EXHIBIT 10.1
EXECUTION COPY
THE GREENBRIER COMPANIES, INC.,
AUTOSTACK COMPANY LLC,
GREENBRIER-CONCARRIL, LLC,
GREENBRIER LEASING COMPANY LLC,
GREENBRIER LEASING LIMITED PARTNER, LLC,
GREENBRIER MANAGEMENT SERVICES, LLC,
GREENBRIER LEASING, L.P.,
GREENBRIER RAILCAR LLC,
GUNDERSON LLC,
GUNDERSON MARINE LLC,
GUNDERSON RAIL SERVICES LLC AND
GUNDERSON SPECIALTY PRODUCTS, LLC.
$60,000,000
8-3/8% Senior Notes due 2015
PURCHASE AGREEMENT
dated November 16, 2005
BANC OF AMERICA SECURITIES LLC
BEAR, STEARNS & CO. INC.
PURCHASE AGREEMENT
November 16, 2005
BANC OF AMERICA SECURITIES LLC
BEAR, STEARNS & CO. INC.
As Initial Purchasers
c/o Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Ladies and Gentlemen:
Introductory. The Greenbrier Companies, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the several Initial Purchasers named
in Schedule A (the "Initial Purchasers"), acting severally and not jointly, the
respective amounts set forth in Schedule A of a $60,000,000 aggregate principal
amount of the Company's 8-3/8% Senior Notes due 2015 (the "Notes"). Banc of
America Securities LLC and Bear, Stearns & Co. Inc. have agreed to act as the
Initial Purchasers in connection with the offering and sale of the Notes (the
"Offering").
The Notes will be issued pursuant to an indenture, dated as of May 11, 2005
(the "Indenture"), among the Company, the Guarantors (as defined below) and U.S.
Bank National Association, as trustee (the "Trustee"). Notes will be issued only
in book-entry form in the name of Cede & Co., as nominee of The Depository Trust
Company (the "Depositary") pursuant to a letter of representations, to be dated
on or before the Closing Date (as defined in Section 2 hereof) among the
Company, the Guarantors, the Trustee and the Depositary.
The holders of the Notes will be entitled to the benefits of a registration
rights agreement, to be dated as of November 21, 2005 (the "Registration Rights
Agreement"), among the Company, the Guarantors and the Initial Purchasers,
pursuant to which the Company and the Guarantors will agree to file with the
Commission (as defined below), under the circumstances set forth therein, (i) a
registration statement under the Securities Act (as defined below) relating to
another series of debt securities of the Company with terms substantially
identical to the Notes (the "Exchange Notes") to be offered in exchange for the
Notes (the "Exchange Offer") and (ii) to the extent required by the Registration
Rights Agreement, a shelf registration statement pursuant to Rule 415 of the
Securities Act relating to the resale by certain holders of the Notes, and in
each case, to use its best efforts to cause such registration statements to be
declared effective.
The payment of principal of, premium and Liquidated Damages (as defined in
the Registration Rights Agreement), if any, and interest on the Notes and the
Exchange Notes will be fully and unconditionally guaranteed on a senior
unsecured basis, jointly and severally by (i) Autostack Company LLC, an Oregon
limited liability company, Greenbrier-Concarril, LLC, a Delaware limited
liability company, Greenbrier Leasing Company LLC, an Oregon limited liability
company, Greenbrier Leasing Limited Partner, LLC, a Delaware limited liability
company, Greenbrier Management Services, LLC, a Delaware limited liability
company, Greenbrier Leasing, L.P., a Delaware limited partnership, Greenbrier
Railcar LLC, an Oregon limited liability company, Gunderson LLC, an Oregon
limited liability company, Gunderson Marine LLC, an Oregon limited liability
company, Gunderson Rail Services, LLC, a Oregon limited liability company and
Gunderson Specialty Products, LLC, a Delaware limited liability company and (ii)
any subsidiary of the Company formed or acquired after the Closing Date that
executes an additional guarantee in accordance with the terms of the Indenture,
and their respective successors and assigns (collectively, the "Guarantors"),
pursuant to their guarantees (the "Guarantees"). The Notes and the Guarantees
endorsed thereon are herein collectively referred to as the "Notes"; and the
Exchange Notes and the Guarantees endorsed thereon are herein collectively
referred to as the "Exchange Notes".
The Company understands that the Initial Purchasers propose to make an
offering of the Notes on the terms and in the manner set forth herein and in the
Offering Memorandum (as defined below) and agrees that the Initial Purchasers
may resell, subject to the conditions set forth herein, all or a portion of the
Notes to purchasers (the "Subsequent Purchasers") at any time after the date of
this Agreement. The Notes are to be offered and sold to or through the Initial
Purchasers without being registered with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933 (as amended, the "Securities
Act," which term, as used herein, includes the rules and regulations of the
Commission promulgated thereunder), in reliance upon exemptions therefrom.
Pursuant to the terms of the Notes and the Indenture, investors who acquire
Notes shall be deemed to have agreed that Notes may only be resold or otherwise
transferred, after the date hereof, if such Notes are registered for sale under
the Securities Act or if an exemption from the registration requirements of the
Securities Act is available (including the exemptions afforded by Rule 144A
under the Securities Act ("Rule 144A") or Regulation S under the Securities Act
("Regulation S")).
The Company has prepared and will deliver to the Initial Purchasers, a copy
of the Offering Memorandum, dated, November 16, 2005 describing the terms of the
Notes, for use by such Initial Purchasers in connection with its solicitation of
offers to purchase the Notes. As used herein, "Offering Memorandum" shall mean,
with respect to any date or time referred to in this Agreement, the Company's
Offering Memorandum, dated November 16, 2005 including amendments or supplements
thereto, any exhibits thereto and the Incorporated Documents (as defined in
Section 1 hereof), in the most recent form that has been prepared and delivered
by the Company to the Initial Purchasers in connection with their solicitation
of offers to purchase the Notes. Further, any reference to the Offering
Memorandum shall be deemed to refer to and include any Additional Issuer
Information (as defined in Section 3 hereof) furnished by the Company prior to
the completion of the distribution of the Notes.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the Offering
Memorandum (or other
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references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are incorporated
by reference in the Offering Memorandum; and all references in this Agreement to
amendments or supplements to the Offering Memorandum shall be deemed to mean and
include the filing of any document under the Securities Exchange Act of 1934 (as
amended, the "Exchange Act", which term, as used herein, includes the rules and
regulations of the Commission promulgated thereunder) which is incorporated or
deemed to be incorporated by reference in the Offering Memorandum.
SECTION 1. Representations and Warranties. Each of the Company and the
Guarantors, jointly and severally, hereby represents, warrants and covenants to
the Initial Purchasers as follows:
(a) The Offering Memorandum as of its date and as of the Closing Date
does not and will not, and any supplement or amendment thereto 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, in light of the circumstances under which they were made, not
misleading, except that the representations and warranties contained in this
paragraph shall not apply to statements in or omissions from the Offering
Memorandum made in reliance upon and in conformity with information (as set
forth in Section 8(b)) relating to the Initial Purchasers furnished to the
Company and the Guarantors in writing by the Initial Purchasers expressly for
use therein. No stop order preventing the use of the Offering Memorandum, or any
order asserting that any of the transactions contemplated by this Agreement are
subject to the registration requirements of the Act, has been issued. The
Offering Memorandum, as of its date, contains all the information specified in,
and meeting the requirements of, Rule 144A. The Company has not distributed and
will not distribute, prior to the later of the Closing Date and the completion
of the Initial Purchasers' distribution of the Notes, any offering material in
connection with the offering and sale of the Notes other than the Offering
Memorandum.
(b) Deloitte & Touche LLP, which certified the financial statements
and supporting schedules and information of the Company and its subsidiaries
that are included or incorporated by reference in the Offering Memorandum, is an
independent registered public accounting firm with respect to the Company as
required by the Securities Act, the Exchange Act and the rules and regulations
of the Commission (the "Rules and Regulations").
(c) Subsequent to the respective dates as of which information is
given in the Offering Memorandum, except as disclosed in the Offering Memorandum
and for a dividend declared by the Company on November 2, 2005, the Company has
not declared, paid or made any dividends or other distributions of any kind on
or in respect of its capital stock and there has been no material adverse change
or effect or any development involving a prospective material adverse change or
effect, whether or not arising from transactions in the ordinary course of
business, in or affecting (i) the business, condition (financial or otherwise),
results of operations, stockholders' equity, properties or prospects of the
Company and each subsidiary of the Company (the "Subsidiaries"), taken as a
whole, (ii) the long-term debt or capital stock of the Company or any of its
Subsidiaries or (iii) the Offering or any other transaction contemplated by this
Agreement or the Offering Memorandum (a "Material Adverse Effect"). Since the
date of the latest balance sheet presented or incorporated by reference in the
Offering Memorandum,
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neither the Company nor any Subsidiary has incurred or undertaken any liability
or obligation, whether direct or indirect, liquidated or contingent, matured or
unmatured, or entered into any transaction, including any acquisition or
disposition of any business or asset, which is material to the Company and the
Subsidiaries individually or taken as a whole, except for liabilities,
obligations and transactions which are disclosed in the Offering Memorandum or
the acquisition, disposition or leasing of railcars in the ordinary course of
business.
(d) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Offering Memorandum in the column headed "Actual"
under the caption "Capitalization" and, after giving effect to the Offering and
the other transactions contemplated by this Agreement, the Registration Rights
Agreement, the Indenture and the Offering Memorandum, will be as set forth in
the column headed "As Adjusted" under the caption "Capitalization." All of the
issued and outstanding shares of capital stock of the Company are fully paid and
nonassessable and have been duly authorized and validly issued, in compliance
with all applicable state, federal and foreign securities laws and not in
violation of or subject to any preemptive or similar right that does or will
entitle any person, upon the issuance or sale of any security, to acquire from
the Company or any Subsidiary any capital stock or other security of the Company
or any Subsidiary or any security convertible into, or exercisable or
exchangeable for, capital stock or any other such security (any "Relevant
Security"), except for such rights as may have been fully satisfied or waived
prior to the date of the Offering Memorandum.
(e) The Subsidiaries listed in Exhibit A are the only subsidiaries
(within the meaning of Rule 405 under the Securities Act) or joint ventures of
the Company, except for entities that when taken together would not constitute a
"significant subsidiary" within the meaning of Rule 102 of Regulation S-X.
Except for the Subsidiaries and as otherwise disclosed in the Offering
Memorandum, the Company holds no ownership or other interest, nominal or
beneficial, direct or indirect, in any corporation, partnership, joint venture
or other business entity. All of the issued shares of capital stock of or other
ownership interests in each Subsidiary have been duly authorized and validly
issued and are fully paid and nonassessable. All of the issued shares of capital
stock or other ownership interests in each Subsidiary or in the case of the
entities listed on Exhibit B, such shares or ownership interest representing the
percentage of the voting control of the Subsidiary set forth next to the name of
the Subsidiary on Exhibit B, are owned directly or indirectly by the Company
free and clear of any lien, charge, mortgage, pledge, security interest, claim,
equity, trust or other encumbrance, preferential arrangement, defect or
restriction of any kind whatsoever (any "Lien").
(f) Each of the Company and the Subsidiaries has been duly organized
or formed and validly exists as a corporation, partnership or limited liability
company in good standing under the laws of its jurisdiction of organization or
formation. Each of the Company and the Subsidiaries is duly qualified to do
business and is in good standing as a foreign corporation, partnership or
limited liability company in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or conduct
of its business makes such qualification necessary, except for those failures to
be so qualified or in good standing which (individually and in the aggregate)
could not reasonably be expected to have a Material Adverse Effect. Each of the
Company and the Subsidiaries has all requisite corporate (or other entity) power
and authority, and, except as could not reasonably be expected to have a
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Material Adverse Effect, all necessary consents, approvals, authorizations,
orders, registrations, qualifications, licenses, filings and permits of, with
and from all judicial, regulatory and other legal or governmental agencies and
bodies and all third parties, foreign and domestic (collectively, the
"Consents"), to own, lease and operate its properties and conduct its business
as it is now being conducted and as disclosed in the Offering Memorandum, and
each such Consent is valid and in full force and effect, and neither the Company
nor any Subsidiary has received notice of any investigation or proceedings which
has resulted in or, if decided adversely to the Company or any Subsidiary, could
reasonably be expected to result in, the revocation of, or imposition of a
materially burdensome restriction on, any such Consent. Each of the Company and
the Subsidiaries is in compliance with all applicable laws, rules, regulations,
ordinances, directives, judgments, decrees and orders, foreign and domestic,
except where failure to be in compliance could not reasonably be expected to
have a Material Adverse Effect. No Consent contains a materially burdensome
restriction not adequately disclosed in the Offering Memorandum.
