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Exhibit 1(b)
Union Tank Car Company
$55,000,000 Medium-Term Notes
Due Nine Months or More From Date of Issue
Selling Agency Agreement
August 12, 1998
New York, New York
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Ladies and Gentlemen:
Union Tank Car Company, a Delaware corporation (the "Company"), confirms
its agreement with you with respect to the issue and sale by the Company of up
to $55,000,000 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 Fifth
Supplemental Indenture, dated as of August 13, 1998, the "Indenture"), between
the Company and Harris Trust and Savings Bank as trustee (the "Trustee"). Unless
otherwise specifically provided for and set forth in a Pricing Supplement (as
defined below), the Notes will be issued in minimum denominations of $1,000 and
in denominations exceeding such amount by integral multiples of $1,000, will be
issued only in fully registered form and will have the interest rates,
maturities and, if applicable, other terms set forth in such Pricing Supplement.
The Notes will be issued and the terms thereof established, in accordance with
the Indenture and the Medium-Term Notes Administrative Procedures attached
hereto as Exhibit A (the "Procedures") (unless a Terms Agreement (as defined in
Section 2(b)) modifies or otherwise supersedes such Procedures with respect to
the Notes issued pursuant to such Terms Agreement). The Procedures may be
amended only by written agreement of the Company and you after notice to, and
with the approval of, the Trustee. For the purposes of this Agreement, the term
"Agent" shall refer to you acting solely in the capacity as agent for the
Company pursuant to Section 2(a) and not as principal (the "Agent"), the term
"Purchaser" shall refer to you acting solely as principal pursuant to Section
2(b) and not as agent, and the term "you" shall refer to you whether at any time
you are acting in both such capacities or in either such capacity.
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.
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(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such
Form (File Number: 333-45105) (the "Registration Statement"), including a
Basic Prospectus (as defined below), which has become effective, for the
registration under the Act of $300,000,000 aggregate principal amount of
debt securities (the "Securities"), including the Notes. Such registration
statement, as amended at the date of this Agreement, meets the requirements
set forth in Rule 415(a)(1)(ix) or (x) under the Act and complies in all
other material respects with said Rule. The Company has included in such
registration statement, or has filed or will file, with the Commission
pursuant to the applicable paragraph of Rule 424(b) under the Act, a
supplement to the form of prospectus included in such registration
statement relating to the Notes and the plan of distribution thereof (the
"Prospectus Supplement"). In connection with the sale of Notes the Company
proposes to file with the Commission pursuant to the applicable paragraph
of Rule 424(b) under the Act further supplements to the Prospectus
Supplement (each a "Pricing Supplement") specifying the interest rates,
maturity dates and, if appropriate, other similar terms of the Notes sold
pursuant hereto or the offering thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, as of the date
of a Terms Agreement and at the date of delivery by the Company of any
Notes sold hereunder (a "Closing Date"), (i) the Registration Statement, as
amended as of any such time, and the Prospectus, as supplemented as of any
such time, and the indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the Securities Exchange Act of 1934 (the
"Exchange Act") and the respective rules thereunder; (ii) the Registration
Statement, as amended as of any such time, did not and will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and (iii) the Prospectus, as supplemented as of any
such time, will not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form T-1) under
the Trust Indenture Act of the Trustee or (ii) the information contained in
or omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by either of you specifically for
inclusion in the Registration Statement or the Prospectus (or any
supplement thereto), which information is described in the penultimate
sentence of Section 8(a) of this Agreement.
(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,
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authenticated and, when paid for by the purchasers thereof, will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture.
(d) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective and each date after the date
hereof on which a document incorporated by reference in the Registration
Statement is filed. "Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto. "Basic
Prospectus" shall mean the form of basic prospectus relating to the
Securities contained in the Registration Statement at the Effective Date.
