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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 2, 1996
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UNION TANK CAR COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 36-3104688
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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225 WEST WASHINGTON STREET
CHICAGO, ILLINOIS 60606
(312) 372-9500
(Address, including zip code and telephone number, including
area code, of registrant's principal executive offices)
PROCOR LIMITED
(Exact name of registrant as specified in its charter)
CANADA NONE
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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2001 SPEERS ROAD
OAKVILLE, ONTARIO, CANADA L6J 5E1
(905) 827-4111
(Address, including zip code and telephone number, including
area code, of registrant's principal executive offices)
WILLIAM M. HOLZMAN, ESQ.
NEAL, GERBER & EISENBERG
TWO NORTH LASALLE STREET
CHICAGO, ILLINOIS 60602
(312) 269-8000
(Name, address, including zip code, and telephone number
including area code, of agent for service)
Copies to:
BARRY P. BIGGAR, ESQ.
MAYER, BROWN & PLATT
1675 BROADWAY
NEW YORK, NEW YORK 10019
(212) 506-2500
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Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box [ ].
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box [X].
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering [ ].
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering [ ].
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box [ ].
CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Amount of
Title of Each Class of Aggregate Registration
Securities to be Registered Offering Price(1)(2) Fee
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Debt Securities and Pass Through Certificates $400,000,000 $121,213
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(1) Estimated in accordance with Rule 457 solely for the purpose of
determining the registration fee.
(2) Any offering of Debt Securities denominated in any foreign currency
will be treated as the equivalent in U.S. dollars based on the
exchange rate applicable to the purchase of such Debt Securities from
the registrant.
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THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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EXPLANATORY NOTE
This Registration Statement contains a Prospectus (the "Pass Through
Certificate Prospectus") relating to up to $400,000,000 aggregate principal
amount of pass through certificates of Union Tank Car Company (the "Company")
and Procor Limited, a wholly-owned subsidiary of the Company ("Procor"), and a
Prospectus (the "Debt Security Prospectus") relating to up to $400,000,000
aggregate principal amount of debt securities of the Company. The aggregate
principal amount of pass through certificates to be offered and sold pursuant
to this Registration Statement is subject to reduction by the aggregate
principal amount of debt securities sold pursuant to this Registration
Statement and vice versa.
Upon the public offering or sale of the pass through certificates or
debt securities registered under this Registration Statement, a Prospectus
Supplement describing the particular terms of such offer or sale will be filed
in accordance with the rules of the Securities and Exchange Commission together
with either the Pass Through Certificate Prospectus or the Debt Security
Prospectus, as applicable.
No offers or sales of pass through certificates or debt securities may
be made unless accompanied by a Prospectus Supplement applicable to the
securities offered thereby.
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[Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.]
SUBJECT TO COMPLETION, DATED DECEMBER 2, 1996
PROSPECTUS
$400,000,000
UNION TANK CAR COMPANY
PASS THROUGH CERTIFICATES
Up to $400,000,000 aggregate principal amount of Pass Through
Certificates may be offered for sale from time to time pursuant to this
Prospectus and related Prospectus Supplements. Pass Through Certificates may
be issued in one or more series in amounts, at prices and on terms to be
determined at the time of the offering. In respect of each offering of Pass
Through Certificates, a separate Union Tank Car Company Pass Through Trust for
each series of Pass Through Certificates being offered (each, a "Trust") will
be formed pursuant to the Pass Through Trust Agreement (the "Basic Agreement")
and a supplement thereto (a "Trust Supplement") relating to such Trust among
Union Tank Car Company (the "Company"), if specified in the Prospectus
Supplement, Procor Limited, a wholly-owned subsidiary of the Company
("Procor"), and, unless otherwise specified in the Prospectus Supplement,
__________________________________ (the "Pass Through Trustee"), as pass
through trustee under each Trust. Each Pass Through Certificate in a series
will represent a fractional undivided interest in the related Trust and will
have no rights, benefits or interest in respect of any other Trust. The
property of each Trust will consist of (i) equipment notes (the "Equipment
Notes") issued on a nonrecourse basis by one or more owner trustees pursuant to
one of more leveraged lease transactions to finance or refinance a portion of
the equipment cost of certain railcars ("Equipment Units") which have been or
will be leased to the Company or (ii) equipment trust certificates (the
"Company ETCs") issued pursuant to one or more equipment trust agreements
between the Company and ________________________________, as trustee, or
equipment trust certificates (the "Procor ETCs" and, together with the Company
ETCs, the "ETCs") issued pursuant to one or more equipment trust agreements
between Procor Limited, an indirect wholly-owned subsidiary of the Company
("Procor"), and ____________________________________________, as trustee. Each
such equipment trust agreement is hereinafter referred to as an "Equipment
Trust Agreement", and ____________________________________________________, as
trustee under each Equipment Trust Agreement, is hereinafter referred to as the
"Equipment Trust Trustee". Amounts payable pursuant to the Company ETCs and the
Procor ETCs will be fully and unconditionally guaranteed by the Company. The
Prospectus Supplement relating to each offering of Pass Through Certificates
will describe certain terms of the Pass Through Certificates being offered, the
Trust or Trusts relating thereto, the Equipment Notes or ETCs to be purchased
by such Trust or Trusts, the Equipment Units relating to such Equipment Notes
and the leveraged lease transactions, if any, relating thereto.
The Equipment Notes will not be direct obligations of, or guaranteed by,
the Company, but the amounts unconditionally payable by the Company for the
lease of the Equipment Units will be sufficient to pay in full when due all
payments required to be made on such Equipment Notes.
Equipment Notes may be issued in respect of Equipment Units in one or more
series, each series having a different interest rate and final maturity date.
A separate Trust may purchase one or more series of the Equipment Notes issued
with respect to each group of Equipment Units (an "Equipment Group"). All of
the Equipment Notes held in such Trust will have an interest rate equal to the
interest rate applicable to the Pass Through Certificates issued by such Trust
and maturity dates occurring on or before the final distribution date
applicable to such Pass Through Certificates. The Equipment Notes issued with
respect to each Equipment Group will be secured by a security interest in such
Equipment Group and by the lease relating thereto (each, a "Lease"), including
the right to receive rent payable by the Company in respect of such Equipment
Group.
Interest paid on the Equipment Notes or ETCs held in each Trust will be passed
through to the holders of the Pass Through Certificates relating to such
Trust on the dates and at the rate per annum set forth in the Prospectus
Supplement relating to such Pass Through Certificates until the final
distribution date for such Trust. Principal paid on the Equipment Notes or
ETCs held in each Trust will be passed through to the holders of the Pass
Through Certificates relating to such Trust in scheduled amounts on the dates
set forth in the Prospectus Supplement relating to such Pass Through
Certificates until the final distribution date for such Trust.
The Pass Through Certificates may be offered for sale directly to purchasers
and may also be offered through underwriters, dealers or agents. See "Plan of
Distribution." The Prospectus Supplement will set forth the names of any
underwriters, dealers or agents involved in the sale of the Pass Through
Certificates in respect of which this Prospectus is being delivered and any
applicable fee, commission or discount arrangements with them.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
This Prospectus may not be used to consummate a sale of Pass Through
Certificates unless accompanied by a Prospectus Supplement.
The date of this Prospectus is , 1997.
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AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to the Debt Securities. This Prospectus, which forms a
part of the Registration Statement, does not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information pertaining to the Debt Securities and the Company, reference is
made to the Registration Statement. Any statement contained herein concerning
the provisions of any document is not necessarily complete and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Commission.
Information concerning the Company can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the following Regional Offices of the
Commission: Chicago Regional Office, Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661 and New York Regional Office, 7 World Trade
Center, Suite 1300, New York, New York 10048. Copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. Such materials also
may be accessed electronically by means of the Commission's home page on the
Internet at http://www.sec.gov.
DOCUMENTS INCORPORATED BY REFERENCE
The Company's Annual Report on Form 10-K/A for the fiscal year ended
December 31, 1995 and its Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996, June 30, 1996 and September 30, 1996, as filed with the
Commission pursuant to the Exchange Act, are incorporated herein by reference.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein, or contained in
this Prospectus, shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written request of such person, a copy (without
exhibits) of any or all documents incorporated by reference in this Prospectus.
Requests for such copies should be directed to the General Counsel and
Secretary, Union Tank Car Company, 225 West Washington Street, Chicago,
Illinois 60606, telephone (312) 372-9500.
THE COMPANY
Union Tank Car Company (with its wholly-owned subsidiaries herein
collectively referred to, except as the context otherwise requires, as the
"Company") is principally engaged in the leasing of railway tank cars and other
rail cars to United States, Canadian and Mexican manufacturers and other
shippers of chemical products, including liquid fertilizers, petroleum
products, including liquid petroleum gas, food products and bulk plastics. The
Company owns and operates one of the largest fleets of privately-owned railway
tank cars in the world.
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The Company, which was incorporated in Delaware in 1980 and is the
successor to a business which was incorporated in New Jersey in 1891 and
reincorporated in Delaware in 1968, is a wholly-owned subsidiary of Marmon
Industrial Corporation, a wholly-owned subsidiary of Marmon Holdings,
Inc. Substantially all the stock of Marmon Holdings, Inc. is owned, directly
or indirectly, by trusts for the benefit of certain members of the Pritzker
family. As used herein, "Pritzker family" refers to the lineal descendants of
Nicholas J. Pritzker, deceased.
The Company's principal executive offices are located at 225 West
Washington Street, Chicago, Illinois 60606, and its telephone number is (312)
372-9500.
FORMATION OF THE TRUSTS
In respect of each offering of Pass Through Certificates, one or more
Trusts will be formed, and the related Pass Through Certificates will be
issued, pursuant to separate Trust Supplements to be entered into between the
Pass Through Trustee and the Company in accordance with the terms of the Basic
Agreement. All Pass Through Certificates with respect to each Trust will
represent fractional undivided interests in such Trust and the property held in
such Trust and will have no rights, benefits or interest in respect of any
other Trust or the property held therein. Concurrently with the execution and
delivery of each Trust Supplement relating to one or more leveraged lease
transactions, the Pass Through Trustee, on behalf of the Trust formed thereby,
will enter into one or more financing, refinancing, purchase or participation
agreements (each such agreement being herein referred to as a "Participation
Agreement") relating to one or more Equipment Groups described in the
applicable Prospectus Supplement. Concurrently with the execution and delivery
of each Trust Supplement relating to ETCs, the Pass Through Trustee, on behalf
of such Trust, will purchase such ETCs from the Equipment Trust Trustee.
Pursuant to the applicable Participation Agreement or Equipment Trust
Agreement, the Pass Through Trustee, on behalf of the Trust formed in
connection with the offering of Pass Through Certificates, will purchase the
Equipment Notes issued with respect to each such Equipment Group or ETCs so
that all of the Equipment Notes or ETCs held in such Trust will have an
interest rate equal to the interest rate applicable to the Pass Through
Certificates issued by such Trust. Unless otherwise indicated in the
Prospectus Supplement, the maturity dates of the Equipment Notes
or ETCs acquired by each Trust will occur on or before the final distribution
date applicable to the Pass Through Certificates issued with respect to such
Trust. The Pass Through Trustee will distribute the amount of payments of
principal, premium, if any, and interest received by it as holder of the
Equipment Notes or ETCs to the Certificateholders of the Pass Through
Certificates with respect to the Trust in which such Equipment Notes or ETCs
are held. See "Description of the Pass Through Certificates", "Description of
the Equipment Notes" and "Description of the ETCs".
USE OF PROCEEDS
The Pass Through Certificates offered pursuant to any Prospectus
Supplement will be issued (i) to facilitate the financing or refinancing of the
debt component of one or more separate leveraged lease transactions entered
into by the Company, as lessee, with respect to the Equipment Units described
therein or (ii) to purchase Company ETCs or Procor ETCs. The proceeds from the
sale of Pass Through Certificates relating to one or more leveraged lease
transactions will be used by the Pass Through Trustee on behalf of the
applicable Trust or Trusts to purchase, at par, the Equipment Notes to be
issued by the respective Owner Trustee or Owner Trustees to finance or
refinance all or a portion of the equipment cost of such Equipment Units.
Simultaneously with the acquisition of such Equipment Units, the respective
Owner Trustee will lease such Equipment Units to the Company. In the case of
ETCs, the proceeds from the sale of Pass Through Certificates will be used by
the Pass Through Trustee on behalf of the applicable Trust or Trusts to
purchase, at par, Company ETCs or Procor ETCs. The Company will use the net
proceeds from each separate leveraged lease transaction and the Company or
Procor, as the case
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may be, will use the net proceeds from the issuance of ETCs to finance the
addition of railcars to the Company's fleet, for general corporate purposes or
as otherwise specified in the applicable Prospectus Supplement.
The Equipment Notes with respect to each Equipment Group will be
issued under a separate Trust Indenture and Security Agreement (each, an
"Indenture") between a bank or trust company as trustee thereunder (each, an
"Indenture Trustee") and an owner trustee, not in its individual capacity
(except as expressly set forth therein) but solely as trustee (each, an "Owner
Trustee"), of a separate trust for the benefit of one or more institutional or
corporate investors (each, an "Owner Participant"). Each Owner Participant
will provide, from sources other than the Equipment Notes, the balance of the
equipment cost of the related Equipment Group. No Owner Participant, however,
will be personally liable for any amount payable under the related Indenture or
the Equipment Notes issued thereunder. Subject to certain restrictions, each
Owner Participant may transfer its interest in the related Equipment Group.
Because the Company's obligation to make payments (i) under the Leases
relating to the Equipment Notes and (ii) in respect of the Company ETCs and the
Procor ETCs will be unconditional, and not affected by the financial
performance of the railcars within the related Equipment Groups or subject to
the related Equipment Trust Agreements, the Company believes that historical
financial information with respect to such railcars will not be relevant to
purchasers of the Pass Through Certificates.
DESCRIPTION OF THE PASS THROUGH CERTIFICATES
In connection with each offering of Pass Through Certificates, one or
more separate Trusts will be formed and one or more series of Pass Through
Certificates will be issued pursuant to the Basic Agreement and one or more
Trust Supplements to be entered into between the Company and the Pass Through
Trustee. The following summary relates to the Basic Agreement and each of the
Trust Supplements, the Trusts to be formed thereby and the Pass Through
Certificates to be issued by each Trust except to the extent, if any, described
in the applicable Prospectus Supplement. Citations to the relevant sections of
the Basic Agreement appear below in parentheses. The statements under this
caption are a summary and do not purport to be complete. This summary makes
use of terms defined in and is qualified in its entirety by reference to all of
the provisions of the Basic Agreement, the form of which has been filed as an
exhibit to the Registration Statement of which this Prospectus is a part. The
form of the Trust Supplement relating to each series of Pass Through
Certificates and the forms of the Leases, Participation Agreements, Indentures,
Equipment Notes and Equipment Trust Agreements, if any, relating thereto will
be filed as exhibits to a report by the Company on Form 8-K, 10-Q, or 10-K, as
applicable, to be filed with the Commission following the offering of such
series of Pass Through Certificates.
GENERAL
The Pass Through Certificates of each Trust will be issued in fully
registered form only. Each Pass Through Certificate will represent a
fractional undivided interest in the separate Trust created by the Trust
Supplement pursuant to which such Pass Through Certificate is issued. The
property of each Trust will include the Equipment Notes or ETCs held in such
Trust, all monies at any time paid thereon and all monies due and to become due
thereunder and funds from time to time deposited with the Pass Through Trustee
in accounts relating to such Trust. Each Pass Through Certificate will
correspond to a pro rata share of the outstanding principal amount of the
Equipment Notes or ETCs and other property held in the related Trust and will
be issued in denominations of $1,000 or any integral multiple of $1,000.
(Sections 2.1 and 3.1)
Except as otherwise provided in the applicable Trust Supplement, Pass
Through Certificates will be registered in the name of Cede & Co. ("Cede") as
the nominee of The Depository Trust Company ("DTC") and no person acquiring an
interest in Pass Through Certificates (a "Certificate Owner") will be entitled
to receive a certificate representing such person's interest in the related
Trust unless "Definitive Certificates" are issued as
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described below. Unless Definitive Certificates are issued, all references to
actions by Certificateholders shall refer to actions taken by DTC upon
instructions from DTC Participants (as defined below), and all references
herein to distributions, notices, reports and statements to Certificateholders
shall refer, as the case may be, to distributions, notices, reports and
statements to DTC or Cede, as the registered holder of the Pass Through
Certificates, or to DTC Participants for distribution to Certificate Owners in
accordance with DTC procedures. See "-Book-Entry Registration." (Section 3.9)
Interest will be passed through to Certificateholders of each Trust at
the rate per annum set forth on the cover page of the applicable Prospectus
Supplement and will be calculated on the basis of a 360-day year of twelve 30-
day months.
The Pass Through Certificates of each series represent interests only
in the related Trust and all payments and distributions shall be made only from
the related Trust Property. (Section 3.8) The Pass Through Certificates do
not represent an interest in or obligation of the Company, the Pass Through
Trustee, the Owner Trustee, if any, in its individual capacity, the Owner
Participant, if any, or any affiliate of any thereof.
The Basic Agreement does not and, except as otherwise described in the
applicable Prospectus Supplement, the Indentures will not, include financial
covenants or "event risk" provisions specifically designed to afford
Certificateholders protection in the event of a highly leveraged transaction
affecting the Company. However, the Certificateholders of each series will
have the benefit of (i) a lien on the specific Equipment Group securing the
related Equipment Notes held in the related Trust or, (ii) in the case of the
ETCs held in the related Trust, the indirect benefit of the Equipment Trust
Trustee under the relevant Equipment Trust Agreement holding title to the
equipment securing the ETCs, as well as the Company's full and unconditional
guarantee of the ETCs. See "- Guarantee," "Description of the Equipment
Notes-Security" and "Description of the ETCs-Guaranties" and "-Security".
