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EXHIBIT 1
Union Tank Car Company
$100,000,000
____% Senior Secured Notes Due 2010
Underwriting Agreement
New York, New York
May , 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Union Tank Car Company, a Delaware corporation (the "Company"),
proposes to sell to you $100,000,000 aggregate principal amount of
____% Senior Secured Notes, due ______, 2010 (the notes being herein referred to
as the "Securities"), to be issued under the Indenture and Security Agreement,
dated as of May __, 1999 (the "Indenture"), between the Company and The First
National Bank of Chicago, as trustee (the "Trustee").
1. Representations and Warranties. The Company represents and warrants
to, and agrees with you, that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement (file number 333-___) on such Form, including a
related Preliminary Prospectus (as hereinafter defined), for the
registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, including
the related Preliminary Prospectus, each of which has previously been
furnished to you. The Company will next file with the Commission one of
the following: (i) prior to effectiveness of such registration
statement, a further amendment to such registration statement,
including the form of final prospectus or (ii) a final prospectus in
accordance with Rules 430A and
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424(b)(1) or (4). In the case of clause (ii), the Company has included
in such registration statement, as amended at the Effective Date (as
hereinafter defined), all information (other than Rule 430A Information
(as hereinafter defined)) required by the Act and the rules thereunder
to be included in the Prospectus (as hereinafter defined) with respect
to the Securities and the offering thereof. As filed, such amendment
and form of final prospectus, or such final prospectus, shall contain
all Rule 430A Information, together with all other such required
information, with respect to the Securities and the offering thereof
and, except to the extent you shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior
to the Execution Time (as hereinafter defined) or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement (as
hereinafter defined) did or will, and when the Prospectus is first
filed in accordance with Rule 424(b) (if required) and on the Closing
Date (as hereinafter defined), the Prospectus (and any supplements
thereto) will, comply in all material respects with the applicable
requirements of the Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the respective rules and regulations
thereunder; on the Effective Date, the Registration Statement did not
or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; on the Effective
Date and on the Closing Date, the Indenture did or will comply in all
material respects with the requirements of the Trust Indenture Act of
1939 (the "Trust Indenture Act") and the rules thereunder; and, on the
Effective Date, the Prospectus, if not filed pursuant to Rule 424(b),
did not or will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Prospectus (together with any
supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee and (ii) the information contained in or omitted from
the Registration Statement or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished
in writing to the Company by you specifically for use in connection
with the preparation of the Registration Statement or the Prospectus
(or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Effective Date" shall mean each
date that the Registration Statement and any post-effective amendment
or amendments thereto became or become effective. "Execution Time"
shall mean the date and time that this
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Agreement is executed and delivered by the parties hereto. "Preliminary
Prospectus" shall mean any preliminary prospectus referred to in
paragraph (a) above and any preliminary prospectus included in the
Registration Statement at the Effective Date that omits Rule 430A
Information. "Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred
to in paragraph (a) above, including incorporated documents, exhibits
and financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended. Such term shall include any Rule
430A Information deemed to be included therein at the Effective Date as
provided by Rule 430A. "Rule 424", "Rule 430A" and "Regulation S-K"
refer to such rules or regulation under the Act. "Rule 430A
Information" means information with respect to the Securities and the
offering thereof permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A. Any
reference herein to the Registration Statement, a Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before the
Effective Date, or the issue date of such Preliminary Prospectus or the
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the filing of any document under the Exchange
Act after the Effective Date, or the issue date of any Preliminary
Prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(d) The consolidated financial statements incorporated by
reference in the Registration Statement and Prospectus present fairly
the consolidated financial position of the Company and its subsidiaries
as at the dates indicated and the consolidated results of their
operations and cash flows for the periods specified and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved, except as
indicated therein, and the supporting schedules incorporated by
reference in the Registration Statement present fairly the information
required to be stated therein.
(e) The documents incorporated by reference in the Prospectus,
at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements
of the Exchange Act, and the rules and regulations thereunder.
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(f) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby, there has been no
material adverse change in the condition, financial or otherwise,
results of operations or general affairs of the Company and its
subsidiaries, taken as a whole.
(g) The Company and each Significant Subsidiary (with such
term having the meaning attributed to it under Rule 405 under the Act)
of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in
which it is chartered or organized, with full corporate power and
authority to own its properties and conduct its business as described
in the Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification wherein it owns or leases material
properties or conducts material business, except in such jurisdictions
in which the failure to so qualify would not have a material adverse
effect on the Company and its subsidiaries taken as a whole.
