<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 13, 1999
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
UNION TANK CAR COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 36-3104688
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
-------------------
225 WEST WASHINGTON STREET
CHICAGO, ILLINOIS 60606
(312) 372-9500
(Address, including zip code and telephone number, including
area code, of registrant's principal executive offices)
---------------------
WILLIAM M. HOLZMAN, ESQ.
NEAL, GERBER & EISENBERG
TWO NORTH LASALLE STREET
CHICAGO, ILLINOIS 60602
(312) 269-8000
(Name, address, including zip code, and telephone number
including area code, of agent for service)
Copies to:
BARRY P. BIGGAR, ESQ.
MAYER, BROWN & PLATT
1675 BROADWAY
NEW YORK, NEW YORK 10019
(212) 506-2500
-------------------
Approximate date of commencement of proposed sale to the public:As
soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box [ ].
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to rule 415 under the
securities act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box [ ].
If this Form is filed to register additional securities for an
offering pursuant to rule 462(b) under the securities act, please check the
following box and list the securities act registration statement number of the
earlier effective registration statement for the same offering [ ].
If this Form is a post-effective amendment filed pursuant to rule
462(c) under the securities act, check the following box and list the securities
act registration statement number of the earlier effective registration
statement for the same offering [ ].
If delivery of the prospectus is expected to be made pursuant to rule
434, check the following box calculation of registration fee [ ].
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================
Proposed
Maximum Amount of
Title of Each Class of Aggregate Registration
Securities to be Registered Offering Price(1) Fee
- -------------------
<S> <C> <C>
Senior Secured Notes due 2010 $100,000,000 $27,800
===================================================================================================================
</TABLE>
(1) Exclusive of accrued interest, if any.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED APRIL 13, 1999
PROSPECTUS
$100,000,000
UNION TANK CAR COMPANY
___% SENIOR SECURED NOTES DUE 2010
The notes will bear interest at the rate of _____% per year. Interest
on the notes is payable on May 1 and November 1 of each year beginning on
November 1, 1999. The notes will mature on ___________________, 2010. The
Company may redeem some or all of the notes at any time. The redemption prices
are discussed under the caption "Description of the Notes--Redemption."
The notes will be senior obligations of the Company and will rank
senior to all of the Company's existing and future subordinated indebtedness.
The notes will be secured by a first priority lien on certain railway tank cars
and other rail cars of the types used in the Company's business with a total
cost of at least $133,333,333 (133 1/3% of the principal amount of the notes).
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
-------------------
<TABLE>
<CAPTION>
Per Note Total
<S> <C> <C>
Public Offering Price 100% $100,000,000
Underwriting Discount ____% $___________
Proceeds to the Company (before expenses) ____% $___________
</TABLE>
Interest on the notes will accrue from __________, 1999 to date of
delivery.
The underwriter is offering the notes subject to various conditions.
The underwriter expects to deliver the notes to purchasers on or about
__________, 1999.
SALOMON SMITH BARNEY
, 1999.
<PAGE> 3
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS. THE COMPANY HAS NOT AUTHORIZED ANYONE TO PROVIDE
YOU WITH DIFFERENT INFORMATION. THE COMPANY IS NOT MAKING AN OFFER OF THESE
SECURITIES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME
THAT THE INFORMATION PROVIDED BY THE PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER
THAN THE DATE ON THE FRONT OF THIS PROSPECTUS.
----------------------
TABLE OF CONTENTS
PAGE
----
Where to Find More Information ........................................ 2
Incorporation of Certain Documents by Reference........................ 2
The Company ........................................................... 2
Use of Proceeds ....................................................... 3
Ratio of Earnings to Fixed Charges ................................... 3
Description of the Notes .............................................. 3
Underwriting .......................................................... 8
Legal Opinions ........................................................ 9
Experts ............................................................... 9
<PAGE> 4
WHERE TO FIND MORE INFORMATION
Union Tank Car Company (the "Company") has filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the notes. This Prospectus is a part of the
Registration Statement, but the Registration Statement also contains additional
information and exhibits.
The Company is required to comply with the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and files
annual, quarterly and current reports with the Commission. You may read and copy
the Registration Statement and the reports that the Company files with the
Commission at the Commission's public reference rooms at 450 Fifth Street, N.W.,
Washington, D.C. 20549, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661 and 7 World Trade Center, Suite 1300, New York, New York 10048. Copies of
such material can also be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. Please call the Commission's toll-free telephone number at 1-800-SEC-0330
if you need further information about the operation of the Commission's public
reference rooms. The Company's filings with the Commission are also available
from the Commission's Web site at http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows the Company to "incorporate by reference" the
information in documents that it files with the Commission. This means that the
Company can disclose important information to you by referring you to those
documents. The information incorporated by reference is considered to be part of
this Prospectus and should be read with the same care. Any later information
that the Company files with the Commission prior to the completion of the note
offering will automatically update and supersede that information.
The following document is incorporated in and made a part of the this
Prospectus by reference:
- the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998; and
- any future documents that the Company files with the
Commission under Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act before the note offering is completed.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written request, a copy of any or all documents
incorporated by reference in this Prospectus. Requests for such copies should be
directed to the General Counsel and Secretary, Union Tank Car Company, 225 West
Washington Street, Chicago, Illinois 60606, telephone (312) 372-9500.
THE COMPANY
The Company is principally engaged in the leasing of railway tank cars
and other rail cars to United States, Canadian and Mexican manufacturers and
other shippers of chemical products, including liquid fertilizers, petroleum
products, including liquid petroleum gas, food products and bulk plastics. The
Company owns and operates one of the largest fleets of privately-owned railway
tank cars in the world.
The Company, which was incorporated in Delaware in 1980 and is the
successor to a business which was incorporated in New Jersey in 1891 and
reincorporated in Delaware in 1968, is a wholly-owned subsidiary of Marmon
Industrial LLC, a wholly-owned subsidiary of Marmon Holdings, Inc. Substantially
all the stock of Marmon Holdings, Inc. is owned, directly or indirectly, by
trusts for the benefit of certain members of the Pritzker family. In this
prospectus, "Pritzker family" refers to the lineal descendants of Nicholas J.
Pritzker, deceased.
-2-
<PAGE> 5
The Company's principal executive offices are located at 225 West
Washington Street, Chicago, Illinois 60606, and its telephone number is (312)
372-9500.
USE OF PROCEEDS
The Company will use the net proceeds from the sale of the notes to
finance the addition of rail cars to the Company's fleet and for general
corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
for the Company and its subsidiaries for the periods indicated. The ratio of
earnings to fixed charges represents the number of times that interest expense,
amortization of debt discount and the interest component of rent expense were
covered by income before income taxes and cumulative effect of a change in
accounting principle and such interest, amortization and the interest component
of rentals.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C>
3.23x 2.74x 2.84x 2.41x 2.05x
</TABLE>
DESCRIPTION OF THE NOTES
GENERAL
The notes will be issued under an Indenture and Security Agreement (the
"Indenture") between the Company and The First National Bank of Chicago ("First
Chicago"), as trustee (the "Trustee"). The following description of the notes
does not purport to be complete and is qualified in its entirety by reference to
all of the provisions of the notes and the Indenture.
The notes will rank senior in right of payment to all existing and future
subordinated indebtedness of the Company. The notes will be secured by a first
priority lien on certain railway tank cars and other rail cars of the type used
in the Company's business.
The notes will be issued in fully registered form only, without coupons,
in denominations of $1,000 or any integral multiple of $1,000.
The Indenture does not contain any financial or operating covenants
(except for covenants relating to the Collateral (as defined below)) or any
"event risk" provisions specifically designed to protect noteholders in the
event the Company incurs substantially more debt in a transaction which may or
may not result in a change of control of the Company.
PAYMENT OF PRINCIPAL AND INTEREST
The principal amount of the notes will be limited to $100,000,000.
Interest will accrue on the notes at the rate indicated on the cover page of
this Prospectus from the date of issuance, payable semiannually on May 1 and
November 1 in each year, beginning November 1, 1999, to the holders of record of
the notes as of the Business Day preceding each payment date. The notes will
mature on _________, 2010.
