1
EXHIBIT 1
Union Tank Car Company
and
Procor Limited
$122,000,000
Pass Through Certificates, Series 1996-A
Underwriting Agreement
New York, New York
May , 1996
Salomon Brothers Inc
7 World Trade Center
New York, New York 10048
Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, New York 10020
Dear Ladies and Gentlemen:
Union Tank Car Company, a Delaware corporation ("Union"), and Procor
Limited, a Canadian corporation and an indirect wholly-owned subsidiary of
Union ("Procor" and, together with Union, the "Companies") propose to cause to
be sold to you the underwriters (the "Underwriters") $122,000,000 aggregate
principal amount of Pass Through Certificates, Series 1996-A1 and Pass Through
Certificates, Series 1996-A2 (together with the guarantee of Union of the due
and punctual distribution to holders of such certificates of principal and
interest payable in respect of the Procor ETC (as hereinafter defined) to be
endorsed on Pass Through Certificates, Series 1996-A2, the "Union Guarantee"),
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 1996-A1, dated May __, 1996 (the "Pass Through Trust Agreement
1996-A1"), between Union and _________________, as Pass Through Trustee (the
"Pass Through Trustee") and (ii) the Pass Through Trust Agreement 1996-A2,
dated May __, 1996 (the "Pass Through Trust Agreement 1996-A2", and together
with the
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Pass Through Trust Agreement 1996-A1, the "Pass Through Trust Agreements")
among Union, Procor and the Pass Through Trustee, respectively.
The property to be purchased by the Pass Through Trustee under Pass
Through Agreement 1996-A1 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 1996-A2 and contained in such trust shall consist of
(i) $_____________ principal amount Equipment Notes, Series B, (ii) an
aggregate of $_____________ principal amount Equipment Trust Certificates,
Series 26 of Union (together with the guarantee of Union to be endorsed
thereon, the "Union ETCs") to be issued by Union pursuant to an Equipment Trust
Agreement, dated May __, 1996, as may be amended or supplemented from time to
time (the "Union Equipment Trust Agreement"), between Union and
___________________, as trustee (the "Union Equipment Trust Trustee"), and
(iii) a $______________ principal amount Equipment Trust Certificate, Series
26-Can of Procor (together with the guarantee of Procor endorsed thereon, the
"Procor ETC") to be issued by Procor pursuant to an Equipment Trust Agreement,
dated May __, 1996, as may be amended or supplemented from time to time (the
"Procor Equipment Trust Agreement", and together with the Union Equipment Trust
Agreement, the "Equipment Trust Agreements"), between Procor and
________________, as trustee (the "Procor Equipment Trust Trustee", and
together with the Union Equipment Trust Trustee, the "Equipment Trust
Trustees").
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 Companies represent and
warrant to, and agree with you, that:
(a) The Companies meet the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the "Act"), and have
filed with the Securities and Exchange Commission (the "Commission") a
registration statement (file number ___________) 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 Companies may have filed one or more
amendments thereto, including the related Preliminary Prospectus, each
of which has previously been furnished to you. The Companies 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 Companies have
included in such registration
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statement, 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
Companies have 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
Companies make 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 Union 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 Union and its
subsidiaries, taken as a whole.
(g) Union and each Significant Subsidiary (with such term
having the meaning attributed to it under Rule 405 under the Act) of
Union (including Procor) 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. Union owns either directly, or through wholly-owned
subsidiaries, all of the issued and outstanding capital stock of
Procor.