BOOK-ENTRY REGISTRATION
Except as otherwise described in the applicable Prospectus Supplement,
Pass Through Certificates will be subject to the provisions described under
this caption for book-entry registration with DTC.
DTC. DTC has advised the Company that it is a limited purpose trust
company organized under the laws of the State of New York, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered pursuant to
Section 17A of the Exchange Act. DTC was created to hold securities for its
participants ("DTC Participants") and to facilitate the clearance and
settlement of securities transactions between DTC Participants through
electronic book-entries, thereby eliminating the need for physical movement of
certificates. DTC Participants include securities brokers and dealers, banks,
trust companies and clearing corporations. Indirect access to the DTC system
also is available to others such as banks, brokers, dealers and trust companies
that clear through or maintain a custodial relationship with a DTC Participant
either directly or indirectly ("Indirect Participants").
Certificate Owners that are not DTC Participants or Indirect
Participants but desire to purchase, sell or otherwise transfer ownership of,
or other interests in, Pass Through Certificates may do so only through DTC
Participants and Indirect Participants. In addition, Certificate Owners will
receive all distributions of principal, premium, if any, and interest from the
Pass Through Trustee through DTC Participants or Indirect Participants, as the
case may be. Under a book-entry format, Certificate Owners may experience some
delay in their receipt of payments, because such payments will be forwarded by
the Pass Through Trustee to Cede, as nominee for DTC. DTC will forward such
payments to DTC Participants, which thereafter will forward them to Indirect
Participants or Certificate Owners, as the case may be, in accordance with
customary industry practices. The forwarding of such distributions to the
Certificate Owners will be the responsibility of such DTC Participants. The
only "Certificateholder" will be Cede, as nominee of DTC. Certificate Owners
will not be recognized by the Pass
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Through Trustee as Certificateholders, as such term is used in the Basic
Agreement, and Certificate Owners will be permitted to exercise the rights of
Certificateholders only indirectly through DTC and DTC Participants.
Under the rules, regulations and procedures creating and affecting DTC
and its operations (the "Rules"), DTC is required to make book-entry transfers
of Pass Through Certificates among DTC Participants on whose behalf it acts
with respect to the Pass Through Certificates and to receive and transmit
distributions of principal of, premium, if any, and interest on the Pass
Through Certificates. DTC Participants and Indirect Participants with which
Certificate Owners have accounts with respect to the Pass Through Certificates
similarly are required to make book-entry transfers and receive and transmit
such payments on behalf of their respective Certificate Owners. Accordingly,
although Certificate Owners will not possess Pass Through Certificates, the
Rules provide a mechanism by which Certificate Owners will receive payments and
will be able to transfer their interests.
Because DTC can only act on behalf of DTC Participants, who in turn
act on behalf of Indirect Participants, the ability of a Certificate Owner to
pledge Pass Through Certificates to persons or entities that do not participate
in the MC system, or to otherwise act with respect to such Pass Through
Certificates, may be limited due to the lack of a physical certificate for such
Pass Through Certificates.
The Company understands that DTC will take any action permitted to be
taken by Certificateholders only at the direction of one or more DTC
Participants to whose accounts with DTC the Pass Through Certificates are
credited. Additionally, the Company understands that DTC will take such
actions with respect to any specified percentage of the beneficial interest of
Certificateholders held in each Trust only at the direction of and on behalf of
DTC Participants whose holders include undivided interests that satisfy any
such percentage. DTC may take conflicting actions with respect to other
undivided interests to the extent that such actions are taken on behalf of DTC
Participants whose holders include such undivided interests.
Neither the Company nor the Pass Through Trustee will have any
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of the Pass Through Certificates held by
Cede, as nominee for DTC, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The information contained in this section concerning DTC and DTC's
book-entry system has been obtained from sources that the Company believes to
be reliable, but the Company takes no responsibility for the accuracy thereof.
DEFINITIVE CERTIFICATES. With respect to each Trust, the related Pass
Through Certificates will be issued in fully registered, certificated form
("Definitive Certificates") to Certificate Owners or their nominees, rather
than to DTC or its nominee, only if (i) the Company advises the Pass Through
Trustee in writing that DTC is no longer willing or able to properly discharge
its responsibilities as depository with respect to such Pass Through
Certificates and the Pass Through Trustee or the Company is unable to locate a
qualified successor, (ii) the Company, at its option, elects to terminate the
book-entry system through DTC or (iii) after the occurrence of an Event of
Default (as defined below), Certificate Owners representing an aggregate
percentage interest in such Trust of not less than a majority advise the Pass
Through Trustee through DTC in writing that the continuation of a book-entry
system through DTC (or a successor thereto) is no longer in the Certificate
Owners' best interest. (Section 3.9)
Upon the occurrence of any event described in the immediately
preceding paragraph, the Pass Through Trustee will be required to notify all
affected Certificate Owners through DTC Participants of the availability of
Definitive Certificates. Upon surrender by DTC of the certificates
representing the Pass Through Certificates and receipt of instructions for
re-registration, the Pass Through Trustee will reissue the Pass Through
Certificates as Definitive Certificates to Certificate Owners. (Section 3.9)
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Distributions of principal of, premium, if any, and interest on the
Pass Through Certificates will thereafter be made by the Pass Through Trustee
in accordance with the procedures set forth in the Basic Agreement and the
applicable Trust Supplements, directly to holders of Definitive Certificates in
whose names such Definitive Certificates were registered at the close of
business on the applicable record date. Such distributions will be made by
check mailed to the address of each such holder as it appears on the register
maintained with respect to the applicable Trust. The final payment on any Pass
Through Certificate, however, will be made only upon presentation and surrender
of such Pass Through Certificate at the office or agency specified in the
notice of final distribution to Certificateholders. (Section 4.2 and 11.1)
Definitive Certificates will be freely transferable and exchangeable
at the office of the Pass Through Trustee upon compliance with the requirements
set forth in the Basic Agreement and the applicable Trust Supplements. No
service charge will be imposed for any registration of transfer or exchange,
but payment of a sum sufficient to cover any tax or other governmental charge
shall be required. (Section 3.4 and 11.1)
SAME-DAY SETTLEMENT AND PAYMENT. Settlement for the Pass Through
Certificates will be required to be made in immediately available funds. So
long as the Pass Through Certificates are registered in the name of Cede, all
payments made by the Company to the Indenture Trustees, as assignees of the
Owner Trustees' rights under the Leases, in the case of Equipment Notes, or by
the Company or Procor in respect of Company ETCs or Procor ETCs, in the case of
ETCs, will be in immediately available funds and will be passed through by the
Pass Through Trustee to DTC in immediately available funds.
Secondary trading in long-term notes and debentures of corporate
issuers is generally settled in clearinghouse or next-day funds. In contrast,
the Pass Through Certificates will trade in DTC's Same Day Funds Settlement
System until maturity, and secondary market trading activity in the Pass
Through Certificates will therefore be required by DTC to settle in immediately
available funds. No assurance can be given as to the effect, if any, of
settlement in immediately available funds on trading activity in the Pass
Through Certificates.
PAYMENTS AND DISTRIBUTIONS
Payments received by the Pass Through Trustee of principal of,
premium, if any, and interest on the Equipment Notes or ETCs held in each Trust
will be distributed by the Pass Through Trustee to the Certificateholders of
such Trust on the date such receipt is confirmed, except in certain cases when
some or all of such Equipment Notes or ETCs are in default. See "-Events of
Default and Certain Rights Upon an Event of Default."
Payments of principal of, and interest on the unpaid principal amount
of, the Equipment Notes or ETCs held in each Trust will be scheduled to be
received by the Pass Through Trustee on the dates specified in the applicable
Prospectus Supplement (such scheduled payments of principal of, and interest
on, the Equipment Notes or ETCs are herein referred to as "Scheduled Payments,"
and the dates specified therefor in the applicable Prospectus Supplement are
herein referred to as "Regular Distribution Dates"). The Pass Through Trustee
of each Trust will distribute on each Regular Distribution Date to the
Certificateholders of such Trust all Scheduled Payments, the receipt of which
is confirmed by the Pass Through Trustee on such Regular Distribution Date.
Each such distribution of Scheduled Payments will be made by the Pass Through
Trustee to the holders of record of the Pass Through Certificates of such Trust
on the fifteenth day immediately preceding such Regular Distribution Date,
subject to certain exceptions. (Sections 4.1 and 4.2) If a Scheduled Payment
is not received by the Pass Through Trustee on a Regular Distribution Date, it
will be distributed on the date received to such holders of record.
Each Certificateholder of each Trust will be entitled to receive a pro
rata share of any distribution in respect of Scheduled Payments of principal
and interest made on the Equipment Notes or ETCs held in such Trust. Scheduled
Payments of principal on the Equipment Notes or ETCs held in each Trust will be
set forth in the
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applicable Prospectus Supplement. After a partial or full prepayment or
default in respect of some or all of such Equipment Notes or ETCs, a
Certificateholder should refer to the information with respect to the Pool
Balance and the Pool Factor for such Trust reported periodically by the Pass
Through Trustee. See "-Pool Factors" and "-Statements to Certificateholders."
Payments of principal, premium, if any, and interest received by the
Pass Through Trustee on account of a partial or full prepayment, if any, of the
Equipment Notes or ETCs held in a Trust, and payments received by the Pass
Through Trustee following a default in respect of the Equipment Notes or ETCs
held in a Trust (including, in the case of Equipment Notes, payments received
by the Pass Through Trustee on account of their purchase by the related Owner
Trustee or payments received on account of the sale of Equipment Notes or ETCs
by the Pass Through Trustee) ("Special Payments") will be distributed on the
dates specified therefor in the applicable Prospectus Supplement (a "Special
Distribution Date"). In general, the Pass Through Trustee will mail notice to
the Certificateholders of record of any Trust not less than 15 days prior to
the Special Distribution Date on which any Special Payment is scheduled to be
distributed by the Pass Through Trustee stating such anticipated Special
Distribution Date. (Section 4.2) Each distribution of a Special Payment, other
than a final distribution, on a Special Distribution Date for any Trust will be
made by the Pass Through Trustee to the holders of record of the Pass Through
Certificates of such Trust as of the Record Date preceding such Special
Distribution Date. See "-Events of Default and Certain Rights Upon an Event of
Default" and "Description of the Equipment Notes-Prepayments".
The Basic Agreement requires that the Pass Through Trustee establish
and maintain, for each Trust and for the benefit of the Certificateholders of
such Trust, one or more non-interest bearing accounts (the "Certificate
Account") for the deposit of payments representing Scheduled Payments on the
Equipment Notes or ETCs held in such Trust. (Section 4.1) The Basic Agreement
also requires that the Pass Through Trustee establish and maintain, for each
Trust and for the benefit of the Certificateholders of such Trust, one or more
accounts (the "Special Payments Account") for the deposit of payments
representing Special Payments.
Pursuant to the terms of the Basic Agreement, the Pass Through Trustee
is required to deposit any Scheduled Payments relating to the applicable Trust
received by it in the Certificate Account of such Trust and to deposit any
Special Payments so received by it in the Special Payments Account of such
Trust. (Section 4.1) All amounts so deposited will be distributed by the Pass
Through Trustee on a Regular Distribution Date or a Special Distribution Date
as appropriate. (Section 4.2)
At such time, if any, as the Pass Through Certificates of any Trust
are issued in the form of Definitive Certificates and not to Cede, as nominee
for DTC, distributions by the Pass Through Trustee from the Certificate Account
or the Special Payments Account of such Trust on a Regular Distribution Date or
a Special Distribution Date, as appropriate, will be made by check mailed to
each Certificateholder of such Trust of record on the applicable record date at
its address appearing on the register maintained with respect to such Trust.
(Section 4.2) The final distribution for each Trust, however, will be made
only upon presentation and surrender of the Pass Through Certificates for such
Trust at the office or agency of the Pass Through Trustee specified in the
notice given by the Pass Through Trustee of such final distribution. The Pass
Through Trustee will mail such notice of the final distribution to the
Certificate-holders of such Trust, specifying the date set for such final
distribution and the amount of such distribution. (Section 11.1) See
"-Termination of the Trusts."
If any Regular Distribution Date or Special Distribution Date is not a
Business Day, distributions scheduled to be made on such Regular Distribution
Date or Special Distribution Date may be made on the next succeeding Business
Day without additional interest. (Section 13.11)
GUARANTEE
The Company will fully and unconditionally guarantee the due and
punctual distribution to Certificateholders of principal and interest payable
in respect of each Procor ETC purchased by a Trust. In addition, the Company
will fully and unconditionally guarantee the due and punctual performance by
Procor of its obligations under each Procor Equipment Trust Agreement.
POOL FACTORS
Unless there has been a prepayment, or a default in respect of one or
more issues of the Equipment Notes or ETCs held in a Trust, as described in the
applicable Prospectus Supplement or below in "-Events of Default and Certain
Rights Upon an Event of Default," the Pool Factor for such Trust will decline
in proportion to the scheduled
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repayments of principal on the Equipment Notes or ETCs held in such Trust as
described in the applicable Prospectus Supplement. In the event of a partial
or full prepayment or default, the Pool Factor and the Pool Balance of each
Trust so affected will be recomputed after giving effect thereto and notice
thereof will be mailed to Certificateholders of such Trust. Each Trust will
have a separate Pool Factor and Pool Balance.
Unless otherwise described in the applicable Prospectus Supplement, the
"Pool Balance" for each Trust indicates, as of any Regular Distribution Date or
Special Distribution Date, the aggregate unpaid principal amount of the
Equipment Notes or ETCs held in such Trust on such date plus any amounts in
respect of principal on such Equipment Notes or ETCs held by the Pass Through
Trustee and not yet distributed plus the amount of any moneys held in the
related escrow account (other than earnings thereon). The Pool Balance for each
Trust as of any Regular Distribution Date or Special Distribution Date shall be
computed after giving effect to the payment of principal, if any, on the
Equipment Notes or ETCs held in such Trust and distribution thereof to be made
on that date.
Unless otherwise described in the applicable Prospectus Supplement, the
"Pool Factor" for each Trust, as of any Regular Distribution Date or Special
Distribution Date, is the quotient (rounded to the seventh decimal place)
computed by dividing (i) the Pool Balance of such Trust, by (ii) the aggregate
original principal amount of the Pass Through Certificates issued by such
Trust. The Pool Factor for each Trust as of any Regular Distribution Date or
Special Distribution Date shall be computed after giving effect to the payment
of principal, if any, on the Equipment Notes or ETCs held in such Trust and
distribution thereof to be made on that date. (Section 1.1) The Pool Factor
for each Trust will initially be 1.0000000; thereafter, the Pool Factor for
each Trust will decline as described above to reflect reductions in the Pool
Balance of such Trust. The amount of a Certificateholder's pro rata share of
the Pool Balance of a Trust can be determined by multiplying the original
denomination of the Certificateholder's Pass Through Certificate of such Trust
by the Pool Factor for such Trust as of the applicable Regular Distribution
Date or Special Distribution Date. The Pool Factor and the Pool Balance for
each Trust will be mailed to Certificateholders of record of such Trust on each
Regular Distribution Date and Special Distribution Date.
STATEMENTS TO CERTIFICATEHOLDERS
On each Regular Distribution Date and Special Distribution Date, if
any, the Pass Through Trustee will include with each distribution of a
Scheduled Payment or Special Payment to Certificateholders of record of the
related Trust a statement, giving effect to such distribution to be made on
such Regular Distribution Date or Special Distribution Date, if any, setting
forth the following information (per $1,000 in aggregate principal amount of
Pass Through Certificates for such Trust, as to (i) and (ii) below):
(i) the amount of such distribution allocable to
principal and the amount allocable to premium, if
any;
(ii) the amount of such distribution allocable to
interest; and
(iii) the Pool Balance and the Pool Factor for such Trust.
(Section 4.3)
So long as the Pass Through Certificates of any Trust are registered
in the name of Cede, as nominee for DTC, on the applicable record date prior to
each Regular Distribution Date and Special Distribution Date, the Pass Through
Trustee will request from DTC a securities position listing setting forth the
names of all DTC Participants reflected on DTC's books as holding interests in
the Pass Through Certificates of such Trust on such record date. On each
Regular Distribution Date and Special Distribution Date, the Pass Through
Trustee will mail to each such DTC Participant the statement described above,
and will make available additional copies as requested by such DTC Participant,
to be available for forwarding to Certificate Owners. (Section 3.9)
In addition, after the end of each calendar year, the Pass Through
Trustee will prepare for each Certificateholder of record of each Trust at any
time during the preceding calendar year a report containing the sum of the
amounts determined pursuant to clauses (i) and (ii) above with respect to the
Trust for such calendar year
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or, in the event such person was a Certificateholder of record during a portion
of such calendar year, for the applicable portion of such calendar year, and
such other items as are readily available to the Pass Through Trustee and which
a Certificateholder shall reasonably request as necessary for the purpose of
such Certificateholder's preparation of its federal income tax returns (Section
4.3) Such report and such other items shall be prepared on the basis of
information supplied to the Pass Through Trustee by the DTC Participants, and
shall be delivered by the Pass Through Trustee to such DTC Participants to be
available for forwarding by such DTC Participants to Certificate Owners in the
manner described above.
At such time, if any, as the Pass Through Certificates of a Trust are
issued in the form of Definitive Certificates, the Pass Through Trustee will
prepare and deliver the information described above to each Certificateholder
of record of such Trust as the name and period of record ownership of such
Certificateholder appears on the records of the Registrar of the Pass Through
Certificates.
