1
Exhibit 1(d)
Union Tank Car Company
$25,000,000 Medium-Term Notes
Due Nine Months or More From Date of Issue
Selling Agency Agreement
April 28, 1999
New York, New York
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Seven World Trade Center
New York, New York 10048
Dear Ladies and Gentlemen:
Union Tank Car Company, a Delaware corporation (the "Company"),
confirms its agreement with you with respect to the issue and sale by the
Company of up to $25,000,000 aggregate principal amount of its Medium-Term Notes
Due from Nine Months or More from Date of Issue (the "Notes"). The Notes will be
issued under an indenture, dated as of January 16, 1997 (as supplemented by the
Seventh Supplemental Indenture, dated as of April 28, 1999, the "Indenture"),
between the Company and ▇▇▇▇▇▇ Trust and Savings Bank as trustee (the
"Trustee"). Unless otherwise specifically provided for and set forth in a
Pricing Supplement (as defined below), the Notes will be issued in minimum
denominations of $1,000 and in denominations exceeding such amount by integral
multiples of $1,000, will be issued only in fully registered form and will have
the interest rates, maturities and, if applicable, other terms set forth in such
Pricing Supplement. The Notes will be issued and the terms thereof established,
in accordance with the Indenture and the Medium-Term Notes Administrative
Procedures attached hereto as Exhibit A (the "Procedures") (unless a Terms
Agreement (as defined in Section 2(b)) modifies or otherwise supersedes such
Procedures with respect to the Notes issued pursuant to such Terms Agreement).
The Procedures may be amended only by written agreement of the Company and you
after notice to, and with the approval of, the Trustee. For the purposes of this
Agreement, the term "Agent" shall refer to you acting solely in the capacity as
agent for the Company pursuant to Section 2(a) and not as principal (the
"Agent"), the term "Purchaser" shall refer to you acting solely as principal
pursuant to Section 2(b) and not as agent, and the term "you" shall refer to you
whether at any time you are acting in both such capacities or in either such
capacity.
2
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, you as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (e) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act") and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (File Number: 333-45105) (the "Registration
Statement"), including a Basic Prospectus (as defined below), which has
become effective, for the registration under the Act of $300,000,000
aggregate principal amount of debt securities (the "Securities"),
including the Notes. Such registration statement, as amended at the
date of this Agreement, meets the requirements set forth in Rule
415(a)(1)(ix) or (x) under the Act and complies in all other material
respects with said Rule. The Company has included in such registration
statement, or has filed or will file, with the Commission pursuant to
the applicable paragraph of Rule 424(b) under the Act, a supplement to
the form of prospectus included in such registration statement relating
to the Notes and the plan of distribution thereof (the "Prospectus
Supplement"). In connection with the sale of Notes the Company proposes
to file with the Commission pursuant to the applicable paragraph of
Rule 424(b) under the Act further supplements to the Prospectus
Supplement (each a "Pricing Supplement") specifying the interest rates,
maturity dates and, if appropriate, other similar terms of the Notes
sold pursuant hereto or the offering thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, as of the
date of a Terms Agreement and at the date of delivery by the Company of
any Notes sold hereunder (a "Closing Date"), (i) the Registration
Statement, as amended as of any such time, and the Prospectus, as
supplemented as of any such time, and the indenture will comply in all
material respects with the applicable requirements of the Act, the
Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
Securities Exchange Act of 1934 (the "Exchange Act") and the respective
rules thereunder; (ii) the Registration Statement, as amended as of any
such time, did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and (iii) the Prospectus, as supplemented as of any such
time, will not contain any 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 Company makes no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee
or (ii) the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company by either of you specifically for inclusion in the Registration
Statement or the Prospectus (or any supplement thereto), which
information is described in the penultimate sentence of Section 8(a) of
this Agreement.
3
(c) As of the time any Notes are issued and sold hereunder,
the Indenture will constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms and such
Notes will have been duly authorized, executed, authenticated and, when
paid for by the purchasers thereof, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture.
(d) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective and each
date after the date hereof on which a document incorporated by
reference in the Registration Statement is filed. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the form
of basic prospectus relating to the Securities contained in the
Registration Statement at the Effective Date. "Prospectus" shall mean
the Basic Prospectus as supplemented by the Prospectus Supplement and
any Pricing Supplement. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended
at the Execution Time. "Rule 415" and "Rule 424" refer to such rules
under the Act. Any reference herein to the Registration Statement, the
Basic Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 or Item 12 of Form F-3, as the
case may be, which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, the Prospectus Supplement, any Pricing Supplement or
the Prospectus, as the case may be; and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, the Prospectus
Supplement, any Pricing Supplement or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, the Prospectus Supplement or the
Prospectus, as the case may be, deemed to be incorporated therein by
reference.