"Prospectus" shall mean the Basic Prospectus as supplemented by the
Prospectus Supplement and any Pricing Supplement. "Registration Statement"
shall mean the registration statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial statements, as
amended at the Execution Time. "Rule 415" and "Rule 424" refer to such
rules under the Act. Any reference herein to the Registration Statement,
the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 or Item 12 of Form F-3, as the case
may be, which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus, the Prospectus Supplement, any Pricing Supplement or the
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement, any Pricing
Supplement or the Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective Date of
the Registration Statement or the issue date of the Basic Prospectus, the
Prospectus Supplement or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(e) The consolidated financial statements incorporated by reference in
the Registration Statement and Prospectus (or any supplement thereto)
present fairly the consolidated financial position of the Company and its
subsidiaries as at the dates indicated and the consolidated results of
their operations and cash flows for the periods specified and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved, except as
indicated therein, and the supporting schedules incorporated by reference
in the Registration Statement present fairly the information required to be
stated therein.
(f) The documents incorporated by reference in the Prospectus (or any
supplement thereto), at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the Exchange Act, and the rules and regulations thereunder.
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(g) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus (or any supplement thereto),
except as otherwise stated therein or contemplated thereby, there has been
no material adverse change in the condition, financial or otherwise,
results of operations or general affairs of the Company and its
subsidiaries, taken as a whole.
(h) The Company and each Significant Subsidiary (with such term having
the meaning attributed to it under Rule 405 under the Act) of the Company
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its properties
and conduct its business as described in the Prospectus (or any supplement
thereto), and is duly qualified to do business as a foreign corporation and
is in good standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or conducts
material business, except in such jurisdictions in which the failure to so
qualify would not have a material adverse effect on the Company and its
subsidiaries taken as a whole. The Company owns, either directly or
indirectly, all of the issued and outstanding capital stock of its
subsidiaries, free and clear of any lien, adverse claim, security interest
or other encumbrance.
(i) The execution and delivery by the Company of this Agreement, the
Indenture and the Notes, the consummation by the Company of the
transactions herein and therein contemplated, and the compliance by the
Company with the terms hereof and thereof do not and will not conflict
with, or result in a breach of any of the terms or provisions of, or
constitute a default under, the Certificate of Incorporation or By-Laws, as
amended, of the Company, or any of its subsidiaries, or any material
indenture, mortgage, or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which any of its properties
are bound, or any applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court, domestic
or foreign, having jurisdiction over the Company or any of its subsidiaries
or any of its properties; and, assuming due authorization, execution and
delivery by all parties thereto other than the Company, no consent,
approval, authorization, order or license of, or filing with or notice to
any government, governmental instrumentality, regulatory body or authority
or court, domestic or foreign, is required for the valid authorization,
issuance and delivery of the Notes, the valid authorization, execution,
delivery and performance by the Company of this Agreement and the Indenture
or the consummation by the Company of the transactions contemplated by this
Agreement, the Indenture and the Notes, except (w) such as are required
under the Act, the Trust Indenture Act and the securities or Blue Sky laws
of the various states.
(j) This Agreement and the Indenture, assuming due authorization,
execution and delivery by the other parties hereto and thereto, have each
been duly authorized by
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the Company and, when executed and delivered by the Company, will
constitute legal, valid and binding obligations of the Company.
(k) The Notes and the Indenture will conform in all material respects
to the descriptions thereof in the Prospectus.
(l) Ernst & Young LLP, who reported on the consolidated financial
statements of the Company for the year ended December 31, 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.
(m) The Notes have been duly authorized by the Company and when duly
executed and delivered by the Trustee and the Company in accordance with
the terms of the Indenture and this Agreement, will be duly issued under
such Indenture and will constitute valid and binding obligations of the
Company, and the holders thereof will be entitled to the benefits of the
Indenture.
2. Appointment of Agent; Solicitation by the Agent of Offers to Purchase;
Sales of Notes to the Purchaser.
(a) Subject to the terms and conditions set forth herein, the Company
hereby authorizes the Agent to act as its agent to solicit offers for the
purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties, and subject to the
terms and conditions set forth herein, the Agent agrees, as agent of the
Company, to use its reasonable efforts to solicit offers to purchase the
Notes from the Company upon the terms and conditions set forth in the
Prospectus (and any supplement thereto) and in the Procedures. The Agent
shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been
solicited by the Agent and accepted by the Company, but the Agent shall
not, except as otherwise provided in this Agreement, be obligated to
disclose the identity of any purchaser or have any liability to the Company
in the event any such purchase is not consummated for any reason. Except as
provided in Section 2(b), under no circumstances will the Agent be
obligated to purchase any Notes for its own account. It is understood and
agreed, however, that the Agent may purchase Notes as principal pursuant to
Section 2(b).
