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Exhibit 1(a)
Union Tank Car Company
$97,852,000
Pass Through Certificates, Series 0000-X
Xxxxxxxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx
March 18, 1998
Salomon Brothers Inc
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
Union Tank Car Company, a Delaware corporation (the "Company"), proposes
to cause to be sold to you the underwriter (the "Underwriter") $96,325,000
aggregate principal amount of Pass Through Certificates, Series 1998-A, with the
interest rate and final distribution date as set forth in Schedule A hereto (the
"Pass Through Certificates" or the "Securities"), to be issued under the Pass
Through Trust Agreement 1998-A, dated as of March 18, 1998 (the "Pass Through
Trust Agreement"), between the Company and Xxxxxx Trust and Savings Bank, as
Pass Through Trustee (the "Pass Through Trustee"). The property to be purchased
by the Pass Through Trustee under Pass Through Agreement 1998-A and contained in
such trust shall consist of $97,852,000 principal amount Equipment Notes, to be
issued under the Indenture.
All capitalized terms used, but not defined herein, shall have the
meanings attributed to them in the Pass Through Trust Agreement. As used in this
Agreement, the term "Operative Agreements" shall have the meaning set forth in
the Participation Agreement. All other capitalized terms used herein shall, for
the purposes hereof, have the meanings attributed to them in this Agreement.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with you, that:
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(a) The Company meets the requirements for the 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 No. 333-45105) on such Form, including a basic prospectus,
for registration under the Act of the offering 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, and the Pass Through Trust Agreement has been duly qualified
under the Trust Indenture Act. The offering of the Securities is a Delayed
Offering 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 the appropriate subparagraph of 424(b) 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
Underwriter 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,
as amended (the "Exchange Act"), and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture 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 Pass Through Trust Agreement 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
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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 Pass Through 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 the Underwriter specifically for
inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto), it being understood and agreed that the only
information furnished by or on behalf of the Underwriter consists of (i)
the stabilization language appearing on the top of page S-2, (ii) the
third paragraph under the caption "Underwriting," and (iii) the first
sentence of the fifth paragraph 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 "Effective Date" shall mean each date
that the Registration Statement and any post-effective amendment or
amendments thereto became or becomes 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 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 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
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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 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 the 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
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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
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
Participation Agreement, the Pass Through Trust Agreement, the Lease and
the other Operative Agreements to which the Company is, or is to be, a
party, 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 is 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 Pass Through Certificates and the Equipment
Notes, the valid authorization, execution, delivery and performance by the
Company of this Agreement, the Participation Agreement, the Pass Through
Trust Agreement, the Lease and the other Operative Agreements to which the
Company is, or is to be, a party, or the consummation by the Company of
the transactions contemplated by this Agreement, the Participation
Agreement, the Pass Through Trust Agreement, the Lease and the other
Operative Agreements to which the Company is, or is to be, a party, except
(w) such as are required under the Act, the Trust Indenture Act and the
securities or Blue Sky laws of the various states, (x) such filings,
recordings or registrations with the Surface Transportation Board of the
Department of Transportation (the "STB") and under Section 90 of the
Railway Act (Canada) as may be required, (y) if required, the filing of
Uniform Commercial Code financing statements in various jurisdictions and
the filing of continuation statements with respect thereto required to be
filed at periodic intervals under the Uniform Commercial Code and (z) such
other filings, recordings or registrations as may be required under the
Operative Agreements.
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(i) This Agreement, the Participation Agreement, the Pass Through
Trust Agreement, the Lease and the other Operative Agreements to which the
Company is, or is to be, a party, 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 Pass Through
Certificates, the Equipment Notes, the Indenture, the Participation
Agreement, the Pass Through Trust Agreement, the Lease and the other
Operative Agreements to which the Company is, or is to be, a party will
conform in all material respects to the descriptions thereof in the
Prospectus.
(j) Ernst & Young LLP ("Ernst & Young"), who reported on the
consolidated financial statements of the Company as of December 31, 1996
and for the year then ended, which statements are incorporated by
reference in the Registration Statement and Prospectus, were, as of the
date of its report on such consolidated financial statements, independent
auditors as required by the Act and the rules and regulations thereunder.
