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EXHIBIT 1(a)
Union Tank Car Company
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Pass Through Certificates, Series
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Underwriting Agreement
New York, New York
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Dear Ladies and Gentlemen:
Union Tank Car Company, a Delaware corporation (the "Company"),
proposes to cause to be sold to you (the "Underwriters") $______ aggregate
principal amount of Pass Through Certificates, Series ____ and Pass Through
Certificates, Series _____ , with the interest rates and final distribution
dates as set forth in Schedule A hereto (the "Pass Through Certificates"), in
the respective aggregate principal amounts set forth on Schedule B hereto, to be
issued under (i) the Pass Through Trust Agreement ______, dated _______ (the
"Pass Through Trust Agreement #1"), between the Company and _______, as Past
Through Trustee (the "Pass Through Trustee") and (ii) the Pass Through Trust
Agreement _____, dated ______ (the "Pass Through Trust Agreement
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#2", and together with the Pass Through Trust Agreement #1, the "Pass Through
Trust Agreements") between the Company and the Pass Through Trustee,
respectively.
The property to be purchased by the Pass Through Trustee under Pass
Through Agreement #1 and contained in such trust shall consist of $______
principal amount Equipment Notes, Series A to be issued under the Indenture.
The property to be purchased by the Pass Through Trustee under Pass Through
Trust Agreement #2 and contained in such trust shall consist of $__________
principal amount Equipment Notes, Series B.
All capitalized terms used, but not defined herein, shall have the
meanings attributed to them in the Pass Through Trust Agreements. As used in
this Agreement, the term "Operative Agreements" shall have the meaning set
forth in the Participation Agreement. All other capitalized terms used herein
shall, for the purposes hereof, have the meanings attributed to them in this
Agreement.
1. Representations and Warranties. The Company represents and warrants
to, and agree with you, that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (file number 333-________) on such Form, including a related
Preliminary Prospectus (as hereinafter defined), for the registration
under the Act of the offering and sale of the Pass Through Certificates.
The Company may have filed one or more amendments thereto, including the
related Preliminary Prospectus, each of which has previously been
furnished to you. The Company will next file with the Commission one of
the following: (i) prior to effectiveness of such registration statement,
a further amendment to such registration statement, including the form of
final prospectus or (ii) a final prospectus in accordance with Rules 430A
and 424(b)(1) or (4) under the Act. In the case of clause (ii), the
Company has included in such registration statement,
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as amended at the Effective Date (as hereinafter defined) all information
(other than Rule 430A Information (as hereinafter defined)) required
by the Act and the rules thereunder to be included in the Prospectus (as
hereinafter defined) with respect to the Pass Through Certificates and the
offering thereof. As filed, such amendment and form of final prospectus,
or such final prospectus, shall contain all Rule 430A Information,
together with all other such required information, with respect to the
Pass Through Certificates and the offering thereof and, except to the
extent you shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time (as hereinafter defined) or, to the extent not completed at the
Execution Time, shall contain only such specific additional information
and other changes (beyond that contained in the latest Preliminary
Prospectus) as the Company has advised you, prior to the Execution
Time, will be included or made therein.
(b) On the Effective Date (as hereinafter defined), the Registration
Statement did or will, and when the Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date (as
hereinafter defined), the Prospectus (as hereinafter defined) (and any
supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the respective rules and
regulations thereunder; on the Effective Date, the Registration Statement
(as hereinafter defined) did not or 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; on the Effective Date and on the Closing Date (as hereinafter
defined), the Pass Through Trust Agreements did or will comply in all
material respects with the requirements of the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the rules thereunder;
and, on the Effective Date, the Prospectus, if not filed pursuant to Rule
424(b), did not or will not, and on the date of any filing pursuant to
Rule 424(b) and on the Closing Date, the Prospectus (together with any
supplement thereto) will not, include 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 Pass Through
Trustee and (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 you specifically for use in connection with the preparation
of the Registration Statement or the Prospectus (or any supplement
thereto).
(c) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "Effective Date" shall mean each date
that the
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Registration Statement and any post-effective amendment or amendments
thereto became or becomes effective. "Execution Time" shall mean the
date and time that this Agreement is executed and delivered by the parties
hereto. "Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph (a) above, and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information. "Prospectus" shall mean the prospectus relating to
the Pass Through Certificates that is first filed pursuant to Rule 424(b)
after the Execution Time or, if no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the Pass
Through Certificates included in the Registration Statement at the
Effective Date. "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 (or, if not effective at the Execution Time, in the form in which it
shall become effective) and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended. Such term shall include any Rule
430A Information deemed to be included therein at the Effective Date as
provided by Rule 430A. "Rule 424", "Rule 430A" and "Regulation S-K" refer
to such rules or regulation under the Act. "Rule 430A Information" means
information with respect to the Pass Through Certificates and the offering
thereof permitted to be omitted from the Registration Statement when it
becomes effective pursuant to Rule 430A. Any reference herein to the
Registration Statement, a Preliminary Prospectus 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 which were filed under the
Exchange Act on or before the Effective Date or the issue date of such
Preliminary Prospectus 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, any Preliminary Prospectus 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 any Preliminary Prospectus
or the Prospectus, as the case may be, deemed to be incorporated therein
by reference.