(g) The Company and the Guarantors have the corporate, limited
liability company or limited partnership (as applicable) right, power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated by this Agreement, the
Registration Rights Agreement, the Indenture and the Offering Memorandum. This
Agreement and the transactions contemplated by this Agreement, the Notes, the
Registration Rights Agreement, the Indenture and the Offering Memorandum have
been duly authorized by the Company. This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding obligation
of the Company, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(h) The execution, delivery, and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement, the
Registration Rights Agreement, the Indenture and the Offering Memorandum do not
and will not (A) conflict with, require consent under (except for any consent
previously obtained) or result in a breach of any of the terms and provisions
of, or constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) under, or result in the creation or imposition
of any Lien upon any property or assets of the Company or any Subsidiary
pursuant to, any indenture, mortgage, deed of trust, loan agreement or other
agreement, instrument, franchise, license or permit to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary or their
respective properties, operations or assets may be bound, (B) violate or
conflict with any provision of the certificate or articles of incorporation,
by-laws, certificate of formation, limited liability company agreement or other
organizational documents of the Company or any Subsidiary or (C) violate or
conflict with any law, rule, regulation, ordinance, directive, judgment, decree
or order of any judicial, regulatory or other legal or governmental agency or
body, domestic or foreign, except (in the case of clauses (A) and (C) above) as
could not reasonably be expected to have a Material Adverse Effect.
(i) No Consent of, with or from any judicial, regulatory or other
legal or governmental agency or body or any third party, foreign or domestic, is
required for the
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execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated by this Agreement, the Registration Rights Agreement,
the Indenture and the Offering Memorandum, including the issuance, sale and
delivery of the Notes to be issued, sold and delivered hereunder except for such
Consent as may be required (i) under applicable state securities laws in
connection with the purchase and resale of the Notes by the Initial Purchasers
and (ii) with respect to the Exchange Notes (including the Guarantees of the
Exchange Notes) under the Securities Act and applicable state securities laws as
contemplated by the Registration Rights Agreement.
(j) Except as disclosed in the Offering Memorandum, there is no
judicial, regulatory, arbitral or other legal or governmental proceeding or
other litigation or arbitration, domestic or foreign, pending to which the
Company or any Subsidiary is a party or of which any property, operations or
assets of the Company or any Subsidiary is the subject which, individually or in
the aggregate, if determined adversely to the Company or any Subsidiary, could
reasonably be expected to have a Material Adverse Effect; to the best of the
Company's knowledge, no such proceeding, litigation or arbitration is threatened
or contemplated; and the defense of all such proceedings, litigation and
arbitration against or involving the Company or any Subsidiary could not
reasonably be expected to have a Material Adverse Effect.
(k) The financial statements, including the notes thereto, and the
supporting schedules included or incorporated by reference in the Offering
Memorandum present fairly the financial position as of the dates indicated and
the cash flows and results of operations for the periods specified of the
Company and its consolidated subsidiaries and the other entities for which
financial statements are included or incorporated by reference in the Offering
Memorandum; except as otherwise stated in the Offering Memorandum, said
financial statements have been prepared in conformity with United States
generally accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved; and the supporting schedules included in the
Offering Memorandum present fairly the information required to be stated
therein. No other financial statements or supporting schedules which would be
required by the Securities Act, the Exchange Act or the Rules and Regulations to
be included in the Offering Memorandum if the Offering Memorandum were a
prospectus included in a registration statement on Form S-1, have not been so
included. The other financial and statistical information included or
incorporated by reference in the Offering Memorandum present fairly the
information included therein and, except for non-GAAP financial measures (as
such term is defined in Item 10(e) of Regulation S-K of the Rules and
Regulations), non-financial operating data (which are addressed below in this
Section 1(k)) and market and industry data (which are addressed below in Section
1(m)), have been prepared on a basis consistent with that of the financial
statements that are included or incorporated by reference in the Offering
Memorandum and the books and records of the respective entities presented
therein. The non-GAAP financial measures and non-financial operating data (which
terms do not include market or industry data) included or incorporated by
reference in the Offering Memorandum have been derived from, and are consistent
with, the books and records of the Company and its subsidiaries.
(l) There are no pro forma or as adjusted financial statements which
would be required by the Securities Act, the Exchange Act or the Rules and
Regulations to be included in the Offering Memorandum if the Offering Memorandum
were a prospectus included in a registration statement on Form S-1, which have
not been so included.
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(m) The statistical, industry-related and market-related data included
in the Offering Memorandum (i) are based on or derived from sources which the
Company reasonably and in good faith believes are reliable and accurate, and
such data agree with the sources from which they are derived, or (ii) with
respect to the items set forth in Exhibit B hereto, represent the Company's
reasonable estimates determined in good faith.
(n) The Company is subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act and files reports with the Commission on EDGAR. The
common stock of the Company is registered pursuant to Section 12 of the Exchange
Act and its outstanding shares of common stock are listed on the New York Stock
Exchange (the "NYSE"), and the Company has taken no action designed to, or
likely to have the effect of, terminating the registration of its common stock
under the Exchange Act or de-listing its common stock from the NYSE, nor has the
Company received any notification that the Commission or the NYSE is
contemplating terminating such registration or listing.
(o) The Company and its Subsidiaries maintain a system of internal
accounting and other controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with United States generally
accepted accounting principles and to maintain accountability for assets, (iii)
access to assets is permitted only in accordance with management's general or
specific authorization and (iv) the recorded accounting for assets is compared
with existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(p) Neither the Company nor any of its "Affiliates" (as defined under
Rule 144 under the Securities Act) has taken, directly or indirectly, any action
which constitutes or is designed to cause or result in, or which could
reasonably be expected to constitute, cause or result in, the stabilization or
manipulation of the price of any security to facilitate the sale or resale of
the Notes.
(q) Neither the Company nor any of its Affiliates has, prior to the
date hereof, made any offer or sale of any securities which could be
"integrated" for purposes of the Securities Act or the Rules and Regulations
with the offer and sale of the Notes pursuant to the Offering Memorandum. Except
as disclosed in the Offering Memorandum, neither the Company nor any of its
current Affiliates has sold or issued any Relevant Security during the six-month
period preceding the date of the Offering Memorandum, including but not limited
to any sales pursuant to Rule 144A or Regulation D or S under the Securities
Act, other than shares of its common stock issued pursuant to employee benefit
plans, qualified stock option plans or the employee compensation plans or
pursuant to outstanding options, rights or warrants as described in the Offering
Memorandum.
(r) Except as disclosed in the Offering Memorandum, no holder of any
Relevant Security has any rights to require registration of any Relevant
Security as part or on account of, or otherwise in connection with, the offer
and sale of the Notes contemplated hereby, and any such rights so disclosed have
either been fully complied with by the Company or effectively waived by the
holders thereof, and any such waivers remain in full force and effect.
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(s) The documents incorporated or deemed to be incorporated by
reference in the Offering Memorandum (the "Incorporated Documents"), at the time
they were or hereafter are filed with the Commission, complied and will comply
in all material respects with the requirements of the Securities Act, the
Exchange Act and the Rules and Regulations, and, when read together with the
other information in the Offering Memorandum, do not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(t) The Company is not and, at all times up to and including
consummation of the transactions contemplated by this Agreement, the
Registration Rights Agreement, the Indenture and the Offering Memorandum, and
after giving effect to application of the net proceeds of the Offering as
contemplated by the Offering Memorandum, will not be, subject to registration as
an "investment company" under the Investment Company Act of 1940, as amended,
and is not and will not be an entity "controlled" by an "investment company"
within the meaning of such act.
(u) There are no contracts or other documents (including, without
limitation, any voting agreement), which would be required by the Securities
Act, the Exchange Act or the Rules and Regulations to be described in the
Offering Memorandum if the Offering Memorandum were a prospectus included in a
registration statement on Form S-1, which have not been so described.
(v) No relationship, direct or indirect, exists between or among any
of the Company or any Affiliate of the Company, on the one hand, and any
director, officer, stockholder, customer or supplier of the Company or any
Affiliate of the Company, on the other hand, which would be required by the
Securities Act, the Exchange Act or the Rules and Regulations to be described in
the Offering Memorandum if the Offering Memorandum were a prospectus included in
a registration statement on Form S-1, which have not been so described. There
are no outstanding loans, advances (except normal advances for business expenses
in the ordinary course of business) or guarantees of indebtedness by the Company
to or for the benefit of any of the officers or directors of the Company or any
of their respective family members, except as disclosed in the Offering
Memorandum and except for one salary advance that is immaterial in amount. The
Company has not, in violation of the Sarbanes-Oxley Act, directly or indirectly,
including through a Subsidiary, extended or maintained credit, arranged for the
extension of credit, or renewed an extension of credit, in the form of a
personal loan to or for any director or executive officer of the Company.
(w) Except as disclosed in the Offering Memorandum, there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Initial Purchasers
for a brokerage commission, finder's fee or other like payment in connection
with the transactions contemplated by this Agreement, the Registration Rights
Agreement, the Indenture and the Offering Memorandum.
(x) The Company and each Subsidiary owns or leases all such properties
as are necessary to the conduct of its business as presently operated and as
proposed to be operated as described in the Offering Memorandum. The Company and
the Subsidiaries have good and
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marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them, in each case free and clear of all
Liens except such as are described in the Offering Memorandum or such as do not
(individually or in the aggregate) materially affect the value of such property
or interfere with the use made or proposed to be made of such property by the
Company and the Subsidiaries; and any real property and buildings held under
lease or sublease by the Company and the Subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are not
material to, and do not interfere with, the use made and proposed to be made of
such property and buildings by the Company and the Subsidiaries. Neither the
Company nor any Subsidiary has received any notice of any claim adverse to its
ownership of any real or personal property or of any claim against the continued
possession of any real property, whether owned or held under lease or sublease
by the Company or any Subsidiary.
(y) The Company and each Subsidiary (i) own or possess adequate right
to use all patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights, licenses,
formulae, customer lists, and know-how and other intellectual property
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures, "Intellectual Property")
necessary for the conduct of their respective businesses as being conducted and
as described in the Offering Memorandum and (ii) have no reason to believe that
the conduct of their respective businesses does or will conflict with any such
right of others. To the best of the Company's knowledge, all material technical
information developed by and belonging to the Company which has not been
patented has been kept confidential. Except as described in the Offering
Memorandum, neither the Company nor any Subsidiary has granted or assigned to
any other person or entity any right to manufacture, have manufactured, assemble
or sell the current products and services of the Company and its Subsidiaries or
those products and services described in the Offering Memorandum. Except as
would, if determined adversely to the Company or its Subsidiaries, not have
individually or in the aggregate, a Material Adverse Effect, the Company is not
aware of any infringement by third parties of any such Intellectual Property;
there is no pending or, to the Company's knowledge, threatened action, suit,
proceeding or claim by others challenging the Company's or any Subsidiary's
rights in or to any such Intellectual Property, and the Company is unaware of
any facts which would form a reasonable basis for any such claim; and there is
no pending or, to the Company's knowledge, threatened action, suit, proceeding
or claim by others that the Company or any Subsidiary infringes or otherwise
violates any patent, trademark, copyright, trade secret or other proprietary
rights of others, and the Company is unaware of any other fact which would form
a reasonable basis for any such claim.
(z) The Company and the Subsidiaries maintain insurance in such
amounts and covering such risks as the Company reasonably considers adequate for
the conduct of its business and the value of its properties and as is customary
for companies engaged in similar businesses in similar industries, all of which
insurance is in full force and effect, except where the failure to maintain such
insurance could not reasonably be expected to have a Material Adverse Effect.
There are no material claims by the Company or any Subsidiary under any such
policy or instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause, except the insurer has issued a
reservation of rights letter in the litigation pending in Tarrant County, Texas
that is described in the Offering Memorandum
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through Item 3, Legal Proceedings, in the Company's Annual Report on Form 10-K
for the year ended August 31, 2005, which is incorporated by reference therein.