(e) The consolidated financial statements incorporated by
reference in the Registration Statement and Prospectus (or any
supplement thereto) present fairly the consolidated financial position
of the Company and its subsidiaries as at the dates indicated and the
consolidated results of their operations and cash flows for the periods
specified and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods
involved, except as indicated therein, and the supporting schedules
incorporated by reference in the Registration Statement present fairly
the information required to be stated therein.
(f) The documents incorporated by reference in the Prospectus
(or any supplement thereto), at the time they were or hereafter are
filed with the Commission,
-3-
4
complied and will comply in all material respects with the requirements
of the Exchange Act, and the rules and regulations thereunder.
(g) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus (or any
supplement thereto), except as otherwise stated therein or contemplated
thereby, there has been no material adverse change in the condition,
financial or otherwise, results of operations or general affairs of the
Company and its subsidiaries, taken as a whole.
(h) The Company and each Significant Subsidiary (with such
term having the meaning attributed to it under Rule 405 under the Act)
of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in
which it is chartered or organized, with full corporate power and
authority to own its properties and conduct its business as described
in the Prospectus (or any supplement thereto), and is duly qualified to
do business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification wherein it
owns or leases material properties or conducts material business,
except in such jurisdictions in which the failure to so qualify would
not have a material adverse effect on the Company and its subsidiaries
taken as a whole. The Company owns, either directly or indirectly, all
of the issued and outstanding capital stock of its subsidiaries, free
and clear of any lien, adverse claim, security interest or other
encumbrance.
(i) The execution and delivery by the Company of this
Agreement, the Indenture and the Notes, the consummation by the Company
of the transactions herein and therein contemplated, and the compliance
by the Company with the terms hereof and thereof do not and will not
conflict with, or result in a breach of any of the terms or provisions
of, or constitute a default under, the Certificate of Incorporation or
By-Laws, as amended, of the Company, or any of its subsidiaries, or any
material indenture, mortgage, or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which any of
its properties are bound, or any applicable law, rule, regulation,
judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any of its subsidiaries or any of its properties; and,
assuming due authorization, execution and delivery by all parties
thereto other than the Company, no consent, approval, authorization,
order or license of, or filing with or notice to any government,
governmental instrumentality, regulatory body or authority or court,
domestic or foreign, is required for the valid authorization, issuance
and delivery of the Notes, the valid authorization, execution, delivery
and performance by the Company of this Agreement and the Indenture or
the consummation by the Company of the transactions contemplated by
this Agreement, the Indenture and the Notes, except (w) such as are
required under the Act, the Trust Indenture Act and the securities or
Blue Sky laws of the various states.
-4-
5
(j) This Agreement and the Indenture, assuming due
authorization, execution and delivery by the other parties hereto and
thereto, have each been duly authorized by the Company and, when
executed and delivered by the Company, will constitute legal, valid and
binding obligations of the Company.
(k) The Notes and the Indenture will conform in all material
respects to the descriptions thereof in the Prospectus.
(l) Ernst & Young LLP, who reported on the consolidated
financial statements of the Company for the year ended December 31,
1998, which statements are incorporated by reference in the
Registration Statement and Prospectus, were, as of the date of its
report on such consolidated financial statements, and are, as of the
date hereof, independent auditors as required by the Act and the rules
and regulations thereunder.
(m) The Notes have been duly authorized by the Company and
when duly executed and delivered by the Trustee and the Company in
accordance with the terms of the Indenture and this Agreement, will be
duly issued under such Indenture and will constitute valid and binding
obligations of the Company, and the holders thereof will be entitled to
the benefits of the Indenture.
2. Appointment of Agent; Solicitation by the Agent of Offers to
Purchase; Sales of Notes to the Purchaser.
(a) Subject to the terms and conditions set forth herein, the
Company hereby authorizes the Agent to act as its agent to solicit
offers for the purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties, and
subject to the terms and conditions set forth herein, the Agent agrees,
as agent of the Company, to use its reasonable efforts to solicit
offers to purchase the Notes from the Company upon the terms and
conditions set forth in the Prospectus (and any supplement thereto) and
in the Procedures. The Agent shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by the Agent and accepted by the
Company, but the Agent shall not, except as otherwise provided in this
Agreement, be obligated to disclose the identity of any purchaser or
have any liability to the Company in the event any such purchase is not
consummated for any reason. Except as provided in Section 2(b), under
no circumstances will the Agent be obligated to purchase any Notes for
its own account. It is understood and agreed, however, that the Agent
may purchase Notes as principal pursuant to Section 2(b).