The Company reserves the right, in its sole discretion, to instruct
the Agent to suspend at any time, for any period of time or permanently,
the solicitation of offers to purchase Notes. Upon receipt of instructions
from the Company, the Agent will
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forthwith suspend solicitation of offers to purchase Notes from the Company
until such time as the Company has advised them that such solicitation may
be resumed.
The Company agrees to pay the Agent a commission, on the Closing Date
with respect to each sale of Notes by the Company as a result of a
solicitation made by the Agent, in an amount equal to that percentage
specified in Schedule I hereto of the aggregate principal amount of the
Notes sold by the Company. Such commission shall be payable as specified in
the Procedures.
Subject to the provisions of this Section and to the Procedures,
offers for the purchase of Notes may be solicited by the Agent as agent for
the Company at such time and in such amounts as the Agent deems advisable.
The Company expressly reserves the right to sell Notes directly to
investors and to enter into other agreements with respect to sales of
Notes, provided, that any such agreement shall be on terms that are
substantially identical to the terms of this Agreement. The Agent may also
purchase Notes from the Company as principal for purposes of resale, as
more fully described in paragraph (b) of this Section.
If the Company shall default in its obligations to deliver Notes to a
purchaser whose offer it has accepted, the Company shall indemnify and hold
you harmless against any loss, claim or damage arising from or as a result
of such default by the Company.
(b) Subject to the terms and conditions stated herein, whenever the
Company and you determine that the Company shall sell Notes directly to you
as principal, each such sale of Notes shall be made in accordance with the
terms of this Agreement and a supplemental agreement relating to such sale.
Each such supplemental agreement (which may be either an oral or written
agreement) is herein referred to as a "Terms Agreement". Each Terms
Agreement shall describe the Notes to be purchased by the Purchaser
pursuant thereto and shall specify the aggregate principal amount of such
Notes, the price to be paid to the Company for such Notes, the maturity
date of such Notes, the rate at which interest will be paid on such Notes,
the dates on which interest will be paid on such Notes and the record date
with respect to each such payment of interest, the Closing Date for the
purchase of such Notes, the place of delivery of the Notes and payment
therefor, the method of payment and any requirements for the delivery of
opinions of counsel, certificates from the Company or its officers or a
letter from the Company's independent public accountants as described in
Section 6(b). Any such Terms Agreement may also specify the period of time
referred to in Section 4(l). Any written Terms Agreement may be in the form
attached hereto as Exhibit B. The Purchaser's commitment to purchase Notes
shall be deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to the
terms and conditions herein set forth.
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Delivery of the certificates for Notes sold to the Purchaser pursuant
to a Terms Agreement shall be made not later than the Closing Date agreed
to in such Terms Agreement, against payment of funds to the Company in the
net amount due to the Company for such Notes by the method and in the form
set forth in the Procedures unless otherwise agreed to between the Company
and the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a
Terms Agreement, any Note sold to the Purchaser (i) shall be purchased by
the Purchaser at a price equal to 100% of the principal amount thereof less
a percentage equal to the commission applicable to an agency sale of a Note
of identical maturity and (ii) may be resold by the Purchaser at varying
prices from time to time or, if set forth in the applicable Terms Agreement
and Pricing Supplement, at a fixed public offering price. In connection
with any resale of Notes purchased, the Purchaser may use a selling or
dealer group and may reallow to any broker or dealer any portion of the
discount or commission payable pursuant hereto.