The Company reasonably believes that it will be able to renew its existing
insurance as and when such coverage expires or will be able to obtain
replacement insurance adequate for the conduct of the business and the value of
its properties at a cost that would not have a Material Adverse Effect.
(aa) The Company has in effect insurance covering the Company, its
directors and officers for liabilities or losses arising in connection with this
Offering, including, without limitation, liabilities or losses arising under the
Securities Act, the Exchange Act, the Rules and Regulations and applicable
foreign securities laws.
(bb) Each of the Company and the Subsidiaries has accurately prepared
and timely filed (including through permitted extensions) all federal, state,
foreign and other tax returns that are required to be filed by it, except where
the failure to file would not have a Material Adverse Effect, and has paid or
made provision for the payment of all taxes, assessments, governmental or other
similar charges, including without limitation, all sales and use taxes and all
taxes which the Company or any Subsidiary is obligated to withhold from amounts
owing to employees, creditors and third parties, with respect to the periods
covered by such tax returns (whether or not such amounts are shown as due on any
tax return), except to the extent that any of such taxes, assessments or charges
are being contested in good faith. No deficiency assessment with respect to a
proposed adjustment of the Company's or any Subsidiary's federal, state, local
or foreign taxes is pending or, to the best of the Company's knowledge,
threatened. The accruals and reserves on the books and records of the Company
and the Subsidiaries in respect of tax liabilities for any taxable period not
finally determined are adequate to meet any assessments and related liabilities
for any such period and, since August 31, 2005, the Company and the Subsidiaries
have not incurred any liability for taxes other than in the ordinary course of
its business. There is no tax lien, whether imposed by any federal, state,
foreign or other taxing authority, outstanding against the assets, properties or
business of the Company or any Subsidiary.
(cc) No labor disturbance by the employees of the Company or any
Subsidiary exists or, to the best of the Company's knowledge, is imminent and
the Company is not aware of any existing or imminent labor disturbances by the
subcontracted labor at the Company's facility in Sahagun, Mexico or the
employees of any of its or any Subsidiary's principal suppliers, manufacturers,
customers or contractors, which, in either case (individually or in the
aggregate), could reasonably be expected to have a Material Adverse Effect.
(dd) No nonexempt "prohibited transaction" (as defined in either
Section 406 of the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder ("ERISA") or
Section 4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")), has occurred with respect to any employee benefit plan for which
the Company or any Subsidiary would have any liability; each employee benefit
plan for which the Company or any Subsidiary would have any liability is in
compliance in all material respects with applicable law, including (without
limitation) ERISA and the Code; neither the Company nor any Subsidiary has nor
has maintained any employee benefit plans as such term is defined in Section
3(3) of ERISA that are subject to Title IV of ERISA; and each plan for which the
Company would have any liability that is intended to be
10
qualified under Section 401(a) of the Code has received a favorable
determination letter from the IRS as to its qualification, is so qualified and
nothing has occurred, whether by action or by failure to act, which would
reasonably be expected to cause the loss of such qualification.
(ee) The execution, delivery, and performance of this Agreement and
the consummation of the transactions contemplated by this Agreement, the
Registration Rights Agreement, the Indenture and the Offering Memorandum do not
and will not involve any prohibited transaction within the meaning of Section
406 of ERISA or Section 4975 of the Internal Revenue Code of 1986.
(ff) Except as disclosed in the Offering Memorandum with respect to
the Portland Harbor Superfund Site and the ongoing soil and groundwater
remediation at the Gunderson, Portland facility, and except as could not
reasonably be expected to have a Material Adverse Effect,
(i) Neither the Company nor any Subsidiary has unlawfully
released any hazardous substance in a manner likely to give rise to any
liability under any applicable law, rule, regulation, order, judgment, decree or
permit relating to pollution or protection of human health and safety and
environment ("Environmental Law").
(ii) Neither the Company nor any Subsidiary has agreed
contractually to indemnify any past or current owner or operator of any property
currently owned or operated by the Company or any Subsidiary, for liability
related to such prior ownership or operation of such property, under any
Environmental Law, including any obligation for cleanup or remedial action.
(iii) There is no pending or, to the best of the Company's
knowledge, threatened administrative, regulatory or judicial action, claim or
notice of noncompliance or violation, investigation or proceedings relating to
any Environmental Law against the Company or any Subsidiary.
(gg) Neither the Company, any Subsidiary nor, to the Company's
knowledge, any of its employees or agents has at any time during the last five
years (i) made any unlawful contribution to any candidate for foreign office, or
failed to disclose fully any contribution in violation of law or (ii) made any
payment to any federal or state governmental officer or official, or other
person charged with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States of any jurisdiction
thereof.
(hh) Neither the Company nor any Subsidiary (i) is in violation of its
certificate or articles of incorporation, by-laws, certificate of formation,
limited liability company agreement or other organizational documents, (ii) is
in default under, and no event has occurred which, with notice or lapse of time,
or both, would constitute a default under or result in the creation or
imposition of any Lien upon any property or assets of the Company or any of its
subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which it is a party or by which it is bound
or to which any of its property or assets is subject or (iii) is in violation in
any respect of any law, rule, regulation, ordinance, directive, judgment, decree
or order of any judicial, regulatory or other legal or
11
governmental agency or body, foreign or domestic, except (in the case of clauses
(ii) and (iii) above) violations or defaults that could not (individually or in
the aggregate) reasonably be expected to have a Material Adverse Effect and
except (in the case of clause (ii) alone) for any Lien disclosed in the Offering
Memorandum;
(ii) The Company is in compliance with applicable provisions of the
Sarbanes-Oxley Act that are effective.
(jj) The Company has implemented the "disclosure controls and
procedures" (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act)
required in order for the Chief Executive Officer and Chief Financial Officer of
the Company to engage in the review and evaluation process mandated by the
Exchange Act. The Company's "disclosure controls and procedures" are reasonably
designed to ensure that all information (both financial and non-financial)
required to be disclosed by the Company in the reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported within
the time periods specified in the Rules and Regulations, and that all such
information is accumulated and communicated to the Company's management as
appropriate to allow timely decisions regarding required disclosure and to make
the certifications of the Chief Executive Officer and Chief Financial Officer of
the Company required under the Exchange Act with respect to such reports.
(kk) Deloitte & Touche LLP and the audit committee of the Company's
Board of Directors have been advised of and have disclosed to the Initial
Purchasers (i) all significant deficiencies and material weaknesses in the
design or operation of internal controls over financial reporting (as defined in
Rules 13a-15(f) and 15d-15(f) of the Exchange Act) which are reasonably likely
to adversely affect the Company's ability to record, process, summarize and
report financial information and (ii) any fraud, whether or not material, that
involves management or other employees who have a significant role in the
registrant's internal controls over financial reporting. The Chief Executive
Officer and Chief Financial Officer have indicated in the Company's Annual
Report on Form 10-K for the fiscal year ended August 31, 2005 any change in the
Company's internal controls over financial reporting that occurred during the
Company's most recent fiscal quarter reported on in such Annual Report or
Quarterly Report that has materially affected, or is reasonably likely to
materially affect, the Company's internal control over financial reporting.
(ll) The section entitled "Management's Discussion and Analysis of
Financial Condition and Results of Operation - Critical Accounting Policies" in
the Offering Memorandum (as incorporated by reference therein from the Company's
Annual Report on Form 10-K for the fiscal year ended August 31, 2005) accurately
and fully describes in accordance with applicable SEC rules (i) accounting
policies which the Company believes are the most important in the portrayal of
the financial condition and results of operations of the Company and its
consolidated subsidiaries and which require management's most difficult,
subjective or complex judgments ("critical accounting policies"), (ii) judgments
and uncertainties affecting the application of critical accounting policies and
(iii) the likelihood that materially different amounts would be reported under
different conditions or using different assumptions.
(mm) The Company's board of directors, senior management and audit
committee have reviewed and agreed with the selection, application and
disclosure of critical
12
accounting policies and have consulted with their legal advisers and independent
accountants with regard to such disclosure.
(nn) The section entitled "Management's Discussion and Analysis of
Financial Condition and Results of Operations - Liquidity and Capital Resources"
in the Offering Memorandum (as incorporated by reference therein from the
Company's Annual Report on Form 10-K for the fiscal year ended August 31, 2005)
accurately and fully describes in accordance with applicable SEC rules (i) all
material trends, demands, commitments, events, uncertainties and risks, and the
potential effects thereof, that the Company believes would materially affect
liquidity and are reasonably likely to occur and (ii) all off-balance sheet
arrangements that have or are reasonably likely to have a current or future
effect on the financial condition, changes in financial condition, revenues or
expenses, results of operations, liquidity, capital expenditures or capital
resources of the Company and the Subsidiaries taken as a whole.
(oo) Except as disclosed in the Offering Memorandum, there are no
outstanding guarantees or other contingent obligations (other than under product
warranties given in the ordinary course of business) of the Company or any
Subsidiary that could reasonably be expected to have a Material Adverse Effect.
(pp) The Company and its Subsidiaries have all material certifications
required by the Association of American Railroads ("AAR") as a railcar builder,
repair and refurbishment facility and component manufacturer, and products sold
and leased by the Company and its Subsidiaries in North America meet applicable
AAR, Transport Canada and Federal Railroad Administration standards.
(qq) No event or circumstance has occurred or arisen that could
reasonably be expected to give rise to a requirement that the Company make
additional disclosure on Form 8-K and has not been so disclosed.
(rr) The Indenture is the legal, valid and binding agreement of the
Company and each Guarantor, enforceable against each of them in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). On the Pricing Date, the Indenture complies,
and on the Closing Date, the Indenture will comply, in each case, in all
material respects, with the requirements of the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act, " which term as used herein includes the
rules and regulations of the Commission promulgated thereunder), and the rules
and regulations of the Commission applicable to an indenture which is qualified
thereunder. The Offering Memorandum contains a summary of the terms of the
Indenture, which is accurate in all material respects.
(ss) The Registration Rights Agreement has been duly authorized by the
Company and each Guarantor and, when duly executed and delivered by the Company
and each Guarantor, will be the legal, valid and binding obligation of the
Company and each Guarantor, enforceable against each of them in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws
13
affecting creditors' rights generally, except as enforceability may be subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and except that rights to
indemnity and contribution thereunder may be limited by applicable law and
public policy. The Offering Memorandum contains a summary of the terms of the
Registration Rights Agreement, which is accurate in all material respects.
(tt) The Notes have been duly authorized by the Company for issuance
and sale to the Initial Purchasers pursuant to this Agreement and, when
executed, authenticated and issued in accordance with the terms of the Indenture
and delivered against payment therefor in accordance with the terms hereof and
thereof, the Notes will be the legal, valid and binding obligations of the
Company, enforceable against it in accordance with their terms and entitled to
the benefits of the Indenture, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). The Offering
Memorandum contains a summary of the terms of the Notes, which is accurate in
all material respects.
(uu) The Guarantees of the Notes have been duly authorized by each of
the Guarantors and, when issued and delivered in accordance with the terms of
the Indenture and when the Notes have been executed, authenticated and issued in
accordance with the terms of the Indenture and delivered against payment
therefor in accordance with the terms hereof and thereof, the Guarantees of the
Notes will be the legal, valid and binding obligations of each of the
Guarantors, enforceable against each of them in accordance with their terms and
entitled to the benefits of the Indenture, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and except as enforceability
may be subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). The Offering
Memorandum contains a summary of the terms of the Guarantees, which is accurate
in all material respects.
(vv) The Exchange Notes have been duly authorized for issuance by the
Company and, when issued, authenticated and delivered in accordance with the
terms of the Exchange Offer and the Indenture, the Exchange Notes will be the
legal, valid and binding obligations of the Company, enforceable against it in
accordance with their terms and entitled to the benefits of the Indenture,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(xx) The Guarantees of the Exchange Notes have been duly authorized by
each of the Guarantors and, when issued, authenticated and delivered in
accordance with the terms of Exchange Offer and the Indenture, the Guarantees of
the Exchange Notes will be the legal, valid and binding obligations of each of
the Guarantors, enforceable against each of them in accordance with their terms
and entitled to the benefits of the Indenture, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally and except as enforceability
may be subject to general
14
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(yy) Subject to compliance by the Initial Purchasers with Sections 2
and 7 hereof, it is not necessary in connection with the offer, sale and
delivery of the Notes to the Initial Purchasers and to each Subsequent Purchaser
in the manner contemplated by this Agreement and the Offering Memorandum to
register the Notes under the Securities Act. The Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and the rules and regulations of the Commission thereunder.
