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Exhibit 1(c)
Union Tank Car Company
$70,000,000 Medium-Term Notes
Due Nine Months or More From Date of Issue
Selling Agency Agreement
September 10, 1998
New York, New York
Salomon Smith Barney Inc.
Seven World Trade Center
New York, New York 10048
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Ladies and Gentlemen:
Union Tank Car Company, a Delaware corporation (the "Company"), confirms
its agreement with you with respect to the issue and sale by the Company of up
to $70,000,000 aggregate principal amount of its Medium-Term Notes Due from
Nine Months or More from Date of Issue (the "Notes"). The Notes will be issued
under an indenture, dated as of January 16, 1997 (as supplemented by the Sixth
Supplemental Indenture, dated as of September 10, 1998, the "Indenture"),
between the Company and Harris Trust and Savings Bank as trustee (the
"Trustee"). Unless otherwise specifically provided for and set forth in a
Pricing Supplement (as defined below), the Notes will be issued in minimum
denominations of $1,000 and in denominations exceeding such amount by integral
multiples of $1,000, will be issued only in fully registered form and will have
the interest rates, maturities and, if applicable, other terms set forth in
such Pricing Supplement. The Notes will be issued and the terms thereof
established, in accordance with the Indenture and the Medium-Term Notes
Administrative Procedures attached hereto as Exhibit A (the "Procedures")
(unless a Terms Agreement (as defined in Section 2(b)) modifies or otherwise
supersedes such Procedures with respect to the Notes issued pursuant to such
Terms Agreement). The Procedures may be amended only by written agreement of
the Company and you after notice to, and with the approval of, the Trustee.
For the purposes of this Agreement, the term "Agent" shall refer to either of
you acting solely in the capacity as agent for the Company pursuant to Section
2(a) and not as principal (collectively, the "Agents"), the term "Purchaser"
shall refer to one of you acting solely as principal pursuant to Section 2(b)
and not as agent, and the term "you" shall refer to you collectively whether at
any time you are acting in both such capacities or in either
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such capacity. In acting under this Agreement, in whatever capacity, each of
you is acting individually and not jointly.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, you as set forth below in this Section 1. Certain terms
used in this Section 1 are defined in paragraph (e) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such
Form (File Number: 333-45105) (the "Registration Statement"), including a
Basic Prospectus (as defined below), which has become effective, for the
registration under the Act of $300,000,000 aggregate principal amount of
debt securities (the "Securities"), including the Notes. Such
registration statement, as amended at the date of this Agreement, meets
the requirements set forth in Rule 415(a)(1)(ix) or (x) under the Act and
complies in all other material respects with said Rule. The Company has
included in such registration statement, or has filed or will file, with
the Commission pursuant to the applicable paragraph of Rule 424(b) under
the Act, a supplement to the form of prospectus included in such
registration statement relating to the Notes and the plan of distribution
thereof (the "Prospectus Supplement"). In connection with the sale of
Notes the Company proposes to file with the Commission pursuant to the
applicable paragraph of Rule 424(b) under the Act further supplements to
the Prospectus Supplement (each a "Pricing Supplement") specifying the
interest rates, maturity dates and, if appropriate, other similar terms of
the Notes sold pursuant hereto or the offering thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, as of the date
of a Terms Agreement and at the date of delivery by the Company of any
Notes sold hereunder (a "Closing Date"), (i) the Registration Statement, as
amended as of any such time, and the Prospectus, as supplemented as of any
such time, and the indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the Securities Exchange Act of 1934 (the
"Exchange Act") and the respective rules thereunder; (ii) the Registration
Statement, as amended as of any such time, did not and will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and (iii) the Prospectus, as supplemented as of any
such time, will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee or (ii) the information contained in
or omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
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furnished in writing to the Company by either of you specifically
for inclusion in the Registration Statement or the Prospectus (or
any supplement thereto), which information is described in the
penultimate sentence of Section 8(a) of this Agreement.
(c) As of the time any Notes are issued and sold hereunder, the
Indenture will constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms and such
Notes will have been duly authorized, executed, authenticated and, when
paid for by the purchasers thereof, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture.
(d) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each
date that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective and each date after the date
hereof on which a document incorporated by reference in the Registration
Statement is filed. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the form of basic prospectus relating to the
Securities contained in the Registration Statement at the Effective Date.
"Prospectus" shall mean the Basic Prospectus as supplemented by the
Prospectus Supplement and any Pricing Supplement. "Registration
Statement" shall mean the registration statement referred to in paragraph
(a) above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time. "Rule 415" and "Rule 424"
refer to such rules under the Act. Any reference herein to the
Registration Statement, the Basic Prospectus, the Prospectus Supplement or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 or Item
12 of Form F-3, as the case may be, which were filed under the Exchange
Act on or before the Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, the Prospectus Supplement, any Pricing
Supplement or the Prospectus, as the case may be; and any reference herein
to the terms "amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, the Prospectus Supplement,
any Pricing Supplement or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case
may be, deemed to be incorporated therein by reference.
