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Exhibit 1(b)(2)
Union Tank Car Company
$100,000,000 Medium-Term Notes
Due Nine Months or More From Date of Issue
Selling Agency Agreement
September 30, 1997
New York, New York
Salomon Brothers Inc
Seven World Trade Center
New York, NY 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 each of you with respect to the issue and sale by the
Company of up to $100,000,000 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 Fourth Supplemental Indenture, dated as of September 30,
1997, 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
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collectively whether at any time either of you is acting in both such
capacities or in either 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: 333-17121) (the "Registration Statement"), including a
Basic Prospectus (as defined below), which has become effective, for the
registration under the Act of $400,000,000 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.
(2) 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
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T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement or
the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by either
of you specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto), which information is described in
the penultimate sentence of Section 8(a) of this Agreement.
(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.
(3) 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.
(4) 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
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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.
(5) 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.
(6) 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.
(7) 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.
(8) 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
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the Company, no consent, approval, authorization, order or license of,
or filing with or notice to any government, governmental instrumentality,
regulatory body or authority or court, domestic or foreign, is required
for the valid authorization, issuance and delivery of the Notes, the
valid authorization, execution, delivery and performance by the Company
of this Agreement and the Indenture or the consummation by the Company of
the transactions contemplated by this Agreement, the Indenture and the
Notes, except (w) such as are required under the Act, the Trust Indenture
Act and the securities or Blue Sky laws of the various states.
(9) 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.
(10) The Notes and the Indenture will conform in all material
respects to the descriptions thereof in the Prospectus.
(11) Ernst & Young LLP, who reported on the consolidated financial
statements of the Company for the year ended December 31, 1996, 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.
(12) 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
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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).
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 each of 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 determines 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
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and the record date with respect to each such payment of interest,
the Closing Date for the purchase of such Notes, the place of delivery of
the Notes and payment therefor, the method of payment and any
requirements for the delivery of opinions of counsel, certificates from
the Company or its officers or a letter from the Company's independent
public accountants as described in Section 6(b). Any such Terms Agreement
may also specify the period of time referred to in Section 4(l). Any
written Terms Agreement may be in the form attached hereto as Exhibit B.
The Purchaser's commitment to purchase Notes shall be deemed to have been
made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein
set forth.
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
such 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 such 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, a 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 a 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
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supplement to which you reasonably object. Subject to the
foregoing sentence, the Company will cause each supplement to the
Prospectus to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to you of such filing. The Company will
promptly advise 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 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 each of 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.
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(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 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 your counsel incurred in connection with
this Agreement.
(h) Each acceptance by the Company of an offer to purchase Notes
will be deemed to be an affirmation that its representations and
warranties contained in this Agreement are true and correct at the time
of such acceptance, as though made at and as of such time, and a covenant
that such representations and warranties will be true and correct at the
time of delivery to the purchaser of the Notes relating to
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such acceptance, as though made at and as of such time (it being
understood that for purposes of the foregoing affirmation and covenant
such representations and warranties shall relate to the Registration
Statement and Prospectus as amended or supplemented at each such time).
Each such acceptance by the Company of an offer for the purchase of Notes
shall be deemed to constitute an additional representation, warranty and
agreement by the Company that, as of the settlement date for the sale of
such Notes, after giving effect to the issuance of such Notes, of any
other Notes to be issued on or prior to such settlement date and of any
other Securities to be issued and sold by the Company on or prior to such
settlement date, the aggregate amount of Securities (including any Notes)
which have been issued and sold by the Company will not exceed the amount
of Securities registered pursuant to the Registration Statement. The
Company will inform you promptly upon your request of the aggregate
amount of Securities registered under the Registration Statement which
remain unsold.
(i) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement
relating to any offering of Securities other than the Notes or providing
solely for the specification of or a 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 each of 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 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
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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 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.
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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.
(b) The Company shall have furnished to each 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 the Subsidiaries are owned
by the Company either directly or free and clear of any perfected
security interest and, to the knowledge of such counsel, after due
inquiry, any other security interests, claims, liens or
encumbrances;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and, assuming due authorization, execution and
delivery thereof by the Trustee, the Indenture constitutes a legal,
valid and binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency, moratorium
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or other laws affecting creditors' rights generally from time to
time in effect); and the Notes have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the purchasers thereof,
will constitute legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture;
(iv) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement which is not
adequately disclosed in the Prospectus, and there is no franchise,
contract or other document of a character required to be described
in the Registration Statement or Prospectus (or any supplement
thereto), or to be filed as an exhibit, which is not described or
filed as required; and the statements included or incorporated by
reference in the Prospectus (or any supplement thereto) describing
any legal proceedings or material contracts or agreements relating
to the Company fairly summarize such matters;
(v) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been or will be made in the
manner and within the time period required by Rule 424(b); to the
best knowledge of such counsel, no stop order 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
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authority or court is required for the valid authorization,
execution, delivery and performance by the Company of the Notes,
this Agreement and the Indenture or the consummation by the Company
of the transactions contemplated by this Agreement and the
Indenture, except such as have been obtained under the Act and the
Trust Indenture Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Notes by you and such other approvals
(specified in such opinion) as have been obtained;
(viii) neither the execution and delivery of the Indenture,
the issue and sale of the Notes, nor the consummation of any other
of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation
of, or constitute a default under any law or the charter or by-laws
of the Company or the terms of any indenture or other agreement or
instrument known to such counsel and to which the Company or any of
its subsidiaries is a party or bound or any judgment, order,
regulation or decree known to such counsel to be applicable to the
Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries;
(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;
(1) 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
(2) 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
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activities in connection with the preparation thereof and its
participation in conferences with certain officers and employees of
the Company, its subsidiaries and its affiliates and with
representatives of Ernst & Young LLP and any others referred to in
such opinion, and subject to the same qualifications, such counsel
may also state that, although they are not passing upon, and do not
assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement
and Prospectus as amended or supplemented and have not made any
independent check or verification thereof, nothing has come to
their attention in their examination of the Registration Statement,
their participation in the preparation thereof and participation in
the above-referenced conferences that has caused them to believe
that the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or the Prospectus, as
of its date and as of the Closing Date, contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) Each Agent 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 each Agent a certificate of
the Company, signed by the President or any Vice President and the
principal financial officer of the Company, dated the Execution Time, to
the effect that the signers of such certificate have carefully examined
the Registration Statement, the Prospectus, any supplement to the
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as
of the date hereof with the same effect as if made on the date
hereof and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied as a condition to the obligation of the 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
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(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 each Agent 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 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 the
Subsidiaries; and inquiries of certain officials of the Company who
have responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited financial
statements included or incorporated in the Prospectus, nothing
came to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus
do not comply in form in all material respects with
applicable accounting requirements and with the published
rules and regulations of the Commission with respect to
financial statements included or incorporated in quarterly
reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated in the Registration
Statement and the Prospectus;
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(2) with respect to the period subsequent to the date
of the most recent financial statements (other than any
capsule information), audited or unaudited, included or
incorporated in the Registration Statement and the
Prospectus, there were any changes, at a specified date not
more than five business days prior to the date of the letter,
in the borrowed debt of the Company and its subsidiaries or
capital stock of the Company or decreases in the
stockholders' equity of the Company and its subsidiaries as
compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated in the
Registration Statement and the Prospectus, or for the period
from the date of the most recent financial statements
included or incorporated in the Registration Statement and
the Prospectus to such specified date there were any
decreases, as compared with the corresponding period in the
preceding year or quarter in total revenues from net sales
and services, or in income before income taxes or net income,
of the Company and its subsidiaries, except in all instances
for changes or decreases set forth in such letter, in which
case the letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the 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.