(k) Assuming due authorization, execution and delivery by the Pass
Through Trust Agreement, the Pass Through Certificates, when duly
executed, authenticated and delivered by the Pass Through Trustee in
accordance with the terms of the Pass Through Trust Agreement and this
Agreement, will be duly issued under the Pass Through Trust Agreement and
will constitute valid and binding obligations of the Pass Through Trustee;
and the holders thereof will be entitled to the benefits of the Pass
Through Trust Agreement.
(l) Assuming due authorization, execution and delivery of the
Equipment Notes to be issued under the Indenture by the Owner Trustee and
due authentication of such Equipment Notes by the Indenture Trustee in
accordance with the terms of the Indenture, the Equipment Notes will be
duly issued under the Indenture and will constitute valid and binding
obligations of the Owner Trustee; and the holders thereof will be entitled
to the benefits of the Indenture.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
request the Pass Through Trustee to sell to you, and you agree to purchase from
the Pass Through Trustee, at a purchase price of 100% of the principal amount
thereof, the Pass Through Certificates.
As compensation to you for your commitment and obligations hereunder in
respect of the Pass Through Certificates, including your undertaking to
distribute the Pass Through Certificates, the Company will pay when due, to you
an amount equal to the product of .625% times the original principal amount of
the Pass Through Certificates purchased by you. Such payment shall be made
simultaneously with the payment by you to the Pass Through Trustee of the
purchase price of the Pass Through Certificates as specified in Section 3
hereof. Payment
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of such compensation shall be made by Federal funds check or other immediately
available funds to the order of Salomon Brothers Inc.
3. Delivery and Payment. Delivery of and payment for the Pass Through
Certificates shall be made at the offices of Xxxx, Xxxxxx & Xxxxxxxxx, Xxx Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, at 10:00 a.m. C.S.T., on March 23, 1998 or
such later date and time (not later than March 31) as the Company and you shall
determine (such date and time of delivery and payment for the Pass Through
Certificates being herein called the "Closing Date"). Delivery of the Pass
Through Certificates shall be made to your account at The Depository Trust
Company against payment by you of the purchase price thereof to or upon the
order of the Pass Through Trustee by Federal funds check or other immediately
available funds. The Pass Through Certificates shall be registered in such names
and in such denominations as you may request not less than three full business
days in advance of the Closing Date or such other date as may be agreed upon.
The Company agrees to have the Pass Through Certificates available for
inspection, checking and packaging by you in New York City, not later than 1:00
p.m. (New York City time) on the business day prior to the Closing Date.
4. Offering by Salomon Brothers Inc. It is understood that, after the
Registration Statement becomes effective, you propose to offer the Pass Through
Certificates for sale to the public as set forth in the Prospectus.
5. Agreements. The Company agrees with you that:
(a) The Company will not file any amendment of 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 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 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 Final Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b), (iii) when, prior to termination of
the offering of the Pass Through Certificates, any amendment to the
Registration Statement shall have been filed or become effective, (iv) of
any request by the Commission for any amendment of the Registration
Statement or supplement to the 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
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threatening of any proceeding for that purpose (and the Company agrees
that it will each use its reasonable best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof), (vi) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Pass Through Certificates for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose and (vii) during the
period when a prospectus relating to the Pass Through Certificates is
required to be delivered under the Act, of the mailing or the delivery to
the Commission for filing of any document to be filed pursuant to the
Exchange Act.
(b) If, at any time when a prospectus relating to the Pass Through
Certificates is required to be delivered under the Act, any event occurs
as a result of which the 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
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 and supply any
supplemental 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 you 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 Final
Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as you may reasonably request. Subject to the
provisions of Section 2.5 of the Participation Agreement, the 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 Pass Through Certificates for sale
under the laws of such jurisdictions as you may reasonably designate, will
maintain such qualifications in effect so long as required for the
distribution of the Pass Through Certificates and will arrange for the
determination of the legality of the Pass Through Certificates for
purchase by institutional investors; provided, however, that the Company
will not be
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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 Pass Through Certificates).
(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 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.