The Company reserves the right, in its sole discretion, to
instruct the Agent to suspend at any time, for any period of time or
permanently, the solicitation of offers to
-5-
6
purchase Notes. Upon receipt of instructions from the Company, the
Agent will forthwith suspend solicitation of offers to purchase Notes
from the Company until such time as the Company has advised them that
such solicitation may be resumed.
The Company agrees to pay the Agent a commission, on the
Closing Date with respect to each sale of Notes by the Company as a
result of a solicitation made by the Agent, in an amount equal to that
percentage specified in Schedule I hereto of the aggregate principal
amount of the Notes sold by the Company. Such commission shall be
payable as specified in the Procedures.
Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by the
Agent as agent for the Company at such time and in such amounts as the
Agent deems advisable. The Company expressly reserves the right to sell
Notes directly to investors and to enter into other agreements with
respect to sales of Notes, provided, that any such agreement shall be
on terms that are substantially identical to the terms of this
Agreement. The Agent may also purchase Notes from the Company as
principal for purposes of resale, as more fully described in paragraph
(b) of this Section.
If the Company shall default in its obligations to deliver
Notes to a purchaser whose offer it has accepted, the Company shall
indemnify and hold you harmless against any loss, claim or damage
arising from or as a result of such default by the Company.
(b) Subject to the terms and conditions stated herein,
whenever the Company and you determine that the Company shall sell
Notes directly to you as principal, each such sale of Notes shall be
made in accordance with the terms of this Agreement and a supplemental
agreement relating to such sale. Each such supplemental agreement
(which may be either an oral or written agreement) is herein referred
to as a "Terms Agreement". Each Terms Agreement shall describe the
Notes to be purchased by the Purchaser pursuant thereto and shall
specify the aggregate principal amount of such Notes, the price to be
paid to the Company for such Notes, the maturity date of such Notes,
the rate at which interest will be paid on such Notes, the dates on
which interest will be paid on such Notes and the record date with
respect to each such payment of interest, the Closing Date for the
purchase of such Notes, the place of delivery of the Notes and payment
therefor, the method of payment and any requirements for the delivery
of opinions of counsel, certificates from the Company or its officers
or a letter from the Company's independent public accountants as
described in Section 6(b). Any such Terms Agreement may also specify
the period of time referred to in Section 4(l). Any written Terms
Agreement may be in the form attached hereto as Exhibit B. The
Purchaser's commitment to purchase Notes shall be deemed to have been
made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions
herein set forth.
-6-
7
Delivery of the certificates for Notes sold to the Purchaser
pursuant to a Terms Agreement shall be made not later than the Closing
Date agreed to in such Terms Agreement, against payment of funds to the
Company in the net amount due to the Company for such Notes by the
method and in the form set forth in the Procedures unless otherwise
agreed to between the Company and the Purchaser in such Terms
Agreement.
Unless otherwise agreed to between the Company and the
Purchaser in a Terms Agreement, any Note sold to the Purchaser (i)
shall be purchased by the Purchaser at a price equal to 100% of the
principal amount thereof less a percentage equal to the commission
applicable to an agency sale of a Note of identical maturity and (ii)
may be resold by the Purchaser at varying prices from time to time or,
if set forth in the applicable Terms Agreement and Pricing Supplement,
at a fixed public offering price. In connection with any resale of
Notes purchased, the Purchaser may use a selling or dealer group and
may reallow to any broker or dealer any portion of the discount or
commission payable pursuant hereto.