(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 (x) such as are required under the Act, the Trust
Indenture Act and the securities or Blue Sky laws of the various
states, (y) such filings, recordings or registrations with the Surface
Transportation Board of the Department of Transportation and under
Section 105 of the Canada Transportation Act as may be required and
(z) such other filings, recordings or registrations as may be required
under the Indenture or the Securities.
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(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 Prospectus.
(j) Ernst & Young, who reported on the consolidated financial
statements of the Company as of December 31, 1998 and for the year then
ended, which statements are incorporated by reference in the
Registration Statement and Prospectus, were, as of the date of its
report on such consolidated financial statements, and are, as of the
date hereof, independent auditors as required by the Act and the rules
and regulations thereunder.
(k) The Securities have been duly authorized by the Company
and when duly executed and delivered by the Company and authenticated
and delivered by the Trustee 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.
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 to you, and you agree to purchase, from the Company
at a purchase price of % of the principal amount thereof, the Securities.
As compensation to you, for your commitment and obligations hereunder
in respect of the Securities, the Company will pay to you when due an amount
equal to % of the original aggregate principal amount of the Securities. The
Company's payments under this paragraph shall be made simultaneously with the
payment by you to the Company as specified in Section 3 hereof. Payment of such
compensation shall be made by Federal funds check or other immediately available
funds to the order of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at the office of ▇▇▇▇, Gerber & ▇▇▇▇▇▇▇▇▇, Two North LaSalle
Street, Chicago, Illinois, at 9:00 a.m., Chicago time, on ____, 1999, or such
later date (not later than ___, 1999) as you shall designate, which date and
time may be postponed by agreement between you and the Company (such date and
time of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made to you against payment by you
of the purchase price thereof to or upon the order of the Company by Federal
funds check or other immediately available funds. Certificates for the
Securities shall be registered in such names and in such denominations as you
may request not less than three full business days in advance of the Closing
Date.
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The Company agrees to have the Securities available for inspection,
checking and packaging by you in New York, New York, not later than 1:00 p.m. on
the business day prior to the Closing Date.
4. Offering by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. It is understood that, after
the Registration Statement becomes effective, you propose to offer the
Securities for sale to the public as set forth in the Prospectus.
5. Agreements. The Company agrees with you that:
(a) The Company will use its reasonable best efforts to cause
the Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective and the Indenture and
Security Agreement to be qualified under the Trust Indenture Act. The
Company will not file any amendment to the Registration Statement or
supplement to the Prospectus unless the Company has furnished you a
copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if filing of the Prospectus is
required under Rule 424(b), the Company will cause the Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
you of such timely filing. The Company will promptly advise you (i)
when the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective, (ii) when
the Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b), (iii) when,
prior to termination of the offering of the Securities, any amendment
to the Registration Statement shall have been filed or become
effective, (iv) of any request by the Commission for any amendment to
the Registration Statement or supplement to the Prospectus or for any
additional information, (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that purpose
and (vi) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose and (vii) during the period when a prospectus relating to
the Securities is required to be delivered under the Act, of the
mailing or the delivery to the Commission for filing of any document to
be filed pursuant to the Exchange Act. The Company will use its
reasonable best efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances
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under which they were made, not misleading, or if it shall be necessary
to amend the Registration Statement or supplement the Prospectus to
comply with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will prepare and file with the
Commission, subject to paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to 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
Prospectus and the Prospectus and any amendments thereof and
supplements thereto as you may reasonably request. The Company will pay
the expenses of printing all documents relating to the offering.
(e) The Company will cooperate with you and your special
counsel to arrange for the qualification of the Securities for sale
under the laws of such jurisdictions as you may reasonably designate,
will maintain such qualifications in effect so long as required for the
distribution of the Securities and will cooperate with you and your
counsel to arrange for the determination of the legality of the
Securities for purchase by institutional investors; provided, however,
that the Company will not be required to qualify to do business in any
jurisdiction in order to effect such qualification.
(f) Between the date of this Agreement and the Closing Date,
the Company will not, without your prior written consent, offer, sell,
or enter into any agreement to sell, any public debt securities
registered under the Act (other than the Securities).
(g) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Florida, Chapter 92-198,
An Act Relating to Disclosure of Doing Business with Cuba, and the
Company further agrees, if necessary, that if the Company commences
engaging in business with the government of Cuba or with any person or
affiliate located in Cuba after the date the Registration Statement
becomes or has become effective with the Commission or with the Florida
Department of Banking and Finance (the "Department"), whichever date is
later, or if the information reported in the Prospectus, if any,
concerning the Company's business with Cuba or with any person or
affiliate located in Cuba changes in any material way, the Company will
provide the Department with notice of such business change, as
appropriate, in a form acceptable to the Department.