(h) The execution and delivery by Union or Procor, as the
case may be, of this Agreement, the Participation Agreement, the Pass
Through Trust Agreements, the Lease, the Equipment Trust Agreements
and the other Operative Agreements to which Union or Procor, as the
case may be, is, or is to be, a party, the consummation by the
Companies of the transactions herein and therein contemplated, and the
compliance by the Companies 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 Union, or the corporate
charter or by-laws, as amended, of Procor, or any of their respective
subsidiaries or any material indenture, mortgage, or other agreement
or instrument to which the Companies or any of their respective
subsidiaries is a party or by which any of their respective 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 Companies or any of
their respective subsidiaries or any of their respective properties;
and, assuming due authorization, execution and delivery by all parties
thereto other than the Companies, 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, the ETCs and the
Equipment Notes, the valid authorization, execution, delivery and
performance by Union and Procor, as the case
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may be, of this Agreement, the Participation Agreement, the Pass
Through Trust Agreements, the Equipment Trust Agreements and the Lease
and other Operative Agreements to which Union or Procor, as the case
may be, is, or is to be, a party, or the consummation by the Companies
of the transactions contemplated by this Agreement, the Participation
Agreement, the Pass Through Trust Agreements, the Equipment Trust
Agreements and the Lease and other Operative Agreements to which Union
or Procor, as the case may be, 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) 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 Equipment Trust Agreements and the Lease
and the other Operative Agreements to which Union or Procor, as the
case may be, is, or is to be, a party, have each been duly authorized
by Union or Procor, as the case may be, and, when executed and
delivered by Union or Procor, as the case may be, will constitute
valid and binding obligations of Union or Procor, as the case may be,
and the Pass Through Trust Agreements will have been duly qualified
under the Trust Indenture Act. On the Closing Date, the Equipment
Trust Agreements, the Lease and other Operative Agreements to which
Union or Procor, as the case may be, is, or is to be, a party will
constitute the valid and binding obligations of Union or Procor, as
the case may be. The Pass Through Certificates, the ETCs, the
Equipment Notes, the Indenture, the Participation Agreement, the Pass
Through Trust Agreements, the Equipment Trust Agreements and the Lease
and the other Operative Agreements to which Union or Procor, as the
case may be, 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 Union as of December 31, 1995
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 Through Trust Agreements
and will constitute valid and binding obligations of the
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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
Companies agree to request the Pass Through Trustee to sell to each of 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, Union 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. Union will pay to
you when due an amount equal to ____% of the original aggregate principal
amount of the Union ETCs and Procor will pay to you when due an amount equal to
____% of the original aggregate principal amount of the Procor ETC. Subject to
the terms hereof, Procor's obligation to make such payment is hereby
unconditionally guaranteed by Union. Such payments 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 Salomon Brothers Inc.
3. Delivery and Payment. Delivery of and payment for the Pass
Through Certificates shall be made at the offices of Neal, Gerber & Eisenberg,
Two North LaSalle Street, Chicago, Illinois, at 10:00 a.m. C.S.T., on May __,
1996 or such later date and time (not later than May __, 1996) as the Companies
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 the Pass Through Trustee by Federal funds check or other
immediately available
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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 Companies agree 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 Salomon Brothers Inc. and Morgan Stanley & Co.
Incorporated. 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 Companies agree with you that:
(a) The Companies will each use their 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 Companies will not file any amendment of the Registration
Statement or supplement to the Prospectus unless the Companies have
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 Companies 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 Companies 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
each of the Companies agree that it will each 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 Companies 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 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.
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(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
Companies 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, Union will make generally
available to its security holders and to the Underwriters an earnings
statement or statements of Union and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and the applicable
rules and regulations thereunder.
(d) The Companies 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
Companies will pay the expenses of printing all documents relating to
the offering.
(e) The Companies 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 Companies 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 Companies 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).
(g) The Companies confirm as of the date hereof that each
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 Companies further agree that if either Union or Procor
commences engaging in business with the government of Cuba
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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 Union's or Procor's business
with Cuba or with any person or affiliate located in Cuba changes in
any material way, the Companies 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 Salomon Brothers Inc and
Morgan Stanley & Co. Incorporated. Your obligations to purchase the Pass
Through Certificates shall be subject to the accuracy of the representations
and warranties on the part of the Companies contained herein as of the
Execution Time and the Closing Date, to the accuracy of the statements of the
Companies made in any certificates delivered pursuant to the provisions hereof,
to the performance by the Companies of their 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 Companies shall have furnished to you and to
Moody's Investors Service and Standard and Poor's Corp. (together, the
"Rating Agencies"), if requested by you, the opinion of Neal, Gerber &
Eisenberg, special counsel to Union (incorporating and relying upon
the opinions of Peter E. Lawford, Esquire, General Counsel of Procor,
and Osler, Hoskin & Harcourt, special Canadian counsel to Procor, as
to Canadian law matters, and Hogan & Hartson, special STB counsel to
Union, as to STB matters), dated the Closing Date, in form reasonably
satisfactory to you and to Mayer, Brown & Platt, special counsel of
the Underwriters, to the effect that:
(i) Each of Union and its Significant Subsidiaries
(including Procor) 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
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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.
