1
EXHIBIT 1(a)
Union Tank Car Company
$
---------
Pass Through Certificates, Series
-----
Underwriting Agreement
New York, New York
---------
Dear Ladies and Gentlemen:
Union Tank Car Company, a Delaware corporation ("Union" or 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 Union and _______, as Past Through
Trustee (the "Pass Through Trustee") and (ii) the Pass Through Trust Agreement
_____, dated ______ (the "Pass Through Trust Agreement
2
#2", and together with the Pass Through Trust Agreement #1, the "Pass Through
Trust Agreements") between Union 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 (i) $______
principal amount Equipment Notes, Series B, (ii) an aggregate of $______
principal amount Equipment Trust Certificates, Series ___ of Union (together
with the guarantee of Union to be endorsed thereon, the "ETCs") to be
issued by Union pursuant to an Equipment Trust Agreement, dated ________, as
may be amended or supplemented from time to time (the "Equipment Trust
Agreement"), between Union and _____________, as trustee (the "Equipment
Trust Trustee").
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 333-17121) 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
Companies have included in such registration statement,
- 2 -
3
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
- 3 -
4
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
- 4 -
5
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 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, the
Equipment Trust Agreement and the other Operative Agreements to which
Union is, or is to be, a party, the consummation by Union of the
transactions herein and therein contemplated, and the compliance by Union
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 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 Union, 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,
- 5 -
6
execution, delivery and performance by Union of this Agreement, the
Participation Agreement, the Pass Through Trust Agreements, the Equipment
Trust Agreement and the Lease and other Operative Agreements to which Union
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 Agreement and the
Lease and other Operative Agreements to which Union 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 Agreement and the Lease and the
other Operative Agreements to which Union 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 Union, is, or is to be, a
party will constitute the valid and binding obligations of Union. 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, 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 __________ 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
- 6 -
7
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, Union agrees 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 ETCs.
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., Chicago time, on _____ or such
later date and time (not later than ____) as Union 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
- 7 -
8
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.
Union 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 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. Union agrees with you that:
(a) Union 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. Union will not
file any amendment to the Registration Statement or supplement to the
Prospectus unless Union 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), Union 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. Union 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 Union 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
- 8 -
9
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, Union 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) Union 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, Union will pay the expenses of printing
all documents relating to the offering.
(e) Union 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 Union
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,
Union 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).
- 9 -
10
(g) Union 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
Union further agrees that if Union 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 Union's business with Cuba
or with any person or affiliate located in Cuba changes in any material
way, Union 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 Union contained herein as of the Execution
Time and the Closing Date, to the accuracy of the statements of Union made in
any certificates delivered pursuant to the provisions hereof, to the
performance by Union 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) Union shall have furnished to you and to Moody's Investors
Service, Inc. and Standard and Poor's Corporation (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
_______, special Canadian counsel to Union, as to Canadian law matters,
and _______, 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:
- 10 -
11
(i) Each of Union 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 Union and its subsidiaries, taken as a whole.
(ii) Union 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 Equipment Trust Agreement, 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 Companies of
this Agreement, the Participation Agreement, the Pass Through Trust
Agreements, the Equipment
- 11 -
12
Trust Agreement, the Lease and the other Operative Agreements to which
Union is, or is to be, a party, or the consummation by Union of the
transactions contemplated by this Agreement, the Participation Agreement,
the Pass Through Trust Agreements, the Equipment Trust Agreement, the
Lease and the other Operative Agreements to which Union 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;
(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 Union 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
- 12 -
13
(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) other than rights of Union under the Equipment Trust
Agreement, title to the equipment to be subjected to the Equipment Trust
Agreement will, when such equipment shall have been transferred to the
Equipment Trust Trustee as provided in the Equipment Trust Agreement, be
validly vested in the Equipment Trust Trustee; the Equipment Trust
Agreement has 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;
(x) this Agreement, the Pass Through Trust Agreements, the
Participation Agreement, the Equipment Trust Agreement, the Lease, and all
the other Operative Agreements to which Union 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, upon
execution and delivery by Union will be valid and binding obligations of
Union, enforceable against Union 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;
- 13 -
14
(xi) the Pass Through Trust Agreements, the Equipment Notes, the
ETCs, the Indenture, the Participation Agreement, the Equipment Trust
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;
(xii) the execution and delivery by Union of this Agreement, the
Participation Agreement, the Pass Through Trust Agreements, the Equipment
Trust Agreement, the Lease and the other Operative Agreements to which
Union is to be, a party, the consummation by Union 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 Union 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
Union is a party or by which Union is bound, or any law, rule, regulation,
judgment or order known to such counsel to be applicable to Union of any
court, regulatory body, administrative agency, government or governmental
body having jurisdiction over Union, 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), (xi), and (xiii) (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);