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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
each Agent 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 such Agents and counsel for the Agents,
this Agreement and all obligations of either Agent hereunder may be canceled 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 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 the Purchaser in
a Terms Agreement, the Purchaser shall have received, appropriately
updated, (i) a certificate of the Company, dated as of the Closing Date,
to the effect set forth in Section 5(d) (except that references to the
Prospectus shall be to the Prospectus as supplemented as of the date of
such Terms Agreement), (ii) the opinion of 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
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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, 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 a 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
such 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
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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 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
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the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a)
or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying
party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action
or (iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such 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 one or more of 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 such
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 such of you as Purchaser pursuant to Section 2(b) above). If
the allocation provided by the immediately preceding sentence is
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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 such 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 such of 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 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
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properties of the Company and its subsidiaries the effect of which
is, in the reasonable judgment of the Purchaser, so material and adverse
as to make it impractical or inadvisable to proceed with the offering or
delivery of such Note, (ii) there shall have been, subsequent to the
agreement to purchase such Note, any decrease in the rating of any of the
Company's debt securities by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act) or any notice given of any intended or potential decrease in any
such rating or of a possible change in any such rating that does not
indicate the direction of the possible change, (iii) trading in
securities generally on the New York Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on
such Exchange, (iv) a banking moratorium shall have been declared by
either Federal or New York State authorities or (v) there shall have
occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis
the effect of which on financial markets is such as to make it, in the
reasonable judgment of the Purchaser, impracticable or inadvisable to
proceed with the offering or delivery of such Notes.
10. Survival of Certain Provisions. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of you set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of you or the Company or any of the directors, officers, employees,
agents or controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Notes. The provisions of Sections 4(g) and 8
hereof shall survive the termination or cancellation of this Agreement. The
provisions of this Agreement (including without limitation Section 7 hereof)
applicable to any purchase of a Note for which an agreement to purchase exists
prior to the termination hereof shall survive any termination of this
Agreement. If at the time of termination of this Agreement any 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 telegraphed 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 telegraphed 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
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provided in Section 7, any person who has agreed to purchase Notes, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and you.
Very truly yours,
UNION TANK CAR COMPANY
By: /s/ Mark J. Garrette
-----------------------
Name: Mark J. Garrette
Title: Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
SALOMON BROTHERS INC
By: /s/ R. Kurtz
-------------------------------
Name: Randy Kurtz
Title: Director
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Harold J. Hendershot III
-------------------------------
Name: Harold J. Hendershot III
Title: Vice President
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SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the following
percentage of the principal amount of each Note sold on an agency basis by such
Agent:
Term Commission Rate
---- ---------------
More than nine months to less than twelve
months .125%
Twelve months to less than eighteen months .150
Eighteen months to less than two years .200
Two years to less than three years .250
Three years to less than four years .350
Four years to less than five years .450
Five years to less than six years .500
Six years to less than seven years .550
Seven years to less than ten years .600
Ten years to less than fifteen years .625
Fifteen years to less than twenty years .700
Twenty years to and including thirty years .750
More than thirty years Negotiated at the Time of Sale
Unless otherwise specified in the applicable Terms Agreement, the discount
or commission payable to a Purchaser shall be determined on the basis of the
commission schedule set forth above.
Address for Notice to you:
Notices to Salomon Brothers Inc shall be directed to it at Seven World
Trade Center, New York, NY 10048, Attention of the Medium-Term Note Department.
Notices to Morgan Stanley & Co., Incorporated shall be directed to it at
1585 Broadway, 2nd Floor, New York, NY 10036, Attention of the Manager -
Continuously Offered Products, with a copy to Peter Cooper, Investment Banking
Information Center, 34th Floor.
26
EXHIBIT A
UNION TANK CAR COMPANY
Medium-Term Note Administrative Procedures
September 30, 1997
The Medium-Term Notes, Series A, Due Nine Months or More from Date of
Issue (the "Notes") of Union Tank Car Company (the "Company") are to be offered
on a continuing basis. Salomon Brothers Inc and Morgan Stanley & Co.
Incorporated, as agents (each an "Agent"), have agreed to solicit purchases of
Notes issued in fully registered form. The Agents will not be obligated to
purchase Notes for their own account. The Notes are being sold pursuant to a
Selling Agency Agreement between the Company and the Agents, dated the date
hereof (the "Agency Agreement"). The Notes will rank equally with all other
unsecured and unsubordinated debt of the Company and have been registered with
the Securities and Exchange Commission (the "Commission"). The Notes will be
issued under an Indenture dated as of January 16, 1997 (as supplemented by the
Fourth Supplemental Indenture, dated as of September 30, 1997, the
"Indenture"), between the Company and Harris Trust and Savings Bank ("Harris"),
as trustee (in such capacity, the "Trustee").
The Agency Agreement provides that Notes may also be purchased by an Agent
acting solely as principal and not as agent. In the event of any such
purchase, the functions of both the Agent and the beneficial owner under the
administrative procedures set forth below shall be performed by such Agent
acting solely as principal, unless otherwise agreed to between the Company and
such Agent acting as principal.
Each Note will be represented by either a Global Security (as defined
hereinafter) delivered to Harris as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Note") or a certificate delivered to the Holder thereof or a Person designated
by such Holder (a "Certificated Note"). Only Notes denominated and payable in
U.S. dollars may be issued as Book-Entry Notes. An owner of a Book-Entry Note
will not be entitled to receive a certificate representing such Note.
The procedures to be followed during, and the specific terms of, the
solicitation of orders by the Agents and the sale as a result thereof by the
Company are explained below. Administrative and record-keeping
responsibilities will be handled for the Company by its Treasury Department.
The Company will advise the Agents and the Trustee in writing of those persons
handling administrative responsibilities with whom the Agents and the Trustee
are to communicate regarding orders to purchase Notes and the details of their
delivery.
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Administrative procedures and specific terms of the offering are explained
below. Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof, as adjusted in accordance with changes
in DTC's operating requirements, and Certificated Notes will be issued in
accordance with the administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indenture and the Notes
shall be used herein as therein defined. Notes for which interest is
calculated on the basis of a fixed interest rate, which may be zero, are
referred to herein as "Fixed Rate Notes". Notes for which interest is
calculated on the basis of a floating interest rate are referred to herein as
"Floating Rate Notes". To the extent the procedures set forth below conflict
with the provisions of the Notes, the Indenture, DTC's operating requirements
or the Agency Agreement, the relevant provisions of the Notes, the Indenture,
DTC's operating requirements and the Agency Agreement shall control.
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PART I
Administrative Procedures for
Book-Entry Notes
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Harris will perform the
custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representation
from the Company and Harris to DTC dated as of the date hereof and a
Medium-Term Note Certificate Agreement between Harris and DTC and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
system ("SDFS").
Issuance: On any date of settlement (as defined under "Settlement" below)
for one or more Book-Entry Notes, the Company will issue a
single global security in fully registered form without coupons
(a "Global Security") representing up to $100,000,000 principal
amount of all such Book-Entry Notes that have the same original
issue date, original issue discount provisions, if any,
Interest Payment Dates, Regular Record Dates, Interest Payment
Period, redemption, repayment and extension provisions, if any,
Maturity Date, and, in the case of Fixed Rate Notes, interest
rate, or, in the case of Floating Rate Notes, initial interest
rate, Base Rate, Index Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread Multiplier, if any,
minimum interest rate, if any, and maximum interest rate, if
any (collectively, the "Terms"). Each Global Security will be
dated and issued as of the date of its authentication by the
Trustee. Each Global Security will bear an original issue
date, which will be (i) with respect to an original Global
Security (or any portion thereof), the original issue date
specified in such Global Security and (ii) following a
consolidation of Global Securities, with respect to the Global
Security resulting from such consolidation, the most recent
Interest Payment Date to which interest has been paid or duly
provided for on the predecessor Global Securities, regardless
of the date of authentication of such resulting Global
Security. No Global Security will represent (i) both Fixed
Rate and Floating Rate Book-Entry Notes or (ii) any
Certificated Note.