3. Offering and Sale of Notes. The Agent and the Company agree to perform
the respective duties and obligations specifically provided to be performed by
them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes (including
by way of resale by the Purchaser of Notes), the Company will not file any
amendment of the Registration Statement or supplement to the Prospectus
(except for (i) periodic or current reports filed under the Exchange Act,
(ii) a supplement relating to any offering of Notes providing solely for
the specification of or a change in the maturity dates, interest rates,
issuance prices or other similar terms of any Notes or (iii) a supplement
relating to an offering of Securities other than the Notes) unless the
Company has furnished you a copy for your review prior to filing and given
you a reasonable opportunity to comment on any such proposed amendment or
supplement, and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the Company
will cause each supplement to the Prospectus to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to you of
such filing. The Company will promptly advise you (i) when the Prospectus,
and any supplement thereto, shall have been filed with the Commission
pursuant to Rule 424(b), (ii) when, prior to termination of any offering of
Notes, any amendment of the Registration Statement shall have been filed or
become effective, (iii) of any request by the Commission for any amendment
of the Registration Statement or supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (v)
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of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary to amend
the Registration Statement or to supplement the Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the Company
promptly will (i) notify you to suspend solicitation of offers to purchase
Notes (and, if so notified by the Company, you shall forthwith suspend such
solicitation and cease using the Prospectus as then supplemented), (ii)
prepare and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or effect such compliance and (iii)
supply any supplemented Prospectus to you in such quantities as you may
reasonably request. If such amendment or supplement, and any documents,
certificates and opinions furnished to you pursuant to paragraph (f) of
this Section 4 in connection with the preparation or filing of such
amendment or supplement are satisfactory in all respects to you, you will,
upon the filing of such amendment or supplement with the Commission and
upon the effectiveness of an amendment to the Registration Statement, if
such an amendment is required, resume your obligation to solicit offers to
purchase Notes hereunder.
(c) As soon as practicable, the Company will make generally available
to its security holders and to you an earnings statement or statements of
the company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and the applicable rules and regulations
thereunder.
(d) The Company will furnish to you and your counsel, without charge,
signed copies of the Registration Statement (including exhibits thereto)
and, so long as delivery of a prospectus may be required by the Act, as
many copies of the Prospectus and any supplement thereto as you may
reasonably request. The Company will pay the expenses of printing all
documents relating to the offering of the Notes.
(e) The Company will cooperate with you and your counsel to arrange
for the qualification of the Notes for sale under the laws of such
jurisdictions as you may designate, will maintain such qualifications in
effect so long as required for the distribution of the Notes, and will
cooperate with you and your counsel to arrange for the determination of the
legality of the Notes for purchase by institutional investors; provided,
however, that the Company will not be required to qualify to do business in
any jurisdiction in order to effect such qualification.
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(f) The Company shall furnish to you such information, documents,
certificates of officers of the Company and opinions of counsel for the
Company relating to the business, operations and affairs of the Company,
the Registration Statement, the Prospectus, and any amendments thereof or
supplements thereto, the Indenture, the Notes, this Agreement, the
Procedures and the performance by the Company and you of its and your
respective obligations hereunder and thereunder as you may from time to
time and at any time prior to the termination of this Agreement reasonably
request.
(g) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including the
fees and disbursements of its accountants and counsel, the cost of printing
or other production and delivery of the Registration Statement, the
Prospectus, all amendments thereof and supplements thereto, the Indenture,
this Agreement, any Terms Agreement and all other documents relating to the
offering, the cost of preparing, printing, packaging and delivering the
Notes, the fees and disbursements, including fees of counsel, incurred in
compliance with Section 4(e), the fees and disbursements of the Trustee and
the fees of any agency that rates the Notes, (ii) reimburse you as
requested for all out-of-pocket expenses (including without limitation
advertising expenses), if any, incurred by you in connection with this
Agreement and (iii) pay the reasonable fees and expenses of your counsel
incurred in connection with this Agreement.
(h) Each acceptance by the Company of an offer to purchase Notes will
be deemed to be an affirmation that its representations and warranties
contained in this Agreement are true and correct at the time of such
acceptance, as though made at and as of such time, and a covenant that such
representations and warranties will be true and correct at the time of
delivery to the purchaser of the Notes relating to such acceptance, as
though made at and as of such time (it being understood that for purposes
of the foregoing affirmation and covenant such representations and
warranties shall relate to the Registration Statement and Prospectus as
amended or supplemented at each such time). Each such acceptance by the
Company of an offer for the purchase of Notes shall be deemed to constitute
an additional representation, warranty and agreement by the Company that,
as of the settlement date for the sale of such Notes, after giving effect
to the issuance of such Notes, of any other Notes to be issued on or prior
to such settlement date and of any other Securities to be issued and sold
by the Company on or prior to such settlement date, the aggregate amount of
Securities (including any Notes) which have been issued and sold by the
Company will not exceed the amount of Securities registered pursuant to the
Registration Statement. The Company will inform you promptly upon your
request of the aggregate amount of Securities registered under the
Registration Statement which remain unsold.