(h) On the date of the execution and delivery by the Company of the
Participation Agreement, the Lease and the other Operative Agreements to
which it is a party, the Company shall deliver to you a certificate, dated
such date, signed by its President or any Vice President and its principal
financial or accounting officer to the effect that the signers of such
certificate have carefully examined the Participation Agreement, the Lease
and the other Operative Agreements to which it is a party, the
Registration Statement, the Preliminary Prospectus and the Prospectus and
that:
(i) the representations and warranties of the Company in the
Participation Agreement, the Lease and the other Operative
Agreements to which it is a party are true and correct in all
material respects on and as of such date as if made on and as of the
Closing Date;
(ii) the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied on or prior to such date pursuant to the terms of the
Participation Agreement, the Lease and the other Operative
Agreements to which it is a party; and
(iii) nothing has come to the attention of such person that
would lead him or her to believe that as of such date the
Registration Statement contains any untrue statement of material
fact or omits to state any material fact necessary in
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order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(i) In connection with the execution and delivery of the Indenture
and the issuance of any Equipment Notes, the Company will cause to be
delivered to you and to the Rating Agencies (as hereinafter defined) such
opinions of counsel as you may reasonably request.
6. Conditions to the Obligations of Salomon Brothers Inc. Your obligations
to purchase the Pass Through Certificates 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) 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 issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to you and to Xxxxx'x Investors
Service, Inc. and Standard and Poor's Corporation (together, the "Rating
Agencies"), if requested by you, the opinion of Xxxx, Gerber & Xxxxxxxxx,
special counsel to the Company, dated the Closing Date, in form reasonably
satisfactory to you and to your special counsel, Xxxxx, Xxxxx & Xxxxx, to
the effect that:
(i) Each of the Company and its Significant Subsidiaries has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to
own its properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business, except in
such jurisdictions in which the failure to so qualify would not have
a material adverse effect on the Company and its subsidiaries, taken
as a whole;
(ii) the Company has the corporate power and authority under
the laws of the jurisdiction in which it is chartered or organized
to perform its obligations hereunder and under the Participation
Agreement, the Pass Through
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Trust Agreement, the Lease and the other Operative Agreements to
which the Company is, or is to be, a party;
(iii) subject to the limitations and qualifications set forth
in clause (xiv) of this Section 6(b), assuming that the Pass Through
Certificates have been duly authorized and validly executed,
authenticated, issued and delivered by the Pass Through Trustee
pursuant to the Pass Through Trust Agreement, the holders of such
Pass Through Certificates are entitled to the benefits of the Pass
Through Trust Agreement;
(iv) the Pass Through Certificates conform in all material
respects to the description thereof contained in the Final
Prospectus, and such description conforms in all material respects
to the rights set forth in the instruments defining the same;
(v) no authorization, approval, consent, order or license of
or filing with or notice to any government, governmental
instrumentality, regulatory body or authority or court is required
for the valid authorization, execution, delivery and performance by
the Company of this Agreement, the Participation Agreement, the Pass
Through Trust Agreement, the Lease and the other Operative
Agreements to which the Company is, or is to be, a party, or the
consummation by the Company of the transactions contemplated by this
Agreement, the Participation Agreement, the Pass Through Trust
Agreement, the Lease and the other Operative Agreements to which the
Company is, or is to be, a party, except (w) such as are required
under the Act, the Trust Indenture Act and the securities or Blue
Sky laws of the various states, (x) such filings, recordings or
registrations with the STB and under Section 90 of the Railway Act
(Canada) as may be required, (y) if required, the filing of Uniform
Commercial Code financing statements in various jurisdictions and
the filing of continuation statements with respect thereto required
to be filed at periodic intervals under the Uniform Commercial Code
and (z) such other filings, recordings or registrations as may be
required under the Operative Agreements;
(vi) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries, of a character required to
be disclosed in the Registration Statement or the Prospectus which
is not adequately disclosed, and there is no franchise, contract or
other document known to such counsel 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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(vii) 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); the Pass
Through Trust Agreement has become qualified under the Trust
Indenture Act; to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been instituted or