3. Offering and Sale of Notes. The Agent and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes
(including by way of resale by the Purchaser of Notes), the Company
will not file any amendment of the Registration Statement or supplement
to the Prospectus (except for (i) periodic or current reports filed
under the Exchange Act, (ii) a supplement relating to any offering of
Notes providing solely for the specification of or a change in the
maturity dates, interest rates, issuance prices or other similar terms
of any Notes or (iii) a supplement relating to an offering of
Securities other than the Notes) unless the Company has furnished you a
copy for your review prior to filing and given you a reasonable
opportunity to comment on any such proposed amendment or supplement,
and will not file any such proposed amendment or supplement to which
you reasonably object. Subject to the foregoing sentence, the Company
will cause each supplement to the Prospectus to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
you of such filing. The Company will promptly advise you (i) when the
Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (ii) when, prior to termination of
any offering of Notes, any amendment of the Registration Statement
shall have been filed or become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or
supplement to the Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v)
-7-
8
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend the Registration Statement or to supplement
the Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) notify you
to suspend solicitation of offers to purchase Notes (and, if so
notified by the Company, you shall forthwith suspend such solicitation
and cease using the Prospectus as then supplemented), (ii) prepare and
file with the Commission, subject to the first sentence of paragraph
(a) of this Section 4, an amendment or supplement which will correct
such statement or omission or effect such compliance and (iii) supply
any supplemented Prospectus to you in such quantities as you may
reasonably request. If such amendment or supplement, and any documents,
certificates and opinions furnished to you pursuant to paragraph (f) of
this Section 4 in connection with the preparation or filing of such
amendment or supplement are satisfactory in all respects to you, you
will, upon the filing of such amendment or supplement with the
Commission and upon the effectiveness of an amendment to the
Registration Statement, if such an amendment is required, resume your
obligation to solicit offers to purchase Notes hereunder.
(c) As soon as practicable, the Company will make generally
available to its security holders and to you an earnings statement or
statements of the company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and the applicable rules and
regulations thereunder.
(d) The Company will furnish to you and your counsel, without
charge, signed copies of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus may be required by
the Act, as many copies of the Prospectus and any supplement thereto as
you may reasonably request. The Company will pay the expenses of
printing all documents relating to the offering of the Notes.
(e) The Company will cooperate with you and your counsel to
arrange for the qualification of the Notes for sale under the laws of
such jurisdictions as you may designate, will maintain such
qualifications in effect so long as required for the distribution of
the Notes, and will cooperate with you and your counsel to arrange for
the determination of the legality of the Notes for purchase by
institutional investors; provided, however, that the Company will not
be required to qualify to do business in any jurisdiction in order to
effect such qualification.
-8-
9
(f) The Company shall furnish to you such information,
documents, certificates of officers of the Company and opinions of
counsel for the Company relating to the business, operations and
affairs of the Company, the Registration Statement, the Prospectus, and
any amendments thereof or supplements thereto, the Indenture, the
Notes, this Agreement, the Procedures and the performance by the
Company and you of its and your respective obligations hereunder and
thereunder as you may from time to time and at any time prior to the
termination of this Agreement reasonably request.
(g) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including the
fees and disbursements of its accountants and counsel, the cost of
printing or other production and delivery of the Registration
Statement, the Prospectus, all amendments thereof and supplements
thereto, the Indenture, this Agreement, any Terms Agreement and all
other documents relating to the offering, the cost of preparing,
printing, packaging and delivering the Notes, the fees and
disbursements, including fees of counsel, incurred in compliance with
Section 4(e), the fees and disbursements of the Trustee and the fees of
any agency that rates the Notes, (ii) reimburse you as requested for
all out-of-pocket expenses (including without limitation advertising
expenses), if any, incurred by you in connection with this Agreement
and (iii) pay the reasonable fees and expenses of your counsel incurred
in connection with this Agreement.
(h) Each acceptance by the Company of an offer to purchase
Notes will be deemed to be an affirmation that its representations and
warranties contained in this Agreement are true and correct at the time
of such acceptance, as though made at and as of such time, and a
covenant that such representations and warranties will be true and
correct at the time of delivery to the purchaser of the Notes relating
to such acceptance, as though made at and as of such time (it being
understood that for purposes of the foregoing affirmation and covenant
such representations and warranties shall relate to the Registration
Statement and Prospectus as amended or supplemented at each such time).
Each such acceptance by the Company of an offer for the purchase of
Notes shall be deemed to constitute an additional representation,
warranty and agreement by the Company that, as of the settlement date
for the sale of such Notes, after giving effect to the issuance of such
Notes, of any other Notes to be issued on or prior to such settlement
date and of any other Securities to be issued and sold by the Company
on or prior to such settlement date, the aggregate amount of Securities
(including any Notes) which have been issued and sold by the Company
will not exceed the amount of Securities registered pursuant to the
Registration Statement. The Company will inform you promptly upon your
request of the aggregate amount of Securities registered under the
Registration Statement which remain unsold.