(zz) None of the Company, its Affiliates, or any person acting on its
or any of their behalf (other than the Initial Purchasers, as to whom the
Company makes no representation or warranty) has engaged or will engage, in
connection with the offering of the Notes, in any form of general solicitation
or general advertising within the meaning of Rule 502 under the Securities Act.
With respect to those Notes sold in reliance upon Regulation S, (i) none of the
Company, its Affiliates or any person acting on its or their behalf (other than
the Initial Purchasers, as to whom the Company makes no representation or
warranty) has engaged or will engage in any directed selling efforts within the
meaning of Regulation S and (ii) each of the Company and its Affiliates and any
person acting on its or their behalf (other than the Initial Purchasers, as to
whom the Company makes no representation or warranty) has complied and will
comply with the offering restrictions set forth in Regulation S. The Offering
Memorandum will contain the disclosure required by Rule 902. The Company is a
"reporting issuer" as defined in Rule 902 under the Securities Act.
(aaa) The Notes are eligible for resale pursuant to Rule 144A and will
not be, at the Closing Date, of the same class as securities listed on a
national securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated interdealer quotation system.
(bbb) Each of the Company and the Guarantors is, and immediately after
the Closing Date will be, Solvent. As used herein, the term "Solvent" means,
with respect to any person on a particular date, that on such date (i) the fair
market value of the assets of such person is greater than the total amount of
liabilities (including contingent liabilities) of such person, (ii) the present
fair salable value of the assets of such person is greater than the amount that
will be required to pay the probable liabilities of such person on its debts as
they become absolute and matured, (iii) such person is able to realize upon its
assets and pay its debts and other liabilities, including contingent
obligations, as they mature and (iv) such person does not have unreasonably
small capital.
(ccc) The Company and the Guarantors acknowledge and agree that (A)
the terms of this Agreement and the Offering (including the price of the Notes)
were negotiated at arm's length between sophisticated parties represented by
counsel; (B) no fiduciary, advisory or agency relationship between the Company
and the Guarantors, on one hand, and the Initial Purchasers, on the other, has
been created as a result of any of the transactions contemplated by this
Agreement or the process leading to such transactions, irrespective of whether
any Initial Purchaser has advised or is advising any such party on other
matters, (C) the Initial Purchasers' obligations to the Company and the
Guarantors in respect of the Offering are set forth in this
15
Agreement in their entirety; and (D) they have obtained such legal, tax,
accounting and other advice as it deems appropriate with respect to this
Agreement and the transactions contemplated hereby and any other activities
undertaken in connection therewith, and they are not relying on the Initial
Purchasers with respect to any such matters.
Any certificate signed by an officer of the Company or any Guarantor and
delivered to the Initial Purchasers or to counsel for the Initial Purchasers
shall be deemed to be a representation and warranty by the Company or such
Guarantor to the Initial Purchasers as to the matters set forth therein.
SECTION 2. Purchase, Sale and Delivery of the Notes.
(a) The Notes. Each of the Company and the Guarantors agrees to issue
and sell to the Initial Purchasers, severally and not jointly, all of the Notes,
and the Initial Purchasers agree, severally and not jointly, to purchase from
the Company and the Guarantors the aggregate principal amount of Notes set forth
opposite their names on Schedule A, at a purchase price of 98.25% of the
principal amount thereof payable on the Closing Date, in each case, on the basis
of the representations, warranties and agreements herein contained, and upon the
terms, subject to the conditions thereto, herein set forth.
(b) The Closing Date. Delivery of certificates for the Notes in
definitive form to be purchased by the Initial Purchasers and payment therefor
shall be made at the offices of Gibson, Dunn & Crutcher LLP, 333 South Grand
Avenue, Los Angeles, California 90071 (or such other place as may be agreed to
by the Company and the Initial Purchasers at 9:00 a.m. New York City time, on
November 21, 2005 or such other time and date as the Initial Purchasers shall
designate by notice to the Company (the time and date of such closing are called
the "Closing Date"). The Company hereby acknowledges that circumstances under
which the Initial Purchasers may provide notice to postpone the Closing Date as
originally scheduled include, but are in no way limited to, any reasonable
determination by the Company and the Initial Purchasers to recirculate to
investors copies of an amended or supplemented Offering Memorandum or a delay as
contemplated by the provisions of Section 16 hereof.
(c) Delivery of the Notes. The Company shall deliver, or cause to be
delivered, to Banc of America Securities LLC for the accounts of the several
Initial Purchasers certificates for the Notes at the Closing Date against the
irrevocable release of a wire transfer of immediately available federal funds
for the amount of the purchase price therefor. The certificates for the Notes
shall be in such denominations and registered in the name of Cede & Co., as
nominee of the Depositary and shall be made available for inspection on the
business day preceding the Closing Date at a location in New York City, as the
Initial Purchasers may designate. Time shall be of the essence, and delivery at
the time and place specified in this Agreement is a further condition to the
obligations of the Initial Purchasers.
(d) Delivery of Offering Memorandum to the Initial Purchasers. Not
later than 12:00 p.m., New York City time, on the second business day following
the date of this Agreement, the Company shall deliver or cause to be delivered
copies of the Offering Memorandum in such quantities and at such places as the
Initial Purchasers shall reasonably request.
16
(e) Initial Purchasers as Qualified Institutional Buyer. Each Initial
Purchaser, severally and not jointly, represents and warrants to, and agrees
with, the Company that it is a "qualified institutional buyer" within the
meaning of Rule 144A (a "Qualified Institutional Buyer").
SECTION 3. Additional Covenants. Each of the Company and the Guarantors
further covenants and agrees with the Initial Purchasers as follows:
(a) Initial Purchasers' Review of Proposed Amendments and Supplements.
Prior to amending or supplementing the Offering Memorandum (including any
amendment or supplement through incorporation by reference of any report filed
under the Exchange Act), the Company shall furnish to the Initial Purchasers for
review a copy of each such proposed amendment or supplement, and the Company
shall not use any such proposed amendment or supplement to which the Initial
Purchasers reasonably object.
(b) Amendments and Supplements to the Offering Memorandum and Other
Securities Act Matters. If, prior to the completion of the placement of the
Notes by the Initial Purchasers with the Subsequent Purchasers, any event shall
occur or condition exist as a result of which, in the reasonable judgment of the
Company, it is necessary to amend or supplement the Offering Memorandum in order
to make the statements therein, in the light of the circumstances when the
Offering Memorandum is delivered to a Subsequent Purchaser, not misleading, or
if in the reasonable judgment of the Initial Purchasers or the Company, it is
otherwise necessary to amend or supplement the Offering Memorandum to comply
with law, the Company agrees to promptly prepare (subject to Section 3 hereof),
file with the Commission (with respect to Incorporated Documents) and furnish at
its own expense to the Initial Purchasers, amendments or supplements to the
Offering Memorandum so that the statements in the Offering Memorandum as so
amended or supplemented will not, in light of the circumstances when the
Offering Memorandum is delivered to a Subsequent Purchaser, be misleading or so
that the Offering Memorandum, as amended or supplemented, will comply with all
applicable law.
Following the consummation of the Exchange Offer or the effectiveness of an
applicable shelf registration statement and for so long as the Notes are
outstanding if, in the reasonable judgment of the Initial Purchasers, the
Initial Purchasers or any of their Affiliates are required to deliver a
prospectus in connection with sales of, or market-making activities with respect
to, the Notes, to periodically amend the applicable registration statement so
that the information contained therein complies with the requirements of Section
10 of the Securities Act, to amend the applicable registration statement or
supplement the related prospectus or the documents incorporated therein when
necessary to reflect any material changes in the information provided therein so
that the registration statement and the prospectus will not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances existing as
of the date the prospectus is so delivered, not misleading and to provide the
Initial Purchasers with copies of each amendment or supplement filed and such
other documents as the Initial Purchasers may reasonably request.
The Company hereby expressly acknowledges that the indemnification and
contribution provisions of Sections 8 and 9 hereof are specifically applicable
and relate to each offering
17
memorandum, registration statement, prospectus, amendment or supplement referred
to in this Section 3.
(c) Copies of the Offering Memorandum. The Company agrees to furnish
the Initial Purchasers, without charge, as many copies of the Offering
Memorandum and any amendments and supplements thereto as they shall have
reasonably requested.
(d) Blue Sky Compliance. Each of the Company and the Guarantors shall
cooperate with the Initial Purchasers and counsel for the Initial Purchasers to
qualify or register (or to obtain exemptions from qualifying or registering) all
or any part of the Notes for offer and sale under the securities laws of the
several states of the United States, the provinces of Canada or any other
jurisdictions designated by the Initial Purchasers, shall comply with such laws
and shall continue such qualifications, registrations and exemptions in effect
so long as required for the distribution of the Notes. None of the Company or
any of the Guarantors shall be required to qualify as a foreign corporation or
to take any action that would subject it to general service of process in any
such jurisdiction where they would not otherwise be required to qualify or where
it would be subject to taxation as a foreign corporation. The Company will
advise the Initial Purchasers promptly upon receipt by the Company of any notice
of the suspension of the qualification or registration of (or any such exemption
relating to) the Notes for offering, sale or trading in any jurisdiction or any
initiation or threat of any proceeding for any such purpose, and in the event of
the issuance of any order suspending such qualification, registration or
exemption, each of the Company and the Guarantors shall use its best efforts to
obtain the withdrawal thereof at the earliest possible moment.
(e) Use of Proceeds. The Company shall apply the net proceeds from the
sale of the Notes sold by it in the manner described under the caption "Use of
Proceeds" in the Offering Memorandum.
(f) The Depositary. The Company will cooperate with the Initial
Purchasers and use its reasonable best efforts to permit the Notes to be
eligible for clearance and settlement through the facilities of the Depositary.
(g) Additional Issuer Information. Prior to the completion of the
placement of the Notes by the Initial Purchasers with the Subsequent Purchasers,
the Company shall file, on a timely basis, with the Commission and the New York
Stock Exchange (the "NYSE") all reports and documents required to be filed under
Section 13 or 15 of the Exchange Act. Additionally, at any time when the Company
is not subject to Section 13 or 15 of the Exchange Act, for the benefit of
holders and beneficial owners from time to time of the Notes, the Company shall
furnish, at its expense, upon request, to holders and beneficial owners of Notes
and prospective purchasers of Notes information ("Additional Issuer
Information") satisfying the requirements of Rule 144A(d).
(h) Future Reports to the Initial Purchasers. At any time when the
Company is not subject to Section 13 or 15 of the Exchange Act and any Notes or
Exchange Notes remain outstanding, the Company will furnish to the Initial
Purchasers: (i) as soon as practicable after the end of each fiscal year, copies
of the Annual Report of the Company containing the balance sheet of the Company
as of the close of such fiscal year and statements of income, stockholders'
18
equity and cash flows for the year then ended and the opinion thereon of the
Company's independent public or certified public accountants; (ii) as soon as
practicable after the filing thereof, copies of each proxy statement, Annual
Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K
or other report filed by the Company with the Commission, the NASD, Inc.
("NASD") or any securities exchange; and (iii) as soon as available, copies of
any report or communication of the Company mailed generally to holders of its
capital stock or debt securities (including the holders of the Notes), if, in
each case, such documents are not filed with the Commission within the time
periods specified by the Commission's rules and regulations under Section 13 or
15 of the Exchange Act.
(i) No Integration. The Company agrees that it will not and will cause
its Affiliates not to make any offer or sale of securities of the Company of any
class if, as a result of the doctrine of "integration" referred to in Rule 502
under the Securities Act, such offer or sale would render invalid (for the
purpose of (i) the sale of the Notes by the Company to the Initial Purchasers,
(ii) the resale of the Notes by the Initial Purchasers to Subsequent Purchasers
or (iii) the resale of the Notes by such Subsequent Purchasers to others) the
exemption from the registration requirements of the Securities Act provided by
Section 4(2) thereof or by Rule 144A or by Regulation S thereunder or otherwise.
(j) Legended Notes. Each certificate for a Note will bear the legend
contained in "Notice to Investors" in the Offering Memorandum for the time
period and upon the other terms stated in the Offering Memorandum.
(k) PORTAL. The Company will use its reasonable best efforts to cause
such Notes to be eligible for the PORTAL Market.