(d) The consolidated financial statements incorporated by reference
in the Registration Statement and Prospectus 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.
(e) The documents incorporated by reference in the Prospectus, at
the time they were or hereafter are filed with the Commission, complied
and will comply in all
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material respects with the requirements of the Exchange Act, and the
rules and regulations thereunder.
(f) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, 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.
(g) 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, 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 Union
and its subsidiaries, taken as a whole.
(h) The execution and delivery by Union of this Agreement, the
Participation Agreement, the Pass Through Trust Agreements, the Lease
and the other Operative Agreements to which the Company is, or is to be,
a party, 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 Union 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 Union 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 Pass Through Certificates and the Equipment
Notes, the valid authorization,
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execution, delivery and performance by the Company of this Agreement, the
Participation Agreement, the Pass Through Trust Agreements, the Lease and
other Operative Agreements to which the Company is, or is to be, a party,
or the consummation by the Company of the transactions contemplated by
this Agreement, the Participation Agreement, the Pass Through Trust
Agreements, the Lease and other Operative Agreements to which the Company
is, or is to be, a party, except (w) such as are required under the Act,
the Trust Indenture Act and the securities or Blue Sky laws of the various
states, (x) such filings, recordings or registrations with the Surface
Transportation Board of the Department of Transportation (the "STB") and
under Section 90 of the Railway Act (Canada) as may be required, (y) if
required, the filing of Uniform Commercial Code financing statements in
various jurisdictions and the filing of continuation statements with
respect thereto required to be filed at periodic intervals under the
Uniform Commercial Code and (z) such other filings, recordings or
registrations as may be required under the Operative Agreements.
(i) This Agreement, the Participation Agreement, the Pass Through
Trust Agreements, the Lease and the other Operative Agreements to
which the Company is, or is to be, a party, have each been duly
authorized by Union and, when executed and delivered by Union will
constitute valid and binding obligations of Union, and the Pass Through
Trust Agreements will have been duly qualified under the Trust Indenture
Act. On the Closing Date, the Equipment Trust Agreement, the Lease and
other Operative Agreements to which the Company, is, or is to be, a party
will constitute the valid and binding obligations of the Company. The
Pass Through Certificates, the Equipment Notes, the Indenture,
the Participation Agreement, the Pass Through Trust Agreements,
the Lease and the other Operative Agreements to which the Company, is,
or is to be, a party will conform in all material respects to the
descriptions thereof in the Prospectus.
(j) Ernst & Young LLP ("Ernst & Young"), who reported on the
consolidated financial statements of the Company as of December 31, 199_
and for the year then ended, 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, independent
auditors as required by the Act and the rules and regulations thereunder.
(k) The Pass Through Certificates, when duly executed, authenticated
and delivered by the Pass Through Trustee in accordance with the terms of
the Pass Through Trust Agreements and this Agreement, will be duly issued
under the Pass
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Through Trust Agreements and will constitute valid and binding obligations
of the Pass Through Trustee; and the holders thereof will be entitled to
the benefits of the Pass Through Trust Agreements.
(l) Assuming due authorization, execution and delivery of the
Equipment Notes to be issued under the Indenture by the Owner Trustee and
due authentication of such Equipment Notes by the Indenture Trustee in
accordance with the terms of the Indenture, the Equipment Notes will be
duly issued under the Indenture and will constitute valid and binding
obligations of such Owner Trustee; and the holders thereof will be
entitled to the benefits of the Indenture.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
request the Pass Through Trustee to sell to you, in the respective
aggregate principal amounts set forth on Schedule B hereto, and each of you
severally, not jointly, agrees to purchase from the Pass Through Trustee, at a
purchase price of 100% of the principal amount thereof, the respective aggregate
principal amounts of Pass Through Certificates set forth on such Schedule B.
As compensation to each of you for its commitment and obligations hereunder
in respect of the Pass Through Certificates, including its undertaking to
distribute the Pass Through Certificates, the Owner Trustee has, pursuant to
Section 2.5 of the Participation Agreement, undertaken to pay, or if the Owner
Trustee does not pay when due, the Company will pay when due, to you an amount
equal to the product of .____% times a fraction, the numerator of which is
the aggregate principal amount of Equipment Notes to be purchased by the Pass
Through Trusts and the denominator of which is the original principal amount of
the Pass Through Certificates purchased by you. Such payment shall be made
simultaneously with the payment by you to the Pass Through Trustee of the
purchase price of the Pass Through Certificates as specified in Section 3
hereof. Payment of such compensation shall be made by Federal funds check or
other immediately available funds to the order of ______________________.
3. Delivery and Payment. Delivery of and payment for the Pass Through
Certificates shall be made at the offices of Xxxx, Xxxxxx & Xxxxxxxxx, Two North
LaSalle Street, Chicago, Illinois, at 10:00 a.m., Chicago time, on _____ or such
later date and time (not later than ____) as the Company and you shall
determine (such date and time of delivery and payment for the Pass Through
Certificates being herein called the "Closing Date"). Delivery of the Pass
Through Certificates shall be made to your account at The Depository Trust
Company against payment by you of the purchase price thereof to or upon the
order of
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the Pass Through Trustee by Federal funds check or other immediately
available funds. The Pass Through Certificates shall be registered in such
names and in such denominations as you may request not less than three full
business days in advance of the Closing Date or such other date as may be
agreed upon.