(i) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or
supplement relating to any offering of Securities other than the Notes
or providing solely for the specification of or a
-9-
10
change in the maturity dates, the interest rates, the issuance prices
or other similar terms of any Notes sold pursuant hereto), the Company
will deliver or cause to be delivered promptly to you a certificate of
the Company, signed by the Chairman of the Board or the President and
the principal financial or accounting officer of the Company, dated the
date of the effectiveness of such amendment or the date of the filing
of such supplement, in form reasonably satisfactory to you, of the same
tenor as the certificate referred to in Section 5(d) but modified to
relate to the last day of the fiscal quarter for which financial
statements of the Company were last filed with the Commission and to
the Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or the
filing of such supplement.
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or
supplement (i) relating to any offering of Securities other than the
Notes, or (ii) providing solely for the specification of or a change in
the maturity dates, the interest rates, the issuance prices or other
similar terms of any Notes sold pursuant hereto), the Company shall
furnish or cause to be furnished promptly to you a written opinion of
counsel of the Company satisfactory to you, dated the date of the
effectiveness of such amendment or the date of the filing of such
supplement, in form satisfactory to you, of the same tenor as the
opinion referred to in Section 5(b) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented
to the time of the effectiveness of such amendment or the filing of
such supplement or, in lieu of such opinion, counsel last furnishing
such an opinion to you may furnish you with a letter to the effect that
you may rely on such last opinion to the same extent as though it were
dated the date of such letter authorizing reliance (except that
statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented
to the time of the effectiveness of such amendment or the filing of
such supplement).
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented to include or incorporate amended
or supplemental financial information, the Company shall cause its
independent public accountants promptly to furnish you a letter, dated
the date of the effectiveness of such amendment or the date of the
filing of such supplement, in form satisfactory to you, of the same
tenor as the letter referred to in Section 5(e) with such changes as
may be necessary to reflect the amended and supplemental financial
information included or incorporated by reference in the Registration
Statement and the Prospectus, as amended or supplemented to the date of
such letter; provided, however, that, if the Registration Statement or
the Prospectus is amended or supplemented solely to include or
incorporate by reference financial information as of and for a fiscal
quarter, the Company's independent public accountants may limit the
scope of such letter, which shall be satisfactory in form to you, to
the unaudited financial statements, the related "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" and any other information of an accounting, financial or
statistical nature included in such amendment or
-10-
11
supplement, unless, in the reasonable judgment of you, such letter
should cover other information or changes in specified financial
statement line items.
(l) During the period, if any, specified (whether orally or in
writing) in any Terms Agreement, the Company shall not, without the
prior consent of the Purchaser thereunder, offer, sell or contract to
sell, or otherwise dispose of, directly or indirectly, or announce the
offering of, any debt securities issued or guaranteed by the Company
(other than the Notes being sold pursuant to such Terms Agreement).
(m) The Company confirms as of the date hereof, and each
acceptance by the Company of an offer to purchase Notes will be deemed
to be an affirmation, that the Company is in compliance with all
provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act
Relating to Disclosure of Doing Business with Cuba, and the Company
further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba
after the date the Registration Statement becomes or has become
effective with the Securities and Exchange Commission or with the
Florida Department of Banking and Finance (the "Department"), whichever
date is later, or if the information reported in the Prospectus, if
any, concerning the Company's business with Cuba or with any person or
affiliate located in Cuba changes in any material way, the Company will
provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
5. Conditions to the Obligations of the Agent. The obligations of the
Agent to solicit offers to purchase the Notes shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time, on the Effective Date, when any supplement to
the Prospectus is filed with the Commission and as of each Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the Agent the opinion
of ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Company (incorporating and
relying upon the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., general counsel of
the Company, and ▇▇▇▇▇, ▇▇▇▇▇▇ & Harcourt, special Canadian counsel to
the Company, as to Canadian law matters), dated the Execution Time, to
the effect that:
(i) the Company and each of its Significant
Subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under
-11-
12
the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its
properties and conduct its business as described in the
Prospectus (and any supplement thereto), and is duly qualified
to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires
such qualification wherein it owns or leases material
properties or conducts material business, except in such
jurisdictions in which the failure to so qualify would not
have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(ii) all the outstanding shares of capital stock of
each of the Company's subsidiaries have been duly and validly
authorized and issued and are fully paid and nonassessable,
and all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or free
and clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(iii) the Indenture has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act, and, assuming due