REDEMPTION
The Company may at its option redeem all or a portion of the notes, at any
time at a price equal to 100% of the principal amount of the notes being
redeemed, together with accrued and unpaid interest, plus a Make-Whole Amount.
The term "Make-Whole Amount" means, with respect to the principal amount
of any note to be redeemed on any redemption date, the amount to be determined
as of the third Business Day prior to the applicable redemption date, equal to
the product obtained by multiplying (a) the excess, if any, of (i) the sum of
the present values of all the remaining scheduled payments of principal and
interest from the redemption date to maturity of such note, discounted
semi-annually on each May 1 and November 1 at a rate equal to the Treasury Rate,
based on a 360-day year of twelve 30-day months, over (ii) the aggregate unpaid
principal amount of such note plus any accrued but unpaid interest thereon by
(b) a fraction the numerator of which shall be the principal amount of such note
to be redeemed on such redemption date and the denominator of which shall be the
aggregate unpaid
-3-
<PAGE> 6
principal amount of such note. The Make-Whole Amount will be calculated by an
independent investment banking institution of national standing appointed by the
Company (an "Independent Investment Banker"). In calculating the Make-Whole
Amount, the Independent Investment Banker will first determine the Treasury Rate
applicable to the note.
"Treasury Rate" means, with respect to calculation of Make-Whole Amount, a
per annum rate (expressed as a semiannual equivalent and as a decimal and, in
the case of United States Treasury bills, converted to a bond equivalent yield),
determined to be the per annum rate equal to the semiannual yield to maturity
for United States Treasury securities maturing on the Average Life Date of such
note, as determined by interpolation between the most recent weekly average
yields to maturity for two series of United States Treasury securities, (A) one
maturing as close as possible to, but earlier than, the Average Life Date of
such note and (B) the other maturing as close as possible to, but later than,
the Average Life Date on such note, in each case as published in the most recent
H.15(519) (or, if a weekly average yield to maturity for United States Treasury
securities maturing on the Average Life Date of such note is reported in the
most recent H.15(519), as published in H.15(519). H.15(519) means "Statistical
Release H.15(519), Selected Interest Rates, or any successor publication,
published by the Board of Governors of the Federal Reserve System. The most
recent H.15(519) means the latest H.15(519) which is published prior to the
close of business on the third Business Day preceding the scheduled redemption
date. "Average Life Date" means, with respect to a note, the date which follows
the redemption date or, in the case of a note not being redeemed, the date of
such determination, by a period equal to the Remaining Weighted Average Life of
such note. "Remaining Weighted Average Life" means, with respect to any date of
redemption or any date of determination of any note, the number of days equal to
the quotient obtained by dividing (a) the sum of the products obtained by
multiplying (i) the principal amount of such note by (ii) the number of days
from and including the redemption date or date of determination to but excluding
the scheduled payment date of such principal payment by (b) the unpaid principal
amount of such note.
If the Company elects to redeem less than all of the notes, the Trustee is
required to select the notes or portions of the notes to be redeemed pro rata,
by lot or any other method the Trustee deems fair and appropriate. Notices of
redemption will be mailed by first class mail at least 30 days but not more than
60 days before the redemption date to each holder of a note to be redeemed at
its registered address. If any note is going to be redeemed in part only, the
notice of redemption that relates to that note will state the portion of the
principal amount of that note to be redeemed. A new note equal in principal
amount to the unredeemed portion of the original note will be issued in the name
of the noteholder after cancellation of the original note. On and after the
redemption date, interest will not accrue on notes or the portions of them
called for redemption.
SECURITY
The notes will be secured by a first priority lien on certain railway tank
cars and other rail cars of the types used in the Company's business with a
total cost of at least $133,333,333 (the "Collateral"). None of the Collateral
which will initially secure the notes will have been in use prior to January 1,
1998. For the purpose of determining the cost of any unit of equipment included
in the Collateral which was built by the Company or any of its affiliates,
so-called "car builder's cost" (which includes the cost of labor and material
and overhead, but excludes any manufacturing profit) will be used; otherwise the
actual cost to the Company will be used. Of the Collateral which will initially
secure the notes, all of the tank cars have been built by the Company or by a
wholly-owned subsidiary of the Company, and substantially all of the other rail
cars have been built by other manufacturers.
The Indenture will contain provisions requiring the Company to record the
Indenture and each supplement to the Indenture, promptly after their execution
and delivery with the Surface Transportation Board and the Registrar General of
Canada. The Company also will be required to take similar actions in all other
jurisdictions required by law or reasonably requested by the Trustee in order to
protect the Trustee's security interest in the Collateral and the rights of the
Beneficial Owners, but the Company will not be required to record in any
jurisdiction if (1) in the opinion of the Company the recording would be too
burdensome, and (2) after giving
-4-
<PAGE> 7
effect to the failure to record, the Company has done everything required by law
to protect the Trustee's security interest in Collateral with a Value (defined
as the greater of (a) the fair market value of such Collateral and (b) the cost
thereof less 1/20th of such cost for each year such Collateral has been in use)
of not less than 90% of the Value of all Collateral securing the notes.
The Indenture allows the use of the Collateral in the Company's business,
including the sublease of the Collateral to others if the terms and conditions
of the Indenture are followed.
MAINTENANCE, RELEASE AND SUBSTITUTION OF COLLATERAL
The Company will be required to maintain and keep the Collateral in good
condition unless and until it becomes worn out, unsuitable for use, lost or
destroyed (a "Casualty Occurrence"). The Indenture will provide that, whenever
Collateral with a Value of $750,000 or 1% of the principal amount of notes then
outstanding, whichever is less, has suffered a Casualty Occurrence, the Company
must either deposit with the Trustee an amount in cash equal to the Value of
that Collateral as of the date of the Casualty Occurrence or deliver to the
Trustee Collateral with a Value at least equal to the Value of the Collateral
that suffered the Casualty Occurrence.
The Indenture will provide for the release by the Trustee of Collateral
upon request of the Company and upon (a) the grant to the Trustee of a lien on
other units of equipment (regardless of when first put into use) with a Value at
least equal to the Value of the Collateral to be released or (b) the payment to
the Trustee of an amount of cash at least equal to the Value of the Collateral
to be released. Any cash so deposited (and any cash deposited as provided in the
preceding paragraph) will be paid by the Trustee to the Company in exchange for
additional Collateral with a Value at least equal to the amount of cash to be
paid by the Trustee.
RANKING OF THE NOTES
The notes will rank senior in right of payment to all existing and future
Subordinated Indebtedness of the Company. "Subordinated Indebtedness" is defined
in the Indenture as all indebtedness of the Company which is expressly
subordinate in right of payment to the notes.
EVENTS OF DEFAULT AND PROVISIONS RELATING THERETO
Events of Default will be defined in the Indenture as being: default for
more than 30 days in the payment of interest on the notes; default in the
payment of the principal of the notes; any unauthorized transfer of the
Company's rights under the Indenture, continuing as provided in the Indenture;
any unauthorized transfer, sublease or parting with the possession of any of the
Collateral, continuing as provided in the Indenture; any failure or refusal to
perform any other covenant in the Indenture for the shorter of (i) 60 days after
the Trustee has demanded performance of the covenant and (ii) 30 days after the
Company has knowledge of the failure to perform the covenant; or certain events
of bankruptcy. The appointment of a receiver or trustee in bankruptcy or
reorganization for the Company or for its property will be deemed to be an
unauthorized assignment if, before the exercise of the remedies of the Trustee
under the Indenture, the receiver or trustee has not been discharged or has not
assumed the Company's obligations under the Indenture. The Indenture will
provide that the Trustee will, promptly after the occurrence of any Event of
Default known to it, give to noteholders notice of the default. However, unless
the default is the failure to make payments of the principal of or interest on
any of the notes, the Trustee will be protected in withholding notice if and so
long as the Trustee in good faith determines that the withholding of notice is
in the interest of the Beneficial Owners.