VOTING OF EQUIPMENT NOTES AND ETCS
The Pass Through Trustee, as holder of the Equipment Notes and ETCs
held in each Trust, has the right to vote and give consents and waivers in
respect of such Equipment Notes and ETCs under the applicable Indenture or
Equipment Trust Agreement. The Basic Agreement sets forth the circumstances in
which the Pass Through Trustee shall direct any action or cast any vote as the
holder of the Equipment Notes and ETCs held in the applicable Trust at its own
discretion and the circumstances in which the Pass Through Trustee shall seek
instructions from the Certificateholders of such Trust. Prior to an Event of
Default with respect to any Trust, the principal amount of the Equipment Notes
and ETCs held in such Trust directing any action or being voted for or against
any proposal shall be in proportion to the principal amount of Pass Through
Certificates held by the Certificateholders of such Trust taking the
corresponding position. (Sections 6.1 and 10.1) Whenever the Agreements
require or permit actions to be taken based upon instructions or directions of
Certificateholders of such Pass Through Trust holding a specified percentage
interest of a Pass Through Trust, DTC shall be deemed to represent such
percentage interest only to the extent that it has received instructions to
such effect from Certificate Owners and/or DTC Participants owning or
representing, respectively, such required percentage interest and has delivered
such instructions to the Pass Through Trustee.
EVENTS OF DEFAULT AND CERTAIN RIGHTS UPON AN EVENT OF DEFAULT
The Basic Agreement defines an event of default with respect to a
Trust (an "Event of Default") as the occurrence and continuance of an event of
default under one or more of (i) the related Indentures (an "Indenture Event of
Default") or (ii) the related Equipment Trust Agreements (an "Equipment Trust
Event of Default"). The Indenture Events of Default or Equipment Trust Event
of Defaults will be described in the applicable Prospectus Supplement and, in
the case of Equipment Notes, will include events of default under the related
Lease. Because the Equipment Notes issued under an Indenture may be held in
more than one Trust, a continuing Indenture Event of Default under such
Indenture would result in an Event of Default with respect to each such Trust.
There will be, however, no cross-default provisions in the Indentures and
events resulting in an Indenture Event of Default under any particular
Indenture (or a default under any other indebtedness of the Company) will not
necessarily result in an Indenture Event of Default occurring under any other
Indenture. If an Indenture Event of Default occurs in fewer than all of the
Indentures related to a Trust, the Equipment Notes issued pursuant to the
related Indentures with respect to which an Indenture Event of Default has not
occurred will continue to be held in such Trust and payments of principal and
interest on such Equipment Notes will continue to be distributed to the holders
of the Pass Through Certificates of such Trust as originally scheduled.
Similarly, except as described in a Prospectus Supplement, an Equipment Trust
Event of Default under a Company Equipment Trust Agreement will not result in
an Equipment Trust Event of Default under a Procor Equipment Trust Agreement,
nor will an Equipment Trust Event of Default under any Procor Equipment Trust
Agreement result in an Equipment Trust Event of Default under a Company
Equipment Trust Agreement. Accordingly, if an Equipment Trust Event of Default
occurs with respect to an Equipment Trust Agreement, but no Equipment Trust
Event of Default has occurred with respect to any other Equipment Trust
Agreement, the ETC under the non-defaulted Equipment Trust Agreement will
continue to be held in the applicable Trust, and payments of principal and
interest on such ETC will continue to be distributed to the holders of Pass
Through Certificates of such Trust as originally scheduled.
In the case of Equipment Notes, the Owner Trustee and the Owner
Participant under each Indenture will each have the right under certain
circumstances to cure an Indenture Event of Default that results from the
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occurrence of a Lease Event of Default under the related Lease. If the Owner
Trustee or the Owner Participant chooses to exercise such cure right, the
Indenture Event of Default and consequently the Event of Default with respect
to the related Trust or Trusts will be deemed to be cured.
The ability of the holders of the Pass Through Certificates issued
with respect to any one Trust to cause the Indenture Trustee with respect to
any Equipment Notes or the Equipment Trust Trustee with respect to any ETCs
held in such Trust to accelerate the payment on such Equipment Notes under the
related Indenture or Equipment Trust Agreement or to direct the exercise of
remedies by such Indenture Trustee under the related Indenture or Equipment
Trust Trustee under the related Equipment Trust Agreement will depend, in part,
upon the percentage of the aggregate principal amount of all Equipment Notes
outstanding under such Indenture or ETCs outstanding under such Equipment Trust
Agreement that are represented by the Equipment Notes outstanding under such
Indenture or ETCs outstanding under such Equipment Trust Agreement and held in
such Trust. Each Trust will hold Equipment Notes with different terms from
those of the Equipment Notes held in the other Trusts and therefore the
Certificateholders of a Trust may have divergent or conflicting interests from
those of the Certificateholders of the other Trusts holding Equipment Notes
relating to the same Equipment Group. In addition, so long as the same
institution acts as Pass Through Trustee of each Trust, in the absence of
instructions from the Certificateholders of any such Trust, the Pass Through
Trustee for such Trust could for the same reason be faced with a potential
conflict of interest upon an Indenture Event of Default or Equipment Trust
Event of Default. In such event, the Pass Through Trustee has indicated that
it would resign as trustee of one or all such Trusts, and a successor trustee
for one or all of such Trusts would be appointed in accordance with the terms
of the Basic Agreement.
The Basic Agreement provides that, as long as (i) an Indenture Event
of Default under any Indenture relating to Equipment Notes held in a Trust or
(ii) an Equipment Trust Event of Default under any Equipment Trust Agreement
relating to ETCs held in such Trust shall have occurred and be continuing, the
Pass Through Trustee of such Trust may vote all of the Equipment Notes issued
under such Indenture or all of the ETCs issued under such Equipment Trust
Agreement that are held in such Trust, and upon the direction of the holders of
Pass Through Certificates evidencing fractional undivided interests aggregating
not less than a majority in interest of such Trust, shall vote not less than a
corresponding majority of such Equipment Notes or ETCs in favor of directing
the related Indenture Trustee or Equipment Trust Trustee to declare the unpaid
principal amount of all Equipment Notes issued under such Indenture or ETCs
issued under such Equipment Trust Agreement and any accrued and unpaid interest
thereon to be due and payable. The Basic Agreement also provides that, if (i)
an Indenture Event of Default under any Indenture relating to Equipment Notes
held in a Trust or (ii) an Equipment Trust Event of Default under any Equipment
Trust Agreement relating to ETCs held in such Trust shall have occurred and be
continuing, the Pass Through Trustee of such Trust may, and upon the direction
of the holders of Pass Through Certificates evidencing fractional undivided
interests aggregating not less than a majority in interest of such Trust shall,
subject to certain conditions, vote all of the Equipment Notes issued under
such Indenture or all the ETCs issued under such Equipment Trust Agreement that
are held in such Trust in favor of directing the related Indenture Trustee or
Equipment Trust Trustee as to the time, method and place of conducting any
proceeding for any remedy available to such Indenture Trustee or of exercising
any trust or power conferred on such Indenture Trustee or Equipment Trust
Trustee under such Indenture or Equipment Trust Agreement. (Sections 6.1 and
6.4)
As an additional remedy, if an Indenture Event of Default or Equipment
Trust Event of Default shall have occurred and be continuing, the Basic
Agreement provides that the Pass Through Trustee of a Trust holding Equipment
Notes issued under such Indenture or ETCs issued under such Equipment Trust
Agreement may, and upon the direction of the holders of Pass Through
Certificates evidencing fractional undivided interests aggregating not less
than a majority in interest of such Trust shall, sell all or part of such
Equipment Notes or ETCs for cash to any person. (Sections 6.1 and 6.2) Any
proceeds received by the Pass Through Trustee upon any such sale shall be
deposited in the Special Payments Account for such Trust and shall be
distributed to the Certificateholders of such Trust on a Special Distribution
Date. (Sections 4.1 and 4.2) The market for Equipment Notes or ETCs in
default may be very limited and there can be no assurance that they could be
sold for a reasonable price. Furthermore, so long as the same institution acts
as Trustee of each Trust, it may be faced with a conflict in
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deciding from which Trust to sell Equipment Notes or ETCs to available buyers.
If the Pass Through Trustee sells any such Equipment Notes with respect to
which an Indenture Event of Default exists or ETCs with respect to which an
Equipment Trust Event of Default exists for less than their outstanding
principal amount thereof, the Certificateholders of such Trust will receive a
smaller amount of principal distributions than anticipated and will not have
any claim for the shortfall against the Pass Through Trustee, the related Owner
Trustee, the related Owner Participant, or, except as provided in the next
sentence, Procor or the Company. Inasmuch as Procor will fully and
unconditionally guarantee the payment of principal of and interest on the
Procor ETCs and the Company will fully and unconditionally guarantee the
payment of the principal of and interest on the Company ETCs and the Procor
ETCs, as well as the due and punctual distribution to Certificateholders of
principal and interest payable in respect of each Procor ETC held by a Trust,
the Certificateholders will have a claim against the Company for any shortfall
arising from the sale by the Pass Through Trustee of a Company ETC or Procor
ETC in default. (Sections 4.1 and 4.2) See "Description of the
ETCs-Guaranties". Neither the Pass Through Trustee nor the Certificateholders
of such Trust could take any action with respect to any remaining Equipment
Notes or ETCs held in such Trust so long as no Indenture Event of Default or
Equipment Trust Event of Default existed with respect thereto.
Any amount distributed to the Pass Through Trustee of any Trust by (i)
the Indenture Trustee under any Indenture on account of the Equipment Notes
held in such Trust following an Indenture Event of Default under such Indenture
or (ii) the Equipment Trust Trustee under any Equipment Trust Agreement on
account of the ETCs held in such Trust following an Equipment Trust Event of
Default shall be deposited in the Special Payments Account for such Trust and
shall be distributed to the Certificateholders of such Trust on a Special
Distribution Date. In addition, if, following an Indenture Event of Default
under any Indenture, the related Owner Trustee exercises its option, if any, to
prepay or purchase the outstanding Equipment Notes issued under such Indenture
as described in the related Prospectus Supplement, the price paid by such Owner
Trustee to the Pass Through Trustee of any Trust for the Equipment Notes issued
under such Indenture and held in such Trust shall be deposited in the Special
Payments Account for such Trust and shall be distributed to the
Certificateholders of such Trust on a Special Distribution Date. (Sections 4.1
and 4.2)
Any funds held by the Pass Through Trustee in the Special Payments
Account for a Trust representing either payments received with respect to (i)
any Equipment Notes held in such Trust following an Indenture Event of Default
or (ii) any ETCs held in such Trust following an Equipment Trust Event of
Default or proceeds from the sale by the Pass Through Trustee of any such
Equipment Notes or ETCs, shall, to the extent practicable, be invested and
reinvested by the Pass Through Trustee in Permitted Government Investments
pending the distribution of such funds on a Special Distribution Date.
(Sections 4.1 and 4.2)
The Basic Agreement provides that the Pass Through Trustee of each
Trust shall, within 30 days after the occurrence of a default (as defined
below) in respect of such Trust, give to the Certificate holders of such Trust
notice, transmitted by mail, of all uncured or unwaived defaults with respect
to such Trust known to it; provided that, except in the case of default in the
payment of principal of, premium, if any, or interest on any of the Equipment
Notes or ETCs held in such Trust, the Pass Through Trustee shall be protected
in withholding such notice if it in good faith determines that the withholding
of such notice is in the interest of such Certificateholders. The term
"default," for the purpose of the provision described in this paragraph only,
shall mean the occurrence of any Event of Default with respect to a Trust as
specified above, except that in determining whether any such Event of Default
has occurred any grace period or notice in connection therewith shall be
disregarded. (Section 7.2)
The Basic Agreement contains a provision entitling the Pass Through
Trustee of each Trust, subject to the duty of the Pass Through Trustee during a
default to act with the required standard of care, to obtain security from or
be indemnified by
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the holders of the Pass Through Certificates of such Trust before proceeding to
exercise any right or power under the Basic Agreement at the request of such
Certificateholders. (Section 7.3)
In certain cases, the holders of Pass Through Certificates of a Trust
evidencing fractional undivided interests aggregating not less than a majority
in interest of such Trust may on behalf of the holders of all Pass Through
Certificates of such Trust waive any past default or Event of Default with
respect to such Trust and thereby annul any direction given by the Pass Through
Trustee on behalf of such holders to the related Indenture Trustee with respect
thereto, except (i) a default in payment of the principal of, premium, if any,
or interest on any of the Equipment Notes or ETCs held in such Trust, and (ii)
a default in respect of any covenant or provision of the Basic Agreement or the
related Trust Supplement that cannot be modified or amended without the consent
of each Certificateholder of such Trust affected thereby. (Section 6.5) Each
Indenture and Equipment Trust Agreement will provide that, with certain
exceptions, the holders of a majority in aggregate unpaid principal amount of
the Equipment Notes or ETCs issued thereunder may on behalf of all such holders
waive any past default or Indenture Event of Default or Equipment Trust Event
of Default under such Equipment Trust Agreement thereunder. In the event of a
waiver with respect to a Trust as described above, the principal amount of the
Equipment Notes issued under the related Indenture or ETCs issued under the
related Equipment Trust Agreement held in such Trust shall be counted as waived
in the determination of the majority in aggregate unpaid principal amount of
Equipment Notes or ETCs required to waive a default or an Indenture Event of
Default under such Indenture or Equipment Trust Event of Default under such
Equipment Trust Agreement. Therefore, if the Certificateholders of a Trust
waive a past default or Event of Default such that the principal amount of the
Equipment Notes or ETCs held in such Trust constitutes the required majority in
aggregate unpaid principal amount under the applicable Indenture or Equipment
Trust Agreement, such past default, Indenture Event of Default under such
Indenture or Equipment Trust Event of Default under such Equipment Trust
Agreement shall be waived. For a discussion of waivers of Indenture Events of
Default under the Indentures and Equipment Trust Events of Default under the
Equipment Trust Agreements, see "Description of the Equipment Notes-Indenture
Events of Default and Remedies" and "Description of the ETCs-Events of Default
and Provisions Relating Thereto".
MODIFICATIONS OF THE BASIC AGREEMENT
The Basic Agreement contains provisions permitting the Company, Procor
and the Pass Through Trustee of each Trust to enter into supplemental trust
agreements, without the consent of the holders of any of the Pass Through
Certificates of such Trust, (i) to evidence the succession of another
corporation to the Company or Procor and the assumption by such corporation of
the Company's or Procor's obligations under the Basic Agreement and the
applicable Trust Supplement, (ii) to add to the covenants of the Company or
Procor for the benefit of the holders of such Pass Through Certificates, (iii)
to cure any ambiguity, to correct any manifest error or to correct or
supplement any defective or inconsistent provision of such Basic Agreement, the
applicable Trust Supplement or any supplemental trust agreement, or to make any
other provisions with respect to matters or questions arising thereunder,
provided such action shall not adversely affect the interest of the holders of
such Pass Through Certificates, (iv) to evidence and provide for a successor
Trustee for some or all of the Trusts, or (v) to make any other amendments or
modifications which shall only apply to Pass Through Certificates of one or
more series to be issued thereafter. (Section 9.1)
The Basic Agreement also contains provisions permitting the Company,
Procor and the Pass Through Trustee of each Trust, with the consent of the
Certificateholders of such Trust evidencing fractional undivided interests
aggregating not less than a majority in interest of such Trust, to execute
supplemental trust agreements adding any provisions to or changing or
eliminating any of the provisions of the Basic Agreement, to the extent
relating to such Trust, and the applicable Trust Supplement, or modifying the
rights of such Certificateholders, except that no such supplemental trust
agreement may, without the consent of the holder of each such Pass Through
Certificate so affected, (a) reduce in any manner the amount of, or delay the
timing of, any receipt by the Pass Through Trustee of payments on the Equipment
Notes or ETCs held in such Trust, or distributions in respect of any Pass
Through Certificate of such Trust, or make distributions payable in coin or
currency other than that
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provided for in such Pass Through Certificates, or impair the right of any
Certificateholder of such Trust to institute suit for the enforcement of any
such payment when due, (b) permit the disposition of any Equipment Note or ETC
held in such Trust, except as provided in the Basic Agreement or the applicable
Trust Supplement, or (c) reduce the percentage of the aggregate fractional
undivided interests of the Trust provided for in the Basic Agreement or the
applicable Trust Supplement, the consent of the holders of which is required
for any such supplemental trust agreement or for any waiver provided for in the
Basic Agreement or such Trust Supplement. (Section 9.2)
MODIFICATION AND CONSENTS AND WAIVERS UNDER THE INDENTURES, THE EQUIPMENT TRUST
AGREEMENTS AND RELATED AGREEMENTS
In the event that the Pass Through Trustee, as the holder of any
Equipment Notes or ETCs held in a Trust, receives a request for its consent to
any amendment, modification or waiver under the Indenture, Lease, if any, or
other document relating to such Equipment Notes, or Equipment Trust Agreement
relating to such ETCs, which requires the consent of the Certificateholders of
such Trust, the Pass Through Trustee shall mail a notice of such proposed
amendment, modification or waiver to each Certificateholder of such Trust as of
the date of such notice. The Pass Through Trustee shall request instructions
from the Certificateholders of such Trust as to whether or not to consent to
such amendment, modification or waiver. The Pass Through Trustee shall vote or
consent with respect to such Equipment Notes or ETCs in such Trust in the same
proportion as the Pass Through Certificates of such Trust were actually voted
by the holders thereof by a certain date. Notwithstanding the foregoing, if an
Event of Default in respect of such Trust shall have occurred and be
continuing, the Pass Through Trustee, subject to the voting instructions
referred to under "-Events of Default and Certain Rights Upon an Event of
Default," may in its own discretion consent to such amendment, modification or
waiver, and may so notify the Indenture Trustee or equipment trust trustee to
which such consent relates. (Section 10.1)
TERMINATION OF THE TRUSTS
The obligations of the Company, Procor and the Pass Through Trustee
with respect to a Trust will terminate upon the distribution to
Certificateholders of such Trust of all amounts required to be distributed to
them pursuant to the Basic Agreement and the applicable Trust Supplement and
the disposition of all property held in such Trust. The Pass Through Trustee
will mail to each Certificateholder of record of such Trust notice of the
termination of such Trust, the amount of the proposed final payment and the
proposed date for the distribution of such final payment for such Trust. The
final distribution to any Certificateholder of such Trust will be made only
upon surrender of such Certificateholder's Pass Through Certificates at the
office or agency of the Pass Through Trustee specified in such notice of
termination. (Section 11.1)
DELAYED PURCHASE
In the event that, on the date of issuance of any Pass Through
Certificates, all of the proceeds from the sale of such Pass Through
Certificates are not used to purchase the Equipment Notes or ETCs contemplated
to be held in the related Trust, such Equipment Notes or ETCs may be purchased
by the Pass Through Trustee at any time on or prior to the date specified in
the applicable Prospectus Supplement. In such event, the Pass Through Trustee
will hold the proceeds from the sale of such Pass Through Certificates not used
to purchase Equipment Notes or ETCs in an escrow account pending the purchase
of the Equipment Notes or ETCs not so purchased. Such proceeds will be
invested in Specified Investments at the direction and risk of, and for the
account of, the Company. Earnings on Specified Investments in the escrow
account for each Trust will be paid to the Company periodically, and the
Company will be responsible for any losses realized on such Specified
Investments. (Section 2.2)
On the Regular Distribution Date occurring after the issuance of such
Pass Through Certificates, the Company will pay to the Pass Through Trustee an
amount equal to the interest that would have accrued on any Equipment Notes or
ETCs which are purchased after the date of the issuance of such Pass Through
Certificates from the date of the issuance of such Pass Through Certificates
to, but excluding, the date of the purchase of such Equipment Notes or ETCs by
the Pass Through Trustee. (Section 2.2)
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To the extent that Equipment Notes or ETCs are not purchased by the
Pass Through Trustee on or prior to the date specified in the applicable
Prospectus Supplement, the unexpended proceeds from the sale of such Pass
Through Certificates, together with interest thereon at the rate applicable to
such Pass Through Certificates, will be distributed to the holders of such Pass
Through Certificates as a Special Payment.