(e) The consolidated financial statements incorporated by reference
in the Registration Statement and Prospectus (or any supplement thereto)
present fairly the consolidated financial position of the Company and its
subsidiaries as at the dates indicated and the consolidated results of
their operations and cash flows for the periods specified and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved, except as
indicated therein, and the supporting schedules incorporated by reference
in the Registration Statement present fairly the information required to
be stated therein.
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(f) The documents incorporated by reference in the Prospectus (or any
supplement thereto), at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Exchange Act, and the rules and regulations
thereunder.
(g) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus (or any supplement thereto),
except as otherwise stated therein or contemplated thereby, there has been
no material adverse change in the condition, financial or otherwise,
results of operations or general affairs of the Company and its
subsidiaries, taken as a whole.
(h) The Company and each Significant Subsidiary (with such term
having the meaning attributed to it under Rule 405 under the Act) of the
Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in which
it is chartered or organized, with full corporate power and authority to
own its properties and conduct its business as described in the Prospectus
(or any supplement thereto), and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or leases
material properties or conducts material business, except in such
jurisdictions in which the failure to so qualify would not have a material
adverse effect on the Company and its subsidiaries taken as a whole. The
Company owns, either directly or indirectly, all of the issued and
outstanding capital stock of its subsidiaries, free and clear of any lien,
adverse claim, security interest or other encumbrance.
(i) The execution and delivery by the Company of this
Agreement, the Indenture and the Notes, the consummation by the
Company of the transactions herein and therein contemplated, and
the compliance by the Company with the terms hereof and thereof
do not and will not conflict with, or result in a breach of any
of the terms or provisions of, or constitute a default under,
the Certificate of Incorporation or By-Laws, as amended, of the
Company, or any of its subsidiaries, or any material indenture,
mortgage, or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which any of its
properties are bound, or any applicable law, rule, regulation,
judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any
of its properties; and, assuming due authorization, execution
and delivery by all parties thereto other than the Company, no
consent, approval, authorization, order or license of, or filing
with or notice to any government, governmental instrumentality,
regulatory body or authority or court, domestic or foreign, is
required for the valid authorization, issuance and delivery of
the Notes, the valid authorization, execution, delivery and
performance by the Company of this Agreement and the Indenture
or the consummation by the Company of the transactions
contemplated by this Agreement, the Indenture and the Notes,
except (w)
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such as are required under the Act, the Trust Indenture Act and
the securities or Blue Sky laws of the various states.
(j) This Agreement and the Indenture, assuming due authorization,
execution and delivery by the other parties hereto and thereto, have each
been duly authorized by the Company and, when executed and delivered by
the Company, will constitute legal, valid and binding obligations of the
Company.
(k) The Notes and the Indenture will conform in all material respects
to the descriptions thereof in the Prospectus.
(l) Ernst & Young LLP, who reported on the consolidated financial
statements of the Company for the year ended December 31, 1997, which
statements are incorporated by reference in the Registration Statement and
Prospectus, were, as of the date of its report on such consolidated
financial statements, and are, as of the date hereof, independent auditors
as required by the Act and the rules and regulations thereunder.
(m) The Notes have been duly authorized by the Company and when duly
executed and delivered by the Trustee and the Company in accordance with
the terms of the Indenture and this Agreement, will be duly issued under
such Indenture and will constitute valid and binding obligations of the
Company, and the holders thereof will be entitled to the benefits of the
Indenture.
2. Appointment of Agents; Solicitation by the Agents of Offers to
Purchase; Sales of Notes to a Purchaser.
(a) Subject to the terms and conditions set forth herein, the Company
hereby authorizes each of the Agents to act as its agent to solicit offers
for the purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties, and subject to
the terms and conditions set forth herein, each of the Agents agrees, as
agent of the Company, to use its reasonable efforts to solicit offers to
purchase the Notes from the Company upon the terms and conditions set
forth in the Prospectus (and any supplement thereto) and in the
Procedures. Each Agent shall make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to purchase
Notes has been solicited by such Agent and accepted by the Company, but
such Agent shall not, except as otherwise provided in this Agreement, be
obligated to disclose the identity of any purchaser or have any liability
to the Company in the event any such purchase is not consummated for any
reason. Except as provided in Section 2(b), under no circumstances will
either Agent be obligated to purchase any Notes for its own account. It
is understood and agreed, however, that either Agent may purchase Notes as
principal pursuant to Section 2(b).