Identification The Company has arranged with the CUSIP Service Bureau
Numbers: of Standard & Poor's Corporation (the "CUSIP Service Bureau")
for the reservation of a series of CUSIP numbers, which series
consists of approximately 900 CUSIP numbers
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and relates to Global Securities representing Book-Entry Notes
and book-entry medium-term notes issued by the Company with
other series designations. Harris, the Company and DTC have
obtained from the CUSIP Service Bureau a written list of such
reserved CUSIP numbers. The Company will assign CUSIP numbers
to Global Securities as described below under Settlement
Procedure "B". DTC will notify the CUSIP Service Bureau
periodically of the CUSIP numbers that the Company has assigned
to Global Securities. Harris will notify the Company at any
time when fewer than 100 of the reserved CUSIP numbers remain
unassigned to Global Securities, and, if it deems necessary,
the Company will reserve additional CUSIP numbers for
assignment to Global Securities. Upon obtaining such
additional CUSIP numbers, the Company shall deliver a list of
such additional CUSIP numbers to Harris and DTC.
Registration: Global Securities will be issued only in fully registered form
without coupons. Each Global Security will be registered in
the name of CEDE & CO., as nominee for DTC, on the securities
register for the Notes maintained under the Indenture. The
beneficial owner of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will designate
one or more participants in DTC (with respect to such
Book-Entry Note, the "Participants") to act as agent or agents
for such owner in connection with the book-entry system
maintained by DTC, and DTC will record in book-entry form, in
accordance with instructions provided by such Participants, a
credit balance with respect to such beneficial owner in such
Book-Entry Note in the account of such Participants. The
ownership interest of such beneficial owner (or such
participant) in such Book-Entry Note will be recorded through
the records of such Participants or through the separate
records of such Participants and one or more indirect
participants in DTC; provided, however, so long as DTC is the
registered owner of a Note, DTC will be the sole owner and
holder of the Book-Entry Note represented by such Global
Security for all purposes under the Indenture.
Transfers: Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in DTC) acting
on behalf of beneficial transferors and transferees of such
Note.
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Exchanges: Harris may deliver to DTC and the CUSIP Service Bureau at any
time a written notice of consolidation (a copy of which shall
be attached to the resulting Global Security described below)
specifying (i) the CUSIP numbers of two or more outstanding
Global Securities that represent (A) Fixed Rate Book-Entry
Notes having the same Terms and for which interest has been
paid to the same date or (B) Floating Rate Book-Entry Notes
having the same Terms and for which interest has been paid to
the same date, (ii) a date, occurring at least thirty days
after such written notice is delivered and at least thirty days
before the next Interest Payment Date for such Book-Entry
Notes, on which such Global Securities shall be exchanged for a
single replacement Global Security and (iii) a new CUSIP
number, obtained from the Company, to be assigned to such
replacement Global Security. Upon receipt of such a notice,
DTC will send to its participants (including Harris) a written
reorganization notice to the effect that such exchange will
occur on such date. Prior to the specified exchange date,
Harris will deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and such new CUSIP
number and stating that, as of such exchange date, the CUSIP
numbers of the Global Securities to be exchanged will no longer
be valid. On the specified exchange date, Harris will exchange
such Global Securities for a single Global Security bearing the
new CUSIP number and the CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned.
Maturities: Each Book-Entry Note will mature on a date not less than nine
months after the original issue date for such Note. A Floating
Rate Book-Entry Note will mature only on an Interest Payment
Date for such Note.
Denominations: Book-Entry Notes will be issued in principal amounts of $1,000
or any amount in excess thereof that is an integral multiple of
$1,000.
Interest: General. Interest, if any, on each Book-Entry Note will accrue
from the Original Issue Date for the first interest period or
the last date to which interest has been paid, if any, for each
subsequent interest period, on the Global Security representing
such Book-Entry Note, and will be calculated and paid in the
manner described in such Book-Entry Note and in the Prospectus
(as defined in the Agency Agreement),
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as supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein,
each payment of interest on a Book-Entry Note will
include interest accrued to but excluding the
Interest Payment Date (provided that, in the case of
Floating Rate Book-Entry Notes which reset daily or
weekly, interest payments will include accrued
interest to but excluding the Regular Record Date
immediately preceding the Interest Payment Date) or
to but excluding Maturity (other than a Maturity of
a Fixed Rate Book-Entry Note occurring on the 31st
day of a month, in which case such payment of
interest will include interest accrued to but
excluding the 30th day of such month. Interest
payable at the Maturity of a Book-Entry Note will be
payable to the Person to whom the principal of such
Note is payable. Standard & Poor's Corporation will
use the information received in the pending deposit
message described under Settlement Procedure "C"
below in order to include the amount of any interest
payable and certain other information regarding the
related Global Security in the appropriate (daily or
weekly) bond report published by Standard & Poor's
Corporation.
Regular Record Dates. The Regular Record Date with
respect to any Interest Payment Date shall be the
date fifteen calendar days immediately preceding
such Interest Payment Date (whether or not a
Business Date).
Interest Payment Dates on Fixed Rate Book-Entry
Notes. Unless otherwise specified pursuant to
Settlement Procedure "A" below, interest payments on
Fixed Rate Book-Entry Notes will be made
semiannually on March 1 and September 1 of each year
and at Maturity; provided, however, that if an
Interest Payment Date for a Fixed Rate Book-Entry
Note is not a Business Day, the payment due on such
day shall be made on the next succeeding Business
Day and no interest shall accrue on such payment for
the period from and after such Interest Payment
Date; provided further, that in the case of a Fixed
Rate Book-Entry Note issued between a Regular Record
Date and an Interest Payment Date, the first
interest payment will be made on the Interest
Payment Date following the next succeeding Regular
Record Date.
Interest Payment Dates on Floating Rate Book-Entry
Notes. Interest payments will be made on Floating
Rate Book-Entry Notes monthly, quarterly,
semi-annually or annually. Unless
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otherwise agreed upon, interest will be payable, in the
case of Floating Rate Book-Entry Notes with a monthly Interest
Payment Period, on the third Wednesday of each month; with a
quarterly Interest Payment Period, on the third Wednesday of
March, June, September and December of each year; with a
semi-annual Interest Payment Period on the third Wednesday of
the two months specified pursuant to Settlement Procedure "A"
below; and with an annual Interest Payment Period, on the third
Wednesday of the month specified pursuant to Settlement
Procedure "A" below; provided, however, that if an Interest
Payment Date for a Floating Rate Book-Entry Note would
otherwise be a day that is not a Business Day with respect to
such Floating Rate Book-Entry Note, such Interest Payment Date
will be the next succeeding Business Day with respect to such
Floating Rate Book-Entry Note, except in the case of a Floating
Rate Book-Entry Note for which the Base Rate is LIBOR, if such
Business Day is in the next succeeding calendar month, such
Interest Payment Date will be the immediately preceding
Business Day; and provided further, that in the case of a
Floating Rate Book-Entry Note issued between a Regular Record
Date and an Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following the next
succeeding Regular Record Date.
Notice of Interest Payment and Regular Record Dates. On the
first Business Day of January, April, July and October of each
year, Harris will deliver to the Company and DTC a written list
of Regular Record Dates and Interest Payment Dates that will
occur with respect to Book-Entry Notes during the six-month
period beginning on such first Business Day. Promptly after
each Interest Determination Date for Floating Rate Book-Entry
Notes, Harris, as Calculation Agent, will notify Standard &
Poor's Corporation of the interest rates determined on such
Interest Determination Date.