THE PASS THROUGH TRUSTEE
Unless otherwise specified in the applicable Prospectus Supplement,
________________________________________________________________ will be the
Pass Through Trustee for each of the Trusts. The Pass Through Trustee and any
of its affiliates may hold Pass Through Certificates in their own names.
(Section 7.5) With certain exceptions, the Pass Through Trustee makes no
representations as to the validity or sufficiency of the Basic Agreement, the
Trust Supplements, the Pass Through Certificates, the Equipment Notes, the
Indentures, the Leases, the ETCs, the Equipment Trust Agreements or other
related documents. (Section 7.4) Unless otherwise specified in a Prospectus
Supplement, __________________________________ will also be the Indenture
Trustee of the Indentures under which the Equipment Notes are issued and the
equipment trust trustee under which the ETCs are issued. [Prior relationships
between the Company and the trustee to be described.]
The Pass Through Trustee may resign with respect to any or all of the
Trusts at any time, in which event the Company will be obligated to appoint a
successor trustee. If the Pass Through Trustee ceases to be eligible to
continue as Trustee with respect to a Trust or becomes incapable of acting as
Trustee or becomes insolvent, the Company may remove such Trustee. In
addition, any holder of Pass Through Certificates of such Trust for at least
six months may in such circumstances, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of such Trustee and the appointment of a successor trustee. Any
resignation or removal of the Pass Through Trustee with respect to a Trust and
appointment of the successor trustee for such Trust does not become effective
until acceptance of the appointment by the successor trustee. (Section 7.9)
Pursuant to such resignation and successor trustee provisions, it is possible
that a different trustee could be appointed to act as the successor trustee
with respect to each Trust. All references in this Prospectus to the Pass
Through Trustee are to the trustee acting in such capacity under each of the
Trusts and should be read to take into account the possibility that each of the
Trusts could have a different successor trustee in the event of such a
resignation or removal.
The Basic Agreement provides that the Company will pay the Pass
Through Trustee's fees and expenses and will indemnify the Pass Through Trustee
in accordance with the Participation Agreement with respect to certain taxes.
To the extent not indemnified by the Company with respect to such taxes, the
Pass Through Trustee may be entitled to be reimbursed by the applicable Trust.
(Section 7.7)
DESCRIPTION OF THE EQUIPMENT NOTES
The statements under this caption are summaries and do not purport to
be complete. Except as otherwise indicated below or as described in the
applicable Prospectus Supplement, the following summaries will apply to the
Equipment Notes, the Indenture, the Lease and the Participation Agreement
relating to each Equipment Group. Additional provisions with respect to the
Equipment Notes, the Indentures, the Leases and the Participation Agreements
relating to any particular Equipment Group will be described in the applicable
Prospectus Supplement.
GENERAL
Each Equipment Note issued under the same Indenture will relate to a
single Equipment Group. The Equipment Notes with respect to each Equipment
Group will be issued under a separate Indenture between the related Indenture
Trustee and the Owner Trustee of a trust for the benefit of the Owner
Participant which is the beneficial owner of such Equipment Group.
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The Equipment Notes will be nonrecourse obligations of the related
Owner Trustee. Except in certain circumstances involving the Company's
purchase of Equipment Units and the assumption of the Equipment Notes related
thereto, the Equipment Notes will not be direct obligations of, or guaranteed
by, the Company; however, the Company will be obligated to make or cause to be
made rental and other payments to the related Owner Trustee under the Lease of
the related Equipment Group in amounts that will be at least sufficient to pay
when due all payments required to be made on the Equipment Notes issued with
respect to such Equipment Group. The Company's rental obligations under each
Lease will be general obligations of the Company.
PRINCIPAL AND INTEREST PAYMENTS
Interest paid on the Equipment Notes held in each Trust will be passed
through to the Certificateholders of such Trust on the dates and at the rate
per annum set forth in the applicable Prospectus Supplement until the final
distribution date for such Trust. Principal paid on the Equipment Notes held
in each Trust will be passed through to the Certificateholders of such Trust in
scheduled amounts on the dates set forth in the applicable Prospectus
Supplement until the final distribution date for such Trust.
If any date scheduled for any payment of principal of, premium, if
any, or interest on the Equipment Notes is not a Business Day, such payment may
be made on the next succeeding Business Day without any additional interest.
PREPAYMENTS
The applicable Prospectus Supplement will describe the circumstances,
whether voluntary or involuntary, under which the related Equipment Notes may
be prepaid or purchased, the premium, if any, related to certain prepayments or
purchases and other terms applying to prepayments or purchases of such
Equipment Notes.
SECURITY
The Equipment Notes issued with respect to an Equipment Group will be
secured by (i) an assignment by the related Owner Trustee to the related
indenture Trustee of such Owner Trustee's rights (except for certain limited
rights described in the Prospectus Supplement) under the Lease with respect to
such Equipment Group, including the right to receive payments of rent
thereunder and (ii) a perfected security interest to such Indenture Trustee in
such Equipment Group, subject to the rights of the Company under such Lease.
Unless and until an Indenture Event of Default with respect to an Equipment
Group has occurred and is continuing, the Indenture Trustee may not exercise
the rights of the Owner Trustee under the related Lease, except the right to
receive payments of rent due thereunder.
The Equipment Notes issued under different Indentures will not be
cross-collateralized and consequently the Equipment Notes issued in respect of
any one Equipment Group will not be secured by any other Equipment Group or the
Lease related to any other Equipment Group.
The Company will be required to file each Indenture, any indenture
supplement, each Lease and any lease supplement with respect to each Equipment
Group with the Surface Transportation Board and will be further required to
deposit such documents with the Registrar General of Canada under the Railway
Act of Canada and to publish notice of such deposit in accordance with such
Act. The filing with the Surface Transportation Board will give the Indenture
Trustee a perfected security interest in each Equipment Unit in such Equipment
Group whenever it is located in the United States and in the Lease. Such
deposit and publication in Canada will be done in order to protect the lien of
the Indenture Trustee in and to the Lease and the Equipment Units subject to
the Indenture in Canada or any province or territory thereof, to the extent
provided for in the Railway Act of Canada.
Each Equipment Unit may be operated by the Company or, subject to
certain limitations, under sublease or interchange arrangements in the United
States, Canada or Mexico. The extent to which the Indenture Trustee's
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security interest would be recognized in an Equipment Unit located in countries
other than the United States is uncertain.
Funds, if any, held from time to time by the Indenture Trustee with
respect to any Equipment Units, including funds held as the result of the loss
or destruction of such Equipment Units or termination of the Lease, if any,
relating thereto, will be invested and reinvested by such Indenture Trustee, at
the direction of the Company (except in the case of a Lease Event of Default
under the applicable Lease, if any), in Specified Investments. The Company
will pay the amount of any loss resulting from any such investment directed by
it.
The Company will be obligated, at its cost and expense, to maintain,
repair and keep each Equipment Unit in accordance with prudent industry
maintenance practices and in compliance in all material respects with all laws
and regulations.
LIMITATION OF LIABILITY
Except in certain circumstances involving the Company's purchase of
Equipment Units and the assumption of the Equipment Notes related thereto, the
Equipment Notes will not be direct obligations of, or guaranteed by, the
Company or the Owner Trustees. None of the Owner Trustees, the Owner
Participants or the Indenture Trustees, or any affiliates thereof, will be
personally liable to any holder of an Equipment Note or, in the case of the
Owner Trustees and the Owner Participants, to the Indenture Trustees for any
amounts payable under the Equipment Notes or, except as provided in each
Indenture, for any liability under such Indenture. Except in the circumstances
described above, all payments of principal of, premium, if any, and interest on
Equipment Notes issued with respect to any Equipment Group (other than payments
made in connection with an optional prepayment or purchase by the related Owner
Trustee) will be made only from the assets subject to the lien of the Indenture
with respect to such Equipment Group or the income and proceeds received by the
related Indenture Trustee therefrom (including rent payable by the Company
under the Lease with respect to such Equipment Group).
Except as otherwise provided in the Indentures, each Owner Trustee in
its individual capacity shall not be answerable or accountable under the
Indentures or under the Equipment Notes under any circumstances except for its
own wilful misconduct or gross negligence. None of the Owner Participants will
have any duty or responsibility under any of the Indentures or the Equipment
Notes to the Indenture Trustees or to any holder of any Equipment Note.
INDENTURE EVENTS OF DEFAULT AND REMEDIES
The applicable Prospectus Supplement will describe the Indenture
Events of Default under the related Indentures, the remedies that the Indenture
Trustee may exercise with respect to the related Equipment Group, either at its
own initiative or upon instruction from holders of the related Equipment Notes,
and other provisions relating to the occurrence of an indenture Event of
Default and the exercise of remedies. There will be no cross-default
provisions in the Indentures and events resulting in an indenture Event of
Default under any particular Indenture (or a default under any other
indebtedness of the Company) will not necessarily result in an Indenture Event
of Default under any other Indenture.
In the event of the bankruptcy of an Owner Participant, it is possible
that, notwithstanding that the related Equipment Group is owned by an Owner
Trustee in trust, such Equipment Group and its Lease and the Equipment Notes
related thereto might become part of the bankruptcy proceeding. In such event,
payments on such Equipment Notes might be interrupted and the ability of the
Indenture Trustee to exercise its remedies under the applicable Indenture might
be restricted, although the Indenture Trustee would retain its status as a
secured creditor in respect of such Lease and the related Equipment Group. In
addition, in the event of an Owner Participant bankruptcy, the estate might
seek court approval to reject the related Lease as an executory contract. Such
a Lease rejection, if successful, would leave the Indenture Trustee as a
secured creditor in respect of the related Equipment Group with a claim for
damages against the estate.
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THE LEASES
The following provisions will be applicable unless otherwise disclosed
in the Prospectus Supplement.
TERM AND RENTALS. Each Equipment Group will be leased separately by
the related Owner Trustee to the Company for a term commencing on the delivery
date thereof to such Owner Trustee and expiring on a date not earlier than the
latest maturity date of the Equipment Notes issued with respect to such
Equipment Group unless previously terminated as permitted by the related Lease.
The basic rental payments by the Company under each Lease will be payable on
the dates specified in the applicable Prospectus Supplement, and will be
assigned by the Owner Trustee under the related Indenture to provide the funds
necessary to make payments of principal and interest due from such Owner
Trustee on the Equipment Notes issued under such Indenture. Although in
certain cases the basic rental payments under the Leases may be adjusted, under
no circumstances will rental payments be less than the scheduled payments of
principal and interest on the Equipment Notes issued under the Indenture
relating to such Lease. The balance of any basic rental payments under each
Lease, after payment of the scheduled principal and interest on the Equipment
Notes issued under the Indenture relating to such Lease, will be paid over to
the related Owner Trustee. The Company's obligation to pay rent and to cause
other payments to be made under each Lease will be a general obligation of the
Company.
NET LEASE. The Company's obligations in respect of each Equipment
Group leased to the Company by an Owner Trustee will be those of a lessee under
a "net lease." Accordingly, the Company will be obligated, at its cost and
expense, to maintain, repair and keep each Equipment Unit in any such Equipment
Group in accordance with prudent industry maintenance practices and in
compliance in all material respects with all laws and regulations and
consistent with maintenance practices used by the Company in respect of
equipment owned or leased by the Company similar in type to such Equipment
Unit. Subject to certain exceptions, the Company will, at its expense, make
all alterations, replacements or modifications required to be made by the
Association of American Railroads, the United States Department of
Transportation, or any other United States, state or local governmental agency.
The Company reserves the right to contest the validity or applicability of any
required alterations, replacements or modifications. The Company shall have
the right to make alterations, modifications and improvements with respect to
each Equipment Unit in any such Equipment Group, provided that no such
alteration, modification or improvement shall materially diminish the fair
market value, utility or remaining economic useful life of such Unit.
INSURANCE. Unless waived or otherwise excused by the terms of any
Lease, the Company will be required, at its own expense, to cause to be carried
and maintained insurance in respect of the Equipment in amounts and against
such risks and with deductibles and terms and conditions not less than the
insurance, if any, maintained by the Company in respect of similar equipment
owned or leased by the Company, but in no event shall such coverage be for
amounts or against risks less than the prudent industry standard for companies
engaged in full service leasing of tank and hopper cars. The Company does not
maintain casualty insurance with respect to the Equipment.
LEASE EVENTS OF DEFAULT; REMEDIES. The applicable Prospectus
Supplement will describe the Lease Events of Default under the related Lease,
the remedies that the Owner Trustee, or Indenture Trustee as assignee of the
Owner Trustee, may exercise with respect to an Equipment Group, and other
provisions relating to the occurrence of a Lease Event of Default and the
exercise of remedies.
Lease Events of Default under each Lease will include, among other
things, (a) failure by the Company to make rental payments under the Lease, (b)
failure to maintain insurance as required by the Lease, (c) use of the
Equipment Group in contravention of the Lease, (d) breach of any representation
or warranty made by the Company in the Lease or in the related Participation
Agreement and (e) the occurrence of certain events of bankruptcy,
reorganization or insolvency of the Company. Upon the occurrence of a Lease
Event of Default under any Lease, the related Indenture Trustee, as assignee of
the related Owner Trustee's rights under such Lease, will be entitled to
repossess the Equipment Units and use or sell such Equipment Units free and
clear of the Company's rights therein.
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If the Company were to become a debtor in a bankruptcy or
reorganization case under the Bankruptcy Code, the Company or its bankruptcy
trustee could reject any or all Leases to which it is a party. In such event,
there could be no assurance that the amount of any claim for damages under such
Leases that would be allowed in such bankruptcy case would be in an amount
sufficient to provide for the repayment of the related Equipment Notes. In any
case, rejection of a Lease by the Company or its bankruptcy trustee would not
deprive the related indenture Trustee of its security interest in the related
Equipment Group.
The Company is not a railroad, and the protections against the
automatic stay in bankruptcy under Section 1168 of the Bankruptcy Code which
are granted to lessors, conditional vendors and purchase money financiers of
rolling stock to a common carrier by railroad will not be available to an
Indenture Trustee upon the occurrence of a Lease Event of Default.
THE PARTICIPATION AGREEMENTS
The Company will be required to indemnify the Pass Through Trustee,
each Indenture Trustee, each Owner Participant and each Owner Trustee for
certain losses and claims and for certain other matters. Each Owner
Participant will be required to discharge certain liens or claims on or against
the assets subject to the lien of the related Indenture that arise out of any
act of or failure to act by or claim against such Owner Participant. Subject
to certain restrictions, each Owner Participant may transfer its interest in
the related Equipment Group.
DESCRIPTION OF THE ETCS
The statements under this caption are summaries only of the ETCs and
the Equipment Trust Agreements under which they will be issued and do not
purport to be complete. Additional provisions relating to any particular ETCs
will be described in the applicable Prospectus Supplement.
GENERAL
The ETCs will be limited to the aggregate principal amount set forth
in the applicable Equipment Trust Agreement. The ETCs will be issued against
the deposit with the Equipment Trust Trustee by the Pass Through Trustee of
like amounts of Deposited Cash. Each ETC will represent an interest equal to
its principal amount in the trust created under the applicable Equipment Trust
Agreement.