In the event of the bankruptcy or reorganization of the Company, the right
of the Trustee to repossess or dispose of the Collateral would be subject to the
provisions of the Bankruptcy Code of 1978, as amended, applicable to industrial
companies generally, and not those provisions applicable to railroads,
particularly Section 1168 thereof.
-5-
<PAGE> 8
If an Event of Default occurs, the Trustee or the holders of more than 50%
in aggregate principal amount of the outstanding notes may declare the principal
of the notes and all accrued interest to be due and payable. Subject to certain
conditions, however, any such declaration may be rescinded by the holders of a
majority in principal amount of the outstanding notes after payment by the
Company of all amounts then due otherwise than by acceleration. Before such
declaration, the holders of more than 50% in principal amount of the outstanding
notes may waive any past Event of Default, except an Event of Default in the
payment of the principal of or interest on the notes.
The right of any holder to commence action for any remedy under the
Indenture (except his right to enforce payment of the principal of and interest
on his note when due if such enforcement will not impair the Trustee's title to
the Collateral securing the notes) will be subject to certain conditions
precedent, including a written request by the holders of more than 50% in
principal amount of the outstanding notes to the trustee to take action, and an
offer to the Trustee of reasonable indemnification against liabilities incurred
by it in so doing.
The Indenture will require the annual filing by the Company with the
Trustee of a certificate stating that there has been no default and that the
Company has complied with the terms of the Indenture.
BOOK-ENTRY REGISTRATION-DTC
The notes will initially be issued in the form of one or more global notes
registered in the name of Cede & Co. ("Cede"), as the nominee of The Depository
Trust Company ("DTC"). No person acquiring an interest in the notes (a
"Beneficial Owner") will be entitled to receive a certificate representing that
person's interest in the notes unless "Certificated Notes" are issued as
described below. Unless Certificated Notes are issued, all references in this
prospectus to actions by noteholders refer to actions taken by DTC upon
instructions from DTC Participants (as defined below), and all references to
distributions, notices, reports and statements to noteholders refer, as the case
may be, to distributions, notices, reports and statements to DTC or Cede, as the
registered holder of the notes, or to DTC Participants for distribution to
Beneficial Owners in accordance with DTC procedures.
DTC has advised the Company and Salomon Smith Barney that DTC is a limited
purpose trust company organized under the laws of the State of New York, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to Section 17A of the Exchange Act. DTC was created to hold
securities for its participants ("DTC Participants") and to facilitate the
clearance and settlement of securities transactions between DTC Participants
through electronic book-entries, thereby eliminating the need for physical
movement of certificates. DTC Participants include securities brokers and
dealers (including Salomon Smith Barney), banks, trust companies and clearing
corporations. Indirect access to the DTC system also is available to others such
as banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a DTC Participant either directly or indirectly
("Indirect Participants").
Beneficial Owners that are not DTC Participants or Indirect Participants
but want to purchase, sell or otherwise transfer ownership of, or other
interests in, notes may do so only through DTC Participants and Indirect
Participants. In addition, Beneficial Owners will receive all payments of
principal and interest from the Trustee through DTC Participants or Indirect
Participants, as the case may be. Under a book-entry format, Beneficial Owners
may experience some delay in their receipt of payments because payments will be
forwarded by the Trustee to Cede, as nominee for DTC. DTC will forward those
payments to DTC Participants, which then will forward them to Indirect
Participants or Beneficial Owners, as the case may be, in accordance with
customary industry practices. The forwarding of these distributions to the
Beneficial Owners will be the responsibility of the DTC Participants. The only
"holder," as that term is defined in the Indenture, will be Cede, as nominee of
DTC. Beneficial Owners will not be recognized by the Trustee as holders, and
Beneficial Owners may exercise the rights of holders only indirectly through DTC
and DTC Participants.
-6-
<PAGE> 9
Under the rules, regulations and procedures creating and affecting DTC and
its operations (the "Rules"), DTC is required to make book-entry transfers of
notes among DTC Participants on whose behalf it acts with respect to the notes
and to receive and transmit payments of principal of and interest on the notes.
DTC Participants and Indirect Participants with which Beneficial Owners have
accounts with respect to the notes similarly are required to make book-entry
transfers and receive and transmit such payments on behalf of their respective
Beneficial Owners. Accordingly, although Beneficial Owners will not possess
notes, the Rules provide a mechanism by which Beneficial Owners will receive
payments and will be able to transfer their interests in the notes.
Because DTC can only act on behalf of DTC Participants, who in turn act on
behalf of Indirect Participants or Beneficial Owners, as the case may be, the
ability of a Beneficial Owner to pledge notes to persons or entities that do not
participate in the DTC system, or to otherwise act with respect to such notes,
may be limited due to the lack of a physical certificate for such notes.
DTC has advised the Company that it will take any action permitted to be
taken by a holder under the Indenture only at the direction of one or more DTC
Participants to whose accounts with DTC the notes are credited, which DTC
Participants represent the percentage interest of the Trust necessary to provide
such direction under the Indenture. Additionally, DTC may take conflicting
actions with respect to an undivided interest held by a DTC Participant if it is
directed to do so by that DTC Participant as a result of instructions from
various Beneficial Owners.
Neither the Company nor the Trustee will have any liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interests of the notes held by Cede, as nominee for DTC, or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
CERTIFICATED NOTES
The notes will be issued in fully registered, certificated form
("Certificated Notes") to Beneficial Owners or their nominees, rather than to
DTC or its nominees, only if (i) the Company advises the Trustee in writing that
DTC (or its successor) is no longer willing or able to discharge properly its
responsibilities as depository with respect to the notes and the Trustee or the
Company is unable to locate a qualified successor, (ii) the Company, at its
option, elects to terminate the book-entry system through DTC (or its successor)
or (iii) after an Event of Default has occurred, Beneficial Owners representing
a total percentage interest in the outstanding notes of at least a majority
advise the Trustee through DTC in writing that the continuation of a book-entry
system through DTC (or its successor) is no longer in the Beneficial Owners'
best interest.
If any event described in the immediately preceding paragraph occurs, the
Trustee will be required to notify all Beneficial Owners through DTC
Participants of the availability of Certificated Notes. After surrender by DTC
of the certificates representing the notes and receipt of instructions for
re-registration, the Trustee will reissue the notes as Certificated Notes to
Beneficial Owners or their nominees.
Payment of interest on the notes will be made by the Trustee directly to
holders of Certificated Notes following the procedures set forth in the
Indenture. These payments will be made by check mailed to the address of the
holder listed on the register maintained by the Trustee. The final payment of
principal and interest on any note, however, will be made only after
presentation and surrender of the note at the office or agency specified in the
notice of final payment to holders of notes.
Certificated Notes will be freely transferable and exchangeable at the
office of the Trustee after compliance with the requirements of the Indenture.
No fee will be charged for any registration of transfer or exchange, but holders
will be required to pay any tax or other governmental charge relating to the
transfer or exchange.
-7-
<PAGE> 10
SAME-DAY SETTLEMENT AND PAYMENT
Settlement for the notes will be required to be made in immediately
available funds. All payments of principal of and interest on the notes made by
the Company will be in immediately available funds and will be paid to DTC in
immediately available funds.
Secondary trading in long-term notes and debentures of corporate issuers is
generally settled in clearinghouse or next-day funds. Secondary trading in
securities such as the notes is generally settled in immediately available
funds. The notes will trade in DTC's Same-Day Funds Settlement System, and
secondary market trading activity in the notes will therefore be required by DTC
to settle in immediately available funds.
CONCERNING THE TRUSTEE
First Chicago will be the Trustee.
First Chicago serves as trustee for various equipment trust certificates
issued by the Company. First Chicago also provides customary banking services,
including commercial credit facilities and standby letters of credit to the
Company and certain of its affiliates. In 1998, the Company entered into a
sale-leaseback transaction with a trust for the benefit of a subsidiary of First
Chicago under which the Company sold to and leased back from the trust
approximately $130,000,000 in rail cars. In 1992, the Company entered into a
sale-leaseback transaction with a trust for the benefit of, among others, a
subsidiary of Banc One Corporation, First Chicago's parent. In that transaction,
the Company sold to and leased back from the trust approximately $118,000,000 in
rail cars.