threatened, and the Registration Statement, the Prospectus and each
amendment thereof or supplement thereto (other than the financial
statements and related schedules and other financial and statistical
information, including the notes thereto, included or incorporated
by reference therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules and regulations thereunder; the Pass Through Trust
Agreement and the Statement of Eligibility and Qualification of the
Pass Through Trustee on Form T-1 comply as to form in all material
respects with the requirements of the Trust Indenture Act and the
rules and regulations thereunder; and each document filed pursuant
to the Exchange Act and incorporated by reference in the Prospectus
(except for the financial statements, including the notes thereto,
and related schedules and other financial and statistical
information included or incorporated by reference therein, as to
which such counsel need express no opinion) appeared on its face, as
of its respective filing date, to comply as to form in all material
respects with the requirements of the Exchange Act and the rules and
regulations thereunder;
(viii)[Intentionally Omitted];
(ix) this Agreement, the Pass Through Trust Agreement, the
Participation Agreement, the Lease, and all the other Operative
Agreements to which the Company is, or is to be, a party have been
duly authorized and, on the Closing Date, assuming due
authorization, execution and delivery by the parties thereto other
than the Company, upon execution and delivery by the Company, will
be valid and binding obligations of the Company, enforceable against
the Company, in accordance with their respective terms, except (i)
as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting enforcement of creditors'
rights generally and by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law), (ii) in the case of the Lease, as limited by applicable laws
which may affect the remedies provided in the Lease, which laws,
however, do not in such counsel's opinion make the remedies provided
in the Lease inadequate for the practical realization of the rights
and benefits provided thereby and (iii) in the case of this
Agreement, as to provisions
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relating to indemnification or contribution for liabilities arising
under the Act, as to which such counsel need express no opinion;
(x) the Pass Through Trust Agreement, the Equipment Notes, the
Indenture, the Participation Agreement, the Lease and the other
Operative Agreements (to the extent described therein) conform, or
when duly executed and delivered by the parties thereto will
conform, in all material respects to the descriptions thereof
contained in the Prospectus;
(xi) the execution and delivery by the Company of this
Agreement, the Participation Agreement, the Pass Through Trust
Agreement, the Lease and the other Operative Agreements to which the
Company, is, or is to be, a party, the consummation by the Company
of the transactions herein and therein contemplated and in the
manner herein and therein contemplated and compliance by the Company
with the terms hereof and thereof, do not and will not conflict
with, or result in a breach by the Company of, any of the terms or
provisions of, or constitute a default under, any material indenture
or other agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound, or any law,
rule, regulation, judgment or order known to such counsel to be
applicable to the Company of any court, regulatory body,
administrative agency, government or governmental body having
jurisdiction over the Company, except that such counsel need express
no opinion or belief as to the accuracy or completeness of the
Registration Statement or Final Prospectus except for the opinions
expressed in clauses (iv), (x), and (xii) (except that such counsel
need not express any opinion as to any violation of any such law,
rule or regulation, judgment or order (a) which does not materially
affect the validity of the Equipment Notes or the Pass Through
Certificates or (b) which reflects conclusions based on
misrepresentations to, concealment of information from or other
fraudulent acts perpetrated on such counsel);
(xii) the statements in the Registration Statement and Final
Prospectus under the headings "Material Federal Income Tax
Consequences", "Certain Illinois Taxes" and "ERISA Considerations",
to the extent that they constitute matters of law or legal
conclusions with respect thereto, have been prepared or reviewed by
such counsel and are correct in all material respects;
(xiii) 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;
(xiv) assuming due authorization, execution, issuance and
delivery of the Equipment Notes by the Owner Trustee as contemplated
by the Indenture,
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and due authentication of such Equipment Notes by the Indenture
Trustee, each of the Equipment Notes, when issued, will constitute
valid and binding obligations of the Owner Trustee enforceable
against the Owner Trustee 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 Equipment Notes will be entitled to the benefits
of the Indenture;
(xv) assuming due authorization, execution and delivery of the
Pass Through Trust Agreement by the Pass Through Trustee, the Pass
Through Trust Agreement constitutes the valid and binding obligation
of the Company enforceable in accordance with its terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting enforcement of creditors' rights
generally and by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law);