PRINCIPAL AND INTEREST PAYMENTS
Interest paid on the ETCs held in each Trust will be passed through to
the Certificateholders of such Trust on the dates and at the rate per annum set
forth in the applicable Prospectus Supplement until the final distribution date
for such Trust. Principal paid on the ETCs held in each Trust will be passed
through to the Certificateholders of such Trust in scheduled amounts on the
dates set forth in the applicable Prospectus Supplement until the final
distribution date for such Trust.
If any date scheduled for any payment of principal of, premium, if
any, or interest on the ETCs is not a Business Day, such payment may be made on
the next succeeding Business Day without any additional interest.
GUARANTIES
The Company will fully and unconditionally guarantee (i) the payment
as and when due of the principal of and interest on each Company ETC and (ii)
the due and punctual distribution to Certificateholders of principal and
interest payable in respect of each Procor ETC and the performance by Procor of
its obligations under each
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Procor Equipment Trust Agreement. Procor will fully and unconditionally
guarantee the payment as and when due of the principal of and interest on each
Procor ETC.
PREPAYMENT
The applicable Prospectus Supplement will describe the circumstances,
whether voluntary or involuntary, under which the related ETCs may be prepaid
or purchased, the premium (if any) related to certain prepayments or purchases
and other terms applying to prepayments or purchases of such ETCs.
SECURITY
Except as otherwise set forth in the applicable Prospectus Supplement,
the applicable Equipment Trust Agreement will provide for the sale by the
Company or Procor to the Equipment Trust Trustee of railway tank cars and other
rail cars (the "Trust Equipment") of the types used in the Company's or
Procor's business having an estimated cost of not less than 125% of the
principal amount of the related ETC. For the purpose of determining the cost
of any unit of Equipment built by the Company or Procor, so-called "car
builder's cost" (which includes direct cost of labor, material and overhead,
but excludes any manufacturing profit) will be used; otherwise the actual cost
to the Company or Procor will be used.
When and as any of the Trust Equipment shall be delivered to the
Equipment Trust Trustee, the Equipment Trust Trustee will pay to the Company or
Procor, as applicable, out of Deposited Cash an amount which will not exceed
80% of the aggregate cost (without deduction for depreciation) of such Trust
Equipment (or such other percentage as may be set forth in the applicable
Prospectus Supplement), and the balance of the cost will be paid by the
Equipment Trust Trustee from advance rentals paid to the Equipment Trust
Trustee by the Company or Procor, as applicable. Until so paid out, Deposited
Cash and other funds held by the Equipment Trust Trustee pending delivery to it
of Trust Equipment may be invested, at the risk of the Company or Procor, as
applicable, in direct obligations of the United States, in certain obligations
guaranteed by the United States, in certificates of deposit or time deposits or
in prime commercial paper.
Each Equipment Trust Agreement will contain provisions requiring the
Company or Procor, as applicable, to cause such agreements and each supplement
thereto, promptly after the execution and delivery thereof, to be recorded with
the Surface Transportation Board and the Registrar General of Canada. In
addition, the Company or Procor, as applicable, will be required to take
similar actions in all other jurisdictions required by law or reasonably
requested by the Equipment Trust Trustee for the purposes of proper protection
of the Equipment Trust Trustee's title to the Trust Equipment subject thereto
and the rights of the holders of the ETCs; provided, however, that neither the
Company nor Procor will be required to so record in any jurisdiction if (1) in
the opinion of the Company or Procor, as applicable, such recording would be
unduly burdensome, and (2) after giving effect to such failure to record, the
Company or Procor, as applicable, has taken all action required by law to
protect the title of the Equipment Trust Trustee to Trust Equipment having a
value (defined as the greater of (a) the actual value of such Trust Equipment
and (b) the cost thereof less 1/20th of such cost for each year the Trust
Equipment has been in use) of not less than 90% of the value of all such Trust
Equipment.
Each Company Equipment Trust Agreement will provide for the lease to
the Company of all the Trust Equipment subject to such agreement for a period
specified in the applicable Prospectus Supplement. The rent and other amounts
payable by the Company will be sufficient to enable the Equipment Trust Trustee
to pay when due the principal of and interest on the applicable Company ETC, as
well as all the expenses of the trust created under the Equipment Trust
Agreement and certain other charges. At the termination of the lease and after
all payments due or to become due from the Company under the Equipment Trust
Agreement shall have been fully made, such payments shall be applied and
treated as purchase money as the full purchase price of the Trust Equipment,
and title to all Trust Equipment held in the trust shall vest in the Company.
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Each Procor Equipment Trust Agreement will provide for the conditional
sale to Procor of all the Trust Equipment subject to such agreement and will
obligate Procor to make payments to the Equipment Trust Trustee during the
period specified in the applicable Prospectus Supplement. The payments in
respect of the purchase of the Trust Equipment and other amounts payable will
be sufficient to enable the Equipment Trust Trustee to pay when due the
principal of and interest on the applicable Procor ETC, as well as all the
expenses of the trust created under the Equipment Trust Agreement and certain
other charges. After all payments due or to become due from Procor under the
Equipment Trust Agreement shall have been fully made, such payments shall be
deemed to represent payment of the full purchase price for Procor's purchase of
the Trust Equipment, and title to all Trust Equipment held in the trust shall
vest in Procor.
Each Equipment Trust Agreement will permit the possession and use of
the Trust Equipment in the Company's or Procor's business, as applicable,
including the sublease thereof to others subject to the terms and conditions of
the applicable Equipment Trust Agreement.
The Trust Equipment subject to any Company Equipment Trust Agreement
will not secure the payment of a Company ETC issued under any other Company
Equipment Trust Agreement or of any Procor ETC, nor will the Trust Equipment
subject to any Procor Equipment Trust Agreement secure the payment of a Procor
ETC issued under any other Procor Equipment Trust Agreement or of any Company
ETC.
MAINTENANCE, RELEASE AND SUBSTITUTION OF TRUST EQUIPMENT
The Company and Procor will be required to maintain and keep the
relevant Trust Equipment in good order and proper repair unless and until it
becomes worn out, unsuitable for use, lost or destroyed (a "Casualty
Occurrence"). Each Equipment Trust Agreement will provide that, whenever Trust
Equipment having a value specified therein shall have suffered a Casualty
Occurrence, the Company or Procor, as applicable, shall either deposit with the
Equipment Trust Trustee an amount in cash equal to the value of such Trust
Equipment or convey to the Equipment Trust Trustee additional Equipment
having a value not less than the value of the Trust Equipment suffering the
Casualty Occurrence.
Each Equipment Trust Agreement will provide that if the aggregate cost
of the Trust Equipment initially delivered to the Equipment Trust Trustee by
the Company or Procor, as applicable, shall exceed 125% of the aggregate
principal amount of the Company ETC or the Procor ETC (or such other percentage
as may be specified in the applicable Prospectus Supplement), the Equipment
Trust Trustee, upon request of the Company or Procor, as applicable, shall
release Trust Equipment from the relevant trust having an aggregate cost of not
more than the amount of such excess.
Each Equipment Trust Agreement will provide for the release by the
Equipment Trust Trustee of any Trust Equipment upon request of the Company or
Procor, as applicable, and (a) the conveyance to the Equipment Trust Trustee of
other Equipment (irrespective of when first put into use) of value not less
than the value of the Trust Equipment to be released or (b) the payment to the
Equipment Trust Trustee of cash in an amount not less than the value of the
Trust Equipment to be released. Any cash so deposited (and any cash deposited
as provided in the second preceding paragraph) will be paid over by the
Equipment Trust Trustee to the Company or Procor, as applicable, against the
conveyance to the Equipment Trust Trustee of additional Equipment having a
value not less than the amount of cash to be paid over.
INFORMATION CONCERNING THE EQUIPMENT TRUST TRUSTEE
______________________________________________________________will be
the Equipment Trust Trustee under each Equipment Trust Agreement. [Prior
relationships between the Company, Procor and the trustee to be described.]
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EQUIPMENT TRUST EVENTS OF DEFAULT AND PROVISIONS RELATING THERETO
Equipment Trust Events of Default will be defined in each Equipment
Trust Agreement as being: default for more than 10 Business Days in the payment
of any rental payable under a Company Equipment Trust Agreement or any amount
payable under a Procor Equipment Trust Agreement; any unauthorized assignment
or transfer of the Company's or Procor's rights under the applicable Equipment
Trust Agreement, continuing as provided therein; any unauthorized transfer,
sublease or parting with the possession of any Trust Equipment, continuing as
provided therein; any failure or refusal to perform any other covenant in such
Equipment Trust Agreement for the shorter of (i) 60 days after the Equipment
Trust Trustee shall have demanded in writing such performance and (ii) 30 days
after the Company or Procor, as applicable, has knowledge of any such failure;
certain events of bankruptcy; or the termination of the lease provided for in a
Company Equipment Trust Agreement or the security interest provided for in a
Procor Equipment Trust Agreement by operation of law or by the Equipment Trust
Trustee in the event of any unauthorized assignment or transfer of the
Company's or Procor's rights under such Equipment Trust Agreement or any
unauthorized transfer or sublease of any of the Trust Equipment. (Section
5.01) The appointment of a receiver or trustee in bankruptcy or reorganization
for the Company or Procor, as applicable, or for their respective property will
be deemed to be an unauthorized assignment if, prior to the exercise of the
remedies of the Equipment Trust Trustee under an Equipment Trust Agreement,
such receiver or trustee shall not be discharged or duly assume the Company's
or Procor's obligations under such agreement. (Section 4.09) In addition, (i)
each Company Equipment Trust Agreement which relates to the issuance of a
Company ETC to the same Trust that is concurrently acquiring a Procor ETC will
provide that a failure by the Company to perform in respect of the Procor ETC
will constitute an Equipment Trust Event of Default under such Company
Equipment Trust Agreement and (ii) each Procor Equipment Trust Agreement will
provide that certain events of bankruptcy of the Company will constitute an
Equipment Trust Event of Default under such Procor Equipment Trust Agreement.
Each Equipment Trust Agreement will provide that the Equipment Trust Trustee
shall, promptly after the occurrence of any Equipment Trust Event of Default
thereunder known to it, give to the holders of the related Company ETC or the
Procor ETC, as applicable, notice of the occurrence thereof. However, unless
such default is the failure to make payments in respect of the principal of or
interest on an ETC, the Equipment Trust Trustee shall be protected in
withholding such notice if and so long as it in good faith determines that the
withholding of such notice is in the interest of the holders of the defaulted
ETC. (Section 5.07)
In the event of the bankruptcy or reorganization of the Company, the
right of the Equipment Trust Trustee to repossess or dispose of Trust Equipment
subject to a Company Equipment Trust Agreement would be subject to the
provisions of the Bankruptcy Code of 1978, as amended, applicable to industrial
companies generally, and not those provisions applicable to railroads,
particularly Section 1168 thereof. In the event of the bankruptcy or
reorganization of Procor, the right of the Equipment Trust Trustee to repossess
or dispose of Trust Equipment subject to a Procor Equipment Trust Agreement
would be subject to the provisions of the Canadian federal Bankruptcy and
Insolvency Act and the Companies' Creditors Arrangement Act and applicable
provincial legislation which governs the manner in which creditors can enforce
interests in the assets of a debtor.
Upon the happening of an Equipment Trust Event of Default, the
Equipment Trust Trustee or the holders of not less than a majority in aggregate
principal amount of the relevant Company ETC or Procor ETC, as applicable, may
declare the principal thereof and all accrued interest thereon to be due and
payable. (Section 5.04) Subject to certain conditions, however, any such
declaration may be rescinded by the holders of 66 2/3% in principal amount of
such Company ETC or Procor ETC upon payment of all sums then due otherwise than
by acceleration. Prior to such declaration, the holders of a majority in
principal amount of the outstanding Company ETC or Procor ETC may waive any
past Equipment Trust Event of Default, except an Equipment Trust Event of
Default in the payment of rentals or conditional sale payments due in respect
of the principal of or interest on such Company ETC or Procor ETC. (Section
5.04)
The right of any holder of a Company ETC or a Procor ETC to institute
action for any remedy under a Company Equipment Trust Agreement or a Procor
Equipment Trust Agreement (except such holder's right to
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enforce payment of the principal of and interest on a Company ETC or a Procor
ETC when due if such enforcement will not impair the Equipment Trust Trustee's
title to the Trust Equipment) will be subject to certain conditions precedent,
including a written request by the holders of not less than a majority in
principal amount of such Company ETC or Procor ETC to the Equipment Trust
Trustee to take action, and an offer to the Equipment Trust Trustee of
reasonable indemnification against liabilities incurred by it in so doing.
(Section 5.09)
Each Company Equipment Trust Agreement and Procor Equipment Trust
Agreement will require the annual filing by the Company or Procor, as
applicable, with the Equipment Trust Trustee of a certificate as to the absence
of default and as to compliance with the terms of the relevant equipment trust
agreement. (Section 4.08)
ERISA CONSIDERATIONS
Unless otherwise indicated in the applicable Prospectus Supplement,
Pass Through Certificates may be purchased by an employee benefit plan (a
"Plan") subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"). A fiduciary of a Plan must determine that the purchase of a
Pass Through Certificate is consistent with its fiduciary duties under ERISA
and does not result in a non-exempt prohibited transaction as defined in
Section 406 of ERISA or Section 4975 of the Code (as hereinafter defined).
Employee benefit plans which are governmental plans (as defined in Section
3(32) of ERISA) and certain church plans (as defined in Section 3(33) of ERISA)
are not subject to the fiduciary responsibility provisions of ERISA. Any Plan
that purchases a Pass Through Certificate must be an "accredited investor" as
defined in Rule 501(a)(1) of Regulation D promulgated under the Securities Act.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a general discussion by the Company of the
anticipated material federal income tax consequences of the purchase, ownership
and disposition of Pass Through Certificates. This summary is based on laws,
regulations, rulings and court decisions now in effect, all of which are
subject to change by legislative, administrative or judicial action, which
change may be retroactive. The statements of law and legal conclusions
contained herein are based on the opinion of Neal, Gerber & Eisenberg, counsel
to the Company. The discussion below does not purport to address federal
income tax consequences applicable to particular categories of investors, some
of which (for example, banks, tax exempt organizations, insurance companies or
foreign investors) may be subject to special rules. Investors should consult
their own tax advisors in determining the federal, state, local and foreign tax
consequences to them of the purchase, ownership and disposition of Pass Through
Certificates, including the advisability of making any election discussed
below. Prospective investors should note that no rulings have been or will be
sought from the Internal Revenue Service (the "IRS") with respect to any of the
federal income tax consequences discussed below and no assurance can be given
that the IRS will not take contrary positions. The Pass Through Trusts are not
indemnified for any federal income taxes that may be imposed upon them, the
imposition of which could significantly reduce the amounts available for
distribution to the Certificate Owners. For purposes of this "Certain Federal
Income Tax Consequences" section, the terms "Pass Through Certificate" and
"Certificate" also refer to an indirect interest in a Pass Through Certificate
held by a Certificate Owner.
GENERAL
Based upon an interpretation of analogous authorities under currently
applicable law, the Trusts should not be classified as associations taxable as
a corporation, but rather each should be classified as grantor trusts for
purposes of Sections 671 through 679 of the Internal Revenue Code of 1986, as
amended (the "Code"), and each Certificate Owner of a Trust should be treated
as the owner of a pro rata undivided interest in each of the Equipment Notes,
ETCs or any other property held in such Trust.
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The Company believes that each Certificate Owner of a Trust will be
required to report on its federal income tax return its pro rata share of the
entire income from the Equipment Notes, ETCs or any other property in such
Trust, in accordance with such Certificate Owner's method of accounting. A
Certificate Owner using the cash method of accounting should take into account
its pro rata share of income as and when received by the Pass Through Trustee.
A Certificate Owner using the accrual method of accounting should take into
account its pro rata share of income as it accrues or is received by the Pass
Through Trustee, whichever is earlier.
A purchaser of a Pass Through Certificate should be treated as
purchasing an interest in each Equipment Note, ETC and any other property in a
Trust at a price determined by allocating the purchase price paid for the Pass
Through Certificate among such Equipment Notes, ETCs and other property in
proportion to their fair market values at the time of purchase of the Pass
Through Certificate. The Company believes that at the time of formation of a
particular Trust, the purchase price paid for a Pass Through Certificate by an
original purchaser of such certificate will be allocated among the Equipment
Notes and ETCs in such Trust in proportion to their respective principal
amounts.
SALES OF PASS THROUGH CERTIFICATES
A Certificate Owner that sells or exchanges a Pass Through Certificate
will recognize gain or loss (in the aggregate) equal to the difference between
its adjusted tax basis in the Pass Through Certificate and the amount realized
(except to the extent attributable to accrued interest, which would be taxable
as interest income). Subject to the market discount provisions of the Code
(described below), if the Certificate Owner held such Pass Through Certificate
as a capital asset, any such gain or loss should be capital gain or loss, which
will be long-term capital gain or loss if the Pass Through Certificate was held
for more than one year (but only to the extent the Trust also held the
underlying Equipment Notes or ETCs for more than one year). Any long term
capital gains realized on a sale or exchange of Pass Through Certificates will
be taxable under current law to corporate taxpayers at the rates applicable to
ordinary income, and to individual taxpayers at their applicable marginal rate
for capital gains. Any capital losses realized generally will be deductible by
a corporate taxpayer only to the extent of capital gains and by an individual
taxpayer only to the extent of capital gains plus $3,000 of other income.
ORIGINAL ISSUE DISCOUNT
It is anticipated that neither the Equipment Notes nor the ETCs will
be issued with original issue discount.