The Initial Purchasers, may, in their sole discretion, waive in writing the
performance by the Company or any Guarantor of any one or more of the foregoing
covenants or extend the time for their performance.
SECTION 4. Payment of Expenses. The Company and the Guarantors, jointly and
severally, agree to pay (or reimburse the Initial Purchasers for) all expenses
incurred in connection with the performance of their respective obligations
hereunder and the consummation of the transactions contemplated hereby,
including, without limitation, (i) all costs, fees and expenses incurred in
connection with the issuance, sale and delivery of the Notes and the Exchange
Notes, (ii) all fees and expenses of the Company's and the Guarantors' counsel,
independent public or certified public accountants and other advisors, (iii) all
costs and expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of the Offering Memorandum (including
financial statements and exhibits), and all amendments and supplements thereto,
this Agreement, the Registration Rights Agreement, the Indenture and the Notes,
(iv) all filing fees, attorneys' fees and expenses incurred by the Company in
connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Notes for offer and
sale under the securities laws of the several states of the United States, the
provinces of Canada or other jurisdictions designated by the Initial Purchasers
(including, without limitation, the cost of preparing, printing and mailing
final blue sky or legal investment memoranda and any related supplements to the
Offering Memorandum, (v) the fees and expenses of the Trustee, including the
fees and disbursements of counsel for the Trustee in connection with the
Indenture, the Notes and the Exchange Notes, (vi) any fees payable in connection
with
19
the rating of the Notes or the Exchange Notes with the ratings agencies and the
listing of the Notes with the PORTAL Market, (vii) all fees and expenses
(including reasonable fees and expenses of counsel) of the Company and the
Guarantors in connection with approval of the Notes by the Depositary for
"book-entry" transfer, and the performance by the Company and the Guarantors of
their respective obligations under this Agreement, and (viii) all expenses
incident to the "road show," if any, for the offering of the Notes, including
the cost of any chartered airplane or other transportation.
SECTION 5. Conditions of the Obligations of the Initial Purchasers. The
obligations of the several Initial Purchasers to purchase and pay for the Notes
as provided herein on the Closing Date shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Guarantors set
forth in Section 1 hereof as of the date hereof and as of the Closing Date as
though then made and to the timely performance by the Company of its covenants
and other obligations hereunder, and to each of the following additional
conditions:
(a) Accountants' Comfort Letter. On the date hereof, the Initial
Purchasers shall have received from Deloitte & Touche LLP, independent public or
certified public accountants for the Company, a letter dated the date hereof
addressed to the Initial Purchasers, in form and substance satisfactory to the
Initial Purchasers, containing statements and information of the type ordinarily
included in accountant's "comfort letters" to Initial Purchasers, delivered
according to Statement of Auditing Standards Nos. 72, 76 and 100 (or any
successor bulletins), with respect to the audited and unaudited financial
statements and certain financial information contained in or incorporated by
reference in the Offering Memorandum.
(b) No Material Adverse Change or Ratings Agency Change. For the
period from and after the date of this Agreement and prior to the Closing Date:
(i) in the judgment of the Initial Purchasers there shall not
have occurred any Material Adverse Effect with respect to the business,
condition (financial or otherwise), results of operations, stockholders' equity,
properties or prospects of the Company and each Subsidiary of the Company listed
on Exhibit A hereto, taken as a whole; and
(ii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any review
for a possible change that does not indicate the direction of the possible
change, in the rating accorded any securities or indebtedness of the Company or
any of its subsidiaries by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436 under the
Securities Act.
(c) Opinion of Counsel for the Company. On the Closing Date, the
Initial Purchasers shall have received (i) the written opinion of Squire,
Sanders & Dempsey L.L.P., counsel for the Company, dated the Closing Date,
addressed to the Initial Purchasers to the effect set forth in Annex I and in
form and substance reasonably satisfactory to the Initial Purchasers, (ii) the
written opinion of Norriss M. Webb, general counsel for the Company, dated the
Closing Date, addressed to the Initial Purchasers to the effect set forth in
Annex II and in form and substance reasonably satisfactory to the Initial
Purchasers and (iii) the written opinion of McCarthy Tetrault LLP, Canadian
regulatory counsel for the Company, dated the Closing Date,
20
addressed to the Initial Purchasers to the effect set forth in Annex III and in
form and substance reasonably satisfactory to the Initial Purchasers.
(d) Opinion of Counsel for the Initial Purchasers. On the Closing Date
the Initial Purchasers shall have received the favorable opinion of Gibson, Dunn
& Crutcher LLP, counsel for the Initial Purchasers, dated as of such Closing
Date, with respect to such matters as may be reasonably requested by the Initial
Purchasers.
(e) Officers' Certificate. On the Closing Date the Initial Purchasers
shall have received a written certificate executed by the Chief Executive
Officer of the Company and each Guarantor and the Chief Financial Officer or
Officer of the Company and each Guarantor, dated as of the Closing Date, to the
effect set forth in Section 5(b)(ii) hereof, and further to the effect that:
(i) for the period from and after the date of this Agreement and
prior to the Closing Date there has not occurred any Material Adverse Effect
with respect to the business, condition (financial or otherwise), results of
operations, stockholders' equity, properties or prospects of the Company and its
Subsidiaries, taken as a whole;
(ii) the representations, warranties and covenants of the Company
set forth in Section 1 hereof are true and correct with the same force and
effect as though expressly made on and as of the Closing Date; and
(iii) the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date.
(f) Bring-down Comfort Letter. On the Closing Date the Initial
Purchasers shall have received from Deloitte & Touche LLP, independent public or
certified public accountants for the Company, a letter dated such date, in form
and substance satisfactory to the Initial Purchasers, to the effect that they
reaffirm the statements made in the letter furnished by them pursuant to Section
5(a) hereof, except that the specified date referred to therein for the carrying
out of procedures shall be no more than three business days prior to the Closing
Date.
(g) PORTAL Listing. At the Closing Date the Notes shall have been
designated for trading on the PORTAL Market.
(h) The Depositary. At the Closing Date the Notes shall be eligible
for clearance and settlement through the facilities of the Depositary.
(i) Registration Rights Agreement. The Company shall have entered into
the Registration Rights Agreement and the Initial Purchasers shall have received
executed counterparts thereof.
(j) Additional Documents. On or before the Closing Date, the Initial
Purchasers and counsel for the Initial Purchasers shall have received such
information, documents and opinions as they may reasonably require for the
purposes of enabling them to pass upon the issuance and sale of the Notes as
contemplated herein, or in order to evidence the
21
accuracy of any of the representations and warranties, or the satisfaction of
any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the Initial
Purchasers by notice to the Company at any time on or prior to the Closing Date,
which termination shall be without liability on the part of any party to any
other party, except that Sections 4, 6, 8 and 9 hereof shall at all times be
effective and shall survive such termination.
SECTION 6. Reimbursement of Initial Purchasers' Expenses. The Company
agrees to reimburse the Initial Purchasers, severally, for all out-of-pocket
expenses that shall have been reasonably incurred by the Initial Purchasers in
connection with the proposed purchase and the offering and sale of the Notes,
including, without limitation, the roadshow expenses, if any, printing expenses,
reasonable fees and disbursements of legal counsel, travel expenses, postage,
facsimile and telephone charges.
SECTION 7. Offer, Sale and Resale.
(a) Each of the Initial Purchasers, on the one hand, and the Company
and each of the Guarantors, on the other hand, hereby agree to observe the
following procedures in connection with the offer and sale of the Notes:
(i) Offers and sales of the Notes will be made only by the
Initial Purchasers or Affiliates thereof qualified to do so in the jurisdictions
in which such offers or sales are made.
(ii) Upon original issuance by the Company, and until such time
as the same is no longer required under the applicable requirements of the
Securities Act, the Notes (and all securities issued in exchange therefor or in
substitution thereof, other than the Exchange Notes) shall bear the following
legend:
"THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
22
REQUESTS) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE BLUE SKY LAWS OF
THE STATES OF THE UNITED STATES."
Following the sale of the Notes by the Initial Purchasers to Subsequent
Purchasers pursuant to the terms hereof, the Initial Purchasers shall not be
liable or responsible to the Company for any losses, damages or liabilities
suffered or incurred by the Company, including any losses, damages or
liabilities under the Securities Act, arising from or relating to any resale or
transfer of any Note.
(b) Each of the Initial Purchasers, severally and not jointly,
represents, warrants and covenants to the Company and the Guarantors that:
(i) (A) Such Initial Purchaser is not acquiring the Notes with a
view to any distribution thereof that would violate the Securities Act or the
securities laws of any state of the United States or any other applicable
jurisdiction , (B) each offer or sale of the Notes has been and will be made to
persons whom the offeror or seller reasonably believes to be Qualified
Institutional Buyers or non-U.S. persons outside the United States to whom the
offeror or seller reasonably believes offers and sales of the Notes may be made
in reliance upon Regulation S upon the terms and conditions set forth in Annex
IV hereto, which Annex IV is hereby expressly made a part hereof, and (C) such
Initial Purchaser will take reasonable steps to inform, and cause each of its
U.S. affiliates to take reasonable steps to inform, persons acquiring Notes from
such Initial Purchaser or affiliates, as the case may be, in the United States
that the Notes (1) have not been registered under the Securities Act, (2) are
being sold to them without registration under the Securities Act in reliance on
Rule 144A or in accordance with another exemption from registration under the
Securities Act, as the case may be, and (3) may not be offered, sold or
otherwise transferred except (x) to the Company, (y) outside the United States
in accordance with Regulation S, or (z) inside the United States in accordance
with Rule 144A to a person whom the seller reasonably believes is a Qualified
Institutional Buyer that is purchasing such Notes for its own account or for the
account of a Qualified Institutional Buyer to whom notice is given that the
offer, sale or transfer is being made in reliance on Rule 144A or pursuant to
another available exemption from registration under the Securities Act.
(ii) The Notes have been and will be offered only by approaching
prospective Subsequent Purchasers on an individual basis. No general
solicitation or general advertising (within the meaning of Rule 502 under the
Securities Act) has or will be used in the United States in connection with the
offering of the Notes.
(iii) Such Initial Purchaser and its affiliates or any person
acting on its or their behalf have not engaged and will not engage in any
directed selling efforts within the meaning of Regulation S with respect to the
Notes.
(iv) The Notes offered and sold by the Initial Purchaser in
reliance upon Regulation S have been and will be offered and sold only in
offshore transactions.
23
(v) Such Initial Purchaser will use its reasonable best efforts
to deliver a copy of the Offering Memorandum to Subsequent Purchasers purchasing
the Notes from the Initial Purchasers on or before the Closing Date.
SECTION 8. Indemnification.
(a) The Company and the Guarantors, jointly and severally, agree to
indemnify and hold harmless each Initial Purchaser and each person, if any, who
controls any Initial Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to reasonable attorneys' fees and any and all expenses whatsoever
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all amounts paid
in settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in (A) the
Offering Memorandum (or any amendment or supplement thereto) or (B) in any
materials or information provided to investors by, or with the approval of, the
Company in connection with the marketing of the offering of the Notes, including
any road show or investor presentations made to investors by the Company
(whether in person or electronically) ("Marketing Materials") but only if such
Marketing Materials are provided to investors together with the Offering
Memorandum or (ii) the omission or alleged omission to state in the Offering
Memorandum, or in any supplement thereto or amendment thereof, or in any
Marketing Materials, a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that neither the Company nor any
Guarantor will be liable in any such case to the extent but only to the extent
that any such loss, liability, claim, damage or expense 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 relating to any Initial Purchaser furnished to the Company and the
Guarantors by or on behalf of such Initial Purchaser expressly for use therein.
This indemnity agreement will be in addition to any liability which the Company
and the Guarantors may otherwise have, including but not limited to other
liability under this Agreement.