(ii) all the outstanding shares of capital stock of
Procor have been duly and validly authorized and issued and
are fully paid and nonassessable, and, all such capital stock
of Procor is owned by Union, either directly or through wholly
owned subsidiaries, free and clear of any perfected security
interest and, to the knowledge of such counsel, after due
inquiry, any other security interest, claims, liens or
encumbrances.
(iii) each of Union and Procor has the corporate
power and authority under the laws of the jurisdiction in
which it is chartered or organized to perform its obligations
hereunder and under the Participation Agreement, the Pass
Through Trust Agreements, the Equipment Trust Agreements, the
Lease and the other Operative Agreements to which Union or
Procor, as the case may be, is, or is to be, a party;
(iv) 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;
(v) 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;
(vi) 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 Companies of this Agreement,
the Participation Agreement, the Pass Through Trust
Agreements, the Equipment Trust Agreements, the Lease and the
other Operative Agreements to which Union or Procor, as the
case may be, is, or is to be, a party, or the consummation by
Union or Procor, as the case may be, of the transactions
contemplated by this Agreement, the Participation Agreement,
the Pass Through Trust Agreements, the Equipment Trust
Agreements, the Lease and the other Operative Agreements to
which Union or Procor, as the case may
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be, 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) 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;
(vii) 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 Companies or any of their respective
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;
(viii) 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 (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;
- 12 -
13
(ix) 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;
(x) other than rights of the Companies under the
respective Equipment Trust Agreements, title to the equipment
to be subjected to the Equipment Trust Agreements will, when
such equipment shall have been transferred to the Equipment
Trust Trustees as provided in the Equipment Trust Agreements,
be validly vested in the respective Equipment Trust Trustee;
the Equipment Trust Agreements have been duly filed and
recorded with the STB and the Registrar General of Canada and
such equipment is subject to no liens or encumbrances of
record at the STB and the Registrar General of Canada;
(xi) this Agreement, the Pass Through Trust
Agreements, the Participation Agreement, the Equipment Trust
Agreements, the Lease, and all the other Operative Agreements
to which Union or Procor 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 Union or Procor, as the case may be, upon execution
and delivery by Union or Procor, as the case may be, will be
valid and binding obligations of Union or Procor, as the case
may be, enforceable against Union or Procor, as the case may
be, 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;
(xii) the Pass Through Trust Agreements, the
Equipment Notes, the ETCs, the Indenture, the Participation
Agreement, the Equipment Trust Agreements, 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;
(xiii) the execution and delivery by the Companies
of this Agreement, the Participation Agreement, the Pass
Through Trust Agreements, the Equipment Trust Agreements, the
Lease and the other Operative Agreements
- 13 -
14
to which Union or Procor, as the case may be, is, or is to be,
a party, the consummation by the Companies of the transactions
herein and therein contemplated and in the manner herein and
therein contemplated and compliance by the Companies with the
terms hereof and thereof, do not and will not conflict with,
or result in a breach by the Companies 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 Companies are a party or by which the
Companies are bound, or any law, rule, regulation, judgment or
order known to such counsel to be applicable to the Companies
of any court, regulatory body, administrative agency,
government or governmental body having jurisdiction over the
Companies, 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 (v), (xii), and (xiv) (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, the
ETCs 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);
(xiv) the statements in the Registration Statement
and Prospectus under the headings "Certain Federal Income Tax
Consequences", "Certain _________ 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;
(xv) neither Union nor Procor is an "investment
company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended;
(xvi) on the Closing Date, assuming due
authorization, execution, issuance and delivery of the ETCs by
their respective Equipment Trust Trustee as contemplated by
the related Equipment Trust Agreement, and assuming due
authorization, execution, issuance and delivery of the
Equipment Notes by the Owner Trustee as contemplated by the
Indenture, and due authentication of such ETCs by the
respective Equipment Trust Trustee and of such Equipment Notes
by the Indenture Trustee, each of the ETCs and the Equipment
Notes when issued will constitute valid and binding
obligations of such Equipment Trust Trustee and the Owner
Trustee, respectively, enforceable against such Equipment
Trust Trustee and the Owner Trustee, respectively, 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
- 14 -
15
whether enforcement is considered in a proceeding in equity or
at law); and the holders of the ETCs will be entitled to the
benefits of the respective Equipment Trust Agreement, and the
holders of the Equipment Notes will be entitled to the