(i) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement relating
to any offering of Securities other than the Notes or providing solely for
the specification of or a
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change in the maturity dates, the interest rates, the issuance prices or
other similar terms of any Notes sold pursuant hereto), the Company will
deliver or cause to be delivered promptly to you a certificate of the
Company, signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the Company, dated the date of
the effectiveness of such amendment or the date of the filing of such
supplement, in form reasonably satisfactory to you, of the same tenor as
the certificate referred to in Section 5(d) but modified to relate to the
last day of the fiscal quarter for which financial statements of the
Company were last filed with the Commission and to the Registration
Statement and the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement.
(j) Each time that the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement (i)
relating to any offering of Securities other than the Notes, or (ii)
providing solely for the specification of or a change in the maturity
dates, the interest rates, the issuance prices or other similar terms of
any Notes sold pursuant hereto), the Company shall furnish or cause to be
furnished promptly to you a written opinion of counsel of the Company
satisfactory to you, dated the date of the effectiveness of such amendment
or the date of the filing of such supplement, in form satisfactory to you,
of the same tenor as the opinion referred to in Section 5(b) but modified
to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or the
filing of such supplement or, in lieu of such opinion, counsel last
furnishing such an opinion to you may furnish you with a letter to the
effect that you may rely on such last opinion to the same extent as though
it were dated the date of such letter authorizing reliance (except that
statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the time of the effectiveness of such amendment or the filing of such
supplement).
(k) Each time that the Registration Statement or the Prospectus is
amended or supplemented to include or incorporate amended or supplemental
financial information, the Company shall cause its independent public
accountants promptly to furnish you a letter, dated the date of the
effectiveness of such amendment or the date of the filing of such
supplement, in form satisfactory to you, of the same tenor as the letter
referred to in Section 5(e) with such changes as may be necessary to
reflect the amended and supplemental financial information included or
incorporated by reference in the Registration Statement and the Prospectus,
as amended or supplemented to the date of such letter; provided, however,
that, if the Registration Statement or the Prospectus is amended or
supplemented solely to include or incorporate by reference financial
information as of and for a fiscal quarter, the Company's independent
public accountants may limit the scope of such letter, which shall be
satisfactory in form to you, to the unaudited financial statements, the
related "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and any other information of an accounting,
financial or statistical nature included in such amendment or
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supplement, unless, in the reasonable judgment of you, such letter should
cover other information or changes in specified financial statement line
items.
(l) During the period, if any, specified (whether orally or in
writing) in any Terms Agreement, the Company shall not, without the prior
consent of the Purchaser thereunder, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce the offering of,
any debt securities issued or guaranteed by the Company (other than the
Notes being sold pursuant to such Terms Agreement).
(m) The Company confirms as of the date hereof, and each acceptance by
the Company of an offer to purchase Notes will be deemed to be an
affirmation, that the Company is in compliance with all provisions of
Section 1 of Laws of Florida, Chapter 92-198, An Act Relating to Disclosure
of Doing Business with Cuba, and the Company further agrees that if it
commences engaging in business with the government of Cuba or with any
person or affiliate located in Cuba after the date the Registration
Statement becomes or has become effective with the Securities and Exchange
Commission or with the Florida Department of Banking and Finance (the
"Department"), whichever date is later, or if the information reported in
the Prospectus, if any, concerning the Company's business with Cuba or with
any person or affiliate located in Cuba changes in any material way, the
Company will provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
5. Conditions to the Obligations of the Agent. The obligations of the
Agent to solicit offers to purchase the Notes shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time, on the Effective Date, when any supplement to
the Prospectus is filed with the Commission and as of each Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement,
shall have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Agent the opinion of 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
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the laws of the jurisdiction in which it is chartered or organized,
with full corporate power and authority to own its properties and
conduct its business as described in the Prospectus (and any
supplement thereto), and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business, except in
such jurisdictions in which the failure to so qualify would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole;
(ii) all the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly and validly authorized and
issued and are fully paid and nonassessable, and all outstanding
shares of capital stock of the Subsidiaries are owned by the Company
either directly or free and clear of any perfected security interest
and, to the knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and, assuming due authorization, execution and delivery
thereof by the Trustee, the Indenture constitutes a legal, valid and
binding instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect);
