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EXHIBIT 1(b)
Union Tank Car Company
$_________
_____% ___________
[(Series ___)]
Underwriting Agreement
New York, New York
__________
Dear Ladies and Gentlemen:
Union Tank Car Company, a Delaware corporation (the "Company"), proposes
to cause to be sold to you the underwriters (the "Underwriters") $_______
aggregate principal amount of _____% _________ [(Series ___)], due _______,
with the interest rate and principal installment payments as set forth in
Schedule A hereto (the certificates, [together with the guaranty to be endorsed
thereon by the Company,] being herein referred to as the "Securities"), to be
issued under the _________, dated as of _______ (the "______ Agreement"),
between the Company and ____________, as trustee (the "Trustee").
1. Representations and Warranties. The Company represents and warrants
to, and agrees with you, that:
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(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement (file number 333-______) on such Form, including a related
Preliminary Prospectus (as hereinafter defined), for the registration
under the Act of the offering and sale of the Securities. The Company may
have filed one or more amendments thereto, including the related
Preliminary Prospectus, each of which has previously been furnished to
you. The Company will next file with the Commission one of the following:
(i) prior to effectiveness of such registration statement, a further
amendment to such registration statement, including the form of final
prospectus or (ii) a final prospectus in accordance with Rules 430A and
424(b)(1) or (4) under the Act. In the case of clause (ii), the Company
has included in such registration statement, as amended at the Effective
Date (as hereinafter defined), all information (other than Rule 430A
Information (as hereinafter defined)) required by the Act and the rules
thereunder to be included in the Prospectus (as hereinafter defined) with
respect to the Securities and the offering thereof. As filed, such
amendment and form of final prospectus, or such final prospectus, shall
contain all Rule 430A Information, together with all other such required
information, with respect to the Securities and the offering thereof and,
except to the extent you shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the
Execution Time (as hereinafter defined) or, to the extent not completed at
the Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest
Preliminary Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement (as hereinafter
defined) did or will, and when the Prospectus is first filed in accordance
with Rule 424(b) (if required) and on the Closing Date (as hereinafter
defined), the Prospectus (and any supplements thereto) will, comply in all
material respects with the applicable requirements of the Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
respective rules and regulations thereunder; on the Effective Date, the
Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date, the ______
Agreement did or will comply in all material respects with the
requirements of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules thereunder; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and
on the date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however,
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that the Company makes no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the Statement
of Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee and (ii) the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to
the Company by you specifically for use in connection with the preparation
of the Registration Statement or the Prospectus (or any supplement
thereto).
(c) The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "Effective Date" shall mean each date that
the Registration Statement and any post-effective amendment or amendments
thereto became or becomes effective. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the parties
hereto. "Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph (a) above and any preliminary prospectus included
in the Registration Statement at the Effective Date that omits Rule 430A
Information. "Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the Execution
Time or, if no filing pursuant to Rule 424(b) is required, shall mean the
form of final prospectus relating to the Securities included in the
Registration Statement at the Effective Date. "Registration Statement"
shall mean the registration statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution Time,
in the form in which it shall become effective) and, in the event any
post-effective amendment thereto becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended. Such
term shall include any Rule 430A Information deemed to be included therein
at the Effective Date as provided by Rule 430A. "Rule 424", "Rule 430A"
and "Regulation S-K" refer to such rules or regulation under the Act.
"Rule 430A Information" means information with respect to the Securities
and the offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. Any reference
herein to the Registration Statement, a Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the Effective Date, or the
issue date of such Preliminary Prospectus or the Prospectus, as the case
may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective Date of
the Registration Statement, or, the issue date of any Preliminary
Prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
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(d) The consolidated financial statements incorporated by reference in
the Registration Statement and Prospectus present fairly the consolidated
financial position of the Company and its subsidiaries as at the dates
indicated and the consolidated results of their operations and cash flows
for the periods specified and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
during the periods involved, except as indicated therein, and the
supporting schedules incorporated by reference in the Registration
Statement present fairly the information required to be stated therein.
(e) The documents incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the Exchange
Act, and the rules and regulations thereunder.
(f) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, there has been no material adverse change
in the condition, financial or otherwise, results of operations or general
affairs of the Company and its subsidiaries, taken as a whole.
