers who signs such Registration Statement and each person who
controls the Company within the meaning of either the Act or the Exchange Act
(each, a "Company Indemnitee"), to the same extent as the indemnity in Section
7(a) from the Company to each such Holder, but only with reference to written
information relating to such Holder furnished to the Company by or on behalf of
such Holder specifically for inclusion in the documents referred to in the
foregoing indemnity, and further agrees to reimburse each Company Indemnitee for
any legal or other expenses reasonably incurred by such Company Indemnitee in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability, judgment or action as such
16
expenses are incurred. This indemnity agreement shall be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 or notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party shall not, without the
prior written consent of the indemnified parties (not to be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding. An indemnifying party shall not be
liable under this Section 7 to any indemnified party regarding any settlement or
compromise or consent to the entry of judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such settlement,
compromise or consent is consented to by such indemnifying party, which consent
shall not be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
17
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received by such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, from the Initial Exchange Offer and the Registration Statement which
resulted in such Losses; provided, however, that in no case shall any Dealer
Manager who is a Holder of any New Note or Exchange Note be responsible, in the
aggregate, for any amount in excess of the Fee applicable to such New Note, or
in the case of an Exchange Note, applicable to the New Note that was
exchangeable into such Exchange Note, in connection with the Initial Exchange
Offer as set forth in the Dealer Manager Agreement, nor shall any underwriter be
responsible for any amount in excess of the underwriting discount or commission
applicable to the New Notes or Exchange Notes, as the case may be, purchased by
such underwriter under the Registration Statement which resulted in such Losses.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on the
one hand, and such indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to (x) the aggregate principal amount of Old Notes exchanged
in the Initial Exchange Offer (before deducting expenses), plus (y) the total
amount of Additional Interest which the Company was not required to pay as a
result of registering the New Notes or Exchange Notes covered by the
Registration Statement which resulted in such Losses, minus (z) the aggregate
amount of Fees paid by the Company in connection with the Initial Exchange Offer
under the Dealer Manager Agreement. Benefits received by the Dealer Managers
shall be deemed to be equal to the aggregate amount of Fees received by the
Dealer Managers in connection with the Initial Exchange Offer under the Dealer
Manager Agreement, and benefits received by any Holders shall be deemed to be
equal to the value of receiving New Notes or Exchange Notes, as applicable,
registered under the Act. Benefits received by any underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Registration Statement
which resulted in such Losses. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The parties agree that it would not be just
and equitable if contribution were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the
18
Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 7 shall remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder
or the Company or any of the officers, directors or controlling persons referred
to in this Section 7, and shall survive the sale by a Holder of securities
covered by a Registration Statement.
8. Underwritten Registrations. (a) If any of the New Notes
covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the Managing Underwriters shall be selected by the Majority Holders,
subject to the reasonable approval of the Company.
(a) No Holder may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such ▇▇▇▇▇▇ (i) agrees to
sell such ▇▇▇▇▇▇'s New Notes on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements, and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
9. No Inconsistent Agreements. The Company has not, as of the
date hereof, entered into, nor shall it on or after the date hereof, enter into,
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders herein or that otherwise conflicts with the
provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Majority Holders (or, after the consummation of any Registered
Exchange Offer in accordance with Section 2 hereof, the Holders of a majority in
the aggregate principal amount of the Exchange Notes); provided that, with
respect to any matter that directly or indirectly affects the rights of the
Dealer Managers hereunder, the Company shall obtain the written consent of the
Dealer Managers against which such amendment, qualification, supplement, waiver
or consent is to be effective. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders may alternatively be given by the Majority
Holders of the New Notes or Exchange Notes, as the case may be, being sold
rather than registered under such Registration Statement.
11. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section 11,
which address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture, with a copy in like
manner to you;
19
(b) if to you, initially at the address set forth in the Dealer
Manager Agreement; and
(c) if to the Company, initially at the Company's address set
forth in the Dealer Manager Agreement.
All such notices and communications shall be deemed to have been
duly given when received.
Each party hereto by notice to the other parties may designate
additional or different addresses of such party for subsequent notices or
communications.
12. Successors. This Agreement shall inure to the benefit of and
be binding upon the successors and assigns of each of the parties, including,
without the need for an express assignment or any consent by the Company
thereto, subsequent Holders of New Notes and Exchange Notes. The Company hereby
agrees to extend the benefits of this Agreement to any Holder of New Notes and
Exchange Notes.