and the Notes have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the purchasers thereof, will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture;
(iv) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, and there is no franchise, contract or
other document of a character required to be described in the
Registration Statement or Prospectus (or any supplement thereto), or
to be filed as an exhibit, which is not described or filed as
required; and the statements included or incorporated by reference in
the Prospectus (or any supplement thereto) describing any legal
proceedings or material contracts or agreements relating to the
Company fairly summarize such matters;
(v) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been or will be made in the
manner and within the time period required by Rule 424(b); to the best
knowledge of such counsel, no stop order
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suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Prospectus and all
supplements thereto (other than the financial statements and other
financial and statistical information contained therein as to which
such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective rules
thereunder;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by you, constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except (i) as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement
of creditors' rights generally and by general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law) and (ii) as to provisions of this Agreement relating
to indemnification or contribution for liabilities arising under the
Act, as to which such counsel need express no opinion;
(vii) no authorization, approval, consent, order or license of
or filing with or notice to any governmental instrumentality,
regulatory body or authority or court is required for the valid
authorization, execution, delivery and performance by the Company of
the Notes, this Agreement and the Indenture or the consummation by the
Company of the transactions contemplated by this Agreement and the
Indenture, except such as have been obtained under the Act and the
Trust Indenture Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Notes by you and such other approvals (specified
in such opinion) as have been obtained;
(viii) neither the execution and delivery of the Indenture, the
issue and sale of the Notes, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or by-laws of the
Company or the terms of any indenture or other agreement or instrument
known to such counsel and to which the Company or any of its
subsidiaries is a party or bound or any judgment, order, regulation or
decree known to such counsel to be applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company
or any of its subsidiaries;
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(ix) the Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended;
(x) on the Closing Date, assuming due execution and delivery of
the Notes by the Trustee and the Company, the Notes when issued
against the payment therefor as provided herein will constitute valid
and binding obligations of the Company, enforceable against the
Company, in accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting enforcement of creditors' rights generally and by
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and the holders of
the Notes will be entitled to the benefits of the Indenture; and
(xi) the Indenture and the Notes conform in all material respects
to the descriptions thereof contained in the Prospectus.
In passing on the form of the Registration Statement and the
Prospectus and each amendment and supplement thereto, such counsel may
state that it has not independently verified the accuracy,
completeness or fairness of the statements made or included therein
and takes no responsibility therefor and that such opinion is based
upon such counsel's examination of the Registration Statement, the
Prospectus as amended or supplemented, its activities in connection
with the preparation thereof and its participation in conferences with
certain officers and employees of the Company, its subsidiaries and
its affiliates and with representatives of Ernst & Young LLP and any
others referred to in such opinion, and subject to the same
qualifications, such counsel may also state that, although they are
not passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus as amended or supplemented and
have not made any independent check or verification thereof, nothing
has come to their attention in their examination of the Registration
Statement, their participation in the preparation thereof and
participation in the above-referenced conferences that has caused them
to believe that the Registration Statement, at the time it became
effective, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or the Prospectus, as of
its date and as of the Closing Date, contained an untrue statement of
a material fact or omitted to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(c) The Agent shall have received from Mayer, Brown & Platt, counsel
for the Agent, such opinion or opinions, dated the date hereof, with
respect to the issuance and sale of the Notes, the Indenture, the
Registration Statement, the Prospectus (together
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with any supplement thereto) and other related matters as the Agent may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the Agent a certificate of the
Company, signed by the President or any Vice President and the principal
financial officer of the Company, dated the Execution Time, to the effect
that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplement to the Prospectus
and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the date hereof with the same effect as if made on the date hereof and
the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied as a condition to
the obligation of the Agent to solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the Company's
knowledge, no proceedings for that purpose have been instituted or
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (including any supplement thereto), there
has been no material adverse change in the condition (financial or
other), earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus (including any supplement thereto).