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The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently,
the solicitation of offers to purchase Notes. Upon receipt of
instructions from the Company, the Agents will forthwith suspend
solicitation of offers to purchase Notes from the Company until such time
as the Company has advised them that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, on the Closing
Date with respect to each sale of Notes by the Company as a result of a
solicitation made by such Agent, in an amount equal to that percentage
specified in Schedule I hereto of the aggregate principal amount of the
Notes sold by the Company. Such commission shall be payable as specified
in the Procedures.
Subject to the provisions of this Section and to the Procedures,
offers for the purchase of Notes may be solicited by an Agent as agent for
the Company at such time and in such amounts as such Agent deems
advisable. The Company expressly reserves the right to sell Notes
directly to investors and to enter into other agreements with respect to
sales of Notes, provided, that any such agreement shall be on terms that
are substantially identical to the terms of this Agreement. Each Agent
may also purchase Notes from the Company as principal for purposes of
resale, as more fully described in paragraph (b) of this Section.
If the Company shall default in its obligations to deliver Notes to a
purchaser whose offer it has accepted, the Company shall indemnify and
hold you harmless against any loss, claim or damage arising from or as a
result of such default by the Company.
(b) Subject to the terms and conditions stated herein, whenever the
Company and either of you determine that the Company shall sell Notes
directly to either of you as principal, each such sale of Notes shall be
made in accordance with the terms of this Agreement and a supplemental
agreement relating to such sale. Each such supplemental agreement (which
may be either an oral or written agreement) is herein referred to as a
"Terms Agreement". Each Terms Agreement shall describe the Notes to be
purchased by the Purchaser pursuant thereto and shall specify the
aggregate principal amount of such Notes, the price to be paid to the
Company for such Notes, the maturity date of such Notes, the rate at which
interest will be paid on such Notes, the dates on which interest will be
paid on such Notes and the record date with respect to each such payment
of interest, the Closing Date for the purchase of such Notes, the place of
delivery of the Notes and payment therefor, the method of payment and any
requirements for the delivery of opinions of counsel, certificates from
the Company or its officers or a letter from the Company's independent
public accountants as described in Section 6(b). Any such Terms Agreement
may also specify the period of time referred to in Section 4(l). Any
written Terms Agreement may be in the form attached hereto as Exhibit B.
The Purchaser's commitment to purchase Notes shall be deemed
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to have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms and
conditions herein set forth.
Delivery of the certificates for Notes sold to the Purchaser pursuant
to a Terms Agreement shall be made not later than the Closing Date agreed
to in such Terms Agreement, against payment of funds to the Company in the
net amount due to the Company for such Notes by the method and in the form
set forth in the Procedures unless otherwise agreed to between the Company
and the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a
Terms Agreement, any Note sold to a Purchaser (i) shall be purchased by
the Purchaser at a price equal to 100% of the principal amount thereof
less a percentage equal to the commission applicable to an agency sale of
a Note of identical maturity and (ii) may be resold by the Purchaser at
varying prices from time to time or, if set forth in the applicable Terms
Agreement and Pricing Supplement, at a fixed public offering price. In
connection with any resale of Notes purchased, the Purchaser may use a
selling or dealer group and may reallow to any broker or dealer any
portion of the discount or commission payable pursuant hereto.
3. Offering and Sale of Notes. Each Agent and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes (including
by way of resale by the Purchaser of Notes), the Company will not file any
amendment of the Registration Statement or supplement to the Prospectus
(except for (i) periodic or current reports filed under the Exchange Act,
(ii) a supplement relating to any offering of Notes providing solely for
the specification of or a change in the maturity dates, interest rates,
issuance prices or other similar terms of any Notes or (iii) a supplement
relating to an offering of Securities other than the Notes) unless the
Company has furnished each of you a copy for your review prior to filing
and given each of you a reasonable opportunity to comment on any such
proposed amendment or supplement, and will not file any such proposed
amendment or supplement to which either of you reasonably object. Subject
to the foregoing sentence, the Company will cause each supplement to the
Prospectus to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to you of such filing. The Company will
promptly advise each of you (i) when the Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule
424(b), (ii) when, prior to termination of any offering of Notes, any
amendment of the Registration Statement shall have been filed or become
effective, (iii) of any request by the Commission for any amendment of the
Registration
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Statement or supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v)
of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary to amend
the Registration Statement or to supplement the Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) notify each of you to suspend solicitation of
offers to purchase Notes (and, if so notified by the Company, each of you
shall forthwith suspend such solicitation and cease using the Prospectus
as then supplemented), (ii) prepare and file with the Commission, subject
to the first sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (iii) supply any supplemented Prospectus to each of you in
such quantities as you may reasonably request. If such amendment or
supplement, and any documents, certificates and opinions furnished to you
pursuant to paragraph (f) of this Section 4 in connection with the
preparation or filing of such amendment or supplement are satisfactory in
all respects to you, you will, upon the filing of such amendment or
supplement with the Commission and upon the effectiveness of an amendment
to the Registration Statement, if such an amendment is required, resume
your obligation to solicit offers to purchase Notes hereunder.