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6. Conditions to the Obligation of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. Your
obligation 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 on the business day following the day on which the
public offering price was determined, if such determination occurred
after 3:00 p.m., New York City time, on such date; if filing of the
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Prospectus, and any such supplement, will be filed in the
manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to you and to ▇▇▇▇▇'▇
Investors Service and Standard & Poor's Corporation (together, the
"Rating Agencies") if requested by you, the opinion of ▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, special counsel to the Company (incorporating and relying
upon the opinions of Osler, ▇▇▇▇▇▇ & Harcourt, special Canadian counsel
to the Company, as to Canadian law matters, and ▇▇▇▇▇ & ▇▇▇▇▇▇▇,
special Department of Transportation counsel to the Company, as to
Surface Transportation Board matters), dated the Closing Date, to the
effect that:
(i) the Company and each of its Significant
Subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized, with
full corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and is
duly qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction which
requires such qualification wherein it owns or leases material
properties or conducts material business, except in such
jurisdictions in which the failure to so qualify would not
have a material adverse effect on the Company and its
subsidiaries taken as a whole;
(ii) 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
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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);
(iii) the lien granted to the Trustee under the
Indenture creates valid and binding first priority perfected
security interests in the Collateral, as such term is defined
in the Indenture;
(iv) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus,
and there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit, which
is not described or filed as required;
(v) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b);
to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement, the
Prospectus and each amendment or supplement thereto (other
than the financial statements and related schedules and other
financial and statistical information contained therein as to
which such counsel need express no opinion) comply as to form
in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules and
regulations thereunder;
(vi) the Indenture has been duly filed and recorded
with the Surface Transportation Board of the Department of
Transportation and the Registrar General of Canada and the
Collateral is subject to no liens or encumbrances of record at
the Surface Transportation Board and the Registrar General of
Canada;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by you, constitutes a
valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except (i)
as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting enforcement of
creditors' rights generally and by general principles of
equity (regardless of whether enforcement is considered in a
proceeding in
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equity or at law) and (ii) as to provisions of this Agreement
relating to indemnification or contribution for liabilities
arising under the Act, as to which such counsel need express
no opinion;
(viii) no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated herein,
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;
(ix) neither the issue and sale of the Securities,
nor the consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach of, or constitute a default
under the charter or by-laws of the Company or the terms of
any indenture or other agreement or instrument known to such
counsel and to which the Company or any of its subsidiaries is
a party or bound, or any order or regulation known to such
counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Company or any of its subsidiaries;
(x) the Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(xi) on the Closing Date, assuming due execution and
delivery of the Securities by the Company and authentication
of the Securities by the Trustee, 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 Security Agreement;
(xii) the Indenture and the Securities conform in all
material respects to the descriptions thereof contained in the
Prospectus; and
(xiii) the Indenture cannot be terminated by the
Company for so long as the Securities are outstanding.
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In passing on the form of the Registration Statement and the Prospectus
and each amendment and supplement thereto, such counsel may state that
it has not independently verified the accuracy, completeness or
fairness of the statements made or included therein and takes no
responsibility therefor and that such opinion is based upon such
counsel's examination of the Registration Statement, the Prospectus as
amended or supplemented, its activities in connection with the
preparation thereof and its participation in conferences with certain
officers and employees of the Company, its subsidiaries and its
affiliates and with representatives of Ernst & Young and any others
referred to in such opinion, and subject to the same qualifications,
such counsel may also state that, although they are not passing upon,
and do not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
Prospectus and have not made any independent check or verification
thereof, nothing has come to their attention in their examination of
the Registration Statement, their participation in the preparation
thereof and participation in the above-referenced conferences that has
caused them to believe that the Registration Statement, at the time it
became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or the
Prospectus, as of its date and as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may state that it expresses no
opinion as to the laws of any jurisdiction other than the State of
Illinois, the General Corporation Law of the State of Delaware and the
Federal law of the United States of America and may rely (A) as to
matters involving the application of (x) laws of Canada or its
Provinces and (y) laws, rules and regulations with respect to the
Surface Transportation Board to the extent deemed proper and specified
in such opinion, upon the opinion of other counsel of good standing
whom such counsel believes to be reliable and who are satisfactory to
you and your counsel and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Company
and public officials, and may assume for purposes of its opinion set
forth in Section 6(b)(vi) that the laws of the State of New York are
identical to the laws of the State of Illinois.
(c) You shall have received from ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, 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 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 Prospectus and this Agreement and that:
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(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 in the Prospectus,
there has been no material adverse change in the
condition (financial or other), earnings, business or
properties of the Company and its subsidiaries,
whether or not arising from transactions in the
ordinary course of business, except as set forth in
or contemplated in the Prospectus.
