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Exhibit 1(b)
Union Tank Car Company
$150,000,000
7 1/8% Notes Due 2007
Underwriting Agreement
New York, New York
January 22, 1997
Salomon Brothers Inc
7 World Trade Center
New York, New York 10048
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Ladies and Gentlemen:
Union Tank Car Company, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, the principal amount of its securities identified in Schedule
I hereto (the "Securities"), to be issued under an indenture (the "Indenture"),
dated as of January 16, 1997 (as supplemented by the First Supplemental
Indenture, dated as of January 22, 1997), between the Company and Harris Trust
and Savings Bank, as trustee (the "Trustee"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives", as used herein, shall each
be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with you, that:
(a) The Company meets the requirements for the use of
Form S-3 under the Securities Act of 1933 (the "Act") and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (File No. 333-17121) on such Form, including a
basic prospectus, for registration under the Act of the offering
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and sale of the Securities. The Company may have filed one or more
amendments thereto, and may have used a Preliminary Final Prospectus,
each of which has previously been furnished to you. Such registration
statement, as so amended, has become effective. The offering of the
Securities is a Delayed Offering (as specified in Schedule I hereto)
and, although the Basic Prospectus may not include all the information
with respect to the Securities and the offering thereof required by
the Act and the rules thereunder to be included in the Final
Prospectus, the Basic Prospectus includes all such information
required by the Act and the rules thereunder to be included therein as
of the Effective Date. The Company will next file with the Commission
pursuant to Rules 415 and 424(b)(2) or (5) a final supplement to the
form of prospectus included in such registration statement relating to
the Securities and the offering thereof. As filed, such final
prospectus supplement shall include all required information with
respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you
prior to the Execution Time 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 Basic
Prospectus and any Preliminary Final 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 did
or will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934 (the "Exchange Act") and the Trust Indenture Act
of 1939 (the "Trust Indenture Act") and the respective rules
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 Indenture did or will comply in all
material respects with the requirements of the Trust Indenture Act and
the rules thereunder; and, on the Effective Date, the Final
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 Final Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes
no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee or (ii) the information contained in or omitted from
the Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement
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thereto), it being understood and agreed that the only information
furnished by the Representatives consists of (i) the stabilization
language appearing on the top of page S-2 and (ii) the information
relating to the Underwriters set forth under the caption
"Underwriting," each as contained in the Preliminary Final Prospectus
and the Final Prospectus.
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective date"
shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Basic Prospectus"
shall mean the prospectus referred to in paragraph (a) above contained
in the Registration Statement at the Effective Date including, in the
case of a Non-Delayed Offering, any Preliminary Final Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and
the offering thereof and is used prior to filing of the Final
Prospectus. "Final Prospectus" shall mean the prospectus supplement
relating to the Securities that is first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus or, if,
in the case of a Non-Delayed Offering, no filing pursuant to Rule
424(b) is required, shall mean the form of final prospectus relating
to the Securities, including the Basic Prospectus, 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 (as hereinafter defined),
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 415", "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, the Basic Prospectus, any Preliminary Final Prospectus or
the Final 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 of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final 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 the Basic
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Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, deemed to be incorporated therein by reference. A
"Non-Delayed Offering" shall mean an offering of securities which is
intended to commence promptly after the effective date of a
registration statement, with the result that, pursuant to Rules 415
and 430A, all information (other than Rule 430A Information) with
respect to the securities so offered must be included in such
registration statement at the effective date thereof. A "Delayed
Offering" shall mean an offering of securities pursuant to Rule 415
which does not commence promptly after the effective date of a
registration statement, with the result that only information required
pursuant to Rule 415 need be included in such registration statement
at the effective date thereof with respect to the securities so
offered. Whether the offering of the Securities is a Non-Delayed
Offering or a Delayed Offering shall be set forth in Schedule I
hereto.
(d) The consolidated financial statements incorporated by
reference in the Registration Statement and Final 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 Final
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 Final 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 Final 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. The Company owns either directly or indirectly, all of the
issued and outstanding capital stock of its
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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 Indenture 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 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 Indenture or the consummation by the Company of
the transactions contemplated by this Agreement, the Indenture 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.
(i) This Agreement and the Indenture, 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 Indenture will
conform in all material respects to the descriptions thereof in the
Final Prospectus.
(j) Ernst & Young LLP, who reported on the consolidated
financial statements of the Company for the year ended December 31,
1995, which statements are incorporated by reference in the
Registration Statement and Final 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 Indenture and this
Agreement, will be duly issued under such Indenture and will
constitute valid and binding obligations of the Company, and the
holders thereof will be entitled to the benefits of the Indenture.