The Company agrees to have the Pass Through Certificates available for
inspection, checking and packaging by you in New York City, not later than 1:00
p.m. (New York City time) on the business day prior to the Closing Date.
4. Offering by the Underwriters. It is understood that, after the
Registration Statement becomes effective, each of you propose to offer the Pass
Through Certificates for sale to the public as set forth in the Prospectus.
5. Agreements. The Company agrees with you that:
(a) The Company will use its reasonable best efforts to cause
the Registration Statement, if not effective at the Execution Time, and
any amendment thereof, to become effective and the Pass Through Trust
Agreement to be qualified under the Trust Indenture Act. The Company
will not file any amendment to the Registration Statement or supplement
to the Prospectus unless the Company has furnished you a copy for your
review prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, if filing of the Prospectus is required under Rule 424(b), the
Company will cause the Prospectus, properly completed, and any supplement
thereto 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 timely filing. The Company
will promptly advise you (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule
424(b), (iii) when, prior to termination of the offering of the Pass
Through Certificates, any amendment to the Registration Statement shall
have been filed or become effective, (iv) of any request by the Commission
for any amendment of the Registration Statement or supplement to the
Prospectus or for any additional information, (v) 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 Union agrees that it will use its reasonable best
efforts to prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof), (vi) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Pass Through Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose and (vii) during the period when a prospectus relating to the Pass
Through Certificates is
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required to be delivered under the Act, of the mailing or the delivery to
the Commission for filing of any document to be filed pursuant to
the Exchange Act.
(b) If, at any time when a prospectus relating to the Pass Through
Certificates 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 supplement the
Prospectus to comply with the Act or the Exchange Act or the respective
rules and regulations thereunder, the Company promptly will prepare and
file with the Commission, subject to paragraph (a) of this Section 5, an
amendment or supplement which will correct such statement or omission or
an amendment which will effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriters 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 by you or a dealer may
be required by the Act, as many copies of each Preliminary Prospectus and
the Prospectus and any amendments thereof and supplements thereto as you
may reasonably request. Subject to the provisions of Section 2.5 of the
Participation Agreement, the Company will pay the expenses of printing
all documents relating to the offering.
(e) The Company will cooperate with you and your special counsel to
arrange for the qualification of the Pass Through Certificates for sale
under the laws of such jurisdictions as you may reasonably designate, will
maintain such qualifications in effect so long as required for the
distribution of the Pass Through Certificates and will arrange for the
determination of the legality of the Pass Through Certificates 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) Between the date of this Agreement and the Closing Date,
the Company will not without your prior written consent offer, sell, or
enter into any agreement to sell, any public debt securities registered
under the Act (other than the Pass Through Certificates).
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(g) The Company confirms as of the date hereof that it 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 the Company 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 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.
6. Conditions to the Obligations of the Underwriters. Your obligations
to purchase the Pass Through Certificates shall be subject to the accuracy
of the representations and warranties on the part of the Company contained
herein as of the Execution Time and the Closing Date, to the accuracy of the
statements of the Company made in any certificates delivered pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not later
than (i) 5:00 p.m., New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior to
3:00 p.m., New York City time, on such date or (ii) 12:00 noon, New York
City time, on the business day following the day on which the public
offering price was determined, if such determination occurred after 3:00
p.m., New York City time, on such date; if filing of the Prospectus, or
any supplement thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such supplement, will be 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
issued and no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to you and to Xxxxx'x Investors
Service, Inc. and Standard and Poor's Corporation (together, the "Rating
Agencies"), if requested by you, the opinion of Xxxx, Xxxxxx & Xxxxxxxxx,
special counsel to the Company (incorporating and relying upon the
opinion of Osler, Xxxxxx & Harcourt, special Canadian counsel to the
Company, as to Canadian law matters, and Xxxxx & Xxxxxxx, special STB
counsel to the Company, as to STB matters), dated the Closing Date, in
form reasonably satisfactory to you and to Xxxxx, Xxxxx & Xxxxx, special
counsel of the Underwriters, to the effect that:
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(i) Each of the Company and 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 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) The Company has the corporate power and authority under the laws
of the jurisdiction in which it is organized to perform its obligations
hereunder and under the Participation Agreement, the Pass Through Trust
Agreements, the Lease and the other Operative Agreements to which Union
is, or is to be, a party;
(iii) subject to the limitations and qualifications set forth in
clause (xvi) of this Section 6(b), assuming that the Pass Through
Certificates have been duly authorized and validly executed,
authenticated, issued and delivered by the Pass Through Trustee pursuant
to the Pass Through Trust Agreements, the holders of
such Pass Through Certificates are entitled to the benefits of the Pass
Through Trust Agreements;