(c) As soon as practicable, the Company will make generally available
to its security holders and to each of you an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and the applicable rules and
regulations thereunder.
(d) The Company will furnish to each of you and your counsel, without
charge, signed copies of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus may be required by the
Act, as many copies of the Prospectus and any supplement thereto as you
may reasonably request. The Company will pay the expenses of printing all
documents relating to the offering of the Notes.
(e) The Company will cooperate with you and your counsel to arrange
for the qualification of the Notes for sale under the laws of such
jurisdictions as either of you may designate, will maintain such
qualifications in effect so long as required for
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the distribution of the Notes, and will cooperate with you and your
counsel to arrange for the determination of the legality of the Notes
for purchase by institutional investors; provided, however, that the
Company will not be required to qualify to do business in any
jurisdiction in order to effect such qualification.
(f) The Company shall furnish to each of you such information,
documents, certificates of officers of the Company and opinions of counsel
for the Company relating to the business, operations and affairs of the
Company, the Registration Statement, the Prospectus, and any amendments
thereof or supplements thereto, the Indenture, the Notes, this Agreement,
the Procedures and the performance by the Company and you of its and your
respective obligations hereunder and thereunder as either of you may from
time to time and at any time prior to the termination of this Agreement
reasonably request.
(g) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including the
fees and disbursements of its accountants and counsel, the cost of
printing or other production and delivery of the Registration Statement,
the Prospectus, all amendments thereof and supplements thereto, the
Indenture, this Agreement, any Terms Agreement and all other documents
relating to the offering, the cost of preparing, printing, packaging and
delivering the Notes, the fees and disbursements, including fees of
counsel, incurred in compliance with Section 4(e), the fees and
disbursements of the Trustee and the fees of any agency that rates the
Notes, (ii) reimburse each of you as requested for all out-of-pocket
expenses (including without limitation advertising expenses), if any,
incurred by you in connection with this Agreement and (iii) pay the
reasonable fees and expenses of Mayer, Brown & Platt, counsel for the
Agents, incurred in connection with this Agreement.
(h) Each acceptance by the Company of an offer to
purchase Notes will be deemed to be an affirmation that its
representations and warranties contained in this Agreement are
true and correct at the time of such acceptance, as though made
at and as of such time, and a covenant that such representations
and warranties will be true and correct at the time of delivery
to the purchaser of the Notes relating to such acceptance, as
though made at and as of such time (it being understood that for
purposes of the foregoing affirmation and covenant such
representations and warranties shall relate to the Registration
Statement and Prospectus as amended or supplemented at each such
time). Each such acceptance by the Company of an offer for the
purchase of Notes shall be deemed to constitute an additional
representation, warranty and agreement by the Company that, as
of the settlement date for the sale of such Notes, after giving
effect to the issuance of such Notes, of any other Notes to be
issued on or prior to such settlement date and of any other
Securities to be issued and sold by the Company on or prior to
such settlement date, the aggregate amount of Securities
(including any Notes) which have been issued and sold by the
Company will not exceed the amount of Securities registered
pursuant to the Registration Statement. The
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Company will inform you promptly upon your request of the aggregate
amount of Securities registered under the Registration Statement which
remain unsold.
(i) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement relating
to any offering of Securities other than the Notes or providing solely for
the specification of or a change in the maturity dates, the interest
rates, the issuance prices or other similar terms of any Notes sold
pursuant hereto), the Company will deliver or cause to be delivered
promptly to you a certificate of the Company, signed by the Chairman of
the Board or the President and the principal financial or accounting
officer of the Company, dated the date of the effectiveness of such
amendment or the date of the filing of such supplement, in form reasonably
satisfactory to you, of the same tenor as the certificate referred to in
Section 5(d) but modified to relate to the last day of the fiscal quarter
for which financial statements of the Company were last filed with the
Commission and to the Registration Statement and the Prospectus as amended
and supplemented to the time of the effectiveness of such amendment or the
filing of such supplement.