UNDERWRITING
Subject to the terms and conditions stated in the underwriting agreement
dated the date of this prospectus, Salomon Smith Barney Inc. (the "Underwriter")
has agreed to purchase, and the Company has agreed to sell to the Underwriter,
all of the notes being offered.
The Underwriting Agreement provides that the obligation of the Underwriter
to purchase the notes included in this offering is subject to the approval of
certain legal matters by counsel and to certain other conditions. The
Underwriter is obligated to purchase all the notes if it purchases any of the
notes.
The Underwriter proposes to offer some of the notes directly to the public
at the public offering price set forth on the cover page of this Prospectus and
some of the notes to certain dealers at the public offering price less a
concession not in excess of % of the principal amount of the notes. The
Underwriter may allow, and those dealers may reallow, a concession not in excess
of % of the principal amount of the notes on sales to certain other dealers.
After the initial offering of the notes to the public, the public offering price
and such concessions may be changed by the Underwriter.
The Company has agreed to indemnify the Underwriter and the Underwriter
has agreed to indemnify the Company against certain liabilities, including
liabilities under the Securities Act.
The Company does not intend to list the notes on any national securities
exchange. The Underwriter has advised the Company that it currently intends to
make a market in the notes. However, it is not required to do so and any
market-making activities may be discontinued at any time without notice. In
addition, any market-making activities will be subject to the limits imposed by
the Securities Act and the Exchange Act. Therefore, no assurance can be given as
to the liquidity of or the trading market for the notes.
-8-
<PAGE> 11
LEGAL OPINIONS
The validity of the notes is being passed upon for the Company by Neal,
Gerber & Eisenberg, Chicago, Illinois, and for the Underwriter by Mayer, Brown &
Platt, New York, New York.
EXPERTS
Ernst & Young LLP, independent auditors, have audited the Company's
consolidated financial statements included in the Company's Annual Report on
Form 10-K for the year ended December 31, 1998, as set forth in their report,
which is incorporated in this prospectus by reference. The Company's
consolidated financial statements are incorporated by reference in reliance on
their report, given on their authority as experts in accounting and auditing.
-9-
<PAGE> 12
================================================================================
$100,000,000
UNION TANK CAR COMPANY
____% SENIOR SECURED NOTES DUE 2010
-----------------
PROSPECTUS
______, 1999
-----------------
Salomon Smith Barney
================================================================================
<PAGE> 13
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses to be incurred by
the Company in connection with the issuance of the notes, other than
underwriting discounts:
<TABLE>
<S> <C>
SEC registration fee........................................................... $27,800
Fees and expenses of the Trustee............................................... 8,000
Printing expenses.............................................................. 50,000
Rating agency fees............................................................. 25,000
Legal fees and expenses........................................................ 150,000
Blue Sky fees and expenses..................................................... 6,000
Accounting fees and expenses................................................... 20,000
Miscellaneous.................................................................. 13,200
---------------
Total................................................................. $ 300,000
=================
</TABLE>
- --------------------
* Actual. All other amounts are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, Article Sixth of
the Company's Restated Certificate of Incorporation and Article VIII of the
Company's By-Laws authorize and empower the Company to indemnify its directors,
officers, employees and agents against liabilities incurred in connection with,
and related expenses resulting from, any claim, action or suit brought against
any such person as a result of such person's relationship with the Company,
provided that such persons acted in accordance with a stated standard of conduct
in connection with the acts or events on which such claim, action or suit is
based. The finding of either civil or criminal liability on the part of such
persons in connection with such acts or events is not necessarily determinative
of the question of whether such persons have met the required standard of
conduct and are, accordingly, entitled to be indemnified.
Reference is made to Section 8 of the form of Underwriting Agreement
filed as Exhibit 1 hereto for provisions regarding indemnification of the
Company and its officers, directors and controlling persons against certain
liabilities.
ITEM 16. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION OF DOCUMENTS
- -------------- ------------------------
1 Form of Underwriting Agreement.
4(a) Form of Indenture and Security Agreement between the Company and The
First National Bank of Chicago.
4(b) Form of Senior Secured Note (included in Exhibit 4(a)).
5 Opinion of Neal, Gerber & Eisenberg.
II-1
<PAGE> 14
12 Computation of Ratios of Earnings to Fixed Charges.*
23(a) Consent of Neal, Gerber & Eisenberg (included in Exhibit 5).
23(b) Consent of Ernst & Young LLP, Independent Auditors.
24 Powers of Attorney of certain directors and officers of the Company
(included on the signature page to the Registration Statement).
25 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of The First National Bank of Chicago.
- ------------------
* Incorporated by reference to Exhibit 12 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1998.
ITEM 17. UNDERTAKINGS.
A. Undertaking Regarding Documents Subsequently Filed Under the
Exchange Act.
The Company hereby undertakes that, for purposes of determining any
liability under the Act, each filing of the Company's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in this Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
B. Undertaking in Respect of Indemnification.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to the provisions described under Item 15 above, or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Company will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
C. Undertakings Pursuant to Rule 430A.
(1) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Act shall be deemed to be part of this Registration Statement as of
the time it was declared effective.
(2) For the purpose of determining any liability under the Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-2
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Union Tank
Car Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Chicago, State of Illinois on the 12th day of
April, 1999.
UNION TANK CAR COMPANY
/s/ ROBERT C. GLUTH
--------------------------------------------------
Robert C. Gluth,
Executive Vice President,
Treasurer and Director
Each person whose signature appears below hereby constitutes and appoints
Robert C. Gluth, Robert W. Webb and K.P. Fischl, and each of them, the true and
lawful attorneys-in-fact and agents of the undersigned, with full power of
substitution and resubstitution, for and in the name, place and stead of the
undersigned and to file the same, with all exhibits thereto, in any and all
capabilities, to sign any and all amendments and any registration statement
filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended
(including post-effective amendments thereto and other documents in connection
therewith), with the Securities and Exchange Commission, and hereby grants to
such attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done,
as fully to all intents and purposes as the undersigned might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 12th day of April, 1999.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ ROBERT A. PRITZKER President and Director
- ----------------------------------------- (principal executive officer)
Robert A. Pritzker
/s/ ROBERT C. GLUTH Executive Vice President, Treasurer and Director
- ----------------------------------------- (principal financial and accounting officer)
Robert C. Gluth
/s/ K.P. FISCHL
- ----------------------------------------- Director
K.P. Fischl
</TABLE>
II-3
<PAGE> 1
EXHIBIT 1
Union Tank Car Company
$100,000,000
____% Senior Secured Notes Due 2010
Underwriting Agreement
New York, New York
May , 1999
Salomon Smith Barney Inc.
390 Greenwich Street
New York, New York 10013
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
<PAGE> 2
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
-2-
<PAGE> 3
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.
-3-
<PAGE> 4
(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.
-4-
<PAGE> 5
(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 Salomon Smith Barney Inc.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at the office of Neal, Gerber & Eisenberg, Two North LaSalle
Street, Chicago, Illinois, at 9:00 a.m., Chicago time, on ____, 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.
-5-
<PAGE> 6
The Company agrees to have the Securities available for inspection,
checking and packaging by you in New York, New York, not later than 1:00 p.m. on
the business day prior to the Closing Date.
4. Offering by Salomon Smith 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
-6-
<PAGE> 7
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.
-7-
<PAGE> 8
6. Conditions to the Obligation of Salomon Smith Barney 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 Moody's
Investors Service and Standard & Poor's Corporation (together, the
"Rating Agencies") if requested by you, the opinion of Neal, Gerber &
Eisenberg, special counsel to the Company (incorporating and relying
upon the opinions of Osler, Hoskin & Harcourt, special Canadian counsel
to the Company, as to Canadian law matters, and Hogan & Hartson,
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
-8-
<PAGE> 9
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
-9-
<PAGE> 10
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.