Calculation Fixed Rate Book-Entry Notes. Interest on Fixed Rate Book-Entry
of Interest: Notes (including interest for partial periods) will be
calculated on the basis of a 360-day year of twelve 30-day
months.
Floating Rate Book-Entry Notes. Interest rates on Floating
Rate Book-Entry Notes will be determined as set forth in the
form of Notes. Interest on Floating Rate Book-Entry Notes,
except as otherwise set forth therein, will be calculated on
the
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basis of actual days elapsed and a year of 360
days, except that in the case of a Floating Rate
Book-Entry Note for which the Base Rate is Treasury
Rate, interest will be calculated on the basis of
the actual number of days in the year.
Payments of Payments of Payment of Interest Only. Promptly
Principal and after each Regular Principal and Record Date,
Interest: Harris will deliver to the Company and DTC a written
notice setting forth, by CUSIP number, the amount
of interest to be paid on each Global Security on
the following Interest Payment Date (other than an
Interest Payment Date coinciding with Maturity) and
the total of such amounts. DTC will confirm the
amount payable on each Global Security on such
Interest Payment Date by reference to the
appropriate (daily or weekly) bond reports published
by Standard & Poor's Corporation. The Company will
pay to Harris, as paying agent, the total amount of
interest due on such Interest Payment Date (other
than at Maturity), and Harris will pay such amount
to DTC, at the times and in the manner set forth
below under "Manner of Payment". If any Interest
Payment Date for a Book-Entry Note is not a Business
Day, the payment due on such day shall be made on
the next succeeding Business Day and no interest
shall accrue on such payment for the period from and
after such Interest Payment Date.
Payments at Maturity. On or about the first
Business Day of each month, Harris will deliver to
the Company, DTC and the Trustee a written list of
principal and interest to be paid on each Global
Security maturing (on a Maturity or Redemption Date
or otherwise) in the following month. Harris, the
Company and DTC will confirm the amounts of such
principal and interest payments with respect to each
such Global Security on or about the fifth Business
Day preceding the Maturity of such Global Security.
On or before Maturity, the Company will pay to
Harris, as paying agent, the principal amount of
such Global Security, together with interest due at
such Maturity. Harris will pay such amount to DTC at
the times and in the manner set forth below under
"Manner of Payment". If any Maturity of a Global
Security representing Book-Entry Notes is not a
Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no
interest shall accrue on such payment for the period
from and after such Maturity. Promptly after
payment to DTC of the principal and interest due at
Maturity of such Global Security, the Trustee
will
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cancel such Global Security in accordance with
the Indenture and so advise the Company. On the
first Business Day of each month, Harris will
deliver to the Trustee a written statement
indicating the total principal amount of Outstanding
Global Securities as of the immediately preceding
Business Day. If the Maturity of a Book-Entry Note
is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day
and no interest shall accrue on such payment for the
period from and after such Maturity.
Manner of Payment. The total amount of any
principal and interest due on Global Securities on
any Interest Payment Date or at Maturity shall be
paid by the Company to Harris in immediately
available funds no later than such time required by
Harris on such date. The Company will make such
payment on such Global Securities by wire transfer
or automated clearing house to Harris. The Company
will confirm any such instructions in writing to
Harris. Prior to 10 A.M. (New York City time) on
the date of Maturity or as soon as possible
thereafter, Harris will pay by separate wire
transfer (using Fedwire message entry instructions
in a form previously specified by DTC) to an account
at the Federal Reserve Bank of New York previously
specified by DTC, in funds available for immediate
use by DTC, each payment of principal (together with
interest thereon) due on a Global Security on such
date. On each Interest Payment Date (other than at
Maturity), interest payments shall be made to DTC,
in funds available for immediate use by DTC, in
accordance with existing arrangements between Harris
and DTC. On each such date, DTC will pay, in
accordance with its SDFS operating procedures then
in effect, such amounts in funds available for
immediate use to the respective Participants in
whose names the Book-Entry Notes represented by such
Global Securities are recorded in the book-entry
system maintained by DTC. None of the Company (as
issuer or as paying agent), the Trustee or Harris
shall have any direct responsibility or liability
for the payment by DTC to such Participants of the
principal of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any
interest payment on a Book-Entry Note will be
determined and withheld by the Participant, indirect
participant in DTC or other Person
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responsible for forwarding payments and
materials directly to the beneficial owner of such
Note.
Procedures upon Company Notice to Trustee Regarding Exercise of
Company's Optional Redemption. At least 45 days prior to the
Exercise of date on which it intends to redeem a Book-Entry
Optional Note, the Company will notify the Trustee that it is
Redemption: exercising such option with respect to such
Book-Entry Note on such date.
Trustee Notice to DTC Regarding Company's Exercise
of Optional Redemption. After receipt of notice
that the Company is exercising its option to redeem
a Book-Entry Note, the Trustee will, at least 30
days before the redemption date for such Book-Entry
Note, hand deliver to DTC a notice identifying such
Book-Entry Note by CUSIP number and informing DTC of
the Company's exercise of such option with respect
to such Book-Entry Note.
Deposit of Redemption Price. On or before any
redemption date, the Company shall deposit with such
Trustee an amount of money sufficient to pay the
redemption price, plus interest accrued to such
redemption date, for all the Book-Entry Notes or
portions thereof which are to be repaid on such
redemption date. Such Trustee will use such money
to repay such Book-Entry Notes pursuant to the terms
set forth in such Notes.
Procedure for Rate The Company and the Agents will discuss from time to
Setting and time the aggregate principal amount of, the issuance
Posting: price of, and the interest rates to be borne by,
Book-Entry Notes that may be sold as a result of the
solicitation of orders which the Agents are to
solicit orders (the setting of such prices and rates
to be referred to herein as "posting") or if the
Company decides to change prices or rates previously
posted by it, it will promptly advise the Agents of
the prices and rates to be posted.
Acceptance and Unless otherwise instructed by the Company, each
Rejection of Agent will advise the Company promptly by telephone
Orders: of all orders to purchase Book-Entry Notes received
by such Agent, other than those rejected by it in
whole or in part in the reasonable exercise of its
discretion. Unless otherwise agreed by the Company
and the Agents, the Company has the right to
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accept orders to purchase Book-Entry Notes and may
reject any such orders in whole or in part.
Preparation of If any order to purchase a Book-Entry Note is
Pricing accepted by or on behalf of the Company, the Company
Supplement: will prepare a pricing supplement (a "Pricing
Supplement") reflecting the applicable interest
rates and other terms of such Book-Entry Note and
will arrange to have copies thereof filed with the
Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act and will
supply one copy thereof (and additional copies if
requested) to the Agent which presented the order
(the "Presenting Agent"). The Presenting Agent will
cause a Prospectus and Pricing Supplement to be
delivered to the purchaser of such Book-Entry Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing Supplements (other than those
retained for files) will be destroyed.
Suspension of The Company reserves the right, in its sole
Solicitation: discretion, to instruct the Agents to suspend at any
Amendment or time, for any period of time or permanently, the
Supplement: solicitation of orders to purchase Book-Entry Notes.
Upon receipt of such instructions, the Agents will
forthwith suspend solicitation until such time as
the Company has advised them that such solicitation
may be resumed.