(g) The Company and each Significant Subsidiary (with such term having
the meaning attributed to it under Rule 405 under the Act) of the Company
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it is chartered
or organized, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus, and is
duly qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or conducts
material business, except in such jurisdictions in which the failure to so
qualify would not have a material adverse effect on the Company and its
subsidiaries taken as a whole. Union owns either directly or indirectly,
all of the issued and outstanding capital stock of its subsidiaries, free
and clear of any lien, adverse claim, security interest or other
encumbrance.
(h) The execution and delivery by the Company of this Agreement, the
______ Agreement and the Securities, the consummation by the Company of
the transactions herein and therein contemplated, and the compliance by
the Company with the terms hereof and thereof do not and will not conflict
with, or result in a breach of any of the terms or provisions of, or
constitute a default under, the Certificate of Incorporation or By-Laws,
as amended, of the Company, or any of its subsidiaries, or any material
indenture, mortgage, or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which any of its properties
are bound, or any applicable law, rule, regulation, judgment, order or
decree of any
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government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its subsidiaries or
any of its properties; and, assuming due authorization, execution and
delivery by all parties thereto other than the Company, no consent,
approval, authorization, order or license of, or filing with or notice to
any government, governmental instrumentality, regulatory body or authority
or court, domestic or foreign, is required for the valid authorization,
issuance and delivery of the Securities, the valid authorization,
execution, delivery and performance by the Company of this Agreement and
the ______ Agreement or the consummation by the Company of the
transactions contemplated by this Agreement, the ______ Agreement and the
Securities, except (w) such as are required under the Act, the Trust
Indenture Act and the securities or Blue Sky laws of the various states,
(x) such filings, recordings or registrations with the Interstate Commerce
Commission and under Section 90 of the Railway Act of Canada as may be
required and (y) such other filings, recordings or registrations as may be
required under the ______ Agreement or the Securities.
(i) This Agreement and the ______ Agreement, assuming due
authorization, execution and delivery by the other parties thereto, have
each been duly authorized by the Company and, when executed and delivered
by the Company, will constitute valid and binding obligations of the
Company. The Securities and the ______ Agreement will conform in all
material respects to the descriptions thereof in the Prospectus.
(j) Ernst & Young, who reported on the consolidated financial
statements of the Company as of __________ and for the year then ended,
which statements are incorporated by reference in the Registration
Statement and Prospectus, were, as of the date of its report on such
consolidated financial statements, and are, as of the date hereof,
independent auditors as required by the Act and the rules and regulations
thereunder.
(k) The Securities have been duly authorized by the Company and when
duly executed and delivered by the Trustee and the Company in accordance
with the terms of the ______ Agreement and this Agreement, will be duly
issued under such _____ Agreement and will constitute valid and binding
obligations of the Company, and the holders thereof will be entitled to
the benefits of the _____ Agreement.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
cause to be sold to you, and you agree to purchase, from the Trustee at a
purchase price of 100% of the principal amount thereof, the Securities.
As compensation to you, for your commitment and obligations hereunder in
respect of the Securities, the Company will pay to you when due an amount equal
to ____% of the
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original aggregate principal amount of the Securities. The Company's
payments under this paragraph shall be made simultaneously with the payment by
you to the Trustee as specified in Section 3 hereof. Payment of such
compensation shall be made by Federal funds check or other immediately
available funds to the order of Salomon Brothers Inc.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at the office of Neal, Gerber & Eisenberg, Two North LaSalle Street,
Chicago, Illinois, at 9:00 a.m., Chicago time, on ________, or such later date
(not later than _______) as you shall designate, which date and time may be
postponed by agreement between you and the Company (such date and time of
delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made to you against payment by you
of the purchase price thereof to or upon the order of the Trustee by Federal
funds check or other immediately available funds. Certificates for the
Securities shall be registered in such names and in such denominations as you
may request not less than three full business days in advance of the Closing
Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by you in New York, New York, not later than 1:00 p.m.
on the business day prior to the Closing Date.