(e) At the Execution Time, Ernst & Young LLP shall have furnished to
the Agent a letter or letters (which may refer to letters previously
delivered to the Agent), dated as of the Execution Time, in form and
substance satisfactory to the Agent, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion the audited financial statements, financial
statement schedules and pro forma financial statements, if any,
included or incorporated in the Registration Statement and the
Prospectus and reported on by them comply in form in all material
respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries,
carrying out
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certain specified procedures (but not an examination in accordance
with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and executive committee of the
Company and the Subsidiaries; and inquiries of certain officials of
the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and
events subsequent to the date of the most recent audited financial
statements included or incorporated in the Prospectus, nothing came to
their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus do
not comply in form in all material respects with applicable
accounting requirements and with the published rules and
regulations of the Commission with respect to financial
statements included or incorporated in quarterly reports on Form
10-Q under the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements included or
incorporated in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to the date of the
most recent financial statements (other than any capsule
information), audited or unaudited, included or incorporated in
the Registration Statement and the Prospectus, there were any
changes, at a specified date not more than five business days
prior to the date of the letter, in the borrowed debt of the
Company and its subsidiaries or capital stock of the Company or
decreases in the stockholders' equity of the Company and its
subsidiaries as compared with the amounts shown on the most
recent consolidated balance sheet included or incorporated in the
Registration Statement and the Prospectus, or for the period from
the date of the most recent financial statements included or
incorporated in the Registration Statement and the Prospectus to
such specified date there were any decreases, as compared with
the corresponding period in the preceding year or quarter in
total revenues from net sales and services, or in income before
income taxes or net income, of the Company and its subsidiaries,
except in all instances for changes or decreases set forth in
such letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless
said explanation is not deemed necessary by the Agent; or
(3) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and
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the Prospectus do not agree with the amounts set forth in the
unaudited financial statements for the same periods or were not
determined on a basis substantially consistent with that of the
corresponding amounts in the audited financial statements
included or incorporated in the Registration Statement and the
Prospectus; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus and in Exhibit
12 to the Registration Statement, including the information included
or incorporated in the Company's Annual Report on Form 10-K,
incorporated in the Registration Statement and the Prospectus, and the
information included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Prospectus, agrees
with the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Prior to the Execution Time, the Company shall have furnished to
the Agent such further information, documents, certificates and opinions of
counsel as the Agent may reasonably request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Agent and counsel for the Agent, this Agreement and all
obligations of the Agent hereunder may be cancelled at any time by the Agent.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
6. Conditions to the Obligations of the Purchaser. The obligations of
the Purchaser to purchase any Notes will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the date
of the related Terms Agreement and as of the Closing Date for such Notes, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the following
additional conditions precedent:
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(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 in this Agreement or such Terms Agreement and
required to be delivered to the Purchaser pursuant to the terms hereof and
thereof shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, such Terms Agreement and all
obligations of the Purchaser thereunder and with respect to the Notes subject
thereto may be canceled at, or at any time prior to, the respective Closing Date
by the Purchaser. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase.
(a) The Company agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by the Agent shall have the
right to refuse to purchase such Note if, at the Closing Date therefor, any
condition set forth in Section 5 or 6, as applicable, shall not have been
fulfilled in all material respects.
(b) The Company agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by the Agent shall have the
right to refuse to purchase such Note if, subsequent to the agreement to
purchase such Note, any change, condition or development specified in any
of Sections 9(b)(i) through (v) shall have occurred (with the judgment of
the Agent being substituted for any judgment of the Purchaser required
therein) the effect of which is, in the judgment of the Agent so material
and adverse as to make it impractical or inadvisable to proceed with the
sale
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and delivery of such Note (it being understood that under no circumstance
shall the Agent have any duty or obligation to the Company or to any such
person to exercise the judgment permitted to be exercised under this
Section 7(b) and Section 9(b)).