In the event that at the time the Company
solicitation of purchases there shall be
any orders outstanding for settlement, the Company
will promptly advise the Agents, the Trustee and
Harris whether such orders may be settled and
whether copies of the Prospectus as in effect at the
time of the suspension, together with the
appropriate Pricing Supplement, may be delivered in
connection with the settlement of such orders. The
Company will have the sole responsibility for such
decision and for any arrangements that may be made
in the event that the Company determines that such
orders may not be settled or that copies of such
Prospectus may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement (as defined in the Agency
Agreement) or the Prospectus, it will promptly
advise the Agents and
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furnish the Agents with the proposed amendment
or supplement and with such certificates and
opinions as are required, all to the extent required
by and in accordance with the terms of the Agency
Agreement. Subject to the provisions of the Agency
Agreement, the Company may file with the Commission
any such supplement to the Prospectus relating to
the Notes. The Company will provide the Agents, the
Trustee and Harris with copies of any such
supplement, and confirm to the Agents that such
supplement has been filed with the Commission
pursuant to the applicable paragraph of Rule 424(b).
Procedures for When the Company has determined to change the
Rate Changes: interest rates of Book-Entry Notes being offered, it
will promptly advise the Agents and the Agents will
forthwith suspend solicitation of orders. The
Agents will telephone the Company with
recommendations as to the changed interest rates.
At such time as the Company has advised the Agents
of the new interest rates, the Agents may resume
solicitation of orders. Until such time only
"indications of interest" may be recorded.
Delivery of A copy of the Prospectus and a Pricing Supplement
Prospectus: relating to a Book-Entry Note must accompany or
precede the earliest of any written offer of such
Book-Entry Note, confirmation of the purchase of
such Book-Entry Note and payment for such Book-Entry
Note by its purchaser. If notice of a change in the
terms of the Book-Entry Notes is received by the
Agents between the time an order for a Book-Entry
Note is placed and the time written confirmation
thereof is sent by the Presenting Agent to a
customer or his agent, such confirmation shall be
accompanied by a Prospectus and Pricing Supplement
setting forth the terms in effect when the order was
placed. Subject to "Suspension of Solicitation;
Amendment or Supplement" above, the Presenting Agent
will deliver a Prospectus and Pricing Supplement as
herein described with respect to each Book-Entry
Note sold by it. The Company will make such
delivery if such Book-Entry Note is sold directly by
the Company to a purchaser (other than an Agent).
Confirmation: For each order to purchase a Book-Entry Note
solicited by any Agent and accepted by or on behalf
of the Company, the Presenting Agent will issue a
confirmation to the purchaser,
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with a copy to the Company, setting forth the
details set forth above and delivery and payment
instructions.
Settlement: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Book-Entry Note shall constitute
"settlement" with respect to such Book-Entry Note.
All orders accepted by the Company will be settled
on the fifth Business Day following the date of sale
of such Book-Entry Note pursuant to the timetable
for settlement set forth below unless the Company
and the purchaser agree to settlement on another day
which shall be no earlier than the next Business Day
following the date of sale.
Settlement Settlement Procedures with regard to each Book-Entry
Procedures: Note sold by the Company through any Agent, as
agent, shall be as follows:
A. The Presenting Agent will advise the Company
by telephone of the following settlement
information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry
Note, the interest rate or, in the case of
a Floating Rate Book-Entry Note, the Base
Rate, initial interest rate (if known at
such time), Index Maturity, Interest Reset
Period, Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum
Interest Rate (if any) and Maximum
Interest Rate (if any).
4. Interest Payment Dates and the Interest
Payment Period.
5. Redemption, repayment and extension
provisions, if any.
6. Settlement date.
7. Price.
8. Presenting Agent's commission, determined
as provided in Section 2 of the Agency
Agreement.
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9. Whether such Book-Entry Note is issued at
an original issue discount and, if so, the
total amount of OID, the yield to maturity
and the initial accrual period OID.
B. The Company will assign a CUSIP number to the
Global Security representing such Book-Entry Note
and then advise Harris by telephone (confirmed in
writing at any time on the same date) or electronic
transmission of the information set forth in
Settlement Procedure "A" above, such CUSIP number
and the name of the Presenting Agent. The Company
will also notify the Presenting Agent by telephone
of such CUSIP number as soon as practicable. Each
such communication by the Company shall constitute a
representation and warranty by the Company to
Harris, the Trustee and the Presenting Agent that
(i) such Note is then, and at the time of issuance
and sale thereof will be, duly authorized for
issuance and sale by the Company, (ii) such Note,
and the Global Security representing such Note, will
conform with the terms of the Indenture for such
Note, and (iii) upon authentication and delivery of
such Global Security, the aggregate initial offering
price of all Notes issued under the Indenture will
not exceed $100,000,000 (except for Book-Entry Notes
represented by Global Securities authenticated and
delivered in exchange for or in lieu of Global
Securities pursuant to the Indenture and except for
Certificated Notes authenticated and delivered upon
registration of transfer of, in exchange for, or in
lieu of Certificated Notes pursuant to any such
Section).
C. Harris will enter a pending deposit message
through DTC's Participant Terminal System providing
the following settlement information to DTC (which
shall route such information to Standard & Poor's
Corporation), the Presenting Agent and, upon
request, the Trustee:
1. The information set forth in Settlement
Procedure "A".
2. Identification as a Fixed Rate Book-Entry Note
or a Floating Rate Book-Entry Note.
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3. Initial Interest Payment Date for such
Book-Entry Note, number of days by which
such date succeeds the related Regular
Record Date and amount of interest payable
on such Interest Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the Global Security
representing such Book-Entry Note.
6. Whether such Global Security will
represent any other Book-Entry Note
(to the extent known at such time).
D. To the extent the has not already done so, the
Company will deliver to Harris a Global
Security in a form that has been approved by
the Company, the Agents and the Trustee.
E. Harris will complete such Book-Entry Note,
stamp the appropriate legend, as instructed by
DTC, ifnot already set forth thereon, and
authenticate the Global Security representing
such Book-Entry Note.
F. DTC will credit such Book-Entry Note to
Harris's participant account at DTC.
G. Harris will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC to (i) debit such Book-Entry
Note to Harris's participant account and
credit such Book-Entry Note to the Presenting
Agent's participant account and (ii) debit the
Presenting Agent's settlement account and
credit Harris's settlement account for an
amount equal to the price of such Book-Entry
Note less the Presenting Agent's commission.
The entry of such a deliver order shall
constitute a representation and warranty by
Harris to DTC that (i) the Global Security
representing such Book-Entry Note has been
issued and authenticated and (ii) Harris is
holding such Global Security pursuant to the
Medium-Term Note Certificate Agreement between
Harris and DTC.
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41
H. The Presenting Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Book-Entry
Note to the Presenting Agent's participant
account and credit such Book-Entry Note to the
participant accounts of the Participants with
respect to such Book-Entry Note and (ii) to
debit the settlement accounts of such
Participants and credit the settlement account
of the Presenting Agent for an amount equal to
the price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
J. Harris will, upon receipt of funds from the
Presenting Agent in accordance with Settlement
Procedure "G", credit to an account of the
Company maintained at Harris funds available
for immediate use in the amount transferred to
Harris in accordance with Settlement Procedure
"G".
K. The Presenting Agent will confirm the purchase
of such Book-Entry Note to the purchaser either
by transmitting to the Participants with
respect to such Book-Entry Note a confirmation
order or orders through DTC's institutional
delivery system or by mailing a written
confirmation to such purchaser.