(xiii) the statements in the Registration Statement and Prospectus
under the headings "Material Federal Income Tax Consequences", "Certain
Illinois Taxes", "ERISA Considerations" and "_____", 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;
(xiv) Union 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;
(xv) on the Closing Date, assuming due authorization, execution,
issuance and delivery of the ETCs by the Equipment Trust Trustee as
contemplated by the Equipment Trust Agreement, and assuming due
- 14 -
15
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 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 the Equipment Trust
Trustee and the Owner Trustee, respectively, enforceable against the
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 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
Equipment Trust Agreement, and the holders of the Equipment Notes will be
entitled to the benefits of the Indenture;
(xvi) 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 Union 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);
(xvii) 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;
(xviii) 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;
(xix) 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;
(xx) there are no taxes, fees or other governmental charges payable
under the laws of the State of Illinois or any political subdivision
thereof in
- 15 -
16
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
Agreement 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;
(xxi) Except to the extent the Indenture Trustee forecloses on the
Equipment and any of the Equipment is located in Illinois or the Equipment
Trust Trustee forecloses on the Trust Equipment and any of the Trust
Equipment is located in the State of Illinois or to the extent the
Indenture Estate, the trust created by the Equipment Trust Agreement 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 Equipment Trust Agreement, 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,
- 16 -
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 ETCs or 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 Trustee under
the Equipment Trust Agreement 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 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; and
- 17 -
18
(xxii) the Union Equipment Trust Agreement cannot be terminated by
Union so long as the Union ETC is 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 amended or supplemented, its activities in connection with the
preparation thereof and its participation in conferences with certain officers
and employees of Union 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)(xi) that the laws of the State of New York are identical to the
laws of the State of Illinois.
- 18 -
19
(c) You shall have received from ___________, 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) The ________ 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,
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
Agreement, the Participation Agreement, the Pass Through Trust
Agreements and the other Operative Agreements to which it is a
party;
(ii) The ___________ (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 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 ____________ (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 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 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 _____________, 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 Illinois 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
- 20 -
21
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 Illinois law governing the banking or trust
powers of __________, the Pass Through Trustee, the Equipment Trust
Trustee or 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
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, 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, __________, counsel for ________ (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 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.
(e) You shall have been furnished with a certificate of Union, signed
by the President or any Vice President and the principal financial
officer of Union, 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:
- 21 -
22
(i) the representations and warranties of Union 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 Union 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 Union'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 Union 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 Union contained in the
Equipment Trust Agreement, 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 Union 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 Equipment Trust Agreement 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 Union in the Equipment
Trust Agreement, 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) Union 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
- 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
________ 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 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.
(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 Union
contained in Union'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 Union
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 Union and its
subsidiaries; and inquiries of certain officials of Union who have
responsibility for financial and accounting matters of Union 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 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 __________, 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 __________,
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 Union 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 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
- 24 -
25
rating accorded Union's debt securities by the Rating Agencies as of the
Execution Time.
(k) Prior to the Closing Date, Union 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 "A2
senior secured" by Moody's 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 Union to perform any agreement
herein or comply with any provision hereof other than by reason of a default by
you, Union 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
- 25 -
26
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 Union 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
Union, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls Union 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 Union 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. Union 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 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 Union within the
meaning of the Act, each officer of Union who shall have signed the
Registration Statement and each director of Union shall have the same
rights to contribution as Union, 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
- 27 -
28
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 Union 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 Union 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 Salomon Brothers Inc at 7 World Trade Center, New
York, New York 10048, Attention: Legal Department; in the case of Morgan
Stanley & Co. Incorporated at 1585 Broadway, New York, New York 10036,
Attention: Legal Department; or, if sent to Union, will be mailed, delivered or
telegraphed and confirmed to it at 225 West Washington Street, Chicago, Illinois
60606, Attention: Secretary.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto 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.
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:
30
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