(iv) the Pass Through Certificates conform in all material respects
to the description thereof contained in the Prospectus, and such
description conforms in all material respects to the rights set forth in
the instruments defining the same;
(v) no authorization, approval, consent, order or license of or
filing with or notice to any government, governmental instrumentality,
regulatory body or authority or court is required for the valid
authorization, execution, delivery and performance by the Company of
this Agreement, the Participation Agreement, the Pass Through Trust
Agreements,
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the Lease and the other Operative Agreements to which the Company is, or
is to be, a party, or the consummation by the Company of the transactions
contemplated by this Agreement, the Participation Agreement, the Pass
Through Trust Agreements, the Lease and the other Operative Agreements to
which the Company is, or is to be, a party, except (w)such as are required
under the Act, the Trust Indenture Act and the securities or Blue Sky laws
of the various states, (x)such filings, recordings or registrations with
the STB and under Section 90 of the Railway Act (Canada) as may be
required, (y) if required, the filing of Uniform Commercial Code financing
statements in various jurisdictions and the filing of continuation
statements with respect thereto required to be filed at periodic intervals
under the Uniform Commercial Code and (z)such other filings, recordings or
registrations as may be required under the Operative Agreements;
(vi) 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 or the Prospectus which is not adequately disclosed,
and there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to
be filed as an exhibit, which is not described or filed as required;
(vii) 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 made in the manner and within the time
period required by Rule 424(b); the Pass Through Trust Agreements have
become qualified under the Trust Indenture Act; to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement has been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement, the Prospectus
and each amendment thereof or supplement thereto (other than the financial
statements and related schedules and other financial and statistical
information, including the notes thereto, included or incorporated by
reference 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 and the Exchange Act and the respective rules and regulations
thereunder; the Pass Through Trust Agreements and the Statement of
Eligibility and Qualification of the Pass Through Trustee on Form T-1
comply as to form in all material respects with the requirements of the
Trust Indenture Act and the rules and regulations thereunder; and each
document filed pursuant to the Exchange Act and incorporated by reference
in the Prospectus
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(except for the financial statements, including the notes thereto, and
related schedules and other financial and statistical information included
or incorporated by reference therein, as to which such counsel need express
no opinion) appeared on its face, as of its respective filing date, to
comply as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder;
(viii) title to the equipment to be subjected to the Lease will, when
such equipment shall have been transferred to the Owner Trustee as
provided in the Participation Agreement, be validly vested in the Owner
Trustee, subject to no liens or encumbrances of record at the STB;
(ix) this Agreement, the Pass Through Trust Agreements, the
Participation Agreement, the Lease and all the other Operative Agreements
to which the Company is, or is to be, a party have been duly authorized
and, on the Closing Date, assuming due authorization, execution and
delivery by the parties thereto other than the Company, upon execution and
delivery by the Company will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their
respective 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), (ii)in the case of the Lease, as limited by applicable laws
which may affect the remedies provided in the Lease, which laws, however,
do not in such counsel's opinion make the remedies provided in the Lease
inadequate for the practical realization of the rights and benefits
provided thereby and (iii)in the case of this Agreement, as to provisions
relating to indemnification or contribution for liabilities arising under
the Act, as to which such counsel need express no opinion;
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(x) the Pass Through Trust Agreements, the Equipment Notes,
the Indenture, the Participation Agreement, the Lease and the other
Operative Agreements (to the extent described therein) conform in
all material respects to the descriptions thereof contained in the
Prospectus;
(xi) the execution and delivery by the Company of this Agreement,
the Participation Agreement, the Pass Through Trust Agreements,
the Lease and the other Operative Agreements to which the Company is to
be, a party, the consummation by the Company of the transactions herein
and therein contemplated and in the manner herein and therein contemplated
and compliance by Union with the terms hereof and thereof, do not and will
not conflict with, or result in a breach by the Company of, any of the
terms or provisions of, or constitute a default under, any material
indenture or other agreement or instrument known to such counsel to which
the Company is a party or by which the Company is bound, or any law, rule,
regulation, judgment or order known to such counsel to be applicable to
the Company of any court, regulatory body, administrative agency,
government or governmental body having jurisdiction over the Company,
except that such counsel need express no opinion or belief as to the
accuracy or completeness of the Registration Statement or Prospectus
except for the opinions expressed in clauses (iv), (x), and (xii) (except
that such counsel need not express any opinion as to any violation of any
such law, rule or regulation, judgment or order (a) which does not
materially affect the validity of the Equipment Notes or the Pass Through
Certificates or (b) which reflects conclusions based on misrepresentations
to, concealment of information from or other fraudulent acts perpetrated
on such counsel);
(xii) the statements in the Registration Statement and Prospectus
under the headings "Material Federal Income Tax Consequences", "Certain
Illinois Taxes" and "ERISA Considerations", to the extent that they
constitute matters of law or legal conclusions with respect thereto, have