(e) At the Execution Time and at the Closing Date, Ernst &
Young shall have furnished to you a letter or letters, dated,
respectively, as of the Execution Time and as of the Closing Date, in
form and substance satisfactory to you, confirming that they are
independent auditors within the meaning of the Act and the applicable
published rules and regulations thereunder and stating in effect that
in their opinion the audited consolidated financial statements and
schedules thereto incorporated by reference in the Registration
Statement and the Prospectus and reported on by them comply as to form
in all material respects with the applicable accounting requirements of
the Act and the applicable published rules and regulations thereunder
with respect to registration statements on Form S-3; and as to the
periods for which it served as the Company's independent auditor, such
financial statements were covered by unqualified reports issued by
them; and that they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company) incorporated in the
Registration Statement and the Prospectus, with the accounting records
and schedules of the Company and its subsidiaries, excluding any
questions of legal interpretation.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
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[(f) [INCORPORATE IF FIRST QUARTER 10-Q IS FILED] In addition,
Ernst & Young shall have furnished to you a letter or letters, dated,
respectively, as of the Execution Time and as of the Closing Date, in
form and substance satisfactory to you, to the effect that:
(i) on the basis of a reading of the
unaudited condensed financial statements of the
Company contained in the Company's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1999
incorporated by reference in the Registration
Statement; 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 December 31,
1998 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,
1998, 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 December 31, 1998, audited consolidated
balance sheet incorporated in the Registration
Statement and the Prospectus, or for the period from
December 31, 1998 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.]
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(g) Subsequent to the Execution Time or, if earlier, the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there shall not have been (i) any change
or decrease specified in the letter or letters referred to in
paragraphs (e) and (f) 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
impractical or inadvisable to proceed with the public offering or the
delivery of the Securities as contemplated by the Registration
Statement and the Prospectus.
(h) Subsequent to the Execution Time and prior to the Closing
Date, there shall not have occurred any downgrading nor shall any
notice have been given of (i) any intended or potential downgrading or
(ii) any review or possible change in the rating accorded the Company's
debt securities by the Rating Agencies as of the Execution Time.
(i) Prior to the Closing Date, the Company shall have
furnished to you and the Rating Agencies such further information,
certificates and documents as you and they may reasonably request.
(j) The Notes shall have received ratings of "A1 senior
secured" by ▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc's Expenses. If the sale of
the Securities provided for herein is not consummated because any condition to
your obligation set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 9 hereof or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by you, the Company
will reimburse you upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
you in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless you and each person who controls you within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to
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which you or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in any Preliminary Prospectus or the Prospectus, or in any amendment
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 agree to reimburse
you and each such controlling person for any legal or other expenses reasonably
incurred by you or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) 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, and (ii) such indemnity with respect to
any Preliminary Prospectus shall not inure to your benefit (or to the benefit of
any person controlling you) if the person asserting any such loss, claim, damage
or liability purchased the Securities which are the subject thereof did not
receive a copy of the Prospectus (or the Prospectus as amended or supplemented),
excluding documents incorporated therein by reference, at or prior to the
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in such Preliminary Prospectus was corrected in the
Prospectus (or the Prospectus as amended or supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) You agree to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration Statement, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
you, but only with reference to written information relating to you furnished to
the Company by or on behalf of you specifically for use in the preparation of
the documents referred to in clause (a) of this 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, those set forth under the caption "Underwriting" in any Preliminary
Prospectus and the Prospectus and the stabilization language included in the
inside front cover of any Preliminary Prospectus and the Prospectus constitute
the only information furnished in writing by or on behalf of you for inclusion
in any Preliminary Prospectus or the Prospectus, and you confirm that such
statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party
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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 it 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 its 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 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 you are responsible for that portion
represented by the percentage that the aggregate underwriting commission in
respect of the Securities appearing on the cover page of the Prospectus bears to
the average public offering price in respect of such Securities appearing
thereon and the Company is responsible for the balance; provided, however, that
(y) in no case shall you be responsible for any amount in excess of such
aggregate underwriting commission and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls you
within the meaning of the Act shall have the same rights to contribution as you,
and each person who controls the Company within the meaning of the Act, each
officer of the Company who shall
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have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to
clauses (y) and (z) of this paragraph (d). Any party entitled to contribution
will, promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (d).
9 Termination. This Agreement shall be subject to termination in your
absolute discretion by notice given to the Company prior to delivery of and
payment for the Securities, if prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your judgment,
impracticable to market the Securities.
10 Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of you set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of you or the Company or any of its officers, directors or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
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 to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Legal Department; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to the Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Secretary.
12 Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof and their
respective executors, administrators and successors, and no other person will
have any right or obligation hereunder.
13 Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
Union Tank Car Company
By:
------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc
By:
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Name:
Title:
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