MARKET DISCOUNT
A subsequent purchaser of a Pass Through Certificate will be
considered to have acquired an interest in an Equipment Note or ETC held in a
Trust at a "market discount" to the extent the remaining aggregate principal
amount of such Equipment Note or ETC exceeds the Certificate Owner's tax basis
allocable to such Equipment Note or ETC, provided such excess exceeds a
prescribed de minimis amount. If such excess exceeds the de minimis amount,
the Certificate Owner will be subject to the market discount rules of Section
1276 of the Code with regard to its interest in such Equipment Note or ETC.
In the case of a sale or other disposition of indebtedness subject to
the market discount rules, Section 1276 of the Code requires that gain, if any,
from such sale or other disposition be treated as ordinary income to the extent
such gain represents market discount that has accrued during the period in
which the indebtedness was held.
In the case of a partial principal payment on indebtedness subject to
the market discount rules, Section 1276 of the Code requires that such payment
be included in gross income as ordinary income to the extent such payment does
not exceed the market discount that has accrued during the period such
indebtedness was held.
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The amount of any accrued market discount later required to be included in
income upon a disposition, or subsequent partial principal payment, will be
reduced by the amount of accrued market discount previously included in income.
Market discount generally accrues under either a straight line method
or, at the election of the taxpayer, a constant interest rate method. However,
in the case of installment obligations (such as certain of the Equipment
Notes), determination of the manner in which market discount is to be accrued
has been left to Treasury regulations not yet issued. Until such Treasury
regulations are issued, the Conference Committee Report to the Tax Reform Act
of 1986 (the "Conference Report") indicates that holders of installment
obligations with market discount may elect to accrue market discount either (i)
on the basis of a constant interest rate or (ii) by treating as accrued market
discount an amount equal to total remaining market discount times a fraction,
the numerator of which is the amount of stated interest paid in the accrual
period and the denominator of which is the total amount of stated interest
remaining to be paid on the installment obligation as of the beginning of such
period.
Under Section 1277 of the Code, if in any taxable year interest paid
or accrued on indebtedness incurred or continued to purchase or carry
indebtedness subject to the market discount rules exceeds the interest
currently includible in income with respect to such indebtedness, deduction of
the excess interest must be deferred to the extent of the market discount
allocable to the taxable year. The deferred portion of any interest expense
will generally be deductible when such market discount is included in income
upon the sale or other disposition (including repayment) of the indebtedness.
A taxpayer may elect to include market discount in gross income
currently. If such election is made, the rules of Sections 1276 and 1277
(described above) will not apply to the taxpayer.
PREMIUM
A Certificate Owner will generally be considered to have acquired an
interest in an Equipment Note or ETC held in a Trust at a premium to the extent
the purchaser's tax basis allocable to such interest exceeds the remaining
aggregate principal amount of the Equipment Note or ETC allocable to such
interest. In that event, a Certificate Owner who holds a Pass Through
Certificate as a capital asset may elect to amortize that premium as an offset
to interest income under Section 171 of the Code, with corresponding reductions
in the Certificate Owner's tax basis in its interest in the Equipment Note or
ETC. Generally, such amortization is on a constant yield basis. However, in
the case of installment obligations, the Conference Report indicates a
Congressional intent that amortization will be in accordance with the same
rules that will apply to the accrual of market discount on installment
obligations (see the discussion above).
In the case of obligations that may be called at a premium prior to
maturity, amortizable bond premium may be determined by reference to an early
call date. Due to the complexities of the amortizable premium rules,
particularly where there is more than one possible call date and the amount of
any premium is uncertain, Certificate Owners are urged to consult their own tax
advisors as to the amount of any amortizable premium.
BACKUP WITHHOLDING
Payments made on the Pass Through Certificates and proceeds from the
sale of the Pass Through Certificates to or through certain brokers may be
subject to a "backup" withholding tax of 31% unless the Certificate Owner
complies with certain reponing procedures or is an exempt recipient under
Section 6049(b) (4) of the Code. Any such withheld amounts will be allowed as
a credit against the Certificate Owner's federal income tax.
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CERTAIN CANADIAN TAX CONSEQUENCES
In the opinion of Osler, Hoskin & Harcourt, Canadian counsel for the
Company and Procor, the following is, as of the date hereof, a fair and
accurate summary of the principal Canadian federal income tax consequences to a
Certificate Owner who is a non-resident of Canada and who purchased Pass
Through Certificates issued by a Trust that acquires a Procor ETC. This
summary is based on the current provisions of the Income Tax Act (Canada) (the
"Tax Act") and the regulations thereunder, counsel's understanding of the
current administrative practices published by Revenue Canada and all specific
proposals to amend the Tax Act and the regulations announced by the Minister of
Finance prior to the date hereof. This summary does not otherwise take into
account or anticipate changes in the law, whether by judicial, governmental or
legislative decision or action, nor does it take into account tax legislation
or considerations of any province or territory of Canada or any jurisdiction
other than Canada.
This summary is of a general nature only and is not intended to be,
and should not be construed as, legal or tax advice to any particular
Certificate Owner. Purchasers of Pass Through Certificates issued by a Trust
that acquires a Procor ETC should consult their own tax advisors with respect
to their particular circumstances.
The payment by Procor of the interest on and principal of a Procor ETC
to the Pass Through Trustee of __________________ will be exempt from Canadian
withholding tax. Also, the payment by such Pass Through Trustee of interest on
and principal of the Pass Through Certificates issued by a Trust that acquires
a Procor ETC to a Certificate Owner will be exempt from Canadian withholding
tax for a Certificate Owner who is, or is deemed to be, a non-resident of
Canada and with whom the Company and Procor deal at arm's length, within the
meaning of the Tax Act, at the time of making the payment. For the purposes of
the Tax Act, related persons (as therein defined) are deemed not to deal at
arm's length, and it is a question of fact whether persons not related to each
other deal at arm's length.
No other taxes on income (including taxable capital gains) will be
payable under the Tax Act in respect of the holding or disposition of a 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 Pass Through
Certificates issued by a Trust that acquires a Procor ETC or the receipt of
interest thereon by Certificate Owners who are, or are deemed to be,
non-residents of Canada for purposes of the Tax Act at any time during which
they hold such Pass Through Certificates and who do not use or hold and are not
deemed by such laws to use or hold such Pass Through Certificates 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.
CERTAIN _____________ TAXES
The Pass Through Trustee is a ____________________________ with its
principal corporate trust office in _______________________________________.
________________________________, counsel to _________________, has advised the
Company that, in its opinion, under currently applicable law, [assuming that
the Trusts are taxable as a corporation, but, rather, are classified as grantor
trusts under subpart E, Part I of Subchapter J of the Code,] (i) the Trusts
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 and (ii) Certificate Owners
who are not residents of or otherwise subject to tax in ____________ 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 solely as a result of
purchasing, holding (including receiving payments with respect to) or disposing
of a Pass Through Certificate, except to the extent (a) the Indenture Trustee
forecloses on the Equipment and any of the Equipment is located in
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____________, (b) the Equipment Trust Trustee forecloses on the Trust Equipment
and any of the Trust Equipment is located in ___________ or (c) the Indenture
Trust, the trust created under a Company Equipment Trust Agreement or under the
Procor Equipment Trust Agreement, or the Pass Through Trust, as applicable,
engages in business in ____________ as a result of such foreclosure. Neither
the Trusts nor the Certificate Owners will be indemnified for any state or
local taxes imposed on them, the imposition of which on a Trust could reduce
the amounts available for distribution to the Certificate Owners of such Trust.
In general, should a Certificate Owner or a Trust be subject to any state or
local tax which would not be imposed if the Pass Through Trustee were located
in a different jurisdiction in the United States, the Pass Through Trustee will
resign and a new Pass Through Trustee in such other jurisdiction will be
appointed.
PLAN OF DISTRIBUTION
The Company may sell the Pass Through Certificates being offered
hereby: (i) through agents, (ii) to or through underwriters, (iii) through
dealers, (iv) directly to purchasers or (v) through a combination of any such
methods of sale.
The distribution of the Pass Through Certificates may be effected from
time to time in one or more transactions either (i) at a fixed price or prices,
which may be changed, or (ii) at market prices prevailing at the time of sale,
or (iii) at prices related to such prevailing market prices, or (iv) at
negotiated prices.
Offers to purchase the Pass Through Certificates may be solicited
directly by the Company or by agents designated by the Company from time to
time. Any such agent, which may be deemed to be an underwriter as that term is
defined in the Securities Act, involved in the offer or sale of the Pass
Through Certificates in respect of which this Prospectus is delivered will be
named, and any commissions payable by the Company to such agent will be set
forth, in the applicable Prospectus Supplement. Unless otherwise indicated in
the Prospectus Supplement, any such agent will be acting on a best efforts
basis for the period of its appointment.
If an underwriter or underwriters are utilized in the sale, the
Company will execute an underwriting agreement with such underwriters at the
time of sale to them and the names of the underwriters and the terms of the
transaction, including commissions, discounts and other compensation of the
underwriters and dealers, if any, will be set forth in the Prospectus
Supplement, which will be used by the underwriters to make resales of the Pass
Through Certificates in respect of which this Prospectus is delivered to the
public.
If a dealer is utilized in the sale of the Pass Through Certificates
in respect of which this Prospectus is delivered, the Company or the Pass
Through Trustee, as the case may be, will sell such Pass Through Certificates
to the dealer, as principal. The dealer may then resell such Pass Through
Certificates to the public at varying prices to be determined by such dealer at
the time of resale.
Underwriters, dealers, agents and other persons may be entitled, under
agreements which may be entered into with the Company, to indemnification
against certain civil liabilities, including liabilities under the Securities
Act.
Underwriters, dealers and agents may be customers of, engage in
transactions with or perform services for the Company in the ordinary course of
business.
LEGAL OPINIONS
Unless otherwise indicated in the Prospectus Supplement to this
Prospectus, the validity of the Pass Through Certificates will be passed upon
for the Company by Neal, Gerber & Eisenberg, Chicago, Illinois, and for any
underwriters or agents, by Mayer, Brown & Platt, New York, New York. Both
Neal, Gerber & Eisenberg
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and Mayer, Brown & Platt will rely on the opinion of _________________________
_________________________ as to matters relating to the authorization,
execution, authentication, issuance and delivery of the Pass Through
Certificates under the Basic Agreement.
EXPERTS
The consolidated financial statements and related schedules of Union
Tank Car Company appearing in Union Tank Car Company's Annual Report (Form
10-K/A) for the year ended December 31, 1995, have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
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APPENDIX I
GLOSSARY OF CERTAIN TERMS
The following is a glossary of certain terms used in this Prospectus
relating to the Pass Through Certificates. The definitions of terms used in
this glossary that are also used in the Basic Agreement, Trust Supplements,
Indentures, Leases or Participation Agreements are qualified in their entirety
by reference to the definitions of such terms contained therein. Additional
terms or changes in the terms defined below may appear in the applicable
Prospectus Supplement.
"Basic Agreement" means the Pass Through Trust Agreement, dated as of
____________, 199_, between the Company and the Pass Through Trustee.
"Business Day," when used with respect to the Pass Through
Certificates of any series, means any day other than a Saturday, a Sunday, or a
day on which commercial banking institutions in New York, New York, Chicago,
Illinois or a city and state in which the Pass Through Trustee or any related
Indenture Trustee maintains its Corporate Trust Office are authorized or
obligated by law, regulation or executive order to be closed.
"Certificate Account" means the one or more non-interest-bearing
accounts established and maintained by the Pass Through Trustee pursuant to the
Basic Agreement on behalf of the Certificate holders of each Trust for the
deposit of payments representing Scheduled Payments on the Equipment Notes held
in such Trust.
"Certificate Owner" means a person acquiring an interest in a Pass
Through Certificate registered in the name of Cede & Co. as the nominee of The
Depository Trust Company.
"Certificateholder" means the Person in whose name a Pass Through
Certificate is registered.
"Code" means the United States Internal Revenue Code of 1986, as
amended.
"Commission" means the Securities and Exchange Commission.
"Company ETC" means each of the equipment trust
certificates to be issued pursuant to an Equipment Trust Agreement between the
Company and the Equipment Trust Trustee.
"ETCs" means the Company ETCs and the Procor ETCs.
"Equipment Group" means all the railcars (which may include various
types or categories of standard gauge rolling stock) in respect of which a
particular series of Equipment Notes is issued.
"Equipment Trust Agreement" means an equipment trust agreement between
the Company or Procor, as applicable, and the Equipment Trust Trustee.
"Equipment Trust Event of Default" means each of the events designated
as an Event of Default in an Equipment Trust Agreement, as described in the
applicable Prospectus Supplement.
"Equipment Trust Trustee" means _________________________, in its
capacity as trustee under an Equipment Trust Agreement, and each other
person which may from time to time act as successor trustee under such
agreement.
"Equipment Unit" or "Unit" means an individual railcar.
"Event of Default" means, with respect to the Equipment Notes held in
any Trust, the occurrence and continuance of an Indenture Event of Default
under one or more of the related Indentures.
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"Indenture" means each of the separate trust indenture and security
agreements entered into from time to time between an Owner Trustee and an
Indenture Trustee with respect to the issuance of Leased Equipment Notes, as
each such agreement may be amended or supplemented in accordance with its
respective terms.
"Indenture Event of Default" means each of the events designated as an
event of default in an Indenture, as described in the applicable Prospectus
Supplement.
"Indenture Trustee," when used with respect to any Equipment Note or
the Indenture applicable thereto, means the bank or trust company designated as
indenture trustee under such Indenture, and any successor to such Indenture
Trustee as such trustee.
"Lease" means each of the lease agreements entered into with respect
to Equipment Units between an Owner Trustee and the Company, as each such lease
agreement may from time to time be amended or supplemented.
"Lease Event of Default" means each of the events designated as an
event of default in a Lease, as described in the applicable Prospectus
Supplement. "Leased Equipment" means each Equipment Group leased by an Owner
Trustee to the Company pursuant to a Lease.
"Owner Participant" means each of the owner participants for whose
benefit an Owner Trustee owns an Equipment Group leased to the Company pursuant
to a Lease and its permitted successors and assigns.
"Owner Trustee," when used with respect to any Equipment Note or the
Indenture applicable thereto or the Lease related thereto, means the "Owner
Trustee" referred to in the applicable Indenture, not in its individual
capacity but solely as trustee; and each other Person which may from time to
time be acting as Owner Trustee in accordance with the provisions of the
applicable Indenture, Lease or Participation Agreement.
"Participation Agreement" when used with respect to any Equipment
Note, means the note purchase, participation, refinancing or similar agreement
or agreements referred to in the related Indenture, providing for, among other
things, the purchase of Equipment Notes by the Pass Through Trustee.
"Pass Through Certificate" means each of the Pass Through Certificates
to be issued by each of the Trusts pursuant to the Basic Agreement and the
related Trust Supplement.
"Pass Through Trustee" means, unless otherwise specified in a
Prospectus Supplement, __________________________________, in its capacity as
Pass Through Trustee under each Trust, and each other person which may from
time to time act as successor Pass Through Trustee under such Trust.
"Pool Balance" means, for each Trust, as of any date, the aggregate
unpaid principal amount of the Equipment Notes held in such Trust on such date
plus any amounts in respect of principal on such Equipment Notes held by the
Pass Through Trustee and not yet distributed plus the amount of any moneys held
in the related escrow account (other than earnings thereon). The Pool Balance
for each Trust as of any Regular Distribution Date or Special Distribution Date
shall be computed after giving effect to the payment of principal, if any, on
the Equipment Notes held in such Trust and distribution thereof to be made on
that date.
"Pool Factor" means, for each Trust, as of any date, the quotient
(rounded to the seventh decimal place) computed by dividing (i) the Pool
Balance of such Trust by (ii) the aggregate original principal amount of the
Equipment Notes held in such Trust. The Pool Factor for each Trust as of any
Regular Distribution Date or Special Distribution Date shall be computed after
giving effect to the payment of principal, if any, on the Equipment Notes held
in such Trust and distribution thereof to be made on that date.
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"Procor ETC" means each of the equipment trust certificates to be
issued pursuant to an Equipment Trust Agreement between Procor and the
Equipment Trust Trustee.
"Regular Distribution Date" means each date on which a Scheduled
Payment will be distributed, as specified in the applicable Prospectus
Supplement.
"Scheduled Payment" means each payment of interest or principal on an
Equipment Note scheduled to be received by the Pass Through Trustee on the
Regular Distribution Dates specified in the applicable Prospectus Supplement.
"Special Distribution Date" means each date on which a Special Payment
will be distributed, as specified in the applicable Prospectus Supplement.
"Special Payment" means (i) any payment of principal, premium, if any,
and interest resulting from the prepayment or purchase of an Equipment Note
held in a Trust, (ii) any payment of principal and interest (including any
interest accruing upon default) on or any other amount in respect of an
Equipment Note held in a Trust upon an Indenture Event of Default in respect
of, or upon acceleration relating to, such Equipment Note, (iii) any payment of
principal, premium, if any, and interest on an Equipment Note which is not in
fact paid within five days of a Regular Distribution Date, (iv) any proceeds
from the sale of any Equipment Note upon an Event of Default, or (v) the
amounts available for distribution from a Trust as a result of the failure to
apply such amounts to the purchase of Equipment Notes on or prior to the date
specified in the applicable Prospectus Supplement.
"Special Payments Account" means the one or more accounts established
and maintained by the Pass Through Trustee pursuant to the Basic Agreement on
behalf of the Certificateholders of each Trust for the deposit of payments
representing Special Payments on the Equipment Notes held in such Trust.