-10-
<PAGE> 11
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 Mayer, Brown & Platt, your
special counsel, such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the 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:
-11-
<PAGE> 12
(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.
-12-
<PAGE> 13
[(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.]
-13-
<PAGE> 14
(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 Moody's 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 Salomon Smith 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
-14-
<PAGE> 15
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
-15-
<PAGE> 16
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
-16-
<PAGE> 17
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 390 Greenwich Street New York, New York
10013, Attention: Legal Department; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to the Company at 225 West Washington
Street, Chicago, Illinois 60606, Attention: Secretary.
12 Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof and 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.
-17-
<PAGE> 18
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:
Salomon Smith Barney Inc
By:
-------------------------------
Name:
Title:
-18-
<PAGE> 1
EXHIBIT 4A
================================================================================
UNION TANK CAR COMPANY
---------------------------
INDENTURE AND SECURITY AGREEMENT
Dated as of May ___, 1999
Between
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee,
and
UNION TANK CAR COMPANY
---------------------------
================================================================================
$100,000,000
% Senior Secured Notes Due 2010
<PAGE> 2
Filed with the Surface Transportation Board of the Department of
Transportation pursuant to 49 U.S.C. Section 11301 on May ___, 1999, at [____
a.m./p.m.], Recordation Number _____, and deposited in the Office of the
Registrar General of Canada pursuant to Section 105 of the Canada Transportation
Act on May ___, 1999, at [____ a.m./p.m.]
<PAGE> 3
Reconciliation and tie between INDENTURE AND SECURITY AGREEMENT dated as of May
__, 1999 and the Trust Indenture Act of 1939. This reconciliation does not
constitute part of the Indenture.
<TABLE>
<CAPTION>
Trust Indenture Act Pass Through Trust
of 1939 Section Agreement Section
- --------------- -----------------
<S> <C>
310(a) (1) 7.08, 7.10
(2) 7.08, 7.10
(3) [Inapplicable]
(4) 4.02; 4.03 (a) & (b)
(5)
(b) 7.08; 7.09; 7.10
(c) [Inapplicable]
311(a) 7.14
(b) 7.14
(c) [Inapplicable]
312(a) 2.04; 6.01; 6.02
(b) [Inapplicable]
(c) [Inapplicable]
313 7.02, 6.03
314(a) 6.04
(b) [Inapplicable]
(c)(1) 1.02
(2) 1.02
(3) [Inapplicable]
(d)(1) [Inapplicable]
(2) [Inapplicable]
(3) [Inapplicable]
(e) 1.02
315(a) 7.01(a)
(b) 7.02
(c) 7.01(b)
(d) 7.01(c)
(e) 4.06
316(a)(last sentence)1.04(c)
(1) (A)4.04
(B)4.05
(2) [Inapplicable]
(b) 4.07
(c) 1.04(d)
317(a)(1) 4.03(a)
(2) 4.03(b)
(b) 7.13
318(a) 8.06
</TABLE>
-ii-
<PAGE> 4
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
----
<S> <C>
GRANTING CLAUSE...................................................................................................5
HABENDUM CLAUSE...................................................................................................5
ARTICLE ONE
Definitions.............................................................6
SECTION 1.01. Definitions......................................................................................6
SECTION 1.02. Compliance Certificates and Opinions............................................................11
SECTION 1.03. Form of Documents Delivered to Trustee..........................................................11
SECTION 1.04. Acts of Noteholders.............................................................................12
ARTICLE TWO
Notes and Issuance;Interest and Maturity ..............................13
SECTION 2.01. Notes; Interest Payments; Maturity..............................................................13
SECTION 2.02. Form, Execution and Characteristics of Notes....................................................14
SECTION 2.03. Authentication of Notes.........................................................................15
SECTION 2.04. Registration of Transfer and Exchange of Notes..................................................15
SECTION 2.05. Persons Deemed Owners...........................................................................16
SECTION 2.06. Cancellation....................................................................................16
SECTION 2.07. Replacement of Lost Notes......................................................................16
SECTION 2.08. Book-Entry and Registered Notes.................................................................17
ARTICLE THREE
Collateral.............................................................18
SECTION 3.01. Additional and Substituted Equipment Subject Hereto.............................................18
SECTION 3.02. Termination of Security.........................................................................18
SECTION 3.03. Indemnity.......................................................................................19
SECTION 3.04. Substitution and Replacement of Collateral......................................................19
SECTION 3.05. Maintenance of Collateral; Casualty Occurrences.................................................20
SECTION 3.06. Possession of Collateral........................................................................21
SECTION 3.07. Marking of Collateral...........................................................................22
</TABLE>
- ---------------
* This table of Contents has been included in the document for convenience
only and does not form a part of, or affect any construction or
interpretation of, this document.
-iii-
<PAGE> 5
<TABLE>
<S> <C> <C>
ARTICLE FOUR
Events of Default and Remedies .........................................22
SECTION 4.01. Events of Default..............................................................................22
SECTION 4.02. Incidents of Sale of Collateral................................................................24
SECTION 4.03. Judicial Proceedings Instituted by Trustee.....................................................24
SECTION 4.04. Control by Noteholders.........................................................................25
SECTION 4.05. Waivers of Default.............................................................................25
SECTION 4.06. Undertaking to Pay Court Costs.................................................................26
SECTION 4.07. Unconditional Right of Holders of Notes To Sue for Principal
and Interest........................................................................26
SECTION 4.08. Remedies.......................................................................................26
SECTION 4.09. Application of Proceeds........................................................................27
SECTION 4.10. Obligations of Company Not Affected by Remedies................................................27
SECTION 4.11. Company To Deliver Collateral to Trustee.......................................................28
SECTION 4.12. Limitations on Suits by Holders of Notes.......................................................28
SECTION 4.13. Remedies Cumulative; Subject to Mandatory Requirements of Law..................................28
ARTICLE FIVE
Additional Agreements by the Company ..................................29
SECTION 5.01. Discharge of Liens.............................................................................29
SECTION 5.02. Further Assurances.............................................................................29
SECTION 5.03. Payment of Expenses; Recording.................................................................29
SECTION 5.04. Maintenance of Corporate Existence.............................................................30
SECTION 5.05. Consolidation, Merger or Sale of Assets Permitted..............................................30
ARTICLE SIX
Concerning the Holders of Notes .......................................31
SECTION 6.01. Company to Furnish Trustee with Names and Addresses of Noteholders..............................31
SECTION 6.02. Preservation of Information; Communications to Noteholders......................................31
SECTION 6.03. Reports by Trustee..............................................................................32
SECTION 6.04. Reports by the Company..........................................................................32
ARTICLE SEVEN
The Trustee ...........................................................33
SECTION 7.01. Certain Duties and Responsibilities.............................................................33
SECTION 7.02. Notice of Defaults..............................................................................34
SECTION 7.03. Certain Rights of Trustee.......................................................................34
SECTION 7.04. Not Responsible for Recitals or Issuance of Notes...............................................35
SECTION 7.05. May Hold Notes..................................................................................35
SECTION 7.06. Money Held by Trustee...........................................................................35
SECTION 7.07. Compensation and Reimbursement..................................................................35
</TABLE>
iv
<PAGE> 6
<TABLE>
<S> <C> <C>
SECTION 7.08. Corporate Trustee Required; Eligibility........................................................37
SECTION 7.09. Resignation and Removal; Appointment of Successor..............................................37
SECTION 7.10. Acceptance of Appointment by Successor.........................................................39
SECTION 7.11. Merger, Conversion, Consolidation or Succession to Business....................................39
SECTION 7.12. Maintenance of Agencies........................................................................39
SECTION 7.13. Money for Note Payments to Be Held by Trustee..................................................40
SECTION 7.14. Preferential Collection of Claims..............................................................41
ARTICLE EIGHT
Supplements to Indenture .............................................41
SECTION 8.01. Supplements to Indenture Without Consent of Noteholders........................................41
SECTION 8.02. Supplements to Indenture with Consent of Noteholders...........................................42
SECTION 8.03. Documents Affecting Immunity or Indemnity......................................................43
SECTION 8.04. Execution of Supplements to Indentures.........................................................43
SECTION 8.05. Effect of Supplements to Indenture.............................................................43
SECTION 8.06. Conformity with Trust Indenture Act............................................................43
ARTICLE NINE
Miscellaneous ........................................................43
SECTION 9.01. Rights Confined to Parties and Holders.........................................................43
SECTION 9.02. No Recourse....................................................................................44
SECTION 9.03. Binding Upon Assigns...........................................................................44
SECTION 9.04. Notices .......................................................................................44
SECTION 9.05. Effect of Headings; Date Executed; and Governing Law...........................................44
SECTION 9.06. Legal Holidays.................................................................................44
SECTION 9.07. Counterparts...................................................................................45
</TABLE>
SCHEDULE I - List of Equipment
SCHEDULE II - Payment Schedule
EXHIBIT A - Form of DTC Letter of Representations
v
<PAGE> 7
This INDENTURE AND SECURITY AGREEMENT (this "Indenture") dated as of
May ___, 1999, between THE FIRST NATIONAL BANK OF CHICAGO, solely in its
capacity as Trustee, a national banking association organized and existing under
the laws of the United States of America (the "Trustee"), and UNION TANK CAR
COMPANY, a Delaware corporation (the "Company");
W I T N E S S E T H:
WHEREAS Union Tank Car Company ___% Senior Secured Notes due 2010 (the
"Notes") are to be issued and sold, at a price not less than their principal
amount, in an aggregate principal amount not exceeding $100,000,000; and
WHEREAS the text of the Notes is to be substantially in the following
form:
<PAGE> 8
[Form of Note]
Unless this Note is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the issuer
or its agent for registration of transfer, exchange or payment, and any Note
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch the registered owner hereof,
Cede & Co., has an interest herein.