been prepared or reviewed by such counsel and are correct in all material
respects;
(xiii) 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;
(xiv) on the Closing Date, assuming due
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15
authorization, execution, issuance and delivery of the Equipment Notes by
the Owner Trustee as contemplated by the Indenture, and due authentication
of such Equipment Notes by the Indenture Trustee, each of the Equipment
Notes when issued will constitute valid and binding obligations of the
Owner Trustee, enforceable against the Owner Trustee 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 Equipment Notes will be entitled to the
benefits of the Indenture;
(xv) assuming due authorization, execution and delivery of the
Pass Through Trust Agreements by the Pass Through Trustee, each of the
Pass Through Trust Agreements constitutes the valid and binding obligation
of the Company enforceable in accordance with its 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);
(xvi) neither trust created by the Pass Through Trust Agreements
will be classified as an association taxable as a corporation for federal
income tax purposes, but rather, each will be classified as a grantor
trust under subpart E, Part I of Subchapter J of the Internal Revenue Code
of 1986, as amended (the "Code"), and each Certificate Owner will be
treated as the owner of a pro rata undivided interest in each of the
Equipment Notes and any other property held in such Pass Through Trusts;
(xvii) although counsel is not aware of any judicial authority, the
Pass Through Trusts are not required to be registered under the Investment
Company Act of 1940, as amended;
(xviii) assuming due authorization, execution and delivery of the
Indenture by the parties thereto, the Indenture will subject the Indenture
Estate covered by the Indenture to the security interests created thereby;
(xix) there are no taxes, fees or other governmental charges payable
under the laws of the State of Illinois or any political subdivision
thereof in
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16
connection with the execution and delivery by the Pass Through Trustee, in
its individual capacity or as Pass Through Trustee, or the Indenture
Trustee, as the case may be, of the Participation Agreement, the Pass
Through Trust Agreements, and the Operative Agreements, as the case may
be, or in connection with the issuance, execution, authentication and
delivery of the Pass Through Certificates by the Pass Through Trustee
pursuant to the Pass Through Trust Agreements or the issuance,
authentication or delivery of the Equipment Notes; and
(xx) Except to the extent the Indenture Trustee forecloses on the
Equipment and any of the Equipment is located in Illinois or to the extent
the Indenture Estate or the trusts created by the Pass Through
Trust Agreements, as applicable, engages in business in Illinois as a
result of such foreclosure:
(I) neither the trusts created by the Pass Through Trust Agreements,
the Indenture Estate nor the Pass Through Trustee (either in its
individual capacity or as Pass Through Trustee), nor their respective
affiliates, successors or assigns, will be subject to any tax (including,
without limitation, net or gross income, tangible or intangible property,
net worth, capital, franchise or doing business tax), fee or other
governmental charge under the laws of the State of Illinois or any
political subdivision thereof (other than taxes imposed on the fees
received by the Pass Through Trustee for acting as Pass Through Trustee
under the Pass Through Trust Agreements).
(II) Certificate Owners who are not residents of or otherwise subject
to tax in the State of Illinois will not be subject to any tax (including,
without limitation, net or gross income, tangible or intangible property,
net worth, capital, franchise or doing business tax), fee or other
governmental charge under the laws of the State of Illinois or any
political subdivision thereof as a result of purchasing, holding
(including receiving payments with respect to) or selling a Certificate.
(III) There are no applicable taxes under the laws of the State of
Illinois or any political subdivision thereof upon or with respect to
(a)the construction, mortgaging, financing, refinancing, purchase,
acquisition, acceptance, rejection, delivery, nondelivery, transport,
location, ownership, insurance, control, assembly, possession,
repossession, operation, use,
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17
condition, maintenance, repair, sale, return, abandonment, replacement,
preparation, installation, storage, redelivery, manufacture, leasing,
subleasing, modification, rebuilding, importation, transfer of title,
transfer of registration, exportation or other application or disposition
of the Equipment or any interest in any thereof, (b)payments of Rent or
the receipts, income or earnings arising therefrom or received with
respect to the Equipment or any interest in any thereof or payable
pursuant to the Lease, (c)any amount paid or payable pursuant to any
Operative Agreement, (d)the Equipment or any interest therein or the
applicability of the Lease to the Equipment or any interest thereof,
(e)any or all of the Operative Agreements, any or all of the Equipment
Notes or any interest in any or all thereof or the offering, registration,
reregistration, issuance, acquisition, modification, assumption,
reissuance, refinancing or refunding or any or all thereof, and any other
documents contemplated hereby or thereby and amendments and supplements
hereto and thereto, (f)the payment of the principal of, or interest or
premium on, or other amounts payable with respect to, any or all of the
Equipment Notes, whether as originally issued or pursuant to any
refinancing, refunding, assumption, modification, or reissuance, or any
other obligation evidencing any loan in replacement of the loan evidenced
by any or all of the Equipment Notes, (g)the property, or the income,
earnings, receipts or other proceeds received with respect to the
property, held by the Indenture Trustee under the Indenture or
(h)otherwise with respect to or in connection with the transactions
contemplated by the Operative Agreements, which would not have been
imposed if the Indenture Trustee had not had their principal place of
business in, had not performed (either in its individual capacity or as
Indenture Trustee) any or all of their administrative duties under the
Operative Agreements in, and had not engaged in any activities unrelated
to the transactions contemplated by the Operative Agreements in, the State
of Illinois.