benefits of the Indenture;
(xvii) 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 each of the
Companies party to such Pass Through Agreement 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);
(xviii) 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 ETCs and Equipment Notes, as the case may be,
and any other property held in such Pass Through Trusts;
(xix) 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;
(xx) 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;
(xxi) there are no taxes, fees or other governmental
charges payable under the laws of the State of __________ or
any political subdivision thereof in connection with the
execution and delivery by the Pass Through Trustee, in its
individual capacity or as Pass Through Trustee, the Equipment
Trust Trustee or Indenture Trustee, as the case may be, of the
Participation Agreement, the Pass Through Trust Agreements,
the Equipment 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 ETCs and the Equipment Notes;
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16
(xxii) Except to the extent the Indenture Trustee
forecloses on the Equipment and any of the Equipment is
located in _________ or the Equipment Trust Trustee forecloses
on the Trust Equipment and any of the Trust Equipment is
located in the State of ___________ or to the extent the
Indenture Estate, the trust created by the Union Equipment
Trust Agreement, the trust created by the Procor Equipment
Trust Agreement or the trusts created by the Pass Through
Trust Agreements, as applicable, engages in business in
__________ as a result of such foreclosure:
(I) neither the trusts created by the Pass
Through Trust Agreements, the Equipment 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 __________ 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 ____________
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 __________
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 ______________ 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, 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 ETCs or
- 16 -
17
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 ETCs or 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 ETCs or 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 held by the Equipment
Trust Trustees under the respective Equipment Trust Agreements
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 or the
Equipment Trust Trustees 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 ___________;
(xxiii) the Union Guarantee contained in Pass
Through Agreement 1996-A2 and endorsed on the Pass Through
Certificates issued under such agreement has been duly
authorized, executed and delivered by Union and assuming the
due authorization, execution and delivery of the Pass Through
Trust Agreement 1996-A2 and the due authentication of such
Pass Through Certificates by the Pass Through Trustee,
constitutes a valid and binding obligation of Union,
enforceable against Union 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 principals of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law); and
(xxiv) neither the Union Equipment Trust Agreement
can be terminated by Union nor the Procor Equipment Trust
Agreement can be terminated by Procor so long as the Union ETC
and the Procor ETC, respectively, are outstanding.
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
- 17 -
18
amended or supplemented, its activities in connection with the
preparation thereof and its participation in conferences with certain
officers and employees of Union, Procor and their respective
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
__________, 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)(xi) that the laws of the
State of New York are identical to the laws of the State of
______________.
(c) The Companies shall have furnished to you and the
Rating Agencies if requested by you, the opinion of Olser, Hoskin &
Harcourt, special Canadian counsel to Procor, as to Canadian law
matters, to the effect that
(i) the payment by Procor of interest and principal
on the Procor ETC to the Pass Through Trustee will be exempt
from Canadian withholding tax; the payment by the Pass Through
Trustee of interest and principal on the Pass Through
Certificate, Series 1996-A2 to a holder thereof will be exempt
from Canadian withholding tax for a holder who is, or is
deemed to be, a non-resident of Canada and with whom Union and
Procor deals at arm's length, within the meaning of the Income
Tax Act (Canada) (the "Tax Act"), at the time of making the
payment; and
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19
(ii) no other taxes on income (including taxable
capital gains) will be payable under the Tax Act in respect of
the holding or disposition of the Procor ETC, or the receipt
of interest thereon, by the Pass Through Trustee; no other
taxes on income (including taxable capital gains) will be
payable under the Tax Act in respect of the acquisition,
holding or disposition of the Pass Through Certificates,
Series 1996-A2, or the receipt of interest thereon by holders
who are, or are deemed to be, non-residents of Canada for the
purposes of the Tax Act at any time during which they hold
Pass Through Certificates, Series 1996-A2 and who do not use
or hold and are not deemed by such laws to use or hold the
Pass Through Certificates, Series 1996-A2 in carrying on
business in Canada for the purposes of the Tax Act, and, in
the case of a Certificate Owner who carries on an insurance
business in Canada and elsewhere whose Pass Through
Certificates are not effectively connected with its Canadian
insurance business. In rendering such opinion, such counsel
may state that it expresses no opinion as to the laws of any
jurisdiction other than Canada or its Provinces.