___% SENIOR SECURED NOTE DUE 2010
Secured by certain Railroad Rolling Stock
No.______ Chicago, Illinois
____________ __, 1999
$----------------
UNION TANK CAR COMPANY, a Delaware corporation (the "Company"), hereby
promises to pay to _______________________________, or registered assigns, the
principal sum of $____________ in lawful currency of the United States of
America, on _____, 2010, together with interest thereon on the amount of such
principal amount remaining unpaid from time to time from and including the date
hereof until such principal amount shall be due and payable, payable on November
1, 1999 and on each May 1 and November 1 thereafter to the maturity date hereof
at the rate of % per annum (computed on the basis of a 360-day year of twelve
30-day months). Interest on any overdue principal and (to the extent legally
enforceable) on overdue interest shall be paid from the due date thereof at the
rate of % per annum (computed on the basis of a 360-day year of twelve 30-day
months), payable on demand.
Payments with respect to the principal amount hereof, Make-Whole
Amount, if any, and interest thereon shall be payable in U.S. dollars in
immediately available funds at the principal bond and trustee administration
office of The First National Bank of Chicago (the "Trustee"), or as otherwise
provided in the Indenture and Security Agreement dated as of May __, 1999,
between the Company and the Trustee (the "Indenture"). Each such payment shall
be made on the date such payment is due and without any presentment or surrender
of this Note. Whenever the date scheduled for any payment to be made hereunder
or under the Indenture shall not be a Business Day, then such payment need not
be made on such scheduled date but may be made on the next succeeding Business
Day with the same force and effect as if made on such scheduled date and
(provided such payment is made on such next succeeding Business Day) no interest
shall accrue on the amount of such payment from and after such scheduled date to
the time of such payment on such next succeeding Business Day.
-2-
<PAGE> 9
Each holder hereof, by its acceptance of this Note, agrees that each
payment received by it hereunder shall be applied, first, to the payment of
accrued but unpaid interest on this Note then due, second, to the payment of any
Make-Whole Amount then due, and third, to the payment of the remaining
outstanding principal amount of this Note.
This Note is one of the Notes referred to in the Indenture which have
been or are to be issued by the Company pursuant to the terms of the Indenture.
Reference is hereby made to the Indenture for a statement of the rights of the
holder of, and the nature and extent of the security for, this Note, as well as
for a statement of the terms and conditions of the Indenture, to all of which
terms and conditions in the Indenture each holder hereof agrees by its
acceptance of this Note.
This Note is subject to redemption in whole or in part, at any time at
a price equal to 100% of the principal amount of the Note being redeemed,
together with accrued and unpaid interest, plus a Make-Whole Amount as provided
in Section 2.01 of the Indenture. The holder hereof, by its acceptance of this
Note, agrees to be bound by said provisions.
This Note is a registered Note and is transferable, as provided in the
Indenture, only upon surrender of this Note for registration of transfer duly
endorsed by, or accompanied by a written statement of transfer duly executed by,
the registered holder hereof or his attorney duly authorized in writing. Prior
to the due presentation for registration of transfer of this Note, the Company
and the Trustee may deem and treat the registered holder of this Note as the
absolute owner and holder hereof for the purpose of receiving payment of all
amounts payable with respect hereto and for all other purposes and shall not be
affected by any notice to the contrary.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS.
Unless the Certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
In Witness Whereof, the Company has caused this Note to be executed by
one of its authorized officers as of the date hereof.
UNION TANK CAR COMPANY
By:
---------------------------------
Name:
Title:
-3-
<PAGE> 10
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Notes referred to in the
within-mentioned Indenture.
----------------------------
as Trustee
By:
-------------------------
Authorized Officer
-4-
<PAGE> 11
WHEREAS, it is desired to secure to the holders of the Notes the
payment of the principal thereof when due, whether by declaration or otherwise,
Make-Whole Amount, if any, and interest thereon as hereinafter provided;
WHEREAS, this Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and shall, to the extent applicable, be
governed by such provisions;
GRANTING CLAUSE
NOW, THEREFORE, THIS INDENTURE AND SECURITY AGREEMENT WITNESSETH, that,
to secure the prompt payment of the principal of and interest and Make-Whole
Amount, if any, on and all other amounts due with respect to the Notes from time
to time outstanding hereunder and the performance and observance by the Company
of all the agreements, covenants and provisions herein and in the Notes all for
the benefit of the holders of the Notes, and for the uses and purposes and
subject to the terms and provisions hereof, and in consideration of the premises
and of the covenants herein contained, and of the acceptance of the Notes by the
holders thereof, the Company does hereby assign, transfer, mortgage and pledge
and confirm unto the Trustee, its successors and assigns, for the security and
benefit of the holders of the Notes from time to time, a security interest in
and mortgage lien on all right, title and interest of the Company in and to the
following described property, rights, interests and privileges (which
collectively, including all property hereafter required to be subjected to the
Lien of this Indenture by any instrument supplemental hereto, being herein
called the "Indenture Estate"), to wit:
(1) the Equipment and all substitutions therefor, all as more
particularly described in this Indenture and in any Indenture
Supplements executed and delivered with respect to the Equipment or any
such substitutions therefor, as provided in this Indenture;
(2) all monies and securities now or hereafter paid or
deposited or required to be paid or deposited with the Trustee pursuant
to any term of this Indenture, or required to be held by the Trustee
hereunder or thereunder; and
(3) all proceeds of the foregoing.
HABENDUM CLAUSE
TO HAVE AND TO HOLD all and singular the aforesaid property unto the
Trustee, its successors and assigns, in trust for the benefit and security of
the holders of the Notes from time to time, without any priority of any one Note
over any other Note, and for the uses and purposes, and subject to the terms and
provisions, set forth in this Indenture.
-5-
<PAGE> 12
The Company agrees that at any time and from time to time, upon the
written request of the Trustee, the Company will promptly and duly execute and
deliver or cause to be executed and delivered any and all such further
instruments and documents as the Trustee may reasonably deem to be necessary in
order to obtain the full benefits of this assignment and of the rights and
powers herein granted.