Settlement For orders of Book-Entry Notes solicited by any
Procedure Agent and accepted by the Company for settlement
Timetable: on the first Business Day after the sale date,
Settlement Procedures "A" through "K" set forth
above shall be completed as soon as possible but
not later than the respective times (New York
City time) set forth below:
Settlement
Procedure Time
----------- ------
A 11:00 A.M. on the sale
date
B 12:00 Noon on the sale
date
C 2:00 P.M. on the sale
-17-
42
date
D 3.00 P.M. on the Business
Day before settlement
E 9:00 A.M. on settlement
date
F 10:00 A.M. on settlement
date
G-H 2:00 P.M. on settlement
date
I 4:45 P.M. on settlement
date
J-K 5:00 P.M. on settlement
date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures "A",
"B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M. and 12:00
Noon on the first Business Day after the sale date
and no later than 2:00 P.M. on the Business Day
before the settlement date, respectively. If the
initial interest rate for a Floating Rate Book-Entry
Note has not been determined at the time that
Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon as
such rate has been determined but no later than
12:00 Noon and 2:00 P.M., respectively, on the
Business Day before the settlement date. Settlement
Procedure "I" is subject to extension in accordance
with any extension of Fedwire closing deadlines and
in the other events specified in SDFS operating
procedures in effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or
canceled, Harris will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message
to such effect by no later than 2:00 P.M. on the
Business Day immediately preceding the scheduled
settlement date.
Failure to Settle: If Harris fails to enter an SDFS deliver order with
respect to a Book-Entry Note pursuant to Settlement
Procedure "G", Harris may deliver to DTC, through
DTC's Participant Terminal System, as soon as
practicable, a withdrawal message instructing DTC to
debit such Book-Entry Note to Harris's participant
account. DTC will process the withdrawal message,
provided that Harris's participant account contains
a principal amount of the Global Security
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43
representing such Book-Entry Note that is at
least equal to the principal amount to be debited.
If a withdrawal message is processed with respect to
all the Book-Entry Notes represented by a Global
Security, the Trustee will cancel such Global
Security in accordance with the Indenture and so
advise the Company and Harris, and Harris will make
appropriate entries in its records. The CUSIP
number assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned. If a
withdrawal message is processed with respect to one
or more, but not all, of the Book-Entry Notes
represented by a Global Security, Harris will
exchange such Book-Entry Note for two Global
Securities, one of which shall represent such
Book-Entry Notes and shall be canceled immediately
after issuance and the other of which shall
represent the other Book-Entry Notes previously
represented by the surrendered Global Security and
shall bear the CUSIP number of the surrendered
Global Security.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a
Person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the Presenting Agent may
enter SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures "H" and "G",
respectively. Thereafter, Harris will deliver the
withdrawal message and take the related actions
described in the preceding paragraph. If such
failure shall have occurred for any reason other
than a default by the Presenting Agent in the
performance of its obligations hereunder and under
the Agency Agreement, then the Company will
reimburse the Presenting Agent or Harris, as
applicable, on an equitable basis for the loss of
the use of the funds during the period when they
were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event
of a failure to settle with respect to one or more,
but not all, of the Book-Entry Notes to have been
represented by a Global Security, Harris will
provide, in accordance with Settlement Procedure
"E", for the authentication and issuance
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44
of a Global Security representing the other
Book-Entry Notes to have been represented by such
Global Security and will make appropriate entries in
its records.
Trustee and Harris Nothing herein shall be deemed to require the
Not to Risk Funds: Trustee or Harris to risk or expend its own funds in
connection with any payment to the Company, DTC, the
Agents or the purchaser, it being understood by all
parties that payments made by the Trustee or Harris
to the Company, DTC, the Agents or the purchaser
shall be made only to the extent that funds are
provided to the Trustee or Harris for such purpose.
Authenticity of The Company will cause the Trustee to furnish Harris
Signatures: and the Agents from time to time with the specimen
signatures of each of the Trustee's officers,
employees or agents who has been authorized by the
Trustee to authenticate Book-Entry Notes, but
neither Harris nor any Agent will have any
obligation or liability to the Company or the
Trustee in respect of the authenticity of the
signature of any officer, employee or agent of the
Company or the Trustee on any Book-Entry Note.
Periodic Statements Periodically, Harris will send to the Company a
from Harris: statement setting forth the principal amount of
Book-Entry Notes Outstanding as of that date and
setting forth a brief description of any sales of
Book-Entry Notes which the Company has advised
Harris but which have not yet been settled.
-20-
45
PART II
Administrative Procedures for Certificated Notes
Harris will serve as registrar and transfer agent in connection with the
Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as
of the date of its authentication by the Trustee.
Each Certificated Note will bear an Original Issue
Date, which will be (i) with respect to an original
Certificated Note (or any portion thereof), its
original issuance date (which will be the settlement
date) and (ii) with respect to any Certificated Note
(or portion thereof) issued subsequently upon
transfer or exchange of a Certificated Note or in
lieu of a destroyed, lost or stolen Certificated
Note, the Original Issue Date of the predecessor
Certificated Note, regardless of the date of
authentication of such subsequently issued
Certificated Note.
Regisitration: Certificated Notes will be issued only in fully
registered form without coupons.
Transfers and A Certificated Note may be presented for transfer or
Exchanges: exchange at the principal corporate trust office in
the City of New York of Harris. Certificated Notes
will be exchangeable for other Certificated Notes
having identical terms but different authorized
denominations without service charge. Certificated
Notes will not be exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date
not less than nine months after the settlement date
for such Note. A Floating Rate Certificated Note
will mature only on an Interest Payment Date for
such Note. Any Note denominated in Japanese yen
will mature on a date not less than one year from
the Original Issue Date (as defined below) for such
Note. Any Note denominated in Pounds Sterling will
mature on a date not less than one year, nor more
than five years, after its Original Issue Date.
Denominations: The denomination of any Certificated Note
denominated in U.S. dollars will be a minimum of
$1,000 or any amount in excess thereof that is an
integral multiple of $1,000. The authorized
denominations of Certificated Notes denominated
-21-
46
in any other currency will be specified pursuant to
"Settlement Procedures" below.
Interest: General. Interest, if any, on each Certificated
Note will accrue from the original issue date for
the first interest period or the last date to which
interest has been paid, if any, for each subsequent
interest period, and will be calculated and paid in
the manner described in such Note and in the
Prospectus, as supplemented by the applicable
Pricing Supplement. Unless otherwise specified
therein, each payment of interest on a Certificated
Note will include interest accrued to but excluding
the Interest Payment Date (provided that, in the
case of Certificated Notes which reset daily or
weekly, interest payments will include accrued
interest to but excluding the Regular Record Date
immediately preceding the Interest Payment Date) or
to but excluding Maturity (other than a Maturity of
a Fixed Rate Certificated Note occurring on the 31st
day of a month, in which case such payment of
interest will include interest accrued to but
excluding the 30th day of such month).
Regular Record Dates. The Regular Record Dates
with respect to any Interest Payment Date shall be
the date fifteen calendar days immediately preceding
such Interest Payment Date (whether or not a
Business Day).
Fixed Rate Certificated Notes. Unless otherwise
specified pursuant to Settlement Procedure "A"
below, interest payments on Fixed Rate Certificated
Notes will be made semi-annually on June 1 and
December 1 of each year and at Maturity; provided,
however, that if any Interest Payment Date for a
Fixed Rate Certificated Note is not a Business Day,
the payment due on such day shall be made on the
next succeeding Business Day and no interest shall
accrue on such payment for the period from and after
such Interest Payment Date; provided further, that
in the case of a Fixed Rate Certificated Note issued
between a Regular Record Date and an Interest
Payment Date, the first interest payment will be
made on the Interest Payment Date following the next
succeeding Regular Record Date.
Floating Rate Certificated Notes. Interest payments
will be made on Floating Rate Certificated Notes
monthly, quarterly, semi-annually or annually.