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18
In passing on the form of the Registration Statement and the Prospectus
and each amendment and supplement thereof, 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 and its subsidiaries and with representatives of Ernst & Young
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 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. In rendering such opinion, such
counsel may state that it expresses no opinion as to the laws of any
jurisdiction other than the State of Illinois, the General Corporation Law
of the State of Delaware and the Federal law of the United States of
America and may rely (A)as to matters involving the application of (x)laws
of Canada or its Provinces and (y)laws, rules and regulations with respect
to the STB to the extent deemed proper and specified in such opinion, upon
the opinion of other counsel of good standing whom such counsel believes
to be reliable and who are satisfactory to you and your counsel; and (B)as
to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials, and may assume
for purposes of its opinion with respect to this Agreement set forth in
Section 6(b)(ix) that the laws of the State of New York are identical to
the laws of the State of Illinois.
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19
(c) You shall have received from The Law Department of Xxxxxx
Trust and Savings Bank an opinion, dated the Closing Date, in form
and substance reasonably satisfactory to you and Xxxxx, Xxxxx &
Xxxxx, your special counsel to the effect that:
(i) Xxxxxx Trust and Savings Bank is an Illinois banking
corporation validly existing and holding a valid certificate
to do business as an Illinois banking corporation with
trust powers, and, in its individual capacity or as Pass
Through Trustee or Indenture Trustee, as the case may be, has
full corporate power and authority to execute, deliver and
carry out the terms of the Indenture, the Participation
Agreement, the Pass Through Trust Agreements and the other
Operative Agreements to which it is a party;
(ii) Xxxxxx Trust and Savings Bank (in its individual
capacity, to the extent provided therein), the Pass Through
Trustee or the Indenture Trustee, as the case may be, has
duly authorized, executed and delivered the Indenture, the
Participation Agreement, the Pass Through Trust Agreement
and the other Operative Agreements
- 19 -
20
to which it is a party and each of such agreements constitutes the
valid and binding obligations of Xxxxxx Trust and Savings Bank (in its
individual capacity, to the extent provided therein), the Pass
Through Trustee or the Indenture Trustee, as the case may be, enforceable
against Xxxxxx Trust and Savings Bank (in its individual capacity, to the
extent provided therein), the Pass Through Trustee or the Indenture
Trustee, as the case may be, in accordance with their respective terms,
except as limited by bankruptcy, insolvency, moratorium reorganization,
receivership, fraudulent conveyance or other similar laws affecting
enforcement of creditors' rights generally, and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law);
(iii) the Pass Through Certificates have been duly authorized and
validly executed, authenticated, issued and delivered by the Pass Through
Trustee pursuant to the Pass Through Trust Agreements; and the holders of
the Pass Through Certificates are entitled to the benefits of the Pass
Through Trust Agreements;
(iv) the authorization, execution, delivery and performance by
Xxxxxx Trust and Savings Bank (in its individual capacity, to the extent
provided therein), the Pass Through Trustee or the Indenture Trustee,
as the case may be, of the Indenture, the Participation Agreement, the
Pass Through Trust Agreements and the other Operative Agreements to which
it is or will be party and the consummation of the transactions therein
contemplated and compliance with the terms thereof and issuance of the
Pass Through Certificates thereunder do not and will not result in the
violation of the provisions of the Articles of Association or By-Laws of
Xxxxxx Trust and Savings Bank, and do not and will not conflict with, or
result in a breach of any terms or provisions of, or constitute a default
under, or result in the creation or the imposition of any lien, charge or
encumbrance upon any property or assets of Xxxxxx Trust and Savings Bank,
the Pass Through Trustee or the Indenture Trustee, as the case may be,
under any indenture, mortgage or other agreement or instrument known to
such counsel to which the Pass Through Trustee or the Indenture Trustee,
as the case may be, is a party or by which it or any of its property is
bound, or any Illinois or Federal law, rule or regulation governing Xxxxxx
Trust and Savings Bank, the Pass Through Trustee's or the Indenture
Trustee's banking or trust powers, or of any judgment, order of decree
known to such counsel to be applicable to Xxxxxx Trust and Savings Bank,
the Pass Through Trustee or the Indenture Trustee, as the case may be, of
any court, regulatory body, administrative agency, government or
governmental body having jurisdiction over Xxxxxx Trust and Savings Bank,
the Pass
- 20 -
21
Through Trustee or the Indenture Trustee or any of their respective
properties;
(v) no authorization, approval, consent, license or order of,
giving of notice to, registration with, or taking of any other action
in respect of, any Federal or state governmental authority or agency
pursuant to any Federal or Illinois law governing the banking or trust
powers of Xxxxxx Trust and Savings Bank, the Pass Through Trustee
or the Indenture Trustee is required for the authorization,
execution, delivery and performance by Xxxxxx Trust and Savings Bank,
(in its individual capacity, to the extent provided therein), the Pass
Through Trustee or the Indenture Trustee of the Indenture, the
Participation Agreement, the Pass Through Trust Agreement and the
other Operative Agreements to which it is or will be a party or the
consummation of any of the transactions by the Pass Through Trustee or
Indenture Trustee contemplated thereby or the issuance of the Pass
Through Certificates under the Pass Through Trust Agreements (except
as shall have been duly obtained, given or taken); and such
authorization, execution, delivery, performance, consummation and
issuance do not conflict with or result in a breach of the provisions
of any such law.