(b) Each Initial Purchaser, severally and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company
and the Guarantors and each other person, if any, who controls the Company or
any of the Guarantors within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any losses, liabilities, claims, damages
and expenses whatsoever as incurred (including but not limited to reasonable
attorneys' fees and any and all expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (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 Offering Memorandum (or any amendment or
supplement thereto), or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to
24
be stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense 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 information relating to any
Initial Purchaser furnished to the Company and the Guarantors by or on behalf of
such Initial Purchaser specifically for use therein, which are the (i) first
sentence of the third paragraph, (ii) second sentence of the fourth paragraph,
(iii) third and fourth sentences of the sixth paragraph and (iv) eighth and
ninth paragraphs of the section entitled "Plan of Distribution" in the Offering
Memorandum; provided, however, that in no case shall any Initial Purchaser be
liable or responsible for any amount in excess of the underwriting discount
applicable to the Notes to be purchased by such Initial Purchaser hereunder.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of any claims or the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the claim or the commencement
thereof (but the failure so to notify an indemnifying party shall not relieve
the indemnifying party from any liability which it may have under this Section 8
to the extent that it is not materially prejudiced as a result thereof and in
any event shall not relieve it from any liability that such indemnifying party
may have otherwise than on account of the indemnity agreement hereunder). In
case any such claim or action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate, at its own expense in the defense of such
action, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided however, that counsel to the
indemnifying party shall not (except with the written consent of the indemnified
party) also be counsel to the indemnified party. The foregoing notwithstanding,
the indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action,
(iii) the indemnifying party does not diligently defend the action after
assumption of the defense or (iv) such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. No indemnifying party shall, without the prior written
consent of the indemnified parties, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
claim, investigation, action or proceeding in respect of which indemnity or
contribution may be or could have been sought by an indemnified party under this
Section 8 or Section 9 hereof (whether or not the indemnified party is an actual
or potential party thereto), unless (A) such settlement, compromise or judgment
(x) includes an unconditional release of the indemnified party from all
liability arising out of such claim, investigation, action or proceeding and (y)
does not include a statement as to or an admission of
25
fault, culpability or any failure to act, by or on behalf of the indemnified
party and (B) the indemnifying party confirms in writing its indemnification
obligations hereunder with respect to such settlement, compromise or judgment.
SECTION 9. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 8 is for any
reason held to be unavailable from any indemnifying party or is insufficient to
hold harmless a party indemnified thereunder, the Company and the Guarantors, on
the one hand, and the Initial Purchasers, on the other hand, shall contribute to
the aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting in the case of losses, claims, damages, liabilities and expenses
suffered by the Company or any Guarantor, any contribution received by the
Company and the Guarantors from persons, other than the Initial Purchasers, who
may also be liable for contribution, including persons who control the Company
or any of the Guarantors within the meaning of Section 15 of the Act or Section
20 of the Exchange Act as incurred) to which the Company, the Guarantors and the
Initial Purchasers may be subject, in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Guarantors, on the
one hand, and the Initial Purchasers, on the other hand, from the offering of
the Notes or, if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to above but also the relative fault of the Company and the Guarantors, on the
one hand, and each of the Initial Purchasers, on the other hand, in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Guarantors, on the one
hand, and the Initial Purchasers, on the other hand, shall be deemed to be in
the same proportion as (i) the total proceeds from the offering of the Notes
(net of discounts and commissions but before deducting expenses) received by the
Company and the Guarantors and (ii) the discounts and commissions received by
the Initial Purchasers, respectively, in each case as set forth in the table on
the cover page of the Offering Memorandum. The relative fault of the Company and
the Guarantors, on the one hand, and of the Initial Purchasers, on the other
hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or any Guarantor or the Initial Purchasers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Guarantors and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation (even if the Initial Purchasers
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 9. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 9 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any judicial,
regulatory or other legal or governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the provisions of
this Section 9, (i) in no case shall the Initial Purchasers be required to
contribute any amount in excess of the amount by which the discounts and
commissions
26
applicable to the Notes purchased by such Initial Purchaser pursuant to this
Agreement exceeds the amount of any damages which such Initial Purchaser has
otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission and (ii) 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 9, each person, if
any, who controls an Initial Purchaser within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act and each person, if any, who controls the
Company or any Guarantor within the meaning of Section 15 of the Act or Section
20 of the Exchange Act shall have the same rights to contribution as the Company
and the Guarantors, as applicable, subject in each case to clauses (i) and (ii)
of the immediately preceding sentence. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this Section 9, notify each party
or parties from whom contribution may be sought, but the failure to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 9 or otherwise. The obligations of the Initial Purchasers to contribute
pursuant to this Section 9 are several in proportion to the respective principal
amount of Notes purchased by each of the Initial Purchasers hereunder and not
joint.
SECTION 10. Termination of this Agreement. Prior to the Closing Date, this
Agreement may be terminated by the Initial Purchasers by notice given to the
Company if at any time: (i) trading or quotation in any of the Company's
securities shall have been suspended or limited by the Commission or by the
NYSE, or trading in securities generally on the NYSE shall have been suspended
or limited, or minimum or maximum prices shall have been generally established
on the stock exchange by the Commission or the NASD; (ii) a general banking
moratorium shall have been declared by any of federal, New York or Delaware
authorities; (iii) there shall have occurred any outbreak or escalation of
national or international hostilities or any crisis or calamity, or any change
in the United States or international financial markets, or any substantial
change or development involving a prospective substantial change in United
States' or international political, financial or economic conditions, as in the
judgment of the Initial Purchasers is material and adverse and makes it
impracticable or inadvisable to market the Notes in the manner and on the terms
described in the Offering Memorandum or to enforce contracts for the sale of
securities; (iv) in the judgment of the Initial Purchasers there shall have
occurred any Material Adverse Effect with respect to the business, condition
(financial or otherwise), results of operations, stockholders' equity,
properties or prospects of the Company and its Subsidiaries, taken as a whole;
or (v) the Company shall have sustained a loss by strike, fire, flood,
earthquake, accident or other calamity of such character as in the judgment of
the Initial Purchasers may interfere materially with the conduct of the business
and operations of the Company regardless of whether or not such loss shall have
been insured. Any termination pursuant to this Section 10 shall be without
liability on the part of (i) the Company or any Guarantor to any Initial
Purchasers, except that the Company and the Guarantors shall be obligated to
reimburse the expenses of the Initial Purchasers pursuant to Sections 4 and 6
hereof, (ii) any Initial Purchasers to the Company, or (iii) any party hereto to
any other party except that the provisions of Sections 8 and 9 hereof shall at
all times be effective and shall survive such termination.
27
SECTION 11. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, the Guarantors, their respective officers and the
several Initial Purchasers 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 any Initial Purchasers, the Company, any Guarantor or any of their
partners, officers or directors or any controlling person, as the case may be,
and will survive delivery of and payment for the Notes sold hereunder and any
termination of this Agreement.
SECTION 12. Notices. All communications hereunder shall be in writing and
shall be mailed, hand delivered, couriered or facsimiled and confirmed to the
parties hereto as follows:
If to the Initial Purchasers:
Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Attention: Michael Browne
with a copy to:
Gibson, Dunn & Crutcher LLP,
2029 Century Park East, Suite 4000
Los Angeles, California, 90067,
Attention: Brian Kilb
If to the Company or the Guarantors:
to the Company at its address set forth in the Offering Memorandum,
Attention: Larry Brady.
with a copy to:
Squire, Sanders & Dempsey L.L.P.,
1300 Huntington Center,
41 South High Street,
Columbus Ohio 43215-6197
Attention: Steve Mount
Any party hereto may change the address or facsimile number for receipt of
communications by giving written notice to the others.
SECTION 13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, including any substitute Initial Purchasers
pursuant to Section 16 hereof, and to the benefit of the indemnified parties
referred to in Sections 8 and 9 hereof, and in each case their respective
successors, and no other person will have any right or obligation hereunder. The
term "successors" shall not include any Subsequent Purchaser or other purchaser
of the Notes as such from the Initial Purchasers merely by reason of such
purchase.
28
SECTION 14. Partial Unenforceability. The invalidity or unenforceability of
any section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other section, paragraph or provision hereof.
If any section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
SECTION 15. Governing Law Provisions. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Company
and the Initial Purchasers irrevocably (a) submit to the jurisdiction of any
court of the State of New York or the United State District Court for the
Southern District of the State of New York for the purpose of any suit, action,
or other proceeding arising out of this Agreement, or any of the agreements or
transactions contemplated by this Agreement, the Registration Rights Agreement,
the Indenture and the Offering Memorandum (each, a "Proceeding"), (b) agree that
all claims in respect of any Proceeding may be heard and determined in any such
court, (c) waive, to the fullest extent permitted by law, any immunity from
jurisdiction of any such court or from any legal process therein, (d) agree not
to commence any Proceeding other than in such courts and (e) waive, to the
fullest extent permitted by law, any claim that such Proceeding is brought in an
inconvenient forum. THE COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT
PERMITTED BY LAW, ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND CREDITORS)
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM
BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE REGISTRATION RIGHTS AGREEMENT,
THE INDENTURE AND THE OFFERING MEMORANDUM.
SECTION 16. Default of One or More of the Several Initial Purchasers. If
any one or more of the several Initial Purchasers shall fail or refuse to
purchase Notes that it or they have agreed to purchase hereunder on the Closing
Date, and the aggregate number of Notes which such defaulting Initial Purchaser
or Initial Purchasers agreed but failed or refused to purchase does not exceed
10% of the aggregate number of the Notes to be purchased on such date, the other
Initial Purchasers shall be obligated, severally, in the proportions that the
number of Notes set forth opposite their respective names on Schedule A bears to
the aggregate number of Notes set forth opposite the names of all such
non-defaulting Initial Purchasers, or in such other proportions as may be
specified by the Initial Purchasers with the consent of the non-defaulting
Initial Purchasers, to purchase the Notes which such defaulting Initial
Purchaser or Initial Purchasers agreed but failed or refused to purchase on the
Closing Date. If any one or more of the Initial Purchasers shall fail or refuse
to purchase Notes and the aggregate number of Notes with respect to which such
default occurs exceeds 10% of the aggregate number of Notes to be purchased on
the Closing Date, and arrangements satisfactory to the Initial Purchasers and
the Company for the purchase of such Notes are not made within 48 hours after
such default, this Agreement shall terminate without liability of any party to
any other party except that the provisions of Sections 4, 6, 8 and 9 hereof
shall at all times be effective and shall survive such termination. In any such
case either the Initial Purchasers or the Company shall have the right to
postpone the Closing Date, as the case may be, but in no event for longer than
seven days in order that the required changes, if any, to the Offering
Memorandum or any other documents or arrangements may be effected.
29
As used in this Agreement, the term "Initial Purchaser" shall be deemed to
include any person substituted for a defaulting Initial Purchaser under this
Section 16. Any action taken under this Section 16 shall not relieve the Initial
Purchasers from liability in respect of any default of such Initial Purchasers
under this Agreement.
SECTION 17. General Provisions. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in two
or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to benefit.
The section headings herein are for the convenience of the parties only and
shall not affect the construction or interpretation of this Agreement.
30
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company the enclosed copies hereof, whereupon this
instrument, along with all counterparts hereof, shall become a binding agreement
in accordance with its terms.
Very truly yours,
THE GREENBRIER COMPANIES, INC.
By: /s/ Larry G. Brady
------------------------------------
Larry G. Brady, Senior Vice
President and CFO
GREENBRIER-CONCARRIL, LLC
By: /s/ Larry G. Brady
------------------------------------
Larry G. Brady, Vice President
GREENBRIER LEASING COMPANY LLC
By: /s/ Larry G. Brady
------------------------------------
Larry G. Brady, Vice President
GREENBRIER LEASING LIMITED PARTNER, LLC
By: Greenbrier Leasing Company LLC,
sole manager and manager
By: /s/ Larry G. Brady
------------------------------------
Larry G. Brady, Vice President
31
GREENBRIER MANAGEMENT SERVICES, LLC
By: Greenbrier Leasing Company LLC,
sole manager and member
By: /s/ Larry G. Brady
------------------------------------
Larry G. Brady, Vice President
GREENBRIER LEASING, L.P.