"Specified Investments" when used with respect to any Trust, means,
unless otherwise specified in the related Prospectus Supplement, (i) direct
obligations of the United States of America and agencies thereof for which the
full faith and credit of the United States of America is pledged, (ii)
obligations fully guaranteed by the United States of America, (iii)
certificates of deposit issued by, or bankers' acceptances of, or time deposits
with, any bank, trust company or national banking association incorporated or
doing business under the laws of the United States of America or one of the
states thereof having combined capital and surplus and retained earnings of at
least $500,000,000 (including any Indenture Trustee or Owner Trustee H such
conditions are met) and (iv) repurchase agreements with any financial
institution having a combined capital and surplus of at least $750,000,000
fully collateralized by obligations of the type described in clauses (i)
through (iii) above; provided that if all of the above investments are
unavailable, the entire amounts to be invested may be used to purchase Federal
funds from an entity described in clause (iii) above; and provided further that
no investment shall be eligible as a "Specified Investment" unless the final
maturity or date of return of such investment is 91 days or less from the date
of purchase thereof.
"Trust" means each of the Union Tank Car Company Pass Through Trusts
to be formed pursuant to the Basic Agreement and a Trust Supplement.
"Trust Property" means the Equipment Notes held as the property of a
Trust and all funds from time to time deposited in the related Certificate
Account, the related Special Payments Account and any other account maintained
as a part of such Trust, including any proceeds from the sale by the Pass
Through Trustee of any such Equipment Note in connection with an Event of
Default.
"Trust Supplement" means each of the Pass Through Trust Supplements
between the Company and the Pass Through Trustee, pursuant to each of which a
Trust is formed and a series of Pass Through Certificates is issued to evidence
fractional undivided ownership interests in the Trust Property held in such
Trust.
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[Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.]
SUBJECT TO COMPLETION DECEMBER 2, 1996
PROSPECTUS
$400,000,000
UNION TANK CAR COMPANY
DEBT SECURITIES
Union Tank Car Company, a Delaware corporation (the "Company"), may offer from
time to time, in one or more series, up to $400,000,000 aggregate principal
amount (or the equivalent in foreign currencies or currency units) of its
debt securities ("Debt Securities"), on terms to be determined at the time the
Debt Securities are offered for sale. Unless otherwise provided in a
Prospectus Supplement, the Debt Securities of any series may be represented by
a single global certificate registered in the name of a depository's nominee
and, if so represented, beneficial interests in the global certificate will be
shown on, and transfers thereof will be effected only through, records
maintained by the depository and its participants. Debt Securities may be
offered for sale directly to purchasers and may also be offered through
underwriters, dealers or agents. The names of any underwriters, dealers or
agents and any compensation to such underwriters, dealers or agents will be set
forth in the Prospectus Supplement.
The terms of the Debt Securities, including, where applicable, the specific
designation, aggregate principal amount, authorized denominations,
currencies in which such Debt Securities are issued or payable, maturity, rate
(or manner of calculation thereof) and time of payment of interest, if any,
whether the Debt Securities are issuable in registered form or bearer form or
both, whether any series of the Debt Securities will be represented by a single
global certificate, any terms for redemption or for sinking fund payments,
whether the Debt Securities are convertible into Debt Securities of a different
series, the initial public offering price, the net proceeds to the Company from
the sale of the Debt Securities and any other specific terms in connection with
the offering and sale of the Debt Securities in respect of which this
Prospectus is being delivered will be set forth in a Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
This Prospectus may not be used to consummate a sale of Debt Securities unless
accompanied by a Prospectus Supplement.
The date of this Prospectus is , 1997.
37
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to the Debt Securities. This Prospectus, which forms a
part of the Registration Statement, does not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information pertaining to the Debt Securities and the Company, reference is
made to the Registration Statement. Any statement contained herein concerning
the provisions of any document is not necessarily complete and, in each
instance, reference is made to the copy of such document filed as an exhibit to
the Registration Statement or otherwise filed with the Commission.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Commission.
Information concerning the Company can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the following Regional Offices of the
Commission: Chicago Regional Office, Citicorp Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661 and New York Regional Office, 7 World Trade
Center, Suite 1300, New York, New York 10048. Copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. Such materials also
may be accessed electronically by means of the Commission's home page on the
Internet at http://www.sec.gov.
DOCUMENTS INCORPORATED BY REFERENCE
The Company's Annual Report on Form 10-K/A for the fiscal year ended
December 31, 1995 and its Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996, June 30, 1996 and September 30, 1996, as filed with the
Commission pursuant to the Exchange Act, are incorporated herein by reference.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein, or contained in
this Prospectus, shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written request of such person, a copy (without
exhibits) of any or all documents incorporated by reference in this Prospectus.
Requests for such copies should be directed to the General Counsel and
Secretary, Union Tank Car Company, 225 West Washington Street, Chicago,
Illinois 60606, telephone (312) 372-9500.
USE OF PROCEEDS
The net proceeds to be received by the Company from the sale of Debt
Securities will be added to the general funds of the Company and may be used to
finance the addition of railcars to the Company's fleet and other capital
expenditures, to finance acquisitions, to repay outstanding indebtedness, or
for other corporate purposes or as may be described in a Prospectus Supplement.
The Company has not allocated a specific portion of the proceeds for any
particular use at this time. Pending such use, the net proceeds may be
temporarily invested in short-term securities.
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THE COMPANY
Union Tank Car Company (with its wholly-owned subsidiaries herein
collectively referred to, except as the context otherwise requires, as the
"Company") is principally engaged in the leasing of railway tank cars and other
rail cars to United States, Canadian and Mexican manufacturers and other
shippers of chemical products, including liquid fertilizers, petroleum
products, including liquid petroleum gas, food products and bulk plastics. The
Company owns and operates one of the largest fleets of privately-owned railway
tank cars in the world.
The Company, which was incorporated in Delaware in 1980 and is the
successor to a business which was incorporated in New Jersey in 1891 and
reincorporated in Delaware in 1968, is a wholly-owned subsidiary of Marmon
Industrial Corporation, a wholly-owned subsidiary of Marmon Holdings, Inc.
Substantially all the stock of Marmon Holdings, Inc. is owned, directly or
indirectly, by trusts for the benefit of certain members of the Pritzker
family. As used herein, "Pritzker family" refers to the lineal descendants of
Nicholas J. Pritzker, deceased.
The Company's principal executive offices are located at 225 West
Washington Street, Chicago, Illinois 60606, and its telephone number is (312)
372-9500.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and
provisions of the Debt Securities to which any Prospectus Supplement may
relate. The particular terms and provisions of the series of Debt Securities
offered by a Prospectus Supplement, including any additional covenants or
changes to existing covenants relating to such series, and the extent to which
such general terms and provisions described below may apply thereto, will be
described in the Prospectus Supplement relating to such series of Debt
Securities.
The Debt Securities are to be issued under an Indenture, dated as of
____________, 1996, as supplemented (the "Debt Indenture"), between the Company
and _______________________________________, as Trustee (the "Debt Trustee").
The following summaries of certain provisions of the Debt Securities and the
Debt Indenture do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all provisions of the Debt
Securities and the Debt Indenture, including the definitions therein of certain
terms. Particular sections of the Debt Indenture which are relevant to the
discussion are cited parenthetically. Wherever particular sections or defined
terms of the Debt Indenture are referred to, it is intended that such sections
or defined terms shall be incorporated herein by reference. Capitalized terms
not otherwise defined herein shall have the meaning ascribed to such terms in
the Debt Indenture.
GENERAL
The Debt Indenture does not limit the amount of Debt Securities which
can be issued thereunder or the amount of debt which may otherwise be incurred
by the Company, and additional debt securities may be issued under the Debt
Indenture up to the aggregate principal amount which may be authorized from
time to time by, or pursuant to a resolution of, the Company's Board of
Directors or by a supplemental indenture. Reference is made to the Prospectus
Supplement for the following terms, if applicable, of the particular series of
Debt Securities being offered thereby: (i) the title of the Debt Securities of
the series; (ii) any limit upon the aggregate principal amount of the Debt
Securities of the series; (iii) the date or dates on which the principal of the
Debt Securities of the series will be payable; (iv) the rate or rates (or
manner of calculation thereof), if any, at which the Debt Securities of the
series will bear interest, the date or dates from which any such interest will
accrue and on which such interest will be payable, and, with respect to Debt
Securities of the series in registered form, the record date for the interest
payable on any interest payment date; (v) the place or places where the
principal of and interest, if any, on the Debt Securities of the series will be
payable; (vi) any redemption or sinking fund provisions; (vii) the
denominations in which Debt Securities of the series shall be issuable; (viii)
if other than the principal amount thereof, the portion of the principal amount
of Debt Securities of the series which will be payable upon declaration of
acceleration of the maturity thereof; (ix) whether the Debt Securities of the
series will be issuable in registered or bearer form or
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both, any restrictions applicable to the offer, sale or delivery of Debt
Securities in bearer form ("bearer Debt Securities") and whether and the terms
upon which bearer Debt Securities will be exchangeable for Debt Securities in
registered form ("registered Debt Securities") and vice versa; (x) any
provisions relating to the conversion of Debt Securities of the series into
Debt Securities of a different series; (xi) whether and under what
circumstances the Company will pay additional amounts on the Debt Securities of
the series held by a person who is not a U.S. person (as defined below) in
respect of taxes or similar charges withheld or deducted and, if so, whether
the Company will have the option to redeem such Debt Securities rather than pay
such additional amounts; (xii) the currencies in which payments of interest,
premium or principal are payable with respect to such Debt Securities; (xiii)
whether the Debt Securities of any series will be issued as one or more Global
Securities; (xiv) whether Debt Securities of the series will be issuable in
Tranches; and (xv) any additional provisions or other terms not inconsistent
with the provisions of the Debt Indenture, including any terms which may be
required by or advisable under United States laws or regulations or advisable
in connection with the marketing of Debt Securities of such series. (Section
2.1 and 2.2) To the extent not described herein, principal and interest, if
any, will be payable, and the Debt Securities of a particular series will be
transferable, in the manner described in the Prospectus Supplement relating to
such series. "Principal" when used herein includes, when appropriate, the
premium, if any, on the Debt Securities.
Each series of Debt Securities will constitute unsecured and
unsubordinated indebtedness of the Company and will rank on a parity with the
Company's other unsecured and unsubordinated indebtedness. There are no
covenants or "event risk" provisions contained in the Debt Indenture that may
afford holders of Debt Securities protection in the event of a highly leveraged
transaction involving the Company.
Debt Securities of any series may be issued as registered Debt
Securities or bearer Debt Securities or both as specified in the terms of the
series. Additionally, Debt Securities of any series may be represented by a
single global note registered in the name of a depository's nominee and, if so
represented, beneficial interests in such global note will be shown on, and
transfers thereof will be effected only through, records maintained by a
designated depository and its participants. Unless otherwise indicated in the
Prospectus Supplement, Debt Securities will be issued in the denomination of
$1,000 and integral multiples thereof and bearer Debt Securities will not be
offered, sold, resold or delivered to U.S. persons in connection with their
original issuance. Debt Securities of any series may be denominated in and
payments of principal and interest may be made in United States dollars or any
other currency, including composite currencies such as the European Currency
Unit. For purposes of this Prospectus, "U.S. person" means a citizen or
resident of the United States, any corporation, partnership or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, or any estate or trust the income of which is subject to
United States federal income taxation regardless of its source.
To the extent set forth in the Prospectus Supplement, except in
special circumstances set forth in the Debt Indenture, interest on bearer Debt
Securities will be payable only against presentation and surrender of the
coupons for the interest installments evidenced thereby as they mature at a
paying agency of the Company located outside of the United States and its
possessions. (Section 2.5(c)) The Company will maintain such an agency for a
period of two years after the principal of such bearer Debt Securities has
become due and payable. During any period thereafter for which it is necessary
in order to conform to United States tax laws or regulations, the Company will
maintain a paying agent outside of the United States and its possessions to
which the bearer Debt Securities and coupons related thereto may be presented
for payment and will provide the necessary funds therefor to such paying agent
upon reasonable notice. (Section 2.4)
Bearer Debt Securities and the coupons related thereto will be
transferable by delivery. (Section 2.8(f))
If appropriate, United States federal income tax consequences
applicable to a series of Debt Securities will be described in the Prospectus
Supplement relating thereto.
BOOK-ENTRY REGISTRATION
If the Prospectus Supplement so indicates, the Debt Securities will be
represented by one or more certificates (the "Global Securities"). The Global
Securities representing Debt Securities will be deposited with,
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or on behalf of, The Depository Trust Company ("DTC") or other successor
depository appointed by the Company (DTC or such other depository is herein
referred to as the "Depository") and registered in the name of the Depository
or its nominee. Debt Securities represented by a Global Security will not be
issuable in definitive form.
DTC currently limits the maximum denomination of any single Global
Security to $200,000,000. Therefore, for purposes hereof, "Global Security"
refers to the Global Security or Global Securities representing the entire
issue of Debt Securities of a particular series.
DTC has advised the Company and any underwriters, dealers or agents
named in the Prospectus Supplement as follows: DTC is a limited-purpose trust
company organized under the laws of the State of New York, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC was created to hold
securities for its participants ("DTC Participants") and to facilitate the
clearance and settlement of securities transactions between DTC Participants
through electronic book-entry changes in accounts of DTC Participants, thereby
eliminating the need for physical movement of securities certificates. DTC
Participants include securities brokers and dealers, banks, trust companies and
clearing corporations. Indirect access to the DTC book-entry system is also
available to others, such as banks, brokers, dealers and trust companies, that
clear through or maintain a custodial relationship with a DTC Participant,
either directly or indirectly ("Indirect Participants").
Upon the issuance by the Company of Debt Securities represented by a
Global Security, DTC will credit, on its book-entry registration and transfer
system, the respective principal amounts of the Debt Securities represented by
such Global Security to the accounts of DTC Participants. The accounts to be
credited shall be designated by the underwriters, dealers or agents. Ownership
of beneficial interests in the Global Security will be limited to DTC
Participants and Indirect Participants. Ownership of beneficial interests in
Debt Securities represented by the Global Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
DTC (with respect to interests of DTC Participants), or by DTC Participants or
Indirect Participants (with respect to persons other than DTC Participants).
The laws of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such limits and such
laws may impair the ability to transfer beneficial interests in the Global
Security.
So long as the Depository for the Global Security, or its nominee, is
the registered owner of the Global Security, the Depository or its nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the Debt
Indenture. Except as provided below, owners of beneficial interests in Debt
Securities represented by the Global Security will not be entitled to have Debt
Securities represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of Debt Securities in
definitive form and will not be considered the owners or holders thereof under
the Debt Indenture.
Payments of principal of and interest, if any, on the Debt Securities
represented by the Global Security registered in the name of DTC or its nominee
will be made by the Company through the Debt Trustee under the Debt Indenture
or a paying agent (the "Paying Agent"), which may also be the Debt Trustee
under the Debt Indenture, to DTC or its nominee, as the case may be, as the
registered owner of the Global Security. Neither the Company, the Debt
Trustee, nor the Paying Agent will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of the Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company has been advised that DTC, upon receipt of any payment of
principal or interest in respect of a Global Security, will credit immediately
the accounts of DTC Participants with payment in amounts proportionate to their
respective holdings in principal amount of beneficial interest in such Global
Security as shown on the records of DTC. The Company expects that payments by
DTC Participants to owners of beneficial interests in a Global Security will be
governed by standing customer instructions and customary practices, as is now
the case with securities held for the accounts of customers in bearer form or
registered in "street name" and will be the responsibility of such DTC
Participants.
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If the Depository with respect to a Global Security is at any time
unwilling or unable to continue as Depository and a successor Depository is not
appointed by the Company within 90 days, the Company will issue certificated
notes in exchange for the Debt Securities represented by such Global Security.
The information contained in this section concerning DTC and DTC's
book-entry system has been obtained from sources that the Company believes to
be reliable but the Company takes no responsibility for the accuracy thereof.
SAME-DAY SETTLEMENT
If the Prospectus Supplement so indicates, settlement for the Debt
Securities will be made by the underwriters, dealers or agents in immediately
available funds and all payments of principal and interest on the Debt
Securities will be made by the Company in immediately available funds.
Secondary trading in long-term notes and debentures of corporate issuers is
generally settled in clearinghouse or next-day funds. In contrast, the Debt
Securities subject to settlement in immediately available funds will trade in
the Depository's Same-Day Funds Settlement System until maturity, and secondary
market trading activity in such Debt Securities will therefore be required by
the Depository to settle in immediately available funds. No assurance can be
given as to the effect, if any, of settlement in immediately available funds on
trading activity in the Debt Securities.
EXCHANGE OF DEBT SECURITIES
Registered Debt Securities may be exchanged, subject to certain
specified restrictions, for an equal aggregate principal amount of registered
Debt Securities of the same series and date of maturity in such authorized
denominations as may be requested upon surrender of the registered Debt
Securities at an agency of the Company maintained for such purpose and upon
fulfillment of all other requirements of such agent. (Section 2.8(a))
To the extent permitted by the terms of a series of Debt Securities
authorized to be issued in registered form and bearer form, bearer Debt
Securities may be exchanged for an equal aggregate principal amount of
registered or bearer Debt Securities of the same series and date of maturity in
such authorized denominations as may be requested upon surrender of the bearer
Debt Securities with all unpaid coupons relating thereto at an agency of the
Company maintained for such purpose and upon fulfillment of all other
requirements of such agent. (Section 2.8(b)) As of the date of this
prospectus, temporary United States Treasury regulations essentially prohibit
exchanges of registered debt securities for bearer debt securities and, unless
such regulations are modified, the terms of a series of debt securities will
not permit registered debt securities to be exchanged for bearer debt
securities.