authorization, execution and delivery thereof by the Trustee,
the Indenture constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect); and the Notes have been duly authorized
and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the purchasers thereof, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of
the Indenture;
(iv) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus,
and there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Prospectus (or any supplement thereto), or to be
filed as an exhibit, which is not described or filed as
required; and the statements included or incorporated by
reference in the Prospectus (or any supplement thereto)
describing any legal proceedings or material contracts or
agreements relating to the Company fairly summarize such
matters;
(v) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been or will
be made in the manner and within the time period required by
Rule 424(b); to the best knowledge of such counsel, no stop
order
-12-
13
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Prospectus and all supplements thereto (other than the
financial statements and other financial and statistical
information contained therein as to which such counsel need
express no opinion) comply as to form in all material respects
with the applicable requirements of the Act, the Exchange Act
and the Trust Indenture Act and the respective rules
thereunder;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by you, constitutes a
valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except (i)
as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting enforcement of
creditors' rights generally and by general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and (ii) as to provisions of
this Agreement relating to indemnification or contribution for
liabilities arising under the Act, as to which such counsel
need express no opinion;
(vii) no authorization, approval, consent, order or
license of or filing with or notice to any governmental
instrumentality, regulatory body or authority or court is
required for the valid authorization, execution, delivery and
performance by the Company of the Notes, this Agreement and
the Indenture or the consummation by the Company of the
transactions contemplated by this Agreement and the Indenture,
except such as have been obtained under the Act and the Trust
Indenture Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Notes by you and such other approvals
(specified in such opinion) as have been obtained;
(viii) neither the execution and delivery of the
Indenture, the issue and sale of the Notes, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or by-laws
of the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound or any
judgment, order, regulation or decree known to such counsel to
be applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or any
of its subsidiaries;
-13-
14
(ix) the Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(x) on the Closing Date, assuming due execution and
delivery of the Notes by the Trustee and the Company, the
Notes when issued against the payment therefor as provided
herein will constitute valid and binding obligations of the
Company, enforceable against the Company, in accordance with
their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting enforcement of creditors' rights generally and by
general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law), and the holders of the Notes will be entitled to the
benefits of the Indenture; and
(xi) the Indenture and the Notes conform in all
material respects to the descriptions thereof contained in the
Prospectus.
In passing on the form of the Registration Statement and the
Prospectus and each amendment and supplement thereto, such
counsel may state that it has not independently verified the
accuracy, completeness or fairness of the statements made or
included therein and takes no responsibility therefor and that
such opinion is based upon such counsel's examination of the
Registration Statement, the Prospectus as amended or
supplemented, its activities in connection with the
preparation thereof and its participation in conferences with
certain officers and employees of the Company, its
subsidiaries and its affiliates and with representatives of
Ernst & Young LLP and any others referred to in such opinion,
and subject to the same qualifications, such counsel may also
state that, although they are not passing upon, and do not
assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration
Statement and Prospectus as amended or supplemented and have
not made any independent check or verification thereof,
nothing has come to their attention in their examination of
the Registration Statement, their participation in the
preparation thereof and participation in the above-referenced
conferences that has caused them to believe that the
Registration Statement, at 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
the Prospectus, as of its date and as of the Closing Date,
contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(c) The Agent shall have received from ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇,
counsel for the Agent, such opinion or opinions, dated the date hereof,
with respect to the issuance and sale of the Notes, the Indenture, the
Registration Statement, the Prospectus (together
-14-
15
with any supplement thereto) and other related matters as the Agent may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(d) The Company shall have furnished to the Agent a
certificate of the Company, signed by the President or any Vice
President and the principal financial officer of the Company, dated the
Execution Time, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus, any
supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the date hereof with the same effect as
if made on the date hereof and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied as a condition to the
obligation of the Agent to solicit offers to purchase the
Notes;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and, to the
Company's knowledge, no proceedings for that purpose have been
instituted or threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (including any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus
(including any supplement thereto).