By: Greenbrier Management Services, LLC,
General Partner
By: Greenbrier Leasing Company LLC,
sole manager and member
By: /s/ Larry G. Brady
------------------------------------
Larry G. Brady, Vice President
GUNDERSON LLC
By: /s/ Norriss M. Webb
------------------------------------
Norriss M. Webb, Vice President
and Secretary
GUNDERSON MARINE LLC
By: /s/ L. Clark Wood
------------------------------------
L. Clark Wood, President
32
GUNDERSON RAIL SERVICES LLC
By: /s/ Norriss M. Webb
------------------------------------
Norriss M. Webb, Vice President
and Secretary
GUNDERSON SPECIALTY PRODUCTS, LLC
By: Gunderson LLC, sole manager
and member
By: /s/ Norriss M. Webb
------------------------------------
Norriss M. Webb, Vice President
and Secretary
AUTOSTACK COMPANY LLC
By: /s/ Larry G. Brady
------------------------------------
Larry G. Brady, Vice President
GREENBRIER RAILCAR LLC
By: /s/ Larry G. Brady
------------------------------------
Larry G. Brady, Vice President
33
SCHEDULE A
AGGREGATE
PRINCIPAL
AMOUNT OF
NOTES TO BE
INITIAL PURCHASERS PURCHASED
- ------------------ -----------
Banc of America Securities LLC ................................... $30,000,000
Bear, Stearns & Co. Inc. ......................................... 30,000,000
Total ......................................................... $60,000,000
EXHIBIT A
SUBSIDIARIES
3048389 Nova Scotia Limited
Alliance Castings Company, LLC
Autostack Company LLC
Chicago Castings Company, LLC
Greenbrier-Concarril, LLC
Greenbrier Europe B.V.
Greenbrier Germany GmbH
Greenbrier Leasing Company LLC
Greenbrier Leasing, L.P.
Greenbrier Leasing Limited
Greenbrier Leasing Limited Partner, LLC
Greenbrier Management Services, LLC
Greenbrier Railcar LLC
Greenbrier U.K. Limited
Gunderson LLC
Gunderson-Concarril, S.A. de C.V.
Gunderson Marine LLC
Gunderson Rail Services LLC
Gunderson Specialty Products, LLC
Ohio Castings Company, LLC
TrentonWorks Limited
WagonySwidnica S.A.
EXHIBIT B
COMPANY STATEMENTS
1. "Although no formal statistics are available for the European market, we
believe we are the second largest new freight car manufacturer with an
estimated 20% market share."
2. "...we believe we also hold a leading market position in the manufacturing
of railcars in Europe."
EXHIBIT C
3048389 Nova Scotia Limited The Greenbrier Companies, Inc. owns 100% of the
common stock. Preferred investors also have an
interest in this entity.
Ohio Castings Company, LLC Gunderson Specialty Products, LLC owns 33 1/3%
of the entity.
Alliance Castings Company, LLC Ohio Castings Company, LLC owns 100% of this
entity.
Chicago Castings Company, LLC Ohio Castings Company, LLC owns 100% of this
entity.
WagonySwidnica S.A. Greenbrier Europe B.V. owns 97% of this entity.
ANNEX I
FORM OF OPINION OF COMPANY COUNSEL
November __, 2005
Banc of America Securities LLC
Bear, Stearns & Co. Inc.
c/o Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Re: The Greenbrier Companies, Inc.
8 3/8% Senior Notes due 2015
Ladies and Gentlemen:
We have acted as counsel for The Greenbrier Companies, Inc., a Delaware
corporation (the "Company"), and its guaranteeing subsidiaries listed on
Schedule A (each, a "Guarantor" and collectively, the "Guarantors"), in
connection with the offering and sale of $60,000,000 of
Banc of America Securities LLC November __, 2005
Bear, Stearns & Co. Inc. Page 2
the Company's 8 3/8 Senior Notes due 2015 (the "Notes"). We are delivering this
opinion to you at the request of the Company and the Guarantors pursuant to
Section 5(c) of the Purchase Agreement dated as of November 16, 2005 (the
"Purchase Agreement") among the Company, the Guarantors, and Banc of America
Securities LLC and Bear, Stearns & Co. Inc., as initial purchasers (the "Initial
Purchasers"), relating to the purchase by the Initial Purchasers of $60,000,000
aggregate principal amount of Notes to be issued pursuant to an Indenture dated
as of May 11, 2005 (the "Indenture") among the Company, the Guarantors and U.S.
Bank National Association, as trustee (the "Trustee"). In accordance with a
Registration Rights Agreement dated as of November 21, 2005 (the "Registration
Rights Agreement") among the Company, the Guarantors and the Initial Purchasers,
it is contemplated that the Company will issue another series of 8 3/8% Senior
Notes due 2015 (the "Exchange Notes") in exchange for the Notes. The Notes and
the Exchange Notes will be guaranteed (individually, a "Guarantee" and
collectively, the "Guarantees") by each of the Guarantors. Capitalized terms
used in this opinion have the same meanings as in the Purchase Agreement, unless
otherwise defined in this opinion.
In rendering this opinion, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of all such agreements,
certificates and documents, and have considered such matters of law, as we have
deemed necessary or appropriate for purposes of this opinion. As to factual
matters not within our actual knowledge, we have relied without independent
verification upon such certificates as we have deemed appropriate, including
certificates of officers of the Company and the Guarantors and certificates of
public officials. We have assumed without independent verification the
genuineness of all signatures on all documents reviewed by us (other than
signatures by officers of the Company and the Guarantors), the legal capacity of
natural persons, the authenticity of all documents submitted to us as originals,
the conformity to authentic originals of all documents submitted to us as
copies, and the due authorization, execution and delivery of all documents by
all parties other than the Company and the Guarantors.
Based upon the foregoing and subject to the qualifications expressed below,
we are of the opinion that:
1. The Company is a corporation validly existing and in good standing under
the laws of the State of Delaware, with the corporate power and authority to own
its properties and conduct its business as described in the Offering Memorandum
(including the information set forth in the Company's Annual Report on Form 10-K
for the year ended August 31, 2005, filed with the Commission on November 4,
2005 (the "2005 Annual Report") which is incorporated by reference therein).
2. Each of the Company and the Guarantors has all requisite corporate,
limited liability company or limited partnership power and authority to execute,
deliver and perform its obligations under the Purchase Agreement and the
Registration Rights Agreement, to perform under the Indenture and to consummate
the transactions contemplated thereby, including, without limitation, the
corporate, limited liability company or limited partnership power and
Banc of America Securities LLC November __, 2005
Bear, Stearns & Co. Inc. Page 3
authority to issue, sell and deliver the Notes and to issue and deliver the
Guarantees as provided in the Purchase Agreement.
3. The Purchase Agreement has been duly authorized, executed and delivered
by the Company and each of the Guarantors.
4. The Registration Rights Agreement has been duly authorized, executed and
delivered by the Company and each of the Guarantors, and is the legal, valid and
binding agreement of the Company and each of the Guarantors, enforceable against
each of them in accordance with its terms.
5. The Indenture has been duly authorized, executed and delivered by the
Company and each of the Guarantors and is the legal, valid and binding agreement
of the Company and each of the Guarantors, enforceable against each of them in
accordance with its terms.
6. The Notes have been duly authorized and executed by the Company for
issuance and sale to the Initial Purchasers pursuant to the Purchase Agreement,
and, when authenticated in accordance with the terms of the Indenture and
delivered against payment therefor in accordance with the terms of the Purchase
Agreement, the Notes will be the legal, valid and binding obligations of the
Company, enforceable against it in accordance with their terms and entitled to
the benefits of the Indenture.
7. The Guarantees of the Notes have been duly authorized and executed by
each of the Guarantors and, when delivered in accordance with the terms of the
Indenture and when the Notes have been issued and authenticated in accordance
with the terms of the Indenture and delivered against payment therefor in
accordance with the terms of the Purchase Agreement, such Guarantees will be the
legal, valid and binding obligations of each of the Guarantors, enforceable
against each of them in accordance with their terms and entitled to the benefits
of the Indenture.
8. The Exchange Notes have been duly authorized for issuance by the
Company, and, when executed, issued and authenticated in accordance with the
terms of the Exchange Offer and the Indenture, the Exchange Notes will be the
legal, valid and binding obligations of the Company, enforceable against it in
accordance with their terms and entitled to the benefits of the Indenture.
9. The Guarantees of the Exchange Notes have been duly authorized by each
of the Guarantors and, when executed and delivered in accordance with the terms
of the Indenture and when the Exchange Notes have been executed, issued and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, such Guarantees will be the legal, valid and binding obligations of
each of the Guarantors, enforceable against each of them in accordance with
their terms and entitled to the benefits of the Indenture.
Banc of America Securities LLC November __, 2005
Bear, Stearns & Co. Inc. Page 4
10. The execution, delivery and performance of the Purchase Agreement and
the Registration Rights Agreement, the performance of the Indenture and the
consummation of the transactions contemplated by the Purchase Agreement, the
Registration Rights Agreement, the Indenture and the Offering Memorandum do not
and will not result in a violation of any law, rule or regulation of the United
States of America or the State of New York applicable to the Company and its
Subsidiaries.
11. No consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any judicial,
regulatory or other legal or governmental agency or body is required for the
execution, delivery and performance of the Purchase Agreement and the
Registration Rights Agreement, the performance of the Indenture or the
consummation of the transactions contemplated by the Purchase Agreement, the
Registration Rights Agreement, the Indenture and the Offering Memorandum except
for (i) such as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Notes and the Guarantees of
the Notes by the Initial Purchasers or regarding the Exchange Notes and the
Guarantees of the Exchange Notes; and (ii) such as may be required under the
Securities Act as regards the Exchange Notes and the Guarantees of the Exchange
Notes.
12. The Company is not and, after giving effect to the offering and sale of
the Notes and the application of the proceeds thereof as described in the
Offering Memorandum, will not be, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
13. The statements under the captions "Description of Notes" and "United
States Federal Income Tax Considerations" in the Offering Memorandum, insofar as
such statements constitute a summary of the legal matters or documents referred
to therein, present fairly in all material respects such legal matters or
documents in the context in which presented in the Offering Memorandum.
14. Assuming the accuracy of the representations, warranties and covenants
of the Company and the Initial Purchasers contained in the Purchase Agreement,
no registration of the Notes or the Guarantees of the Notes under the Securities
Act is required in connection with the purchase of the Notes by the Initial
Purchasers or the initial resale of the Notes pursuant to Rule 144A by the
Initial Purchasers to Qualified Institutional Buyers in the manner contemplated
by the Purchase Agreement and the Offering Memorandum.
15. Assuming the accuracy of the representations, warranties and covenants
of the Company and the Initial Purchasers contained in the Purchase Agreement,
the Notes are eligible for resale pursuant to Rule 144A.
Banc of America Securities LLC November __, 2005
Bear, Stearns & Co. Inc. Page 5
16. The Notes will not be, at the Closing Date, of the same class as
securities listed on a national securities exchange registered under Section 6
of the Exchange Act or quoted in a U.S. automated interdealer quotation system.
17. The Offering Memorandum contains the disclosure described under
"offering restrictions" as defined in Rule 902 under the Securities Act. The
Company is a "reporting issuer" as defined in Rule 902 under the Securities Act.
18. The Indenture has been duly qualified under the Trust Indenture Act.
19. Assuming the Company files its definitive proxy statement with the
Commission in a form compliant with applicable rules and regulations and within
the applicable time period to permit its incorporation by reference into the
2005 Annual Report, the documents incorporated by reference into the Offering
Memorandum (other than the financial statements and schedules and other
financial data included or incorporated by reference therein, as to which no
opinion is rendered), at the time such documents were filed with the Commission,
complied as to form in all material respects with the Securities Act or the
Exchange Act, as applicable, and the Rules and Regulations.
Our opinions in paragraphs 4, 5, 6, 7, 8 and 9 above also are subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general principles of equity (whether considered in a proceeding at law
or in equity), and our opinion in paragraph 4 above is additionally subject to
limitations upon the rights of indemnification and contribution that may be
imposed by federal or state securities laws or principles of public policy.
We have participated in conferences with officers and other representatives
of the Company and the Guarantors, representatives of the independent auditors
of the Company and the Guarantors, and the Initial Purchasers and their
representatives, at which the contents of the Offering Memorandum and related
matters were discussed. Although we are not passing upon, and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Offering Memorandum and have not made any independent check or
verification of such statements, during the course of such participation, no
facts have come to our attention that led us to believe that the Offering
Memorandum, as of its date or the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except as to financial statements
and other financial data included or incorporated by reference therein or
omitted therefrom, as to which no view is expressed).
This opinion is based solely upon the federal laws of the United States of
America, the laws of the State of New York, the General Corporation Law, Limited
Liability Company Act
Banc of America Securities LLC November __, 2005
Bear, Stearns & Co. Inc. Page 6
and Revised Uniform Limited Partnership Act of the State of Delaware, and the
Business Corporation Act and Limited Liability Company Act of the State of
Oregon.