4. Offering by Salomon Brothers Inc and Morgan Stanley & Co. Incorporated.
It is understood that, after the Registration Statement becomes effective,
each of you propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements. The Company agrees with you that:
(a) The Company will use its reasonable best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective and the _____ Agreement to be
qualified under the Trust Indenture Act. The Company will not file any
amendment to the Registration Statement or supplement to the Prospectus
unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if filing
of the Prospectus is required under Rule 424(b), the Company will cause
the Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory
to you of such timely filing. The Company will promptly advise you (i)
when the Registration Statement, if not effective at the Execution Time,
and any amendment thereto, shall have become effective, (ii) when the
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b), (iii) when, prior
to termination of the offering of the Securities, any amendment to the
Registration Statement shall have been
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filed or become effective, (iv) of any request by the Commission for any
amendment to the Registration Statement or supplement to the
Prospectus or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose (and the Company agrees that it will use its reasonable
best efforts to prevent the issuance of any such stop order and, if
issued, to obtain as soon as possible the withdrawal thereof) and (vi) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose and (vii) during the period when a prospectus relating to the
Securities is required to be delivered under the Act, of the mailing or
the delivery to the Commission for filing of any document to be filed
pursuant to the Exchange Act.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Prospectus to comply with the
Act or the Exchange Act or the respective rules and regulations
thereunder, the Company promptly will prepare and file with the
Commission, subject to paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Underwriters an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and the applicable rules and
regulations thereunder.
(d) The Company will furnish to you and your counsel, without charge,
signed copies of the Registration Statement (including exhibits thereto)
and, so long as delivery of a prospectus by you or a dealer may be
required by the Act, as many copies of each Preliminary Prospectus and the
Prospectus and any amendments thereof and supplements thereto as you may
reasonably request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company will cooperate with you and your special counsel to
arrange for the qualification of the Securities for sale under the laws of
such jurisdictions as you may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of the
Securities and will cooperate with you and your counsel to arrange for the
determination of the legality of the Securities for purchase by
institutional investors; provided, however, that the Company will not
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be required to qualify to do business in any jurisdiction in order to
effect such qualification.
(f) Between the date of this Agreement and the Closing Date, the
Company will not, without your prior written consent, offer, sell, or
enter into any agreement to sell, any public debt securities registered
under the Act (other than the Securities).
(g) The Company confirms as of the date hereof that it is in compliance
with all provisions of Section 1 of Laws of Florida, Chapter 92-198, An
Act Relating to Disclosure of Doing Business with Cuba, and the Company
further agrees, if necessary, that if the Company commences engaging in
business with the government of Cuba or with any person or affiliate
located in Cuba after the date the Registration Statement becomes or has
become effective with the Commission or with the Florida Department of
Banking and Finance (the "Department"), whichever date is later, or if the
information reported in the Prospectus, if any, concerning the Company's
business with Cuba or with any person or affiliate located in Cuba changes
in any material way, the Company will provide the Department notice of
such business or change, as appropriate, in a form acceptable to the
Department.
6. Conditions to the Obligations of Salomon Brothers Inc and Morgan
Stanley & Co. Incorporated. Your obligations to purchase the Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates
delivered pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not later
than (i) 5:00 p.m., New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior to
3:00 p.m., New York City time, on such date or (ii) 12:00 noon, New York
City time, on the business day following the day on which the public
offering price was determined, if such determination occurred after 3:00
p.m., New York City time, on such date; if filing of the Prospectus, or
any supplement thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to you and to Moody's Investors,
Inc. Service and Standard and Poor's Corporation (together, the "Rating
Agencies") if requested by you, the opinion of Neal, Gerber & Eisenberg,
special counsel to the Company (incorporating and relying upon the
opinions of ___________, special
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Canadian counsel to the Company, as to Canadian law matters, and ________,
special Interstate Commerce Commission counsel to the Company, as to Interstate
Commerce Commission matters), dated the Closing Date, to the effect that:
(i) the Company and each of its Significant Subsidiaries has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its properties
and conduct its business as described in the Prospectus, and is duly
qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such qualification
wherein it owns or leases material properties or conducts material
business, except in such jurisdictions in which the failure to so qualify
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(ii) all the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly and validly authorized and issued
and are fully paid and nonassessable, and, all such capital stock is owned
directly or indirectly by the Company, free and clear of any perferected
security interest and, to the knowledge of such counsel, after due
inquiry, any other security interest, claims, liens or encumbrances;
(iii) the _____ Agreement has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and assuming due authorization, execution and delivery