(xvi) the trust created by the Pass Through Trust Agreement
will not be classified as an association taxable as a corporation
for federal income tax purposes, but rather, will be classified as a
grantor trust under subpart E, Part I of Subchapter J of the
Internal Revenue Code of 1986, as amended (the "Code"), and each
Certificate Owner will be treated as the owner of a pro rata
undivided interest in each of the Equipment Notes and any other
property held in such Pass Through Trust;
(xvii) although counsel is not aware of any judicial
authority, the Pass Through Trust is not required to be registered
under the Investment Company Act of 1940, as amended;
(xviii) assuming due authorization, execution and delivery of
the Indenture by the parties thereto, the Indenture will subject the
Indenture Estate covered by the Indenture to the security interests
created thereby;
(xix) there are no taxes, fees or other governmental charges
payable under the laws of the State of Illinois or any political
subdivision thereof in connection with the execution and delivery by
the Pass Through Trustee, in its individual capacity or as Pass
Through Trustee, or Indenture Trustee, as the case may be, of the
Participation Agreement, the Pass Through Trust Agreement and the
other Operative Agreements, as the case may be, or in connection
with the issuance, execution, authentication and delivery of the
Pass
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Through Certificates by the Pass Through Trustee pursuant to the
Pass Through Trust Agreement or the issuance, authentication or
delivery of the Equipment Notes;
(xx) Except to the extent the Indenture Trustee forecloses on
the Equipment and any of the Equipment is located in Illinois or to
the extent the Indenture Estate, or the trust created by the Pass
Through Trust Agreement, as applicable, engages in business in
Illinois as a result of such foreclosure:
(I) neither the trust created by the Pass Through Trust
Agreement, the Indenture Estate nor the Pass Through Trustee (either
in its individual capacity or as Pass Through Trustee), nor their
respective affiliates, successors or assigns, will be subject to any
tax (including, without limitation, net or gross income, tangible or
intangible property, net worth, capital, franchise or doing business
tax), fee or other governmental charge under the laws of the State
of Illinois or any political subdivision thereof (other than taxes
imposed on the fees received by the Pass Through Trustee for acting
as Pass Through Trustee under the Pass Through Trust Agreement).
(II) Certificate Owners who are not residents of or
otherwise subject to tax in the State of Illinois will not be
subject to any tax (including, without limitation, net or gross
income, tangible or intangible property, net worth, capital,
franchise or doing business tax), fee or other governmental
charge under the laws of the State of Illinois or any political
subdivision thereof as a result of purchasing, holding (including
receiving payments with respect to) or selling a Certificate.
(III) There are no applicable taxes under the laws of
the State of Illinois or any political subdivision thereof upon or
with respect to (a) the construction, mortgaging, financing,
refinancing, purchase, acquisition, acceptance, rejection, delivery,
nondelivery, transport, location, ownership, insurance, control,
assembly, possession, repossession, operation, use, condition,
maintenance, repair, sale, return, abandonment, replacement,
preparation, installation, storage, redelivery, manufacture,
leasing, subleasing, modification, rebuilding, importation, transfer
of title, transfer of registration, exportation or other application
or disposition of the Equipment or any interest in any thereof, (b)
payments of Rent or the receipts, income or earnings arising
therefrom or received with respect to the Equipment or any interest
in any thereof or payable pursuant to the Lease, (c) any amount paid
or payable pursuant to any Operative Agreement, (d) the Equipment or
any interest therein or the applicability of the Lease to the
Equipment or any interest thereof, (e) any or all of the Operative
Agreements, any or all of the Equipment Notes or any
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interest in any or all thereof or the offering, registration,
reregistration, issuance, acquisition, modification, assumption,
reissuance, refinancing or refunding or any or all thereof, and any
other documents contemplated hereby or thereby and amendments and
supplements hereto and thereto, (f) the payment of the principal of,
or interest or premium on, or other amounts payable with respect to,
any or all of the Equipment Notes, whether as originally issued or
pursuant to any refinancing, refunding, assumption, modification, or
reissuance, or any other obligation evidencing any loan in
replacement of the loan evidenced by any or all of the Equipment
Notes, (g) the property, or the income, earnings, receipts or other
proceeds received with respect to the property, to be held by the
Indenture Trustee under the Indenture or (h) otherwise with respect
to or in connection with the transactions contemplated by the
Operative Agreements, which would not have been imposed if the
Indenture Trustee had not had its principal place of business in,
had not performed (either in its individual capacity or as Indenture
Trustee) any or all of its administrative duties under the Operative
Agreements in, and had not engaged in any activities unrelated to
the transactions contemplated by the Operative Agreements in, the
State of Illinois.