The Company does hereby warrant and represent that it has not assigned
or pledged, and hereby covenants that it will not assign or pledge, so long as
the assignment hereunder shall remain in effect, any of its right, title or
interest hereby assigned, to anyone other than the Trustee.
IT IS HEREBY COVENANTED AND AGREED by and between the parties hereto as
follows:
ARTICLE ONE
Definitions
SECTION 1.01. Definitions. The following terms (except as otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Agreement shall have the respective meanings hereinafter specified:
Affiliate of any corporation shall mean any corporation which,
directly or indirectly, controls or is controlled by, or is under
common control with, such corporation. For the purposes of this
definition, control (including controlled by and under common control
with), as used with respect to any corporation, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such corporation, whether
through the ownership of voting securities or by contract or otherwise.
Book-Entry Notes shall mean a beneficial interest in the
Notes, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 2.08.
Business Day shall mean any day, other than a Saturday or
Sunday or a day on which commercial banking institutions or trust
companies are authorized or required by law, regulation or executive
order to be closed in New York, New York or Chicago, Illinois or, so
long as any Note is outstanding, a city and state in which the
Corporate Trust Office of the Trustee is located.
Casualty Occurrence shall have the meaning set forth in
Section 3.05 hereof.
-6-
<PAGE> 13
Clearing Agency means an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange
Act of 1934, as amended.
Clearing Agency Participant shall mean a broker, dealer, bank,
other financial institution or other person for whom from time to time
a Clearing Agency effects, directly or indirectly, book-entry transfers
and pledges of securities deposited with the Clearing Agency.
Collateral shall mean all Equipment and all monies and
securities at the time subject to the terms of this Agreement.
Company shall mean Union Tank Car Company, a Delaware
corporation (whose chief place of business and chief executive office
is currently located at 225 West Washington Street, Chicago, Illinois
60606), and any successor or successors to it complying with the
provisions of Section 5.05.
Corporate Trust Office shall mean the principal office of the
Trustee, at which the corporate trust business of the Trustee shall, at
the time in question, be administered, which office is, on the date of
execution of this Agreement, located at One First National Plaza, Suite
0126, Chicago, Illinois 60670.
Cost, when used in respect of Equipment not built by the
Company or any Affiliate of the Company, shall mean the actual cost
thereof to the Company and, in respect of Equipment built by the
Company or any such Affiliate, shall mean an amount not in excess of
"car builder's cost", including direct cost of labor, material and
overhead but excluding any manufacturing profit.
Default shall mean
(1) any Event of Default; and
(2) any event which, with the giving of notice or the passage
of time or both, could constitute an Event of Default.
The Company shall be considered to "be in Default" if a
Default shall have occurred and be continuing.
Engineer's Certificate shall mean a certificate signed by a
person appointed by the Company who shall be an engineer, appraiser or
other expert, as the case may require. Such person may be an officer or
employee of the Company except where this Agreement specifically
requires the signature of an independent engineer, appraiser or other
expert.
-7-
<PAGE> 14
Equipment shall mean standard-gauge railroad tank cars and
covered hopper cars, which tank cars and covered hopper cars are
rolling stock used or intended for use in connection with interstate
commerce and which were first put into use on or after January 1, 1998,
all as set forth on Schedule I hereto, and having an aggregate Cost of
not less than $133,333,333.
Event of Default shall mean any event specified in Section
4.01 to be an Event of Default.
The word "holder", when used with respect to Notes, shall
include the plural as well as the singular number.
Independent Engineer shall mean an engineer, appraiser or
other expert appointed by the Company and approved by the Trustee in
the exercise of reasonable care, who (a) is in fact independent, (b)
does not have any substantial interest, direct or indirect, in the
Company or in any other obligor on the Notes or in any Affiliate of the
Company or any such other obligor and (c) is not connected with the
Company or any other obligor on the Notes or any Affiliate of the
Company or any such other obligor as an officer, employee, promoter,
underwriter, trustee, partner, director or person performing similar
functions.
Make-Whole Amount shall mean, with respect to the principal
amount of any Note to be redeemed on any redemption date, the amount to
be determined as of the third Business Day prior to the applicable
redemption date, equal to the product obtained by multiplying (a) the
excess, if any, of (i) the sum of the present values of all the
remaining scheduled payments of principal and interest from the
redemption date to maturity of such Note, discounted semi-annually on
each ________ and _______ at a rate equal to the Treasury Rate, based
on a 360-day year of twelve 30-day months, over (ii) the aggregate
unpaid principal amount of such Note plus any accrued but unpaid
interest thereon by (b) a fraction the numerator of which shall be the
principal amount of such Note to be redeemed on such redemption date
and the denominator of which shall be the aggregate unpaid principal
amount of such Note. The Make-Whole Amount will be calculated by an
independent investment banking institution of national standing
appointed by the Company (an "Independent Investment Banker"). In
calculating the Make-Whole Amount, the Independent Investment Banker
will first determine the Treasury Rate applicable to the Note.
Maturity Date shall mean __________________, 2010.
Noteholder shall mean the person in whose name a Note is
registered in the Register.
Notes shall mean the Senior Secured Notes issued hereunder.
-8-
<PAGE> 15
Officers' Certificate shall mean a Certificate signed by the
Chairman of the Board, or the President or any Vice President and by
the Treasurer or any Assistant Treasurer or the Secretary or any
Assistant Secretary of the Company, which officer is in a position to
know the truth and accuracy thereof.
Opinion of Counsel shall mean an opinion in writing signed by
legal counsel who shall be acceptable to the Trustee and who may,
unless in a particular instance the Trustee shall otherwise require, be
an employee of or counsel to the Company or an Affiliate of the
Company. The acceptance by the Trustee of, and its action on, an
Opinion of Counsel shall be sufficient evidence that such counsel is
satisfactory to the Trustee.
Penalty Rate shall mean 1% per annum over the rate specified
in the Notes.
Record Date means with respect to any Scheduled Payment Date
(i) for so long as Registered Notes shall not have been issued, the
close of business on the Business Day next preceding such Scheduled
Payment Date and (ii) after Registered Notes have been issued, the
close of business on the April 15 or October 15 (whether or not a
Business Day), as the case may be, next preceding such Scheduled
Payment Date.
Registered Notes has the meaning specified in Section 2.02.
Request shall mean a written request for the action therein
specified, delivered to the Trustee, dated not more than 10 days prior
to the date of delivery to the Trustee and signed on behalf of the
Company by the Chairman of the Board, the President, a Vice President
or the Treasurer of the Company.
Responsible Officer means (i) with respect to the initial
Trustee, any officer in the Corporate Trust Office or any other office
at which the Trustee conducts corporate trust business, including any
vice president or assistant vice president, any trust officer or
assistant trust officer; and (ii) with respect to any successor
Trustee, the chairman or vice-chairman of the board of directors or
trustees, the chairman or vice-chairman of the executive or standing
committee of the board of directors or trustees, the president, the
chairman of the committee on trust matters, any vice-president, any
second vice-president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier,
any trust officer or assistant trust officer, the comptroller and any
assistant comptroller. Responsible Officer also means, with respect to
any Trustee, any other officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time
shall be any of the above designated officers, and with respect to a
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
-9-
<PAGE> 16
Scheduled Payment Date shall have the meaning set forth in
Section 2.01.