(j) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i)
relating to any offering of Securities other than the Notes, or (ii)
providing solely for the specification of or a change in the maturity
dates, the interest rates, the issuance prices or other similar terms of
any Notes sold pursuant hereto), the Company shall furnish or cause to be
furnished promptly to each of you a written opinion of counsel of the
Company satisfactory to each of you, dated the date of the effectiveness
of such amendment or the date of the filing of such supplement, in form
satisfactory to each of you, of the same tenor as the opinion referred to
in Section 5(b) but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement or, in
lieu of such opinion, counsel last furnishing such an opinion to you may
furnish to each of you with a letter to the effect that you may rely on
such last opinion to the same extent as though it were dated the date of
such letter authorizing reliance (except that statements in such last
opinion will be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of the effectiveness of
such amendment or the filing of such supplement).
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented to include or incorporate amended or supplemental
financial information, the Company shall cause its independent public
accountants promptly to furnish each of you a letter, dated the date of
the effectiveness of such amendment or the date of the filing of such
supplement, in form satisfactory to each of you, of the same tenor as the
letter referred to in Section 5(e) with such changes as may be necessary
to reflect the amended and supplemental financial information included or
incorporated by reference in the Registration Statement and the
Prospectus, as amended or supplemented to the date of such letter;
provided, however, that, if the Registration
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Statement or the Prospectus is amended or supplemented solely to include or
incorporate by reference financial information as of and for a fiscal
quarter, the Company's independent public accountants may limit the
scope of such letter, which shall be satisfactory in form to each of
you, to the unaudited financial statements, the related "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" and any other information of an accounting, financial or
statistical nature included in such amendment or supplement, unless, in
the reasonable judgment of either of you, such letter should cover other
information or changes in specified financial statement line items.
(l) During the period, if any, specified (whether orally or in
writing) in any Terms Agreement, the Company shall not, without the prior
consent of the Purchaser thereunder, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce the offering of,
any debt securities issued or guaranteed by the Company (other than the
Notes being sold pursuant to such Terms Agreement).
(m) The Company confirms as of the date hereof, and each acceptance
by the Company of an offer to purchase Notes will be deemed to be an
affirmation, that the Company is in compliance with all provisions of
Section 1 of Laws of Florida, Chapter 92-198, An Act Relating to
Disclosure of Doing Business with Cuba, and the Company further agrees
that if it commences engaging in business with the government of Cuba or
with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the Securities
and Exchange Commission or with the Florida Department of Banking and
Finance (the "Department"), whichever date is later, or if the information
reported in the Prospectus, if any, concerning the Company's business with
Cuba or with any person or affiliate located in Cuba changes in any
material way, the Company will provide the Department notice of such
business or change, as appropriate, in a form acceptable to the
Department.
5. Conditions to the Obligations of the Agents. The obligations of each
Agent to solicit offers to purchase the Notes shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time, on the Effective Date, when any supplement to
the Prospectus is filed with the Commission and as of each Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
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(b) The Company shall have furnished to the Agent the opinion of
Neal, Gerber & Eisenberg, counsel for the Company (incorporating and
relying upon the opinion of Robert W. Webb, Esq., general counsel of the
Company, and Osler, Hoskin & Harcourt, special Canadian counsel to the
Company, as to Canadian law matters), dated the Execution Time, to the
effect that:
(i) the Company and each of its Significant Subsidiaries has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to
own its properties and conduct its business as described in the
Prospectus (and any supplement thereto), and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification wherein
it owns or leases material properties or conducts material business,
except in such jurisdictions in which the failure to so qualify would
not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(ii) all the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly and validly authorized and
issued and are fully paid and nonassessable, and all outstanding
shares of capital stock of its subsidiaries are owned by the Company
either directly or free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and, assuming due authorization, execution and
delivery thereof by the Trustee, the Indenture constitutes a legal,
valid and binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in
effect); and the Notes have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the purchasers thereof, will
constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture;
(iv) to the best knowledge of such counsel,
there is no pending or threatened action, suit or
proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company
or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus, and there is no
franchise, contract or other document of a character
required to be described in the Registration Statement or
Prospectus (or any supplement thereto), or to be filed as
an exhibit, which is not described or filed as required;
and the statements
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included or incorporated by reference in the Prospectus (or any
supplement thereto) describing any legal proceedings or material
contracts or agreements relating to the Company fairly summarize such
matters;
(v) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been or will be made in the
manner and within the time period required by Rule 424(b); to the
best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or threatened, and
the Registration Statement and the Prospectus and all supplements
thereto (other than the financial statements and other financial and
statistical information contained therein as to which such counsel
need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules thereunder;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by you, constitutes a valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms, except (i) as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and by general principles
of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and (ii) as to provisions of this
Agreement relating to indemnification or contribution for liabilities
arising under the Act, as to which such counsel need express no
opinion;
(vii) no authorization, approval, consent, order or license of
or filing with or notice to any governmental instrumentality,
regulatory body or authority or court is required for the valid
authorization, execution, delivery and performance by the Company of
the Notes, this Agreement and the Indenture or the consummation by
the Company of the transactions contemplated by this Agreement and
the Indenture, except such as have been obtained under the Act and
the Trust Indenture Act and such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Notes by you and such other approvals (specified
in such opinion) as have been obtained;
(viii) neither the execution and delivery of the Indenture, the
issue and sale of the Notes, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or by-laws of the
Company or the terms of any indenture or other agreement or
instrument known to such counsel and to which the Company or any of
its
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14
subsidiaries is a party or bound or any judgment, order, regulation or
decree known to such counsel to be applicable to the Company or
any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries;
(ix) the Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended;
(x) on the Closing Date, assuming due execution and delivery of
the Notes by the Trustee and the Company, the Notes when issued
against the payment therefor as provided herein will constitute valid
and binding obligations of the Company, enforceable against the
Company, in accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting enforcement of creditors' rights generally and by
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and the holders of
the Notes will be entitled to the benefits of the Indenture; and
(xi) the Indenture and the Notes conform in all material
respects to the descriptions thereof contained in the Prospectus.