(e) At the Execution Time, ▇▇▇▇▇ & Young LLP shall have
furnished to the Agent a letter or letters (which may refer to letters
previously delivered to the Agent), dated as of the Execution Time, in
form and substance satisfactory to the Agent, confirming that they are
independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable published rules and regulations
thereunder and stating in effect that:
(i) in their opinion the audited financial
statements, financial statement schedules and pro forma
financial statements, if any, included or incorporated in the
Registration Statement and the Prospectus and reported on by
them comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries, carrying out
-15-
16
certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of
the minutes of the meetings of the stockholders, directors and
executive committee of the Company and the Subsidiaries; and
inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited financial
statements included or incorporated in the Prospectus, nothing
came to their attention which caused them to believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Prospectus do not comply in form in
all material respects with applicable accounting
requirements and with the published rules and
regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated in the
Registration Statement and the Prospectus;
(2) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, included or incorporated in the
Registration Statement and the Prospectus, there were
any changes, at a specified date not more than five
business days prior to the date of the letter, in the
borrowed debt of the Company and its subsidiaries or
capital stock of the Company or decreases in the
stockholders' equity of the Company and its
subsidiaries as compared with the amounts shown on
the most recent consolidated balance sheet included
or incorporated in the Registration Statement and the
Prospectus, or for the period from the date of the
most recent financial statements included or
incorporated in the Registration Statement and the
Prospectus to such specified date there were any
decreases, as compared with the corresponding period
in the preceding year or quarter in total revenues
from net sales and services, or in income before
income taxes or net income, of the Company and its
subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the Agent; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and
-16-
17
the Prospectus do not agree with the amounts set
forth in the unaudited financial statements for the
same periods or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited financial
statements included or incorporated in the
Registration Statement and the Prospectus; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Prospectus and in Exhibit 12 to the
Registration Statement, including the information included or
incorporated in the Company's Annual Report on Form 10-K,
incorporated in the Registration Statement and the Prospectus,
and the information included in the "Management's Discussion
and Analysis of Financial Condition and Results of Operations"
included or incorporated in the Company's Quarterly Reports on
Form 10-Q, incorporated in the Registration Statement and the
Prospectus, agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Prior to the Execution Time, the Company shall have
furnished to the Agent such further information, documents,
certificates and opinions of counsel as the Agent may reasonably
request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Agent and counsel for the Agent, this Agreement and all
obligations of the Agent hereunder may be cancelled at any time by the Agent.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
6. Conditions to the Obligations of the Purchaser. The obligations of
the Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of the related Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the following
additional conditions precedent:
-17-
18
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) To the extent agreed to between the Company and the
Purchaser in a Terms Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the Company, dated as of
the Closing Date, to the effect set forth in Section 5(d) (except that
references to the Prospectus shall be to the Prospectus as supplemented
as of the date of such Terms Agreement), (ii) the opinion of ▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Company, dated as of the Closing
Date, to the effect set forth in Section 5(b), (iii) the opinion of
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Purchaser, dated as of the
Closing Date, to the effect set forth in Section 5(c), and (iv) letter
or letters of ▇▇▇▇▇ & Young LLP, independent accountants for the
Company, dated as of the Closing Date, to the effect set forth in
Section 5(e).
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement
and the applicable Terms Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement or such Terms Agreement and
required to be delivered to the Purchaser pursuant to the terms hereof and
thereof shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, such Terms Agreement and all
obligations of the Purchaser thereunder and with respect to the Notes subject
thereto may be canceled at, or at any time prior to, the respective Closing Date
by the Purchaser. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase.
(a) The Company agrees that any person who has agreed to
purchase and pay for any Note pursuant to a solicitation by the Agent
shall have the right to refuse to purchase such Note if, at the Closing
Date therefor, any condition set forth in Section 5 or 6, as
applicable, shall not have been fulfilled in all material respects.
(b) The Company agrees that any person who has agreed to
purchase and pay for any Note pursuant to a solicitation by the Agent
shall have the right to refuse to purchase such Note if, subsequent to
the agreement to purchase such Note, any change, condition or
development specified in any of Sections 9(b)(i) through (v) shall have
occurred (with the judgment of the Agent being substituted for any
judgment of the Purchaser required therein) the effect of which is, in
the judgment of the Agent so material and adverse as to make it
impractical or inadvisable to proceed with the sale
-18-
19
and delivery of such Note (it being understood that under no
circumstance shall the Agent have any duty or obligation to the Company
or to any such person to exercise the judgment permitted to be
exercised under this Section 7(b) and Section 9(b)).