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless you, your
directors, officers, employees and agents and each person who controls you
within the meaning of either the Act or the Exchange Act against any and
all losses claims, damages or liabilities, joint or several, to which you
or they may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement
for the registration of the Notes as originally filed or in any amendment
thereof, or in the Prospectus or any preliminary Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable
in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by you specifically for inclusion therein; provided, further that
such indemnity with respect to any preliminary Prospectus or Prospectus
Supplement shall not inure to your benefit (or to the benefit of any person
controlling you) if the person asserting any such loss, claim, damage or
liability purchased the securities which are the subject thereof did not
receive a copy of the final Prospectus or Pricing Supplement (or any
amendments thereof or supplements thereto), excluding documents
incorporated therein by reference, at or prior to the confirmation of the
sale of such Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
in such preliminary Prospectus or Prospectus Supplement was corrected in
the final Prospectus or Pricing Supplement (or any amendments thereof or
supplements thereto). The Company acknowledges that (i) the stabilization
language appearing on the top of page S-2 and (ii) the information relating
to the Agent set forth in the second and sixth paragraphs under the caption
"Plan of Distribution," each as contained in the Prospectus Supplement,
constitute the only information furnished in writing by you for inclusion
in the documents referred to in the foregoing indemnity or in the indemnity
contained in Section 8(b) below, and you confirm that such statements are
correct. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
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(b) The Agent agrees to indemnify and hold harmless the Company, each
of its directors, each of its officers who signs the Registration Statement
and each person who controls the Company within the meaning of either the
Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to the Agent, but only with reference to written information
relating to the Agent furnished to the Company by or on behalf of the Agent
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability
which you may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof, but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such
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settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and you agree to contribute
to the aggregate losses claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and you may be
subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by you from the offering of the Notes
from which such Losses arise; provided, however, that in no case shall you
be responsible for any amount in excess of the commissions received by you
in connection with the sale of Notes from which such Losses arise (or, in
the case of Notes sold pursuant to a Terms Agreement, the discount received
by you as Purchaser pursuant to Section 2(b) above). If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the Company and you shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company and of you in connection with the statements
or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (before deducting
expenses) of the Notes from whi it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls you within the meaning of the Act
or the Exchange Act and each director, officer, employee and agent of you
shall have the same rights to contribution as you and each person who
controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms
and conditions of this paragraph (d).
9. Termination.
(a) This Agreement will continue in effect until terminated as
provided in this Section 9. This Agreement may be terminated either by the
Company or by you,
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by giving written notice of such termination to the Agent or the Company,
as the case may be. This Agreement shall so terminate at the close of
business on the first business day following the receipt of such notice by
the party to whom such notice is given. In the event of such termination,
no party shall have any liability to the other party hereto, except as
provided in the fourth paragraph of Section 2(a), Section 4(g), Section 8
and Section 10.
(b) Each Terms Agreement shall be subject to termination in the
absolute discretion of the Purchaser, by notice given to the Company prior
to delivery of any payment for any Note to be purchased thereunder, if
prior to such time (i) there shall have occurred, subsequent to the
agreement to purchase such Note, any change, or any development involving a
prospective change, in or affecting the business or properties of the
Company and its subsidiaries the effect of which is, in the reasonable
judgment of the Purchaser, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of such
Note, (ii) there shall have been, subsequent to the agreement to purchase
such Note, any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change, (iii) trading in securities generally on the New York
Stock Exchange shall have been suspended or limited or minimum prices shall
have been established on such Exchange, (iv) a banking moratorium shall
have been declared by either Federal or New York State authorities or (v)
there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis the effect of which on financial markets is such as to
make it, in the reasonable judgment of the Purchaser, impracticable or
inadvisable to proceed with the offering or delivery of such Notes.
10. Survival of Certain Provisions. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of you set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of you or the Company or any of the directors, officers, employees,
agents or controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Notes. The provisions of Sections 4(g) and 8
hereof shall survive the termination or cancellation of this Agreement. The
provisions of this Agreement (including without limitation Section 7 hereof)
applicable to any purchase of a Note for which an agreement to purchase exists
prior to the termination hereof shall survive any termination of this Agreement.
If at the time of termination of this Agreement the Purchaser shall own any
Notes with the intention of selling them, the provisions of Section 4 shall
remain in effect until such Notes are sold by the Purchaser.
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
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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 provided in Section 7, any person who has agreed to
purchase Notes, and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
UNION TANK CAR COMPANY
By: /s/ M.J. Garrette
--------------------------------
Name: M.J. Garrette
Title: Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Harold J. Hendershot III
------------------------------------
Name: Harold J. Hendershot III
Title: Vice President
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