In passing on the form of the Registration Statement and the
Prospectus and each amendment and supplement thereto, such counsel
may state that it has not independently verified the accuracy,
completeness or fairness of the statements made or included therein
and takes no responsibility therefor and that such opinion is based
upon such counsel's examination of the Registration Statement, the
Prospectus as amended or supplemented, its activities in connection
with the preparation thereof and its participation in conferences
with certain officers and employees of the Company, its subsidiaries
and its affiliates and with representatives of Ernst & Young LLP and
any others referred to in such opinion, and subject to the same
qualifications, such counsel may also state that, although they are
not passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus as amended or supplemented and
have not made any independent check or verification thereof, nothing
has come to their attention in their examination of the Registration
Statement, their participation in the preparation thereof and
participation in the above-referenced conferences that has caused
them to believe that the Registration Statement, at the time it
became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or the
Prospectus, as of its date and as of the Closing Date, contained an
untrue statement of a material fact or omitted to
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state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(c) The Agents shall have received from Mayer, Brown & Platt, counsel
for the Agents, such opinion or opinions, dated the date hereof, with
respect to the issuance and sale of the Notes, the Indenture, the
Registration Statement, the Prospectus (together with any supplement
thereto) and other related matters as the Agents may reasonably require,
and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Agents a certificate of
the Company, signed by the President or any Vice President and the
principal financial officer of the Company, dated the Execution Time, to
the effect that the signers of such certificate have carefully examined
the Registration Statement, the Prospectus, any supplement to the
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the date hereof with the same effect as if made on the date hereof
and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied as a
condition to the obligation of the Agents to solicit offers to
purchase the Notes;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the Company's
knowledge, no proceedings for that purpose have been instituted or
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (including any supplement thereto), there
has been no material adverse change in the condition (financial or
other), earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Prospectus (including any supplement thereto).
(e) At the Execution Time, Ernst & Young LLP shall have furnished to
the Agents a letter or letters (which may refer to letters previously
delivered to the Agents), dated as of the Execution Time, in form and
substance satisfactory to the Agents, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion the audited financial statements, financial
statement schedules and pro forma financial statements, if any,
included or incorporated in the Registration Statement and the
Prospectus and reported on
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by them comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries,
carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would
not necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and executive committee of
the Company and its subsidiaries; and inquiries of certain officials
of the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and
events subsequent to the date of the most recent audited financial
statements included or incorporated in the Prospectus, nothing came
to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus do
not comply in form in all material respects with applicable
accounting requirements and with the published rules and
regulations of the Commission with respect to financial
statements included or incorporated in quarterly reports on Form
10-Q under the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated in the Registration Statement and the
Prospectus;
(2) with respect to the period subsequent to the date of
the most recent financial statements (other than any capsule
information), audited or unaudited, included or incorporated in
the Registration Statement and the Prospectus, there were any
changes, at a specified date not more than five business days
prior to the date of the letter, in the borrowed debt of the
Company and its subsidiaries or capital stock of the Company or
decreases in the stockholders' equity of the Company and its
subsidiaries as compared with the amounts shown on the most
recent consolidated balance sheet included or incorporated in
the Registration Statement and the Prospectus, or for the period
from the date of the most recent financial statements included
or incorporated in the Registration Statement and the Prospectus
to such specified date there were any decreases, as compared
with the corresponding period in the preceding year or quarter
in total revenues from net sales and services, or in income
before income taxes or net income, of the Company and its
subsidiaries, except in all instances for changes or decreases
set forth in such letter,
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in which case the letter shall be accompanied by
an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Agents; or
(3) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Prospectus do not agree with the amounts set
forth in the unaudited financial statements for the same periods
or were not determined on a basis substantially consistent with
that of the corresponding amounts in the audited financial
statements included or incorporated in the Registration
Statement and the Prospectus; and
(iii) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus and in Exhibit
12 to the Registration Statement, including the information included
or incorporated in the Company's Annual Report on Form 10-K,
incorporated in the Registration Statement and the Prospectus, and
the information included in the "Management's Discussion and Analysis
of Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Prospectus, agrees
with the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Prior to the Execution Time, the Company shall have furnished to
the Agents such further information, documents, certificates and opinions
of counsel as the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Agents and counsel for the Agents, this Agreement and all
obligations of either Agent hereunder may be cancelled at any time by the
Agents. Notice of such cancellation shall be given to the Company in writing
or by telephone or telegraph confirmed in writing.