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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 sell each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto, except that, if Schedule I
hereto provides for the sale of Securities pursuant to delayed delivery
arrangements, the respective principal amounts of Securities to be purchased by
the Underwriters shall be as set forth in Schedule II hereto. Securities to be
purchased by the Underwriters are herein called the "Underwriters' Securities".
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives shall designate), which date and
time may be postponed by agreement between the Representatives and the Company
(such date and time of delivery and payment for the Underwriters' Securities
being herein called the "Closing Date"). Delivery of the Underwriters'
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of the
Company by certified or official bank check or checks drawn on or by a New York
Clearing House bank and payable in next day funds. Delivery of the
Underwriters' Securities shall be made at such location as the Representatives
shall reasonably designate at least one business day in advance of the Closing
Date and payment for the Securities shall be made at the office specified in
Schedule I hereto. Certificates for the Underwriters' Securities shall be
registered in such names and in such denominations as the Representatives may
request not less than three full business days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New
York, not later than 1:00 PM on the business day prior to the Closing Date.
4. Agreements. The Company agrees with you that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final Prospectus) to the Basic
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, the Company will cause the Final 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 the
Representatives of such
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timely filing. The Company will promptly advise the Representatives
(i) when the Registration Statement, it not effective at the Execution
Time, and any amendment thereto, shall have become effective, (ii)
when the Final Prospectus, and any supplement thereto, shall have been
filed 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 filed or become effective, (iv)
of any request by the Commission for any amendment of the Registration
Statement or supplement to the Final 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 (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. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(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 Final 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 Final Prospectus to comply with the Act or the Exchange
Act or the respective rules and regulations thereunder, the Company
promptly will (i) prepare and file with the Commission, subject to
paragraph (a) of this Section 4, an amendment or supplement which will
correct such statement or omission or an amendment which will effect
such compliance and (ii) supply any supplemented Prospectus to you in
such quantities as you may reasonably request.
(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 an
Underwriter or a dealer may be required by the Act, as many copies of
each Preliminary Final Prospectus and the Final 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 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
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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 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 the consent of the
Representatives, offer, sell or contract to sell, or otherwise dispose
of, directly or indirectly, or announce the offering of, any debt
securities issued or guaranteed by the Company (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 Final 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.
5. 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 Final Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Final
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 the
Representatives the opinion of Neal, Gerber & Eisenberg, counsel to
the Company (incorporating and relying upon
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the opinion of Robert W. Webb, Esq., general counsel of the Company,
and Osler, Hoskin & Harcourt, special Canadian counsel to the Company,
as to Canadian law 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 Final 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 perfected security interest
and, to the knowledge of such counsel, after due inquiry, any
other security interest, claims, liens or encumbrances;
(iii) the Indenture 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 Indenture
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 Final
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required; and
the statements included or incorporated in the Final
Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly
summarize such matters;
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(v) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule
424(b); 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 and
the Final Prospectus (other than the financial statements 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, the Exchange Act and the Trust Indenture Act and
the respective rules thereunder;
(vi) 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;
(vii) 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 Indenture or the consummation by the
Company of the transactions contemplated by this Agreement and
the Indenture, 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 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;
(viii) neither the execution and delivery of the
Indenture, 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 or violation of, or
constitute a default under any law or 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
judgment, order or decree known to such counsel to be
applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency,
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governmental body or arbitrator having jurisdiction over the
Company or any of its subsidiaries;
(ix) 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;
(x) 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 Indenture; and
(xi) the Indenture and the Securities conform in all
material respects to the descriptions thereof contained in the
Final Prospectus.
In passing on the form of the Registration Statement and the Final
Prospectus and each amendment and supplement thereto, such counsel may
state that it has not independently verified the accuracy,
completeness or fairness of the statements made or included therein
and takes no responsibility therefor and that such opinion is based
upon such counsel's examination of the Registration Statement, the
Final 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 LLP 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 Final 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 Final 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.