In passing on the form of the Registration Statement and the Final
Prospectus and each amendment and supplement thereof, such counsel may
state that it has not independently verified the accuracy, completeness or
fairness of the statements made or included therein and takes no
responsibility therefor and that such opinion is based upon such counsel's
examination of the Registration Statement, the 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 and its subsidiaries 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. 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
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application of (x) laws of Canada or its Provinces and (y) laws, rules and
regulations with respect to the STB to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good
standing whom such counsel believes to be reliable and who are
satisfactory to you and your counsel; and (B) as to matters of fact, to
the extent deemed proper, on certificates of responsible officers of the
Company and public officials, and may assume for purposes of its opinion
with respect to this Agreement set forth in Section 6(b)(ix) 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 the Law Department of Xxxxxx Trust
and Savings Bank, an opinion, dated the Closing Date, in form and
substance reasonably satisfactory to you and your special counsel, Xxxxx,
Xxxxx & Xxxxx, to the effect that:
(i) Xxxxxx Trust and Savings Bank is an Illinois banking
corporation validly existing and holding a valid certificate to do
business as an Illinois banking corporation with trust powers, and,
in its individual capacity or as Pass Through Trustee or Indenture
Trustee, as the case may be, has full corporate power and authority
to execute, deliver and carry out the terms of the Indenture, the
Participation Agreement, the Pass Through Trust Agreement and the
other Operative Agreements to which it is a party;
(ii) Xxxxxx Trust and Savings Bank (in its individual
capacity, to the extent provided therein), has duly authorized,
executed and delivered the Pass Through Trust Agreement and,
assuming due authorization, execution and delivery by the Company,
such agreement constitutes the valid and binding obligation of
Xxxxxx Trust and Savings Bank (in its individual capacity, to the
extent provided therein), enforceable against Xxxxxx Trust and
Savings Bank (in its individual capacity, to the extent provided
therein), in accordance with its terms, except as limited by
bankruptcy, insolvency, moratorium reorganization, receivership,
fraudulent conveyance or other similar laws affecting enforcement of
creditors' rights generally, and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law);
(iii) the Pass Through Certificates have been duly authorized
and validly executed, authenticated, issued and delivered by the
Pass Through Trustee pursuant to the Pass Through Trust Agreement;
and the holders of the Pass Through Certificates are entitled to the
benefits of the Pass Through Trust Agreement;
(iv) the authorization, execution, delivery and performance by
Xxxxxx Trust and Savings Bank (in its individual capacity, to the
extent provided
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therein), the Pass Through Trustee or the Indenture Trustee, as the
case may be, of the Indenture, the Participation Agreement, the Pass
Through Trust Agreement and the other Operative Agreements to which
it is or will be party and the consummation of the transactions
therein contemplated and compliance with the terms thereof and
issuance of the Pass Through Certificates thereunder do not and will
not result in the violation of the provisions of the Certificate of
Merger dated April 1, 1972 which constitutes the articles of
association of Xxxxxx Trust and Savings Bank or the By-Laws of
Xxxxxx Trust and Savings Bank, and do not and will not conflict
with, or result in a breach of any terms or provisions of, or
constitute a default under, or result in the creation or the
imposition of any lien, charge or encumbrance upon any property or
assets of Xxxxxx Trust and Savings Bank, the Pass Through Trustee or
the Indenture Trustee, as the case may be, under any indenture,
mortgage or other agreement or instrument known to such counsel to
which the Pass Through Trustee or the Indenture Trustee, as the case
may be, is a party or by which it or any of its property is bound,
or any Illinois or Federal law, rule or regulation governing Xxxxxx
Trust and Savings Bank's, the Pass Through Trustee's or the
Indenture Trustee's banking or trust powers, or of any judgment,
order or decree known to such counsel to be applicable to Xxxxxx
Trust and Savings Bank, the Pass Through Trustee or the Indenture
Trustee, as the case may be, of any court, regulatory body,
administrative agency, government or governmental body having
jurisdiction over Xxxxxx Trust and Savings Bank, the Pass Through
Trustee or the Indenture Trustee or its respective properties;
(v) no authorization, approval, consent, license or order of,
giving of notice to, registration with, or taking of any other
action in respect of, any Federal or state governmental authority or
agency pursuant to any Federal or Illinois law governing the banking
or trust powers of Xxxxxx Trust and Savings Bank, the Pass Through