(d) You shall have received from the ________________,
counsel for _______________, individually, as Pass Through Trustee,
Equipment Trust Trustee and Indenture Trustee, an opinion, dated the
Closing Date, in form and substance reasonably satisfactory to you and
Mayer, Brown & Platt, your special counsel to the effect that:
(i) ________________ is a national banking
association validly existing and holding a valid certificate
to do business as a national banking association with trust
powers, and, in its individual capacity or as Pass Through
Trustee, Equipment Trust 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
Equipment Trust Agreements, the Participation Agreement, the
Pass Through Trust Agreements and the other Operative
Agreements to which it is a party;
(ii) _____________ (in its individual capacity, to
the extent provided therein), the Pass Through Trustee, the
Equipment Trust Trustee or the Indenture Trustee, as the case
may be, has duly authorized, executed and delivered the
Indenture, the Participation Agreement, the Equipment Trust
Agreements, the Pass Through Trust Agreements and the other
Operative Agreements to which it is a party and each of such
agreements constitutes the valid and binding obligations of
________________ (in its individual capacity, to the extent
provided therein), the Pass Through Trustee, the Equipment
Trust Trustee or the Indenture Trustee, as the case may be,
enforceable against _______________ (in its individual
capacity, to the extent provided therein), the Pass Through
Trustee, the Equipment Trust Trustee or the Indenture
- 19 -
20
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 _____________ (in its individual capacity, to
the extent provided therein), the Pass Through Trustee, the
Equipment Trust Trustee or the Indenture Trustee, as the case
may be, of the Indenture, the Participation Agreement, the
Equipment Trust Agreements, 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 ____________, 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 ______________, the
Pass Through Trustee, the Equipment Trust 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, the Equipment Trust
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
___________ or Federal law, rule or regulation governing
_______________, the Pass Through Trustee's, the Equipment
Trust 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 _______________, the Pass Through
Trustee, the Equipment Trust Trustee or the Indenture Trustee,
as the case may be, of any court, regulatory body,
administrative agency, government or governmental body having
jurisdiction over ______________, the Pass Through Trustee,
the Equipment Trust Trustee or the Indenture Trustee or its
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
____________ law governing the banking or trust powers of
_______________, the Pass Through Trustee, the Equipment Trust
Trustee or
- 20 -
21
the Indenture Trustee is required for the authorization,
execution, delivery and performance by _____________, (in its
individual capacity, to the extent provided therein), the Pass
Through Trustee, the Equipment Trust Trustee or the Indenture
Trustee of the Indenture, the Participation Agreement, the
Equipment Trust Agreements, 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, the Equipment Trust 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, _________________ (A) may state that no opinion is
expressed as to laws other than the laws of the State of ___________ 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
______________, 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.
(e) You shall have received from Mayer, Brown & Platt,
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 Companies shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(f) You shall have been furnished with a certificate of
each of the Companies, signed by the President or any Vice President
and the principal financial officer of each of the Companies,
respectively, each dated the Closing Date, to the effect that the
signers of such certificates have carefully examined the Registration
Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of the
Companies 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 Companies have
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;
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22
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and, to the
Companies' 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
Companies and their respective subsidiaries, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus.
(g) The representations and warranties of each of the
Companies contained in the Equipment Trust Agreements, 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 each of the Companies shall have delivered to you a
certificate, each dated the Closing Date, signed in each case 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 Equipment Trust Agreements, 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 such
Company in the Equipment Trust Agreements, 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) such 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 Equipment Trust Agreements, 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 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.