thereof by the Trustee, the _____ Agreement constitutes a legal, valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law);
(iv) to the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or any
of its subsidiaries, of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not described or filed
as required;
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(v) the Registration Statement has become effective under the Act;
any required filing of the Prospectus, and any supplements thereto,
pursuant to RuleE424(b) has been made in the manner and within the time
period required by RuleE424(b); to the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been instituted or
threatened, and the Registration Statement, the Prospectus and each
amendment or supplement thereto (other than the financial statements and
related schedules and other financial and statistical information
contained therein as to which such counsel need express no opinion) comply
as to form in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules and regulations
thereunder;
(vi) other than the rights of the Company under the _____ Agreement,
title to the equipment to be subjected to the _____ Agreement will, when
such equipment shall have been transferred to the Trustee as provided in
the _____ Agreement, be validly vested in the Trustee; the _____ Agreement
has been duly filed and recorded with the Interstate Commerce Commission
and the Registrar General of Canada and such equipment is subject to no
liens or encumbrances of record at the Interstate Commerce Commission and
the Registrar General of Canada;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery by you, constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except (i) as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting enforcement of creditors'
rights generally and by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law) and
(ii) as to provisions of this Agreement relating to indemnification or
contribution for liabilities arising under the Act, as to which such
counsel need express no opinion;
(viii) no authorization, approval, consent, order or license of or
filing with or notice to any government, governmental instrumentality,
regulatory body or authority or court is required for the valid
authorization, execution, delivery and performance by the Company of the
Securities, this Agreement and the ______ Agreement or the consummation by
the Company of the transactions contemplated by this Agreement, the ______
Agreement and the Securities Agreement, except such as have been obtained
under the Act and the Trust Indenture Act and such as may be required
under the blue sky laws of any
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jurisdiction in connection with the purchase and distribution of
the Securities by you and such other approvals (specified in such opinion)
as have been obtained;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach of,
or constitute a default under the charter or by-laws of the Company or the
terms of any indenture or other agreement or instrument known to such
counsel and to which the Company or any of its subsidiaries is a party or
bound, or any order or regulation known to such counsel to be applicable
to the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction
over the Company or any of its subsidiaries;
(x) the Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended;
(xi) on the Closing Date, assuming due execution and delivery of the
Securities by the Trustee and the Company, the Securities when issued
against payment therefor as provided herein will constitute valid and
binding obligations of the Company, enforceable against the Company, in
accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law), and the holders of the Securities will be entitled to
the benefits of the _____ Agreement;
(xii) the _____ Agreement and the Securities conform in all material
respects to the descriptions thereof contained in the Prospectus;
(xiii) the _____ Agreement cannot be terminated by the Company for
so long as the Securities are outstanding; and
(xiv) the statements in the Registration Statement and Prospectus
under the headings "Certain Federal Income Tax Consequences," and
"________", to the extent that they constitute matters of law or legal
conclusions with respect thereto, have been prepared to reviewed by such
counsel and are correct in all material respects.
In passing on the form of the Registration Statement and the Prospectus and
each amendment and supplement thereto, such counsel may state that it has not
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independently verified the accuracy, completeness or fairness of the
statements made or included therein and takes no responsibility therefor
and that such opinion is based upon such counsel's examination of the
Registration Statement, the Prospectus as amended or supplemented, its
activities in connection with the preparation thereof and its
participation in conferences with certain officers and employees of the
Company, its subsidiaries and its affiliates and with representatives of
Ernst & Young and any others referred to in such opinion, and subject to
the same qualifications, such counsel may also state that, although they
are not passing upon, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus and have not made any independent
check or verification thereof, nothing has come to their attention in
their examination of the Registration Statement, their participation in
the preparation thereof and participation in the above-referenced
conferences that has caused them to believe that the Registration
Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, or the Prospectus, as of its date and as of the Closing Date,
contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may state that it expresses no
opinion as to the laws of any jurisdiction other than the State of
Illinois, the General Corporation Law of the State of Delaware and the
Federal law of the United States of America and may rely (A) as to matters
involving the application of (x) laws of Canada or its Provinces and (y)
laws, rules and regulations with respect to the Interstate Commerce
Commission to the extent deemed proper and specified in such opinion, upon
the opinion of other counsel of good standing whom such counsel believes
to be reliable and who are satisfactory to you and your counsel and (B) as
to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials, and may assume
for purposes of its opinion set forth in Section 6(b)(vi) that the laws of
the State of New York are identical to the laws of the State of Illinois.