6. Conditions to the Obligations of a Purchaser. The obligations of a
Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of the related Terms Agreement and as of the
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Closing Date for such Notes, to the performance and observance by the Company
of all covenants and agreements herein contained on its part to be performed
and observed and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) To the extent agreed to between the Company and a Purchaser in a
Terms Agreement, the Purchaser shall have received, appropriately updated,
(i) a certificate of the Company, dated as of the Closing Date, to the
effect set forth in Section 5(d) (except that references to the Prospectus
shall be to the Prospectus as supplemented as of the date of such Terms
Agreement), (ii) the opinion of Neal, Gerber & Eisenberg, counsel for the
Company, dated as of the Closing Date, to the effect set forth in Section
5(b), (iii) the opinion of Mayer, Brown & Platt, counsel for the
Purchaser, dated as of the Closing Date, to the effect set forth in
Section 5(c), and (iv) letter or letters of Ernst & Young LLP, independent
accountants for the Company, dated as of the Closing Date, to the effect
set forth in Section 5(e).
(c) Prior to the Closing Date, the Company shall have furnished to
the Purchaser such further information, certificates and documents as the
Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement and
the applicable Terms Agreement, or if any of the opinions and certificates
mentioned above or elsewhere in this Agreement or such Terms Agreement and
required to be delivered to the Purchaser pursuant to the terms hereof and
thereof shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, such Terms Agreement and all
obligations of the Purchaser thereunder and with respect to the Notes subject
thereto may be canceled at, or at any time prior to, the respective Closing
Date by the Purchaser. Notice of such cancellation shall be given to the
Company in writing or by telephone or telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase.
(a) The Company agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by either of the Agents shall
have the right to refuse to purchase such Note if, at the Closing Date
therefor, any condition set forth in Section 5 or 6, as applicable, shall
not have been fulfilled in all material respects.
(b) The Company agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by either of the Agents shall
have the right to refuse to purchase such Note if, subsequent to the
agreement to purchase such Note,
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any change, condition or development specified in any of Sections
9(b)(i) through (v) shall have occurred (with the judgment of the
Agent which presented the offer to purchase such Note being
substituted for any judgment of the Purchaser required therein) the
effect of which is, in the judgment of the Agent which presented the
offer to purchase such Note so material and adverse as to make it
impractical or inadvisable to proceed with the sale and delivery of
such Note (it being understood that under no circumstance shall either
Agent have any duty or obligation to the Company or to any such person
to exercise the judgment permitted to be exercised under this Section
7(b) and Section 9(b)).
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each of you,
the directors, officers, employees and agents of each of you and each
person who controls each of you within the meaning of either the Act or
the Exchange Act against any and all losses claims, damages or
liabilities, joint or several, to which you, they or any of you or them
may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration
statement for the registration of the Notes as originally filed or in any
amendment thereof, or in the Prospectus or any preliminary Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by either of you specifically for inclusion therein; provided,
further that such indemnity with respect to any preliminary Prospectus or
Prospectus Supplement shall not inure to your benefit (or to the benefit
of any person controlling you) if the person asserting any such loss,
claim, damage or liability purchased the securities which are the subject
thereof did not receive a copy of the final Prospectus or Pricing
Supplement (or any amendments thereof or supplements thereto), excluding
documents incorporated therein by reference, at or prior to the
confirmation of the sale of such Securities to such person in any case
where such delivery is required by the Act and the untrue statement or
omission of a material fact in such preliminary Prospectus or Prospectus
Supplement was corrected in the final Prospectus or Pricing Supplement (or
any amendments thereof or supplements thereto). The Company acknowledges
that (i) the stabilization language appearing on the top of page S-2 and
(ii) the information relating to the Agents set forth in the second and
sixth
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paragraphs under the caption "Plan of Distribution," each as contained in
the Prospectus Supplement, constitute the only information furnished
in writing by either of you for inclusion in the documents referred to
in the foregoing indemnity or in the indemnity contained in Section
8(b) below, and you confirm that such statements are correct. This
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Agent agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement and each person who controls the Company within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Agent, but only with reference to
written information relating to such Agent furnished to the Company by or
on behalf of such Agent specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be
in addition to any liability which you may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of
the commencement thereof, but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b)
above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
however, that such counsel shall be satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action or (iv) the indemnifying party shall
authorize the indemnified
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party to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and each of you agree to
contribute to the aggregate losses claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the
Company and you may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Company and by each of you
from the offering of the Notes from which such Losses arise; provided,
however, that in no case shall either of you be responsible for any amount
in excess of the commissions received by each of you in connection with
the sale of Notes from which such Losses arise (or, in the case of Notes
sold pursuant to a Terms Agreement, the discount received by you as
Purchaser pursuant to Section 2(b) above). If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the
Company and each of you shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company and of each of you in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) of the Notes from which such Losses arise, and
benefits received by each of you shall be deemed to be equal to the total
commissions received by each of you in connection with the sale of Notes
from which such Losses arise (or, in the case of Notes sold pursuant to a
Terms Agreement, the discount received by you as Purchaser pursuant to
Section 2(b) above). Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information
provided by the Company or either of you. The Company and each of you
agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls either of you within the meaning of the Act or
the Exchange Act and each director, officer, employee and agent of either
of you shall have the same rights to contribution as you and each person
who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration
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Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. Termination.