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless you,
your directors, officers, employees and agents and each person who
controls you 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 you or they 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 the registration statement for the registration of
the Notes as originally filed or in any amendment thereof, or in the
Prospectus or any preliminary 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 not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them
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 you specifically for inclusion
therein; provided, further that such indemnity with respect to any
preliminary Prospectus or Prospectus Supplement shall not inure to your
benefit (or to the benefit of any person controlling you) if the person
asserting any such loss, claim, damage or liability purchased the
securities which are the subject thereof did not receive a copy of the
final Prospectus or Pricing Supplement (or any amendments thereof or
supplements thereto), excluding documents incorporated therein by
reference, at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required
by the Act and the untrue statement or omission of a material fact in
such preliminary Prospectus or Prospectus Supplement was corrected in
the final Prospectus or Pricing Supplement (or any amendments thereof
or supplements thereto). The Company acknowledges that (i) the
stabilization language appearing on the top of page S-2 and (ii) the
information relating to the Agent set forth in the second and sixth
paragraphs under the caption "Plan of Distribution," each as contained
in the Prospectus Supplement, constitute the only information furnished
in writing by you for inclusion in the documents referred to in the
foregoing indemnity or in the indemnity contained in Section 8(b)
below, and you confirm that such statements are correct. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
-19-
20
(b) The Agent agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the
Registration Statement and each person who controls the Company within
the meaning of either the Act or the Exchange Act, to the same extent
as the foregoing indemnity from the Company to the Agent, but only with
reference to written information relating to the Agent furnished to the
Company by or on behalf of the Agent specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which you may otherwise
have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, 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 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 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 will not, without the prior written consent of the
indemnified parties, 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
-20-
21
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and you agree
to contribute to the aggregate losses claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which
the Company and you may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Company and by you
from the offering of the Notes from which such Losses arise; provided,
however, that in no case shall you be responsible for any amount in
excess of the commissions received by you in connection with the sale
of Notes from which such Losses arise (or, in the case of Notes sold
pursuant to a Terms Agreement, the discount received by you as
Purchaser pursuant to Section 2(b) above). If the allocation provided
by the immediately preceding sentence is unavailable for any reason,
the Company and you shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company and of you 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 the total net proceeds from the
offering (before deducting expenses) of the Notes from which such
Losses arise, and benefits received by you shall be deemed to be equal
to the total commissions received by you in connection with the sale of
Notes from which such Losses arise (or, in the case of Notes sold
pursuant to a Terms Agreement, the discount received by you as
Purchaser pursuant to Section 2(b) above). Relative fault shall be
determined by reference to whether any alleged untrue statement or
omission relates to information provided by the Company or you. The
Company and you agree that it would not be just and equitable if
contribution were determined by pro rata allocation 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 8, each person who
controls you within the meaning of the Act or the Exchange Act and each
director, officer, employee and agent of you shall have the same rights
to contribution as you 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 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).
9. Termination.
(a) This Agreement will continue in effect until terminated as
provided in this Section 9. This Agreement may be terminated either by
the Company or by you,
-21-
22
by giving written notice of such termination to the Agent or the
Company, as the case may be. This Agreement shall so terminate at the
close of business on the first business day following the receipt of
such notice by the party to whom such notice is given. In the event of
such termination, no party shall have any liability to the other party
hereto, except as provided in the fourth paragraph of Section 2(a),
Section 4(g), Section 8 and Section 10.
(b) Each Terms Agreement shall be subject to termination in
the absolute discretion of the Purchaser, by notice given to the
Company prior to delivery of any payment for any Note to be purchased
thereunder, if prior to such time (i) there shall have occurred,
subsequent to the agreement to purchase such Note, any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect
of which is, in the reasonable judgment of the Purchaser, so material
and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of such Note, (ii) there shall have been,
subsequent to the agreement to purchase such Note, any decrease in the
rating of any of the Company's debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible
change, (iii) trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall
have been established on such Exchange, (iv) a banking moratorium shall
have been declared by either Federal or New York State authorities or
(v) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency
or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the reasonable judgment of the
Purchaser, impracticable or inadvisable to proceed with the offering or
delivery of such Notes.
10. Survival of Certain Provisions. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of you set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of you or the Company or any of the directors, officers, employees,
agents or controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Notes. The provisions of Sections 4(g) and 8
hereof shall survive the termination or cancellation of this Agreement. The
provisions of this Agreement (including without limitation Section 7 hereof)
applicable to any purchase of a Note for which an agreement to purchase exists
prior to the termination hereof shall survive any termination of this Agreement.
If at the time of termination of this Agreement the Purchaser shall own any
Notes with the intention of selling them, the provisions of Section 4 shall
remain in effect until such Notes are sold by the Purchaser.
-22-
23
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to either of you, will be mailed,
delivered or telegraphed and confirmed in the case of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
at ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Legal Department;
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Secretary.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, their respective successors, the directors,
officers, employees, agents and controlling persons referred to in Section 8
hereof and, to the extent provided in Section 7, any person who has agreed to
purchase Notes, and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
UNION TANK CAR COMPANY
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇
Title: Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First Vice President
-23-