(c) You shall have received from Mayer, Brown & Platt, your special
counsel, such opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Securities, the _____ Agreement, the
Registration Statement, the Prospectus and other related matters as you
may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(d) The Company shall have furnished to you a certificate of the
Company, signed by the President or any Vice President and the principal
financial officer of the Company, dated the Closing Date, to the effect
that the signers of such certificate have
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carefully examined the Registration Statement, the Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing
Date and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the Company's
knowledge, no proceedings for that purpose have been instituted or
threatened; and
(iii) since the date of the most recent financial statements
included and/or incorporated by reference in the Prospectus, there
has been no material adverse change in the condition (financial or
other), earnings, business or properties of the Company and its
subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated
in the Prospectus.
(e) At the Execution Time and at the Closing Date, Ernst & Young shall
have furnished to you a letter or letters, dated, respectively, as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to you, confirming that they are independent auditors within
the meaning of the Act and the applicable published rules and regulations
thereunder and stating in effect that in their opinion the audited
consolidated financial statements and schedules thereto incorporated by
reference in the Registration Statement and the Prospectus and reported on
by them comply as to form in all material respects with the applicable
accounting requirements of the Act and the applicable published rules and
regulations thereunder with respect to registration statements on
FormES-3; and that nothing came to their attention which caused them to
believe that the amounts under the caption "Selected Financial
Information" for each of the five years ended _______ included in the
Registration Statement and the Prospectus, do not agree with the
corresponding amounts in the audited financial statements from which such
amounts were derived; and as to the periods for which it served as the
Company's independent auditor, such financial statements were covered by
unqualified reports issued by them; and that they have performed certain
other specified procedures as a result of which they determined that
certain information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical information
derived from the general accounting records of the Company) set forth in
the Registration Statement and the Prospectus, including the information
set forth under the captions "Selected Financial Information",
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and in [Exhibit 12] to the Registration Statement agrees with the accounting
records and schedules of the Company and its subsidiaries, excluding any
questions of legal interpretation.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) In addition, Ernst & Young shall have furnished to you a letter or
letters, dated, respectively, as of the Execution Time and as of the Closing
Date, in form and substance satisfactory to you, to the effect that:
(i) on the basis of a reading of the unaudited condensed
financial statements of the Company contained in the Company's
Quarterly Reports on Form 10-Q for the quarters ended ________,
________ and ________ incorporated by reference in the Registration
Statement, the amounts set forth under the captions "Selected
Financial Information" and "Capitalization" included in the
Registration Statement and the Prospectus and of the latest
unaudited consolidated financial statements made available to them
by the Company and its subsidiaries; carrying out certain specified
procedures (but not an audit in accordance with generally accepted
auditing standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter;
a reading of the minutes of the meetings of the stockholders,
directors and executive committees of the Company and its
subsidiaries; and inquiries of certain officials of the Company who
have responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events
subsequent to _________, nothing came to their attention which
caused them to believe that (A) the unaudited consolidated
financial statements of the Company incorporated by reference in
the Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the Exchange Act and the rules and regulations thereunder as they
apply to Form 10-Q or are not presented in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited consolidated
financial statements of the Company incorporated by reference in
the Registration Statement, and (B) with respect to the period
subsequent to _______, there were any changes, at a specified date
not more than five business days prior to the date of the letter,
in the borrowed debt of the Company and its subsidiaries or capital
stock of the Company or decreases in the stockholder's equity of
the Company and its subsidiaries as compared with the amounts shown
on the _________, unaudited consolidated balance sheet data
included in
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"Selected Financial Information" in the Registration Statement and
the Prospectus, or for the period from _________ to such specified
date, there were any decreases, as compared with the corresponding
period in the preceding year, in total revenues from net sales and
services, or in income before income taxes or net income, of the
Company and its subsidiaries, except in all instances for changes
or decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by you.
(g) Subsequent to the Execution Time or, if earlier, the respective
dates as of which information is given in the Registration Statement and
the Prospectus, there shall not have been (i)Eany change or decrease
specified in the letter or letters referred to in paragraphsE(e) and (f)
of this SectionE6 or (ii)Eany change, or any development involving a
prospective change, in or affecting the business or properties of the
Company and its subsidiaries taken as a whole the effect of which, in any
case referred to in clauseE(i) or (ii) above, is, in your judgment, so
material and adverse as to make it impractical or inadvisable to proceed
with the public offering or the delivery of the Securities as contemplated
by the Registration Statement and the Prospectus.