AMENDMENT AND WAIVER
Subject to certain exceptions, the Debt Indenture and the Debt
Securities may be amended or supplemented by the Company and the Debt Trustee
with the written consent of the holders of a majority in principal amount of
the outstanding Debt Securities of each series affected by the amendment or
supplement (with each series voting as a class), or compliance with any
provision may be waived with the consent of the holders of a majority in
principal amount of the outstanding Debt Securities of each series affected by
such waiver (with each series voting as a class). However, without the consent
of each Securityholder affected, an amendment or waiver may not (i) reduce the
amount of Debt Securities whose holders must consent to an amendment or waiver,
(ii) change the rate of or change the time for payment of interest on any Debt
Security; (iii) change the principal of or change the Stated Maturity of any
Debt Security; (iv) reduce any premium payable upon redemption of any Debt
Security; (v) waive a default in the payment of the principal of or interest on
any Debt Security; (vi) make any Debt Security payable in money other than that
stated in the Debt Security; or (vii) impair the right to institute suit for
the enforcement of any payment on or with respect to any Debt Security.
(Section 9.02) The Debt Indenture may be amended or
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supplemented without the consent of any Securityholder (i) to cure any
ambiguity, defect or inconsistency in the Debt Indenture or in the Debt
Securities of any series; (ii) to provide for the assumption of all the
obligations of the Company under the Debt Securities and any coupons
appertaining thereto and under the Debt Indenture by any corporation in
connection with a merger, consolidation, or transfer or lease of the Company's
property and assets substantially as an entirety, as provided for in the Debt
Indenture; (iii) to secure the Debt Securities; (iv) to provide for
uncertificated Debt Securities in addition to or in place of certificated Debt
Securities; (v) to make any change that does not adversely affect the rights of
any Securityholder; (vi) to provide for the issuance of and establish the form
and terms and conditions of a series of Debt Securities or to establish the
form of any certifications required to be furnished pursuant to the terms of
the Debt Indenture or any series of Debt Securities; or (vii) to add to rights
of Securityholders. (Section 9.1)
SUCCESSOR ENTITY
The Company may consolidate with, or merge into, or be merged into, or
transfer or lease its property and assets substantially as an entirety to,
another U.S. corporation which assumes all the obligations of the Company under
the Debt Securities and any coupons appertaining thereto and under the Debt
Indenture if, after giving effect thereto, no default under the Debt Indenture
shall have occurred and be continuing. Thereafter, except in the case of a
lease, all such obligations of the Company shall terminate. (Section 5.1 and
Section 5.2)
DEFEASANCE, SATISFACTION AND DISCHARGE OF THE DEBT SECURITIES PRIOR TO MATURITY
Defeasance. Unless provided for otherwise in the Prospectus
Supplement, if the Company shall deposit with the Debt Trustee, in trust, at or
before maturity, lawful money or direct obligations of the United States of
America or obligations the principal of and interest on which are guaranteed by
the United States of America in such amounts and maturing at such times that
the proceeds of such obligations to be received upon the respective maturities
and interest payment dates of such obligations will provide funds sufficient,
in the opinion of a nationally recognized firm of independent public
accountants chosen by the Company, to pay when due the principal of and
interest on the Debt Securities to maturity (such money or direct obligations
of, or obligations guaranteed by, the United States of America, initially
deposited or equivalent cash or securities subsequently exchanged therefor, to
be held as security for the payment of such principal and interest), then the
Company may omit to comply with certain of the terms of the Debt Indenture as
they relate to the Debt Securities, [INCLUDING CERTAIN OF THE RESTRICTIVE
COVENANTS DESCRIBED HEREIN UNDER THE CAPTION "-- CERTAIN COVENANTS OF THE
COMPANY"] and the Event of Default described in clause (iv) under the caption
"Description of Debt Securities -- Events of Default," and such other
restrictive covenants or Events of Default as may be set forth in the
Prospectus Supplement. Defeasance of the Debt Securities would be subject to
the satisfaction of certain conditions, including, among others, (i) the
absence of an Event of Default at the date of the deposit, (ii) the perfection
of the holders' interest in such deposit and (iii) that such deposit would not
result in a breach of a material instrument by which the Company is bound.
(Section 8.2)
Satisfaction and Discharge. Upon the deposit of money or securities
contemplated above and the satisfaction of certain conditions, the Company may
omit to comply with its obligations duly and punctually to pay the principal of
and interest on the Debt Securities, or with any Events of Default with respect
thereto, and thereafter the holders of Debt Securities shall be entitled only
to payment out of the money or securities deposited with the Debt Trustee.
Such conditions may include, among others, (i) except in certain limited
circumstances involving a deposit made within one year of maturity, (A) the
absence of an Event of Default at the date of deposit or on the 91st day
thereafter, and (B) the delivery to the Debt Trustee by the Company of an
opinion of nationally recognized tax counsel to the effect that holders of Debt
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and discharge and will be subject to
Federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such deposit and discharge had not
occurred, and (ii) the receipt by the Company of an opinion of counsel to the
effect that such satisfaction and discharge will not result in a violation of
the rules of any nationally recognized exchange on which the Debt Securities
are listed. (Section 8.1)
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EVENTS OF DEFAULT
The following events are defined in the Debt Indenture as "Events of
Default" with respect to a series of Debt Securities: (i) default in the
payment of interest on any Debt Security of such series for 30 days; (ii)
default in the payment of the principal of any Debt Security of such series;
(iii) default in the payment of any sinking fund installment required to be
made by the Company with respect to any series of Debt Securities; (iv) failure
by the Company for 90 days after notice to it to comply with any of its other
agreements in the Debt Securities of such series, in the Debt Indenture or in
any supplemental indenture under which the Debt Securities of that series may
have been issued; and (v) certain events of bankruptcy or insolvency. (Section
6.1) If an Event of Default occurs with respect to the Debt Securities of any
series and is continuing, the Debt Trustee or the holders of at least 25% in
principal amount of all of the outstanding Debt Securities of that series may
declare the principal (or, if the Debt Securities of that series are original
issue discount Debt Securities, such portion of the principal amount as may be
specified in the terms of that series) of, and any accrued interest on, all the
Debt Securities of that series to be due and payable. Upon such declaration,
such principal (or, in the case of original issue discount Debt Securities,
such specified amount) and all accrued interest thereon shall be due and
payable immediately. (Section 6.2)
Securityholders may not enforce the Debt Indenture or the Debt
Securities, except as provided in the Debt Indenture. (Section 6.6) The Debt
Trustee may require indemnity satisfactory to it before it enforces the Debt
Indenture or the Debt Securities. (Section 7.1(f)) Subject to certain
limitations, holders of a majority in principal amount of the Debt Securities
of each series affected (with each series voting as a class) may direct the
Debt Trustee in its exercise of any trust power. (Section 6.5) The Debt
Trustee may withhold from Securityholders notice of any continuing default
(except a default in payment of principal or interest) if it determines in good
faith that withholding notice is in their interests. (Section 7.5) The
Company is not required under the Debt Indenture to furnish any periodic
evidence as to the absence of default or as to compliance with the terms of the
Debt Indenture.
CONCERNING THE DEBT TRUSTEE
The Company may maintain banking relationships in the ordinary course
of business with the Debt Trustee. Prior relationships between the Company and
the trustee to be described.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities being offered hereby: (i)
directly to purchasers, (ii) through agents, (iii) to or through underwriters,
(iv) through dealers or (v) through a combination of any such methods of sale.
The distribution of the Debt Securities may be effected from time to
time in one or more transactions either (i) at a fixed price or prices, which
may be changed, or (ii) at market prices prevailing at the time of sale, or
(iii) at prices related to such prevailing market prices, or (iv) at negotiated
prices.
Offers to purchase Debt Securities may be solicited directly by the
Company or by agents designated by the Company from time to time. Any such
agent, which may be deemed to be an underwriter as that term is defined in the
Securities Act, involved in the offer or sale of the Debt Securities in respect
of which this Prospectus is delivered will be named, and any commissions
payable by the Company to such agent will be set forth, in the Prospectus
Supplement. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its appointment.
If an underwriter or underwriters are utilized in the sale, the
Company will execute an underwriting agreement with such underwriters at the
time of sale to them and the names of the underwriters and the terms of the
transaction, including commissions, discounts and other compensation of the
underwriters and dealers, if any, will be set forth in the Prospectus
Supplement, which will be used by the underwriters to make resales of the Debt
Securities in respect of which this Prospectus is delivered to the public.
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If a dealer is utilized in the sale of the Debt Securities in respect
of which this Prospectus is delivered, the Company will sell such Debt
Securities to the dealer, as principal. The dealer may then resell such Debt
Securities to the public at varying prices to be determined by such dealer at
the time of resale.
If so indicated in the Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by certain
specified institutions to purchase Debt Securities from the Company at the
public offering price set forth in the Prospectus Supplement pursuant to
contracts providing for payment and delivery on a specified date in the future.
Such contracts will be subject only to those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
Underwriters, dealers, agents and other persons may be entitled, under
agreements which may be entered into with the Company, to indemnification
against certain civil liabilities, including liabilities under the Securities
Act.
Underwriters, dealers and agents may be customers of, engage in
transactions with or perform services for the Company in the ordinary course of
business.
LEGAL OPINIONS
Unless otherwise indicated in the Prospectus Supplement to this
Prospectus, certain legal matters in connection with the Debt Securities
offered hereby will be passed upon for the Company by Neal, Gerber & Eisenberg,
Chicago, Illinois, and for any underwriters or agents, by Mayer, Brown & Platt,
New York, New York.
EXPERTS
The consolidated financial statements of Union Tank Car Company
appearing in Union Tank Car Company's Annual Report (Form 10-K/A) for the year
ended December 31, 1995, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses (other than
underwriting discounts and commissions) to be incurred by the registrant in
connection with the offering described in this Registration Statement:
Securities and Exchange Commission registration fee . . . . . . $121,213*
Blue Sky filing and counsel fees . . . . . . . . . . . . . . . . 8,000
Trustees' fees and expenses . . . . . . . . . . . . . . . . . . **
Printing expenses . . . . . . . . . . . . . . . . . . . . . . . 65,000
Auditors' fees and expenses . . . . . . . . . . . . . . . . . . **
Attorneys' fees and expenses . . . . . . . . . . . . . . . . . . 125,000
Rating agency fees . . . . . . . . . . . . . . . . . . . . . . . 200,000
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . **
Total . . . . . . . . . . . . . . . . . . . . . . . . . . $ **
========
- --------------------------
* Actual. All other amounts are estimated.
** To be provided by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law, Article Sixth of
the Company's Restated Certificate of Incorporation and Article VIII of the
Company's By-Laws authorize and empower the Company to indemnify its directors,
officers, employees and agents against liabilities incurred in connection with,
and related expenses resulting from, any claim, action or suit brought against
any such person as a result of such person's relationship with the Company,
provided that such persons acted in accordance with a stated standard of
conduct in connection with the acts or events on which such claim, action or
suit is based. The finding of either civil or criminal liability on the part of
such persons in connection with such acts or events is not necessarily
determinative of the question of whether such persons have met the required
standard of conduct and are, accordingly, entitled to be indemnified.
Section 124 of the Canada Business Corporations Act and Section 33 of
By-law 15 of Procor authorize and empower Procor to indemnify its directors and
officers against all costs, charges and expenses including an amount paid to
settle an action or satisfy a judgment, reasonably incurred by him in respect
of any civil, criminal or administrative action or proceeding to which he is
made a party by reason of being or having been a director or officer of Procor,
if he acted honestly and in good faith with a view to the best interests of
Procor and, in the case of a criminal or administrative action or proceeding
that is enforced by a monetary penalty, if he had reasonable grounds for
believing that his conduct was lawful.
Reference is made to Section 8 of the form of Underwriting Agreement
filed as Exhibit I hereto for provisions regarding indemnification of the
Company and Procor and their respective officers, directors and controlling
persons against certain liabilities.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS
- ------ ------------------------
1(a) -- Form of Underwriting Agreement (Pass Through Certificates).
1(b) -- Form of Underwriting Agreement (Debt Securities).
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EXHIBIT
NUMBER DESCRIPTION OF DOCUMENTS
- ------ ------------------------
4(a)(1) -- Form of Pass Through Trust Agreement among the Company, Procor and the Pass Through Trustee.
4(a)(2) -- Form of Pass Through Certificate (included in Exhibit 4(a)(1)).
4(b) -- Form of Indenture between the Company and the Debt Trustee.
4(c)(1) -- Form of Equipment Trust Agreement between the Company and the Equipment Trust Trustee relating to the
Company ETCs.*
4(c)(2) -- Form of the Company ETC (included in Exhibit 4(c)(1)).*
4(c)(3) -- Form of Equipment Trust Agreement between Procor and the Equipment Trust Trustee relating to the
Procor ETCs.*
4(c)(4) -- Form of the Procor ETC (included in Exhibit 4(c)(3)).*
5(a) -- Opinion of Neal, Gerber & Eisenberg, counsel for the Company.*
5(b) -- Opinion of , counsel for the Pass Through Trustee.*
-----------------------------------------
8(a) -- Tax Opinion of Neal, Gerber & Eisenberg, counsel for the Company.*
8(b) -- Tax Opinion of Osler, Hoskin & Harcourt, counsel for Procor.*
8(c) -- Tax Opinion of , counsel for the Pass Through Trustee.*
----------------------------
12 -- Computation of Ratios of Earnings to Fixed Charges.**
23(a) -- Consent of Ernst & Young LLP, Independent Auditors.
23(b) -- Consent of Neal, Gerber & Eisenberg (included in Exhibits 5(a) and 8(a)).*
23(c) -- Consent of (included in Exhibit 5(b) and 8(c)).*
------------------------------------------
23(d) -- Consent of Osler, Hoskin & Harcourt (included in Exhibit 8(b)).*
24 -- Powers of Attorney (included on the signature pages to this Registration Statement).
25(a) -- Statement of Eligibility of Pass Through Trustee on Form T-1.*
25(b) - Statement of Eligibility of Indenture Trustee on Form T-1.*
__________________________
* To be filed by amendment.
** The computation for each of the five fiscal years ended December 31,
1995, 1994, 1993, 1992 and 1991 is incorporated herein by reference to
Exhibit 12 to the Company's Annual Report on Form 10-K/A for the year
ended December 31, 1995.
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ITEM 17. UNDERTAKINGS
A. Undertakings Regarding Rule 415 Offering.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
B. Undertaking Regarding Documents Subsequently Filed Under the
Exchange Act.
The Company and Procor hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new Registration Statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Undertaking in Respect of Indemnification.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the provisions described under Item 15
above, or otherwise, the Company has been advised that in the opinion of the
Commission such indemnification is
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against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
D. Undertakings Pursuant to Rule 430A.
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Company pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to
be part of this Registration Statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
E. Undertakings Under the Trust Indenture Act of 1939.
The Company hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the
Securities Act of 1933.
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49
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Union Tank
Car Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Chicago, State of Illinois on the 27th day of
November, 1996.
UNION TANK CAR COMPANY
/s/ R.C. Gluth
-----------------------------
Robert C. Gluth,
Executive Vice President,
Treasurer and Director
Each person whose signature appears below hereby constitutes and
appoints Robert C. Gluth, Robert W. Webb and Kenneth P. Fischl, and each of
them, the true and lawful attorneys-in-fact and agents of the undersigned, with
full power of substitution and resubstitution, for and in the name, place and
stead of the undersigned and to file the same, with all exhibits thereto, in
any and all capabilities, to sign any and all amendments and any registration
statement filed pursuant to Rule 462(b) of the Securities Act of 1933, as
amended (including post-effective amendments thereto and other documents in
connection therewith), with the Securities and Exchange Commission, and hereby
grants to such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 27th day of November, 1996.
Signature Title
--------- -----
/s/ Jay A. Pritzker Chairman of the Board
- ---------------------------------------------------- and Director
Jay A. Pritzker
/s/ Robert A. Pritzker President and Director
- --------------------------------------------------- (principal executive officer)
Robert A. Pritzker
/s/ R.C. Gluth Executive Vice President,
- ----------------------------------------------------- Treasurer and Director
Robert C. Gluth (principal financial and accounting
officer)
/s/ K.P. Fischl Director
- -----------------------------------------------------
K.P. Fischl
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Procor
Limited certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Chicago, State of Illinois on the 27th day of
November, 1996.
PROCOR LIMITED
/s/ R.C. Gluth
-----------------------------
Robert C. Gluth,
Vice President,
Treasurer and Director
Each person whose signature appears below hereby constitutes and
appoints Robert C. Gluth, Robert W. Webb and Kenneth P. Fischl, and each of
them, the true and lawful attorneys-in-fact and agents of the undersigned, with
full power of substitution and resubstitution, for and in the name, place and
stead of the undersigned and to file the same, with all exhibits thereto, in
any and all capabilities, to sign any and all amendments and any registration
statement filed pursuant to Rule 462(b) of the Securities Act of 1933, as
amended (including post-effective amendments thereto and other documents in
connection therewith), with the Securities and Exchange Commission, and hereby
grants to such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 27th day of November, 1996.
Signature Title
--------- -----
/s/ Frank D. Lester President
- --------------------------------------------------- (principal executive officer)
Frank D. Lester
/s/ R.C. Gluth Vice President, Treasurer and Director
- ---------------------------------------------------- (principal financial and accounting
Robert C. Gluth officer)
/s/ David H. Patterson Director
- --------------------------------------------------
David H. Patterson
/s/ K.P. Fischl Director
- -----------------------------------------------------
K.P. Fischl
/s/ Peter E. Lawford Director
- ---------------------------------------------------
Peter E. Lawford
/s/ S. Donald Hamilton Director
- -------------------------------------------------
S. Donald Hamilton
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