In giving such opinion, The Law Department of Xxxxxx Trust and Savings
Bank (A) may state that no opinion is expressed as to laws other than
the laws of the State of Illinois and the Federal law of the United States
of America, (B)may assume as to the opinions expressed in clause (ii)
relating to any of the Operative Agreements, insofar as they involve
matters relating to the laws of any jurisdiction other than Illinois, that
such Operative Agreements constitute legal, valid and binding instruments
under such laws and (C)may include such other reasonable assumptions as
are customary in legal opinions delivered in connection with transactions
of this type.
(d) You shall have received from Xxxxx, Xxxxx & Xxxxx, your special
counsel, such opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Pass Through Certificates, the Pass
Through Trust Agreements, the Registration Statement, the Prospectus and
other related matters as you may reasonably require, and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(e) You shall have been furnished with a certificate of the Company,
signed by the President or any Vice President and the principal
financial officer of the Company, dated the Closing Date, to the effect
that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus and this Agreement and that:
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22
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(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
incorporated by reference in the Prospectus, 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.
(f) The representations and warranties of the Company contained in
the Participation Agreement, the Lease and the other Operative Agreements
to which it is a party shall be true and correct in all material respects
on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of such date, and
the Company shall have delivered to you a certificate, dated the Closing
Date, signed by its President or any Vice President and its principal
financial or accounting officer to the effect that the signers of such
certificate have carefully examined the Participation Agreement, the
Lease and the other Operative Agreements to which it is a party, the
Registration Statement, the Preliminary Prospectus and the Prospectus and
that:
(i) the representations and warranties of the Company in the
Participation Agreement, the Lease and the other Operative Agreements to
which it is a party are true and correct in all material respects on and
as of the Closing Date as if made on and as of the Closing Date;
(ii) the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied on or
prior to the Closing Date pursuant to the terms of the Participation
Agreement, the Lease and other Operative Agreements to which it is a
party; and
(iii) nothing has come to the attention of such person that would
lead him or her to believe that the Registration Statement contains any
untrue
- 22 -
23
statement of material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(g) At the Execution Time and at the Closing Date, Ernst & Young shall
have furnished to you a letter or letters, dated, respectively, as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to you, confirming that:
(i) they are independent auditors within the meaning of the Act and
the applicable published rules and regulations thereunder and stating in
effect that in their opinion the audited consolidated financial statements
and schedules thereto incorporated by reference in the Registration
Statement and the Prospectus and reported on by them comply as to form in
all material respects with the applicable accounting requirements of the
Act and the applicable published rules and regulations thereunder with
respect to registration statements on Form S-3; and that nothing came to
their attention which caused them to believe that the amounts under the
caption "Selected Financial Information" for each of the five years ended
December 31, 199_ incorporated by reference in the Registration Statement,
do not agree with the corresponding amounts in the audited financial
statements from which such amounts were derived; and as to the periods for
which it served as the Company's independent auditor, such financial
statements were covered by unqualified reports issued by them; and
(ii) 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) set forth in the Registration Statement and the Prospectus,
including the information set forth under the captions "Selected Financial
Information", and in Exhibit 12 to the Registration Statement agrees
with the accounting records and schedules of the Company and its
subsidiaries, excluding any questions of legal interpretation.
(h) In addition, Ernst & Young shall have furnished to you a letter or
letters, dated, respectively, as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to you, to the effect
that on the basis of a reading of the unaudited condensed financial
statements of the Company contained in the Company's Quarterly Reports on
Form 10-Q for the quarter ended _______ incorporated by reference in the
Registration Statement,the amounts set forth under the caption "Selected
Financial Information" incorporated by reference in the Registration
Statement and the Prospectus and of the latest unaudited consolidated
financial statements made available to them by the Company and its
subsidiaries; carrying out certain specified procedures (but
- 23 -
24
not an audit 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 committees of the
Company and its subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters of
the Company and its subsidiaries as to transactions and events subsequent
to _______ nothing came to their attention which caused them to believe
that (A) the unaudited consolidated financial statements of the Company
incorporated by reference in the Registration Statement do not comply as
to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the rules and
regulations thereunder as they apply to Form 10-Q or are not presented in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited consolidated
financial statements of the Company incorporated by reference in the
Registration Statement, and (B)with respect to the period subsequent to
__________, 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 stockholder's equity of the Company and its subsidiaries
as compared with the amounts shown on the __________, unaudited
consolidated balance sheet data included in "Selected Financial
Information" incorporated by reference in the Registration Statement and
the Prospectus, or for the period from _________ to such specified date,
there were any decreases, as compared with the corresponding period in
the preceding year, in total revenues from net sales and services, or in
income before income taxes or net income, of Union 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 you.
References to the Prospectus in paragraphs (g) and (h) include any
supplement thereto at the date of the letter.
(i) Subsequent to the Execution Time or, if earlier, the respective
dates as of which information is given in the Registration Statement and
the Prospectus, there shall not have been (i)any change or decrease
specified in the letters referred to in paragraphs (f) and (g) of this
Section 6 or (ii)any change, or any development involving a prospective
change, in or affecting the business or properties of the Company and its
subsidiaries taken as a whole the effect of which, in any case referred
to in clause (i) or (ii) above, is, in your judgment, so material and
adverse as to make it impractical or inadvisable to proceed with the
public offering or the delivery of the Pass Through Certificates as
contemplated by the Registration Statement and the Prospectus.