(h) Subsequent to the Execution Time and prior to the Closing Date,
there shall not have occurred any downgrading nor shall any notice have
been given of (i) any intended or potential downgrading or (ii) any review
or possible change in the rating accorded the Company's debt securities by
the Rating Agencies as of the Execution Time.
(i) Prior to the Closing Date, the Company shall have furnished to you
and the Rating Agencies such further information, certificates and
documents as you and they may reasonably request.
If any of the conditions specified in this SectionE6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in
form and substance to you and your counsel, this Agreement and all your
obligations hereunder may be canceled at, or at any time prior to, the Closing
Date by you. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
7. Reimbursement of the Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to your
obligation set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 9 hereof or because of any refusal, inability
or failure on the part of the Company to perform any
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agreement herein or comply with any provision hereof other than by reason
of a default by you, the Company will reimburse you upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by you in connection with the proposed purchase
and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless you and each person who controls you within the
meaning of either the Act or the Exchange Act from and against any and all
losses, claims, damages or liabilities, joint or several, to which you or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and agree to reimburse you and each such
controlling person for any legal or other expenses reasonably incurred by you
or such controlling person in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i)Ethe
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of you specifically for use in connection with
the preparation thereof, and (ii)Esuch indemnity with respect to any
Preliminary Prospectus shall not inure to your benefit (or to the benefit of
any person controlling you) if the person asserting any such loss, claim,
damage or liability purchased the Securities which are the subject thereof did
not receive a copy of the Prospectus (or the Prospectus as amended or
supplemented), excluding documents incorporated therein by reference, at or
prior to the confirmation of the sale of such Securities to such person in any
case where such delivery is required by the Act and the untrue statement or
omission of a material fact contained in such Preliminary Prospectus was
corrected in the Prospectus (or the Prospectus as amended or supplemented).
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) You severally (and not jointly) agree to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to you, but only with reference to written
information relating to you furnished to the Company by or on behalf of you
specifically for use in the preparation of the documents referred to in clause
(a) of this
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Section 8. This indemnity agreement will be in addition to any liability which
you may otherwise have. The Company acknowledges that the statements set forth
in the last paragraph of the cover page and under the heading "Underwriting" in
any Preliminary Prospectus and the Prospectus and the stabilization language
included on the inside front cover of any Preliminary Prospectus and the
Prospectus constitute the only information furnished in writing by or on behalf
of you for inclusion in any Preliminary Prospectus or the Prospectus, and you
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 8, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section 8. In case any such action is brought against any
indemnified party, and the indemnified party notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to appoint
counsel satisfactory to such indemnified party to represent the indemnified
party in such action; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of the indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by you in the case of subparagraph (a), representing
the indemnified parties under subparagraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense
of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of
this Section 8 is due in accordance with its terms but is for any reason held
by a court to be unavailable from the Company on grounds of
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policy or otherwise, the Company and you shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same) to
which the Company and you may be subject in such proportion so that each of you
are responsible only for that portion represented by the percentage that the
aggregate underwriting commission in respect of the Securities appearing on the
cover page of the Prospectus bears to the aggregate public offering price in
respect of such Securities appearing thereon and the Company is responsible for
the balance; provided, however, that (y) in no case shall you be responsible
for any amount in excess of such aggregate underwriting commission and (z) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls you within the meaning of the Act shall have the same
rights to contribution as you, and each person who controls the Company within
the meaning of the Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (y) and
(z) of this paragraph (d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties under this paragraph (d), notify such party or
parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
9. Termination. This Agreement shall be subject to termination in your
absolute discretion by notice given to the Company prior to delivery of and
payment for the Securities, if prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been suspended or limited
or minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal, New York State or
Illinois State authorities or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
your judgment, impracticable to market the Securities.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of you set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of you or the Company or any of its officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
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11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to you, will be mailed, delivered or
telegraphed and confirmed in the case of Solomon Brothers Inc at 7 World Trade
Center, New York, New York 10048, Attention: Legal Department; in the case of
Morgan Stanley & Co. Incorporated at 1585 Broadway, New York, New York 10036,
Attention: Legal Department; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 225 West Washington Street,
Chicago, Illinois 60606, Attention: Secretary.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and you.
Very truly yours,
UNION TANK CAR COMPANY
By:________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first written
above:
By:_______________________________
Name:
Title:
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Schedule A
Aggregate Principal Interest Principal Installment
[Name of Security] Amount Rate Payments
- --------------------------------------------------------------------------------
$ % $