This opinion speaks as of its date and we assume no obligation to advise
you of any events or circumstances occurring after this date that may change any
opinion or statement of belief expressed above. This opinion is rendered to you
solely for your benefit in connection with the transactions described above and
may not be relied upon for any other purpose or by any other person without our
prior written consent, except that U.S. Bank National Association, as Trustee,
may rely upon this opinion as though it were addressed to it.
Respectfully submitted,
Banc of America Securities LLC November __, 2005
Bear, Stearns & Co. INC. Page 1
SCHEDULE A
Guarantor Subsidiaries
Autostack LLC*
Greenbrier-Concarril, LLC
Greenbrier Leasing Company LLC*
Greenbrier Leasing Limited Partner, LLC
Greenbrier Management Services, LLC
Greenbrier Leasing, L.P.
Greenbrier Railcar LLC*
Gunderson LLC*
Gunderson Marine LLC*
Gunderson Rail Services LLC*
Gunderson Specialty Products, LLC
* After the effective date of the Indenture, each of these Guarantors
converted from a corporation into a limited liability company.
Banc of America Securities LLC November __, 2005
Bear, Stearns & Co. INC. Page 2
ANNEX II
FORM OF OPINION OF GENERAL COUNSEL OF THE COMPANY
[NORRISS M. WEBB/THE GREENBRIER COMPANIES LETTERHEAD]
November __, 2005
Banc of America Securities LLC
Bear, Stearns & Co. Inc.
c/o Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Re: The Greenbrier Companies, Inc.
8 3/8% Senior Notes due 2015
Ladies and Gentlemen:
I am the General Counsel of The Greenbrier Companies, Inc. a Delaware
corporation (the "Company"), and provide legal services on a regular basis to
the Company and its subsidiaries (the "Subsidiaries"). This opinion is being
delivered pursuant to Section 5(c) of the Purchase Agreement dated as of
November __, 2005 (the "Purchase Agreement") among the Company, certain
Subsidiaries acting as guarantors of the Notes described below (the
"Guarantors"), and Banc of America Securities LLC and Bear, Stearns & Co. Inc.,
as initial purchasers (the "Initial Purchasers"), relating to the purchase by
the Initial Purchasers of $60,000,000 aggregate principal amount of the
Company's 8 3/8% Senior Notes due 2015 (the "Notes") to be issued pursuant to an
Indenture dated as of May 11, 2005 (the "Indenture") among the Company, the
Guarantors and U.S. Bank National Association, as trustee (the "Trustee"). In
accordance with a Registration Rights Agreement dated as of November __, 2005
(the "Registration Rights Agreement") among the Company, the Guarantors and the
Initial Purchasers, it is contemplated that the Company will issue another
series of Senior Notes due 2015 (the "Exchange Notes") in exchange for the
Notes. Capitalized terms used in this opinion have the same meanings as in the
Purchase Agreement, unless otherwise defined in this opinion.
As Executive Vice President and General Counsel of the Company, I am
familiar with the corporate records and the affairs and operations of the
Company and its Subsidiaries. In rendering this opinion, I have examined
originals or copies, certified or otherwise identified to my satisfaction, of
all such agreements, certificates and documents, and have considered such
matters of law as I have deemed necessary or appropriate for purposes of this
opinion. As to factual matters not within my actual knowledge, I have relied
without independent verification upon such certificates as I have deemed
appropriate, including certificates of public officials. I have assumed without
independent verification the genuineness of all signatures on all documents
reviewed by me (other than
Banc of America Securities LLC November __, 2005
Bear, Stearns & Co. INC. Page 3
signatures by officers of the Company and the Guarantors), the legal capacity of
natural persons, the authenticity of all documents submitted to me as originals,
the conformity to authentic originals of all documents submitted to me as
copies, and the due authorization, execution and delivery of all documents by
all parties other than the Company and the Guarantors.
Based upon the foregoing and subject to the qualifications expressed below,
I am of the opinion that:
1. Each of the Company's Subsidiaries has been duly organized and is
validly existing and in good standing under the laws of its jurisdiction of
organization and has all necessary corporate power and authority to own, lease
and operate its property and to conduct its business as described in the
Offering Memorandum, including the information incorporated by reference into
the Offering Memorandum from Item 1, Business, of the Company's Annual Report on
Form 10-K for the year ended August 31, 2005, as filed with the Securities and
Exchange Commission on November 4, 2005 (the "2005 Annual Report"). Each of the
Company and its Subsidiaries is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or conduct
of its business makes such qualification necessary, except for those failures to
be so qualified or in good standing which would not (individually or when
aggregated with other such instances) have a material adverse effect on the
business, condition (financial or otherwise), results of operations,
stockholders' equity, properties or prospects of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect").
2. Neither the Company nor any of its Subsidiaries is in violation of its
respective charter or by-laws and, to my knowledge, neither the Company nor any
of its Subsidiaries is in default in the performance of any obligation,
agreement, covenant or condition contained in any indenture, loan agreement,
mortgage, lease or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its Subsidiaries
or their respective property is bound, except for defaults that, singly or in
the aggregate, would not have a Material Adverse Effect.
3. Except as disclosed in the Offering Memorandum, to my knowledge, neither
the Company nor any of its Subsidiaries has violated any environmental law, any
provisions of the Employee Retirement Income Security Act of 1974, as amended,
or any provisions of the Foreign Corrupt Practices Act, or the rules and
regulations promulgated thereunder, except for such violations which, singly or
in the aggregate, would not have a Material Adverse Effect.
4. Each of the Company and its Subsidiaries has such authorizations of, and
has made all filings with and notices to, all governmental or regulatory
authorities and self-regulatory organizations and all courts and other
tribunals, including, without limitation, under any applicable environmental
laws, as are necessary to own, lease, license and operate its respective
properties and to conduct its business, except where the failure to have any
such authorization or to make any such filing or notice would not, singly or in
the aggregate, have a Material Adverse Effect; each such authorization is valid
and in full force and effect and each of
Banc of America Securities LLC November __, 2005
Bear, Stearns & Co. INC. Page 4
the Company and its Subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations of the authorities and
governing bodies having jurisdiction with respect thereto; and no event has
occurred (including, without limitation, the receipt of any notice from any
authority or governing body) which allows or, after notice or lapse of time or
both, would allow, revocation, suspension or termination of any such
authorization or results or, after notice or lapse of time or both, would result
in any other impairment of the rights of the holder of any such authorization;
and such authorizations contain no restrictions that are burdensome to the
Company or any of its Subsidiaries; except where such failure to be valid and in
full force and effect or to be in compliance, the occurrence of any such event
or the presence of any such restriction would not, singly or in the aggregate,
have a Material Adverse Effect.
5. Other than as set forth in the Offering Memorandum, there are no
judicial, regulatory or other legal or governmental proceedings pending to which
the Company or any of its Subsidiaries is a party or of which any property of
the Company or any of its Subsidiaries is the subject which, if determined
adversely to the Company or any of its Subsidiaries, would singly or in the
aggregate have a Material Adverse Effect; and, to my knowledge, no such
proceedings are threatened or contemplated.
6. The execution, delivery, and performance of the Purchase Agreement and
the Registration Rights Agreement, the performance of the Indenture and the
consummation of the transactions contemplated by this Agreement, the
Registration Rights Agreement, the Indenture and the Offering Memorandum do not
and will not (A) conflict with, require consent under (except for any consent
previously obtained) or result in a breach of any of the terms and provisions
of, or constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) under, or result in the creation or imposition
of any Lien upon property or assets of the Company or any of its Subsidiaries
pursuant to, any indenture, mortgage, deed of trust, loan agreement or any other
material agreement, instrument, franchise, license or permit to which the
Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries or their respective properties or assets may be bound, or (B)
violate or conflict with any provision of the certificate of incorporation,
by-laws or other organizational documents of the Company or any of its
Subsidiaries, or (C) violate any judgment, decree, order, statute, rule or
regulation of any court or any judicial, regulatory or other legal or
governmental agency or body of the United States of America or the State of
Oregon applicable to the Company or any of its Subsidiaries.
7. The statements incorporated by reference into the Offering Memorandum
from Item 3, Legal Proceedings, of the 2005 Annual Report, insofar as such
statements constitute a summary of the legal matters, documents or proceedings
referred to therein, present fairly in all material respects such legal matters,
documents and proceedings in the context in which presented in the Offering
Memorandum.
I am licensed to practice law in the State of Oregon and this opinion is
based solely upon the federal laws of the United States of America and the laws
of the State of Oregon.
Banc of America Securities LLC November __, 2005
Bear, Stearns & Co. INC. Page 5
This opinion speaks as of its date and I assume no obligation to advise you
of any events or circumstances occurring after this date that may change any
opinion expressed above. This opinion is rendered to you solely for your benefit
in connection with the transactions described above and may not be relied upon
for any other purpose or by any other person without my prior written consent.
Very truly yours,
Norriss M. Webb
General Counsel
Banc of America Securities LLC November __, 2005
Bear, Stearns & Co. INC. Page 1
ANNEX III
FORM OF OPINION OF CANADIAN REGULATORY COUNSEL OF THE COMPANY
ANNA TOSTO
DIRECT LINE: 613 238-2167
November __, 2005
BANC OF AMERICA SECURITIES LLC
BEAR, STEARNS & CO. INC.
As Initial Purchasers
c/o Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Ladies and Gentlemen:
RE: GREENBRIER OFFERING
As special Canadian counsel to The Greenbrier Companies, Inc. ("Greenbrier") we
have reviewed the Purchase Agreement among Greenbrier, the guarantors listed
therein and Banc of America Securities LLC and Bear, Stearns & Co. Inc., as
Initial Purchasers, dated as of November __, 2005 (the "Purchase Agreement") as
well as the Indenture and the Offering Memorandum.
As a consequence of such review, we are of the opinion that no consent or
approval of, or notice to or filing with Transport Canada under any provision of
the federal laws of Canada and the laws of the Province of Ontario is required
by Greenbrier in connection with the execution and delivery by it of the said
Purchase Agreement or the offer, sale and issuance of the Notes as contemplated
by the Offering Memorandum defined therein. Capitalized terms not defined herein
shall be otherwise as defined in the Purchase Agreement.
This opinion is subject to the following qualification:
1. Equipment owned by Greenbrier or its subsidiaries may be leased by a "railway
company" as that term is defined in the Canada Transportation Act ("CTA"). In
the event of an insolvency of a "railway company", a scheme of arrangement and
associated filings pursuant to the CTA might apply.
This opinion is furnished solely for the benefit of the addressees and may not
be circulated to or relied upon by any other person.
Yours truly
ANNEX IV
RESALE PURSUANT TO REGULATION S OR RULE 144A.
Each Initial Purchaser understands that:
Such Initial Purchaser agrees that it has not offered or sold and will not
offer or sell the Notes in the United States or to, or for the benefit or
account of, a U.S. Person (other than a distributor), in each case, as defined
in Rule 902 of Regulation S (i) as part of its distribution at any time and (ii)
otherwise until 40 days after the later of the commencement of the offering of
the Notes pursuant hereto and the Closing Date, other than in accordance with
Regulation S or another exemption from the registration requirements of the
Securities Act. Such Initial Purchaser agrees that, during such 40-day
restricted period, it will not cause any advertisement with respect to the Notes
(including any "tombstone" advertisement) to be published in any newspaper or
periodical or posted in any public place and will not issue any circular
relating to the Notes, except such advertisements as are permitted by and
include the statements required by Regulation S.
Such Initial Purchaser agrees that, at or prior to confirmation of a sale
of Notes by it to any distributor, dealer or person receiving a selling
concession, fee or other remuneration during the 40-day restricted period
referred to in Rule 903 of Regulation S, it will send to such distributor,
dealer or person receiving a selling concession, fee or other remuneration a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and may not be
offered and sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of your distribution at any time or
(ii) otherwise until 40 days after the later of the date the Securities
were first offered to persons other than distributors in reliance upon
Regulation S and the Closing Date, except in either case in accordance with
Regulation S under the Securities Act (or in accordance with Rule 144A
under the Securities Act or to accredited investors in transactions that
are exempt from the registration requirements of the Securities Act), and
in connection with any subsequent sale by you of the Securities covered
hereby in reliance on Regulation S under the Securities Act during the
period referred to above to any distributor, dealer or person receiving a
selling concession, fee or other remuneration, you must deliver a notice to
substantially the foregoing effect. Terms used above have the meanings
assigned to them in Regulation S under the Securities Act."