Interest will be payable, in the case of Floating
Rate Certificated Notes with a monthly
-22-
47
Interest Payment Period, on the third Wednesday of
each month; with a quarterly interest Payment
Period, on the third Wednesday of March, June,
September and December of each year; with a
semi-annual Interest Payment Period, on the third
Wednesday of the two months specified pursuant to
Settlement Procedure "A" below; and with an annual
Interest Payment Period, on the third Wednesday of
the month specified pursuant to Settlement Procedure
"A" below; provided, however, that if an Interest
Payment Date for a Floating Rate Certificated Note
would otherwise be a day that is not a Business Day
with respect to such Floating Rate Certificated
Note, such Interest Payment Date will be the next
succeeding Business Day with respect to such
Floating Rate Certificated Note, except in the case
of a Floating Rate Certificated Note for which the
Base Rate is LIBOR, if such Business Day is in the
next succeeding calendar month, such Interest
Payment Date will be the immediately preceding
Business Day; and provided further, that in the case
of a Floating Rate Certificated Note issued between
a Regular Record Date and an interest Payment Date,
the first interest payment will be made on the
Interest Payment Date following the next succeeding
Regular Record Date.
Calculation of Fixed Rate Certificated Note. Interest on Fixed
Interest: Rate Certificated Notes (including interest for
partial periods) will be calculated on the basis of
a 360-day year of twelve 30-day months.
Floating Rate Certificated Notes. Interest rates on
Floating Rate Certificated Notes will be determined
as set forth in the form of Notes. Interest on
Floating Rate Certificated Notes, except as
otherwise set forth therein, will be calculated on
the basis of actual days elapsed and a year of 360
days, except that in the case of a Floating Rate
Certificated Note for which the Base Rate is
Treasury Rate, interest will be calculated on the
basis of the actual number of days in the year.
Payments of Interest, if any, on each Certificated Note will be
Principal and calculated and paid in the manner described in such
Interest: Note and in the Prospectus, as supplemented by the
applicable Pricing Supplement. Unless otherwise
provided in the Indenture or the Certificated Note,
the first payment of interest on any Certificated
Note originally issued between a Record Date and an
Interest Payment Date will be made on the next
-23-
48
succeeding Interest Payment Date. Interest payable
at the Maturity of a Certificated Note will be
payable to the Person to whom the principal of such
Note is payable. Unless other arrangements are
made, all interest payments (excluding interest
payments made on the Maturity Date) will be made by
check mailed to the person entitled thereto as
provided above; provided, however, that the holder
of $10,000,000 (or the equivalent thereof in other
currencies) or more of Certificated Notes with
similar tenor and terms will be entitled to receive
payment by wire transfer or automated clearing house
in U.S. dollars.
Within 10 days following each Record Date, the
Trustee will inform the Company of the total amount
of the interest payments to be made by the Company
on the next succeeding Interest Payment Date. The
Trustee will provide monthly to the Company a list
of the principal and interest to be paid on
Certificated Notes maturing in the next succeeding
month.
Harris will be responsible for withholding taxes on
interest paid on Certificated Notes as required by
applicable law.
If the Maturity of a Certificated Note is not a
Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no
interest shall accrue on such payment for the period
from and after such Maturity.
Procedures upon Company Notice to Trustee Regarding Exercise of
Company's Optional Redemption. At least 45 days prior to the
Exercise of date on which it intends to redeem a Certificated
Optional Note, the Company will notify the Trustee that it is
Redemption: exercising such option with respect to such
Certificated Note on such date.
Trustee Notice to Holders Regarding Company's
Exercise of Optional Redemption. After receipt of
notice that the Company is exercising its option to
redeem a Certificated Note, the Trustee will, at
least 30 days before the redemption date for such
Certificated Note, mail a notice, first class,
postage prepaid, to the Holder of such Certificated
Note informing such Holder of the Company's exercise
of such option with respect to such Certificated
Note.
Deposit of Redemption Price. On or before any
redemption date, the Company shall deposit with such
Trustee an amount of money sufficient to pay the
redemption price, plus interest
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49
accrued to such redemption date, for all the
Certificated Notes or portions thereof and which are
to be repaid on such redemption date. Such Trustee
will use such money to repay such Certificated Notes
pursuant to the terms set forth in such Notes.
Procedure for Rate The Company and the Agents will discuss from time to
Setting and Posting: time the aggregate principal amount of, the issuance
price of, and the interest rates to be borne by,
Notes that may be sold as a result of the
solicitation of orders by the Agents. If the
Company decides to set prices of, and rates borne
by, any Notes in respect of which the Agents are to
solicit orders (the setting of such prices and rates
to be referred to herein as "posting") or if the
Company decides to change prices or rates previously
posted by it, it will promptly advise the Agents of
the prices and rates to be posted.
Acceptance and Unless otherwise instructed by the Company, each
Rejection of Orders: Agent will advise the Company promptly by telephone
of all orders to purchase Certificated Notes
received by such Agent, other than those rejected by
it in whole or in part in the reasonable exercise of
its discretion. Unless otherwise agreed by the
Company and the Agents, the Company has the sole
right to accept orders to purchase Certificated
Notes and may reject any such orders in whole or in
part. Before accepting any order to purchase a
Certificated Note to be settled in less than three
Business Days, the Company shall verify that the
Trustee will have adequate time to prepare and
authenticate such Note.
Preparation of If any order to purchase a Certificated Note is
Pricing accepted by or on behalf of the Company, the Company
Supplement: will prepare a pricing supplement (a "Pricing
Supplement") reflecting the interest rates and other
terms of such Certified Note and will arrange to
have copies thereof filed with the Commission in
accordance with the applicable paragraph of Rule
424(b) under the Act and will supply one copy
thereof (and additional copies if requested) to the
Agent which presented the order (the "Presenting
Agent"). The Presenting Agent will cause a
Prospectus and Pricing Supplement to be delivered to
the purchaser of such Certificated Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to their
use. Outdated Pricing
-25-
50
Supplements (other than those retained for files)
will be destroyed.
Suspension of The Company reserves the right, in its sole
Solicitation; discretion, to instruct the Agents to suspend at any
Amendment or time for any period of time or permanently, the
Supplement: solicitation of orders to purchase Certificated
Notes. Upon receipt of such instructions, the
Agents will forthwith suspend solicitation until
such time as the Company has advised them that such
solicitation may be resumed.
In the event that at the time the Company suspends
solicitation of purchases there shall be any orders
outstanding for settlement, the Company will
promptly advise the Agents, the Trustee and Harris
whether such orders may be settled and whether
copies of the Prospectus as in effect at the time of
the suspension, together with the appropriate
Pricing Supplement, may be delivered in connection
with the settlement of such orders. The Company
will have the sole responsibility for such decision
and for any arrangements that may be made in the
event that the Company determines that such orders
may not be settled or that copies of such Prospectus
may not be so delivered.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus, it will
promptly advise the Agents and furnish the Agents
with the proposed amendment or supplement and with
such certificates and opinions as are required, all
to the extent required by and in accordance with the
terms of the Agency Agreement. Subject to the
provisions of the Agency Agreement, the Company may
file with the Commission any supplement to the
Prospectus relating to the Notes. The Company will
provide the Agents, the Trustee and Harris with
copies of any such supplement, and confirm to the
Agents that such supplement has been filed with the
Commission pursuant to the applicable paragraph of
Rule 424(b).
Procedure for When the Company has determined to change the
Rate Changes: interest rates of Certificated Notes being offered,
it will promptly advise the Agents and the Agents
will forthwith suspend solicitation of orders. The
Agents will telephone the Company with
recommendations as to the changed interest rates.
At such time as the Company has advised the Agents
of the new interest rates, the Agents may resume
solicitation
-26-
51
of orders. Until such time only "indications of
interest" may be recorded.