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(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
Indenture, the Registration Statement, the Final 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 carefully
examined the Registration Statement, the Final Prospectus, any
supplement to the Final 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 Final 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 Final
Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and at the Closing Date, Ernst
& Young LLP 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:
(i) in their opinion the audited financial
statements and financial statement schedules included or
incorporated in the Registration Statement and the Final
Prospectus and reported on by them comply in form in all
material respects with the applicable accounting.requirements
of the Act and the Exchange Act and the related published
rules and regulations;
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(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; carrying out certain specified
procedures (but not an examination 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 the 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 the
date of the most recent audited financial statements in or
incorporated in the Final Prospectus, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not comply in
form in all material respects with applicable
accounting requirements and with the published rules
and regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form-10-Q under the Exchange
Act; and said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, in or incorporated in the Registration
Statement and the Final Prospectus, 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, decreases in the
stockholders' equity of the Company and its
subsidiaries as compared with the amounts shown on
the most recent consolidated balance sheet included
or incorporated in the Registration Statement and the
Final Prospectus, or for the period from the date of
the most recent financial statements included or
incorporated in the Registration Statement and the
Final Prospectus to such specified date there were
any decreases, as compared with the corresponding
period in the preceding year or quarter, as the case
may be 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 the Representatives; or
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(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do
not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus; and
(iii) 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 and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information included or
incorporated in the Company's Annual Report on Form 10-K,
incorporated in the Registration Statement and the Prospectus,
and the information included in the "Management's Discussion
and Analysis of Financial Condition and Results of Operations"
included or incorporated in the Company's Quarterly Reports on
Form 10-Q, incorporated in the Registration Statement and the
Final Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
business or properties of the Company and its subsidiaries the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any supplement thereto).
(g) On the Closing Date, the Securities shall be rated at
least "A3" by Moody's Investor's Service Inc. and "A" by Standard &
Poor's Corporation, and the Company shall have delivered to the
Representatives a letter, dated the Closing Date, from each such
rating agency, or other evidence satisfactory to the Representatives,
confirming that the Securities have such ratings.
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(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 above-mentioned rating
agencies as of the Execution Time.
(i) The Company shall have entered into the Indenture and
the Representatives shall have received original counterparts thereof
and of all other documents and agreements entered into in connection
therewith.
(j) Prior to the Closing Date, the Company shall have
furnished to you such further information, certificates and documents
as you may reasonably request.
If any of the conditions specified in this Section 5 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.
6. 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 5 hereof is not satisfied, because of any
termination pursuant to Section 9 hereof or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by you, the Company
will reimburse you upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
you in connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they 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 the Basic
Prospectus, any Preliminary Final Prospectus or the Final 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 not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred
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by them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion therein, it being understood and agreed that the only information
furnished by the Representatives consists of (i) the stabilization language
appearing on the top of page S-2 and (ii) the information relating to the
Underwriters set forth under the caption "Underwriting," each as contained in
the Preliminary Final Prospectus and the Final Prospectus; provided, further
that such indemnity with respect to any Preliminary Final 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 Final
Prospectus (or any amendments thereof or supplements thereto), 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 in
such Preliminary Final Prospectus was corrected in the Final Prospectus (or any
amendments thereof or supplements thereto). This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees 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 each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 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 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be
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satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, 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, (iii) 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 the institution of
such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal
to the total net proceeds from the Offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference
to whether any alleged untrue statement or omission relates to information
provided by the Company or the Underwriters. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of
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allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), 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 7, each
person who controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an Underwriter
shall have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Act or the Exchange
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 the applicable terms and
conditions of this paragraph (d).
8. 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.
9. 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 7 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 6 and 7 hereof
shall survive the termination or cancellation of this Agreement.
10. 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.
11. 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 7 hereof,
and no other person will have any right or obligation hereunder.
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12. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
-19-
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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:
SALOMON BROTHERS INC
MORGAN STANLEY & CO. INCORPORATED
By SALOMON BROTHERS INC
Acting on behalf of itself and
Morgan Stanley & Co. Incorporated
By:_______________________________
Name: Brian Callaci
Title:
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SCHEDULE I
Underwriting Agreement Dated: January 22, 1997
Registration Statement No.: 333-17121
Representative(s): Salomon Brothers Inc and Morgan Stanley & Co. Incorporated
Title, Purchase Price and Description of Securities:
Title: 7 1/8% Notes Due 2007
Principal amount: $150,000,000
Purchase price (include accrued interest or amortization, if any):
price to public: 99.893%
underwriting discount: 0.650%
proceeds to Company: 99.243%
Sinking fund provisions: None.
Redemption provisions: None.
Other provisions: None.
Closing Date, Time and Location: January 27, 1997, 9 AM (Chicago time), Law
Offices Neal, Gerber & Eisenberg, Two North LaSalle Street, Chicago, Illinois
Type of Offering: Delayed Offering
Delayed Delivery Arrangements: None.
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Schedule II
Principal Amount
of Securities to
Underwriters be Purchased
------------ ----------------
Salomon Brothers Inc $ 75,000,000
Morgan Stanley & Co. 75,000,000
Incorporated
------------
Total . . . . . . . . . . . . $150,000,000
============
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