(a) This Agreement will continue in effect until terminated as
provided in this Section 9. This Agreement may be terminated either by
the Company as to either Agent or by either of you insofar as this
Agreement relates to either Agent, by giving written notice of such
termination to such Agent or the Company, as the case may be. This
Agreement shall so terminate at the close of business on the first
business day following the receipt of such notice by the party to whom
such notice is given. In the event of such termination, no party shall
have any liability to the other party hereto, except as provided in the
fourth paragraph of Section 2(a), Section 4(g), Section 8 and Section 10.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Purchaser, by notice given to the Company prior
to delivery of any payment for any Note to be purchased thereunder, if
prior to such time (i) there shall have occurred, subsequent to the
agreement to purchase such Note, any change, or any development involving
a prospective change, in or affecting the business or properties of the
Company and its subsidiaries the effect of which is, in the reasonable
judgment of the Purchaser, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of
such Note, (ii) there shall have been, subsequent to the agreement to
purchase such Note, any decrease in the rating of any of the Company's
debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act) or
any notice given of any intended or potential decrease in any such rating
or of a possible change in any such rating that does not indicate the
direction of the possible change, (iii) trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (iv) a
banking moratorium shall have been declared by either Federal or New York
State authorities or (v) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the reasonable judgment of the
Purchaser, impracticable or inadvisable to proceed with the offering or
delivery of such Notes.
10. Survival of Certain Provisions. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of you set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of you or the Company or any of the directors, officers, employees,
agents or controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Notes. The provisions of Sections 4(g) and 8
hereof shall
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survive the termination or cancellation of this Agreement. The provisions of
this Agreement (including without limitation Section 7 hereof) applicable to
any purchase of a Note for which an agreement to purchase exists prior to the
termination hereof shall survive any termination of this Agreement. If at the
time of termination of this Agreement the Purchaser shall own any Notes with
the intention of selling them, the provisions of Section 4 shall remain in
effect until such Notes are sold by the Purchaser.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to either of you, will be mailed,
delivered or telecopied and confirmed in the case of Salomon Brothers Inc. at 7
World Trade Center, New York, New York 10048, Attention: Legal Department; in
the case of Morgan Stanley & Co. Incorporated, at 1585 Broadway, 2nd Floor, New
York, New York 10036 (fax: 212-761-0780), Attn: Manager, Continuously Offered
Products, with a copy to Morgan Stanley & Co. Incorporated, at 1585 Broadway,
34th Floor, New York, New York 10036 (fax: 212-761-0260), Attn: Peter Cooper,
Investment Banking Information Center; or, if sent to the Company, will be
mailed, delivered or telecopied and confirmed to it at 225 West Washington
Street, Chicago, Illinois 60606, Attention: Secretary.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, their respective successors, the directors,
officers, employees, agents and controlling persons referred to in Section 8
hereof and, to the extent provided in Section 7, any person who has agreed to
purchase Notes, and no other person will have any right or obligation
hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and you.
Very truly yours,
UNION TANK CAR COMPANY
By: /s/ M.J. Garrette
_____________________________
Name: M.J. Garrette
Title: Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
SALOMON SMITH BARNEY INC.
By: /s/ Martha D. Bailey
_________________________
Name: Martha D. Bailey
Title: Vice President
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Harold J. Hendershot III
________________________
Name: Harold J. Hendershot III
Title: Vice President
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