(h) 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
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23
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, 1995 included in the
Registration Statement and the Prospectus, 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 Union'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
Union) 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.
(i) 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 Union contained in Union's Quarterly
Reports on Form 10-Q for the quarter ended March 31, 1996 incorporated
by reference in the Registration Statement, the amounts set forth
under the captions "Selected Financial Information" and
"Capitalization" included in the Registration Statement and the
Prospectus and of the latest unaudited consolidated financial
statements made available to them by Union and its subsidiaries;
carrying out certain specified procedures (but 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
Union and its subsidiaries; and inquiries of certain officials of
Union who have responsibility for financial and
- 23 -
24
accounting matters of Union and its subsidiaries as to transactions
and events subsequent to December 31, 1995 nothing came to their
attention which caused them to believe that (A) the unaudited
consolidated financial statements of Union 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 Union incorporated by reference in the Registration Statement, and
(B) with respect to the period subsequent to December 31, 1995, 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 Union and its
subsidiaries or capital stock of Union or decreases in the
stockholder's equity of Union and its subsidiaries as compared with
the amounts shown on the December 31, 1995, unaudited consolidated
balance sheet data included in "Selected Financial Information" in the
Registration Statement and the Prospectus, or for the period from
December 31, 1995 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 Union as to the
significance thereof unless said explanation is not deemed necessary
by you.
References to the Prospectus in paragraphs (h) and (i) include any
supplement thereto at the date of the letter.
(j) 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 (g) and
(h) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the business or properties of
Union 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.
(k) 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 rating
accorded Union's debt securities by the Rating Agencies as of the
Execution Time.
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25
(l) Prior to the Closing Date, the Companies shall have
furnished to you and the Rating Agencies such further information,
certificates and documents as you and they 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,
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 the Companies 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 Companies to perform
any agreement herein or comply with any provision hereof other than by reason
of a default by you, the Companies 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) Union 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 investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) Union 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 Companies 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
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26
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 each of the Companies, each of their respective directors, each of
their respective officers who signs the Registration Statement, and each person
who controls the Companies within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from Union to you, but only
with reference to written information relating to you furnished to the
Companies by or on behalf of you specifically for use in 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 Companies acknowledge 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 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
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27
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 Union on grounds of policy or otherwise,
Union 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 Union 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 Union 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 Companies within the
meaning of the Act, each officer of the Companies who shall have signed the
Registration Statement and each director of the Companies shall have the same
rights to contribution as the Companies, 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 contributions 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 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 Companies prior to delivery
of and payment for the Pass
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28
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 ___________ 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 Companies or their respective 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 Companies or any of their
respective 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 Solomon Brothers Inc at 7 World Trade
Center, New York, New York 10048, Attention: Legal Department; in the case of
Morgan Stanley & Co. Incorporated at 1251 Avenue of the Americas, New York, New
York 10020, Attention: Legal Department; or, if sent to the Companies, will
be mailed, delivered or telegraphed and confirmed to it at 225 West Washington
Street, Chicago, Illinois 60606, Attention: Secretary and to Procor at 2001
Speers Road, Oakville, Ontario, Canada L6J 5E1, Attention: President.
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, Procor and you.
Very truly yours,
UNION TANK CAR COMPANY
By
----------------------------------
Name:
Title:
PROCOR LIMITED
By
-----------------------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted as of the
date first written above.
SALOMON BROTHERS INC
MORGAN STANLEY & CO. INCORPORATED
By SALOMON BROTHERS INC
Acting on behalf of itself and
Morgan Stanley & Co. Incorporated
By
--------------------------
Name:
Title:
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30
Schedule A
Pass Through Principal Final Distribution
Certificate Amount Interest Rates Dates
1996-A1 $___________ ____% ______________
1996-A2 $___________ ____% _______________
31
Schedule B
Pass Through Certificate Pass Through Certificate
Series 1996 - A1 Series 1996 - A2
Aggregate Principal Aggregate Principal
Amount Amount
-------------------------------- ---------------------------------------
Salomon Brothers Inc
Morgan Stanley & Co.
Incorporated
Total