13. Counterparts. This Agreement may be signed in counterparts,
each of which shall be deemed an original and all of which together shall
constitute one and the same agreement.
14. Headings. The headings used herein are for convenience only
and shall not affect the construction hereof.
15. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
16. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
17. Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of New Notes
or Exchange Notes is required hereunder, New Notes or Exchange Notes, as
applicable, held by the Company or any of its Affiliates shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
18. Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the expiration of the Shelf Registration Period,
except for any liabilities or obligations under Sections 2(e), 3(b), 6 and 7
hereof and the obligations to make payments of and provide for additional
interest under Section 5 hereof to the extent such damages accrue prior to the
end of the Shelf Registration Period, each of which shall remain in effect in
accordance with its terms.
20
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the Dealer Managers.
Very truly yours,
GATX Financial Corporation
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President - Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
By: Citigroup Global Markets Inc. as Dealer Manager
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Managing Director
By: Deutsche Bank Securities Inc. as Dealer Manager
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director/Co-Head of Debt Origination
By: Deutsche Bank Securities Inc. as Dealer Manager
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
By: Banc of America Securities LLC as Dealer Manager
By /s/ ▇▇▇▇ ▇▇▇▇▇
--------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Principal
By: Calyon Securities (USA) Inc. as Dealer Manager
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
22
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corp. as Dealer Manager
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. as Dealer Manager
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
23
ANNEX A
Each Broker-Dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a Broker-Dealer in connection with resales of
Exchange Notes received in exchange for New Notes where such New Notes were
acquired by such Broker-Dealer as a result of market-making activities or other
trading activities. The Company has agreed that, starting on the Expiration Date
(as defined herein) and ending on the close of business 180 days after the
Expiration Date, it will make this Prospectus available to any Broker-Dealer for
use in connection with any such resale. See "Plan of Distribution."
A-1
ANNEX B
Each Broker-Dealer that receives Exchange Notes for its own account in exchange
for New Notes, where such New Notes were acquired by such Broker-Dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. See "Plan of Distribution."
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives Exchange Notes for its own account
pursuant to the Registered Exchange Offer must acknowledge that it will deliver
a prospectus (the "Prospectus") in connection with any resale of such Exchange
Notes. This Prospectus, as it may be amended or supplemented from time to time,
may be used by a Broker-Dealer in connection with resales of Exchange Notes
received in exchange for New Notes where such New Notes were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, starting on the Expiration Date and ending on the close of business
180 days after the Expiration Date, they will make this Prospectus, as amended
or supplemented, available to any Broker-Dealer for use in connection with any
such resale.
The Company will not receive any proceeds from any sale of Exchange
Notes by Broker-Dealers. Exchange Notes received by Broker-Dealers for their own
account pursuant to the Registered Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such
Exchange Notes. Any Broker-Dealer that resells Exchange Notes that were received
by it for its own account pursuant to the Registered Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Notes may
be deemed to be an "underwriter" within the meaning of the Act and any profit of
any such resale of Exchange Notes and any commissions or concessions received by
any such persons may be deemed to be underwriting compensation under the Act.
The Letter of Transmittal states that by acknowledging that it will deliver and
by delivering a prospectus, a Broker-Dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Act.
For a period of 180 days after the Expiration Date, the Company
shall promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Broker-Dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Registered Exchange Offer other than commissions or concessions
of any brokers or dealers and will indemnify the holders of the New Notes
(including any Broker-Dealers) against certain liabilities, including
liabilities under the Act.
[If applicable, add information required by Items 507 and 508 of
Regulation S-K.]
C-1
ANNEX D
Rider A
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO HOLDS NOTES ACQUIRED AS A RESULT
OF MARKET MAKING OR OTHER TRADING ACTIVITIES AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO FOR USE IN CONNECTION WITH RESALES OF EXCHANGE NOTES
RECEIVED IN EXCHANGE FOR SUCH NEW NOTES.
Name: ______________________________
Address: ______________________________
______________________________
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the Exchange Notes in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of Exchange Notes
and it has no arrangements or understandings with any person to participate in a
distribution of the Exchange Notes. If the undersigned is a Broker-Dealer that
will receive Exchange Notes for its own account in exchange for New Notes, it
represents that the New Notes to be exchanged for Exchange Notes were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
D-1