(j) Subsequent to the Execution Time and prior to the Closing Date,
there shall not have occurred any downgrading, nor shall any notice have
been given of (i)any intended or potential downgrading or (ii)any review
or possible change in the
- 24 -
25
rating accorded the Company's debt securities by the Rating Agencies as of
the Execution Time.
(k) Prior to the Closing Date, the Company shall have furnished to
you and the Rating Agencies such further information, certificates
and documents as you and they may reasonably request.
(l) The Pass Through Certificates shall have received ratings of "A1
senior secured" by Xxxxx'x Investors Service, Inc. and "A+" by Standard &
Poor's Corporation.
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, 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 you and your counsel, this Agreement and all your obligations
hereunder may be canceled at, or at any time prior to, the Closing Date by you.
Notice of such cancellation shall be given to Union in writing or by telephone
or telegraph confirmed in writing.
7. Reimbursement of the Underwriters' Expenses. If the sale of the Pass
Through Certificates provided for herein is not consummated because any
condition to your obligation set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason
of a default by you, the Company will reimburse you upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by you in connection with the proposed purchase
and sale of the Pass Through Certificates.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless you and each person who controls you within the
meaning of either the Act or the Exchange Act from and against any and all
losses, claims, damages or liabilities, joint or several, to which you or any
of 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 Pass Through Certificates as originally filed or in any amendment thereof,
or in any Preliminary Prospectus or the 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, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse you and
each such controlling person for any legal or other expenses reasonably
incurred by you or such controlling person in connection with
- 25 -
26
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i)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 or on behalf of you
specifically for use in connection with the preparation thereof, and (ii)such
indemnity with respect to any Preliminary Prospectus 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 Pass Through
Certificates which are the subject thereof did not receive a copy or the
Prospectus (or the Prospectus as amended or supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of the sale
of such Pass Through Certificates to such person in any case where such
delivery is required by the Act and the untrue statement or omission of a
material fact contained in such Preliminary Prospectus was corrected in the
Prospectus (or the Prospectus as amended or supplemented). This indemnity
agreement will be in addition to any liability which Union may otherwise have.
(b) You severally (and not jointly) agree 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 you, but only with reference to written
information relating to you furnished to the Company by or on behalf of you
specifically for use in the preparation of the documents referred to in clause
(a) of this Section 8. This indemnity agreement will be in addition to any
liability which you may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page and under the
heading "Underwriting" in any Preliminary Prospectus and the Prospectus and the
stabilization language included on the inside front cover of any Preliminary
Prospectus and the Prospectus constitute the only information furnished in
writing by or on behalf of you for inclusion in any Preliminary Prospectus or
the Prospectus, and you confirm that such statements are correct.
(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 omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section 8. In case any such action is brought against any
indemnified party, and the indemnified party notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to appoint
counsel satisfactory to such indemnified party to represent the indemnified
party in such action; provided, however, if the defendants in 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
- 26 -
27
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of the indemnifying party's election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel, approved by you in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) who are parties to
such action), (ii)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 commencement of the action or (iii)the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 8 is due in accordance with its terms but is for any reason held
by a court to be unavailable from the Company on grounds of policy or otherwise,
the Company and you shall contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) to which the Company and you
may be subject in such proportion so that each of you are responsible only for
that portion represented by the percentage that the aggregate underwriting
commission in respect of the Pass Through Certificates appearing on the cover
page of the Prospectus attributable to Pass Through Certificates sold by you
bears to the aggregate public offering price in respect of such Pass Through
Certificates appearing thereon and the Company is responsible for the balance;
provided, however, that (y)in no case shall you be responsible for any amount
in excess of such respective underwriting commissions and (z)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 shall have the same rights to
contribution as you, and each person who controls the Company within the
meaning of the 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 clauses (y) and
(z) of this paragraph (d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this paragraph (d), notify such party
or parties from whom contribution may be sought, but the omission to so notify
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such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
9. Termination. This Agreement shall be subject to termination in your
absolute discretion by notice given to the Company prior to delivery of and
payment for the Pass Through Certificates, if prior to such time (i) 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, (ii)
a banking moratorium shall have been declared either by Federal, New York State
or Illinois State authorities or (iii) there shall have occurred any outbreak
or material escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
your judgment, impracticable to market the Pass Through Certificates.
10. Representations and Indemnities to Survive. 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 Union or any of its officers, directors or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Pass Through Certificates. The provisions of Sections 7 and 8
hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to you, will be mailed, delivered or telegraphed
and confirmed in the case of _______________________ , Attention:
___________________; in the case of _________________________, Attention:
___________________________ or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 000 Xxxx Xxxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Secretary.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
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29
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
------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted as of the
date first written above.
By
------------------------
Name:
Title:
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Schedule A
Pass Through Principal Final Distribution
Certificate Amount Interest Rates Dates
31
Schedule B
Pass Through Certificate Pass Through Certificate
Series _____ Series ______
Aggregate Principal Aggregate Principal
Amount Amount
------------------------ ------------------------
Total