Trustee or the Indenture Trustee is required for the authorization,
execution, delivery and performance by Xxxxxx Trust and Savings
Bank, (in its individual capacity, to the extent provided therein),
the Pass Through Trustee or the Indenture Trustee of the Indenture,
the Participation Agreement, the Pass Through Trust Agreement and
the other Operative Agreements to which it is or will be a party or
the consummation of any of the transactions by the Pass Through
Trustee or Indenture Trustee contemplated thereby or the issuance of
the Pass Through Certificates under the Pass Through Trust Agreement
(except as shall have been duly obtained, given or taken); and such
authorization, execution, delivery, performance, consummation and
issuance do not conflict with or result in a breach of the
provisions of any such law;
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(vi) assuming the due authorization, execution and delivery
thereof by the other parties thereto, upon the execution and
delivery of the Participation Agreement, Indenture and other
Operative Agreements by the Pass Through Trustee or the Indenture
Trustee, as the case may be, such agreement will have been duly
authorized, executed and delivered by the Pass Through Trustee or
Indenture Trustee, as the case may be, and each such agreement shall
consulate the valid and binding obligation thereof, and be
enforceable there against in accordance with their respective terms
subject to the qualifications set forth in Section 6(c)(ii) hereof.
In giving such opinion, the Law Department of Xxxxxx Trust and Savings Bank (A)
may state that no opinion is expressed as to laws other than the laws of the
State of Illinois and the Federal law of the United States of America, (B) may
assume as to the opinions expressed in clause (ii) relating to any of the
Operative Agreements, insofar as they involve matters relating to the laws of
any jurisdiction other than Illinois, that such Operative Agreements constitute
legal, valid and binding instruments under such laws and (C) may include such
other reasonable assumptions as are customary in legal opinions delivered in
connection with transactions of this type.
(d) You shall have received from Xxxxx, Xxxxx & Xxxxx, your special
counsel, such opinion or opinions, dated the Closing Date, with respect to
the issuance and sale of the Pass Through Certificates, the Pass Through
Trust Agreement, 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 reasonably request
for the purpose of enabling them to pass upon such matters.
(e) You shall have been furnished with 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 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
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(iii) since the date of the most recent financial statements
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.
(f) At the Execution Time and at the Closing Date, Ernst & Young
shall have furnished to you a letter or letters, dated, respectively, as
of the Execution Time and as of the Closing Date, in form and substance
satisfactory to you, confirming that:
(i) they are independent auditors within the meaning of the
Act and the applicable published rules and regulations thereunder
and stating in effect that in their opinion the audited consolidated
financial statements and schedules thereto incorporated by reference
in the Registration Statement and the Final Prospectus and reported
on by them comply as to form in all material respects with the
applicable accounting requirements of the Act and the applicable
published rules and regulations thereunder with respect to
registration statements on Form S-3; and that nothing came to their
attention which caused them to believe that the amounts under the
caption "Selected Financial Information" for each of the five years
ended December 31, 1996 included in the Registration Statement and
the Final 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
(ii) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company) set forth in the
Registration Statement and the Final Prospectus, including the
information set forth under the captions "Selected Financial
Information", and in Exhibit 12 to the Registration Statement agrees
with the accounting records and schedules of the Company and its
subsidiaries, excluding any questions of legal interpretation.
(g) In addition, Ernst & Young shall have furnished to you a letter
or letters, dated, respectively, as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to you, to the effect
that on the basis of a reading of the unaudited condensed financial
statements of the Company contained in the Company's Quarterly Reports on
Form 10-Q for the quarter ended September 30, 1997
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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 Final
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 September 30, 1997 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 December 31, 1996, 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 September 30, 1997, unaudited consolidated
balance sheet data included in "Selected Financial Information" in the
Registration Statement and the Prospectus, or for the period from December
31, 1996 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.