Delivery of A copy of the Prospectus and a Pricing Supplement
Prospectus: relating to a Certificated Note must accompany or
precede the earliest of any written offer of such
Certificated Note, confirmation of the purchase of
such Certificated Note and payment for such
Certificated Note by its purchaser. If notice of a
change in the terms of the Certificated Notes is
received by the Agents between the time an order for
a Certificated Note is placed and the time written
confirmation thereof is sent by the Presenting Agent
to a customer or his agent, such confirmation shall
be accompanied by a Prospectus and Pricing
Supplement setting forth the terms in effect when
the order was placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above, the
Presenting Agent will deliver a Prospectus and
Pricing Supplement as herein described with respect
to each Certificated Note sold by it. The Company
will make such delivery if such Certificated Note is
sold directly by the Company to a purchaser (other
than any Agent).
For each order to purchase a Certificated Note
Confirmation: solicited by any Agent and accepted by or on behalf
of the Company, the Presenting Agent will issue a
confirmation to the purchaser, with a copy to the
Company, setting forth the details set forth above
and delivery and payment instructions.
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the Presenting Agent and the
Presenting Agent's delivery of such Certificated
Note against receipt of immediately available funds
shall, with respect to such Certificated Note,
constitute "settlement". All orders accepted by the
Company will be settled on the fifth Business Day
following the date of sale pursuant to the timetable
for settlement set forth below, unless the Company
and the purchaser agree to settlement on another day
which shall be no earlier than the next Business Day
following the date of sale.
Settlement Settlement Procedures with regard to each
Procudures: Certificated Note sold by the Company through any
Agent, as agent, shall be as follows:
-27-
52
A. The Presenting Agent will advise the Company by
telephone of the following settlement
information, in time for the Trustee to
prepare and authenticate the required Note:
1. Name in which such Certificated Note is
to be registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the interest rate or, in the case of
a Floating Rate Certificated Note, the
initial interest rate (if known at such
time), Base Rate, Index Maturity, Interest
Reset Period, Interest Reset Dates, Spread
or Spread Multiplier (if any), Minimum
Interest Rate (if any) and Maximum
Interest Rate (if any).
7. Interest Payment Dates and the Interest
Payment Period.
8. Specified Currency and whether the option
to elect payment in a Specified Currency
applies and if the Specified Currency is
not U.S. dollars, the authorized
denominations.
9. Redemption, repayment or extension
provisions, if any.
10. Settlement date.
11. Price (including currency).
12. Presenting Agent's commission, determined
as provided in Section 2 of the Agency
Agreement.
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53
13. Whether such Certificated Note is issued
at an original issue discount, and, if so,
the total amount of OID, the yield to
maturity and the initial accrual period
OID.
B. The Company will advise Harris by telephone
(confirmed in writing at any time on the sale
date) or electronic transmission of the
information set forth in Settlement Procedure
"A" above and the name of the Presenting Agent.
C. The Company will deliver to Harris a
pre-printed five-ply packet for such
Certificated Note, which packet will contain
the following documents in forms that have
been approved by Company, the Agents and the
Trustee:
1. Certificated Note with customer
confirmation.
2. Stub One - For Trustee.
3. Stub Two - For the Presenting Agent.
4. Stub Three - For the Company.
5. Stub Four - For the Authenticating Agent.
D. Harris will complete such Certificated Note and
will authenticate such Certificated Note and
deliver it (with the confirmation) and Stubs
One and Two to the Presenting Agent, all in
accordance with the written directions (or oral
instructions confirmed in writing on the next
Business Day) of the Company, and the Presenting
Agent will acknowledge receipt of the Note by
stamping or otherwise marking Stub One and
returning it to the Trustee. Such delivery will
be made only against such acknowledgment of
receipt. In the event that the instructions
given by the Presenting Agent for payment to the
account of the Company are revoked, the Company
will as promptly as possible wire transfer to
the account of the Presenting Agent an amount of
immediately available funds equal to the amount
of such payment made.
-29-
54
E. The Presenting Agent will deliver such
Certificated Note (with the confirmation) to
the customer against payment in immediately
payable funds. The Presenting Agent will
obtain the acknowledgment of receipt of such
Certificated Note by retaining Stub Two.
F. Harris will send Stub Three to the Company by
first-class mail retain Stub Four for its
records.
Settlement For orders of Certificated Notes solicited by any
Procedures Agent, as agent, and accepted by the Company,
Timetable: Settlement Procedures "A" through "F" set forth
above shall be completed on or before the respective
times (New York City time) set forth below:
Settlement
Procedure Time
--------- ------
A 2:00 P.M. on the day before
settlement
B-C 3:00 P.M. on the Business
Day before
settlement
D 2:15 P.M. on settlement
date
E 3:00 P.M. on settlement
date
F 5:00 P.M. on settlement
date
Failure to If a purchaser fails to accept delivery of and make
Settle: payment for any Certificated Note, the Presenting
Agent will notify the Company and Harris by
telephone and return such Certificated Note to the
Trustee. Upon receipt of such notice, the Company
will immediately wire transfer to the account of the
Presenting Agent an amount equal to the amount
previously credited to the account of Company in
respect of such Certificated Note. Such wire
transfer will be made on the settlement date, if
possible, and in any event not later than the
Business Day following the settlement date. If the
failure shall have occurred for any reason other
than a default by the Presenting Agent in the
performance of its obligations hereunder and under
the Agency Agreement, then the Company will
reimburse the Presenting Agent or Harris, as
appropriate, on an equitable basis for its loss of
the use of the funds during the period when they
were credited to the
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55
account of the Company. Immediately upon receipt of
the Certificated Note in respect of which such
failure occurred, the Trustee will cancel such
Certificated Note in accordance with the Indenture
and so advise the Company and Harris, and Harris
will make appropriate entries in its records.
Trustee and Harris Nothing herein shall be deemed to require the
Not to Risk Funds: Trustee or Harris to risk or expend its own funds in
connection with any payment to the Company, the
Agents or the purchaser, it being understood by all
parties that payments made by the Trustee or Harris
to the Company, the Agents or the purchaser shall be
made only to the extent that funds are provided to
the Trustee or Harris for such purpose.
Authenticity of The Company will cause the Trustee to furnish Harris
Signatures: and the Agents from time to time with the specimen
signatures of each of the Trustee's officers,
employees or agents who has been authorized by the
Trustee to authenticate Certificated Notes, but
neither Harris nor any Agent will have any
obligation or liability to the Company or the
Trustee in respect of the authenticity of the
signature of any officer, employee or agent of the
Company or the Trustee on any Certificated Note.
Periodic Statements Periodically, Harris will send to the Company a
from Harris: statement setting forth the principal amount of
Certificated Notes Outstanding as of that date and
setting forth a brief description of any sales of
Certificated Notes which the Company has advised
Harris but which have not yet been settled.
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56
EXHIBIT B
UNION TANK CAR COMPANY
Medium Term Notes, Series A
Due Nine Months
or More from Date of Issue
TERMS AGREEMENT
______________, 199__
Attention:
Subject in all respects to the terms and conditions of the Selling Agency
Agreement (the "Agreement") dated , 1995, between Salomon Brothers
Inc, Morgan Stanley & Co. Incorporated and you, the undersigned agrees to
purchase the following Notes of Union Tank Car Company.
[Add additional terms as may be needed to identify Notes.]
[Specified Currency]:
Aggregate Principal Amount: $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Discount or Commission: % of Principal Amount
Purchase Price: % of Principal Amount [plus accrued interest
from ____________, 199__]
Purchase Date and Time:
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57
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
Modification, if any, in
the requirements to
deliver the documents
specified in Section 6(b)
of the Agreement:
Period during which additional
Notes may not be sold pursuant
to Section 4(l) of the Agreement:
[Purchaser]
By:____________________
Accepted:
Union Tank Car Company
By: ------------------
Name:
Title:
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