References to the Prospectus in paragraphs (f) and (g) include any
supplement thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the respective
dates as of which information is given in the Registration Statement and
the Prospectus, there shall not have been (i) any change or decrease
specified in the letters referred to in paragraphs (f) and (g) of this
Section 6 or (ii) any change, or any development involving a prospective
change, in or affecting the business or properties of the Company and its
subsidiaries taken as a whole the effect of which, in any case referred to
in clause (i) or (ii) above, is, in your judgment, so material and adverse
as to make it
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impractical or inadvisable to proceed with the public offering or the
delivery of the Pass Through Certificates as contemplated by the
Registration Statement and the Prospectus.
(i) 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.
(j) 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.
(k) The Pass Through Certificates shall have received ratings of "A1
senior secured" by Xxxxx'x Investors Service, Inc. and "A+" by Standard &
Poor's Corporation.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to you and your counsel, this Agreement and all your obligations
hereunder may be canceled at, or at any time prior to, the Closing Date by you.
Notice of such cancellation shall be given to the Company in writing or by
telephone or telegraph confirmed in writing.
7. Reimbursement of the Underwriters' Expenses. If the sale of the Pass
Through Certificates provided for herein is not consummated because any
condition to your obligation set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the 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 Pass Through Certificates.
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 Pass Through
Certificates as originally filed or
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in any amendment thereof, or in any Preliminary Prospectus or the Prospectus, or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and agrees to
reimburse you and each such controlling person for any legal or other expenses
reasonably incurred by you or such controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) 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 you specifically for use
in connection with the preparation thereof, it being understood and agreed that
the only information furnished by or on behalf of the Underwriter consists of
(x) the stabilization language appearing on the top of page S-2, (y) the third
paragraph under the caption "Underwriting," and (z) the first sentence of the
fifth paragraph under the caption "Underwriting," each as contained in the
Preliminary Final Prospectus and the Final Prospectus and (ii) 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 Pass Through Certificates
which are the subject thereof did not receive a copy or the Final Prospectus (or
the Final Prospectus as amended or supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of the sale of
such Pass Through Certificates to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in such Preliminary Final Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented). This indemnity
agreement will be in addition to any liability which Union may otherwise have.
(b) You 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 preparation of the
documents referred to in clause (a) of this Section 8. This indemnity agreement
will be in addition to any liability which you may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page and under the heading "Underwriting" in any Preliminary Final Prospectus
and the Final Prospectus and the stabilization language included on the inside
front cover of any Preliminary Final Prospectus and the Final Prospectus
constitute the only information furnished in writing by or on behalf of you for
inclusion in any Preliminary Final Prospectus or the Final Prospectus, and you
confirm that such statements are correct.
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(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 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 Pass Through Certificates appearing on the cover page of the
Prospectus attributable to Pass Through Certificates sold by you bears to the
aggregate public offering price in respect of such Pass Through Certificates
appearing thereon and the Company is responsible for the balance;
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provided, however, that (y) in no case shall you be responsible for any amount
in excess of such respective underwriting commissions and (z) no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls you within the meaning of the Act shall have the same rights to
contribution as you, and each person who controls the 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 contributions may be made against another party
or parties under this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
9. Termination. This Agreement shall be subject to termination in your
absolute discretion by notice given to the Company prior to delivery of and
payment for the Pass Through Certificates, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal, New York State or
Illinois State authorities or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
your judgment, impracticable to market the Pass Through Certificates.
10. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of 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 Pass Through Certificates. The provisions of Sections 7 and 8
hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to you, will be mailed, delivered or telegraphed
and confirmed in the case of Solomon Brothers Inc at 0 Xxxxx Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Legal Department; or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at 000 Xxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, 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
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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 /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
The foregoing Agreement is
hereby confirmed and accepted as of the
date first written above.
SALOMON BROTHERS INC
By /s/ Xxx Xxxxxxxx
--------------------------------
Name: Xxx Xxxxxxxx
Title: Vice President
28
Schedule A
Final
Pass Through Certificate Principal Amount Interest Rate Distribution Date
------------------------ ---------------- ------------- -----------------
1998-A $97,852,000 6.57% January 2, 2014
Type of Offering: Delayed Offering