Treasury Rate shall mean, with respect to redemption of a
Note, a per annum rate (expressed as a semiannual equivalent and as a
decimal and, in the case of United States Treasury bills, converted to
a bond equivalent yield), determined to be the per annum rate equal to
the semiannual yield to maturity for United States Treasury securities
maturing on the Average Life Date of such Note, as determined by
interpolation between the most recent weekly average yields to maturity
for two series of United States Treasury securities, (A) one maturing
as close as possible to, but earlier than, the Average Life Date of
such Note and (B) the other maturing as close as possible to, but later
than, the Average Life Date on such Note, in each case as published in
the most recent H.15(519) (or, if a weekly average yield to maturity
for United States Treasury securities maturing on the Average Life Date
of such Note is reported in the most recent H.15(519), as published in
H.15(519). H.15(519) means "Statistical Release H.15(519), Selected
Interest Rates, or any successor publication, published by the Board of
Governors of the Federal Reserve System. The most recent H.15(519)
means the latest H.15(519) which is published prior to the close of
business on the third Business Day preceding the scheduled redemption
date. As used herein, "Remaining Weighted Average Life" means, with
respect to any date of redemption or any date of determination of any
Note, the number of days equal to the quotient obtained by dividing (a)
the sum of the products obtained by multiplying (i) the principal
amount of such Note by (ii) the number of days from and including the
redemption date or date of determination to but excluding the scheduled
payment date of such principal payment by (b) the unpaid principal
amount of such Note. As used herein, "Average Life Date" means, with
respect to a Note, the date which follows the redemption date or, in
the case of a Note not being redeemed, the date of such determination,
by a period equal to the Remaining Weighted Average Life of such Note.
Trustee shall mean The First National Bank of Chicago, solely
in its capacity as Trustee, and, subject to the provisions of Article
Seven, any successor as trustee hereunder.
Value, as used herein, shall mean an amount determined as
follows:
(1) the Value of any unit of Collateral released by
the Trustee as provided in Section 3.04, and as used in
Sections 4.01 and 5.03 in respect of Collateral, shall be
deemed to be the greater of (a) the fair market value thereof
and (b) the Cost thereof (as theretofore certified to the
Trustee) less 1/20 of such Cost for each full year elapsed
between the date such unit was first put into use (as
theretofore so certified) and the date as of which Value is to
be determined;
(2) the Value of any unit of Collateral for which a
security interest is granted to the Trustee as provided in
Section 3.04 shall be deemed to be the lesser of (a) the fair
market value thereof and (b) the Cost of such unit or, in the
case of
-10-
<PAGE> 17
any unit of Equipment not new, the Cost thereof less 1/20 of
such Cost for each full year elapsed between the date such
unit was first put into use and the date of the transfer
thereof to the Trustee; and
(3) the Value of any Unit of Collateral as used in
Section 3.05 shall be deemed to be the cost thereof less
1/20th of such Cost for each full year elapsed between the
date such Unit was first put into use and the date as of which
Value is to be determined.
The words herein, hereof, hereby, hereto, hereunder and words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section, paragraph or subdivision hereof.
SECTION 1.02 Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officer's
Certificate stating that, in the opinion of the signers, all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional Certificate or opinion need be furnished.
Every Certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a Certificate
provided pursuant to Section 6.04(d)) shall include:
(a) a statement that each individual signing such Certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such Certificate or opinion are used;
(c) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
-11-
<PAGE> 18
SECTION 1.03 Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any Opinion of Counsel stated to be based on the opinion of other
counsel shall be accompanied by a copy of such other opinion.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04 Acts of Noteholders.
(a) Any direction, consent, waiver or other action provided by this
Indenture to be given or taken by Noteholders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Noteholders in person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instrument (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the certificate of any notary public or
other officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the Person executing such instrument acknowledged to him
the execution thereof, or by an affidavit of a witness to such execution sworn
to before any such notary or such other officer and where such execution is by
an officer of a corporation or association or a member of a partnership, on
behalf of such corporation, association or partnership, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable manner
which the Trustee deems sufficient. In the absence of bad faith on the part of
the Trustee, an Officer's Certificate may be deemed to be conclusively proved.
-12-
<PAGE> 19
(c) In determining whether the Noteholders of the requisite aggregate
unpaid principal then outstanding have given any direction, consent or waiver (a
"Direction"), under this Indenture, Notes owned by the Company, or any Affiliate
of any such Person shall be disregarded and deemed not to be outstanding under
this Indenture for purposes of any such determination. In determining whether
the Trustee shall be protected in relying upon any such Direction, only Notes
which the Trustee knows to be so owned shall be so disregarded. Notwithstanding
the foregoing, (i) if any such Person owns 100% of the Notes outstanding, such
Notes shall not be so disregarded as aforesaid, and (ii) if any amount of Notes
so owned by any such Person has been pledged in good faith, such Notes shall not
be disregarded as aforesaid if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Notes and that
the pledgee is not the Company, or any Affiliate thereof.
(d) The Company may at its option by delivery of an Officer's
Certificate to the Trustee set a record date to determine the Noteholders
entitled to give any consent, request, demand, authorization, direction, notice,
waiver or other Act. Notwithstanding Section 316(c) of the Trust Indenture Act,
such record date shall be the record date specified in such Officer's Note which
shall be a date not more than 30 nor less than 15 days prior to the first
solicitation of Noteholders in connection therewith. If such a record date is
fixed, such consent, request, demand, authorization, direction, notice, waiver
or other Act may be given before or after such record date, but only the
Noteholders of record at the close of business on such record date shall be
deemed to be Noteholders for the purposes of determining whether Noteholders of
the requisite aggregate principal amount then outstanding have authorized or
agreed or consented to such consent, request, demand, authorization, direction,
notice, waiver or other Act, and for that purpose the outstanding Notes shall be
computed as of such record date; provided that no such consent, request, demand,
authorization, direction, notice, waiver or other act by the Noteholders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Agreement not later than one year after the record
date.
(e) Any direction, consent, waiver or other action by the registered
holder of any Note shall bind the registered holder of every Note issued upon
the transfer thereof or in exchange thereof or in lieu thereof, whether or not
notation of such action is made upon such Note.
(f) Except as otherwise provided in Section 1.4(c), Notes owned by or
pledged to any Person shall have an equal and proportionate benefit under the
provisions of this Indenture, without preference, priority, or distinction as
among all of the Notes.
ARTICLE TWO
Interest and Maturity; Redemption
SECTION 2.01. Interest Payments; Maturity; Redemption. The Notes shall
bear interest at ___% per annum and shall be payable as follows (unless payment
thereof is accelerated pursuant to Article Four of this Agreement): principal
shall be repaid on the Maturity Date and interest payments on the outstanding
principal shall be paid in semiannual installments on May 1
-13-
<PAGE> 20
and November 1 in each year (each, a "Scheduled Payment Date" commencing
November 1, 1999. Interest on the Notes shall accrue from the date of original
issue and shall be calculated on the basis of a 360-day year of twelve 30-day
months. Interest shall be payable on overdue installments of principal and, to
the extent legally enforceable, interest at the Penalty Rate.
The Company may at its option redeem the Notes, in whole or in part, at
any time at a price equal to 100% of the principal amount of the Notes being
redeemed, together with accrued and unpaid interest, plus a Make-Whole Amount.
If less than all of the Notes are to be redeemed, the Trustee shall
select the Notes or portions thereof to be redeemed pro rata, by lot or any
other method the Trustee shall deem fair and appropriate. Notices of redemption
shall be mailed by first class mail at least 30 days but not more than 60 days
before the redemption date to each Noteholder to be redeemed at its registered
address. If any Note is to be redeemed in part only, the notice of redemption
that relates to such Note shall state the portion of the principal amount
thereof to be redeemed. A new Note in principal amount equal to the unredeemed
portion thereof will be issued in the name of the holder thereof upon
cancellation of the original Note. On and after the redemption date, interest
ceases to accrue on Notes or portions of them called for redemption.
Payment of the principal, Make-Whole amount, if any, and interest on
the Notes shall be made by the Company at the Corporate Trust Office in such
coin or currency of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts.
SECTION 2.02. Form, Execution and Characteristics of Notes. (a) The
Notes shall be in substantially the form hereinbefore set forth.
(b) The Notes shall be signed in the name and on behalf of the Company
by the manual or facsimile signature of one of its officers and its corporate
seal or a facsimile thereof shall be affixed or imprinted thereon and attested
by the manual signature of one of its officers. In case any officer of the
Company whose signature, whether facsimile or not, shall appear on any of the
Notes shall cease to be such officer of the Company before the Notes shall have
been issued and delivered by the Company or shall not have been acting in such
capacity on the date of the Notes, such Notes may be adopted by the Company and
be issued and delivered as though such person had not ceased to be or had then
been such officer of the Company.
(c) The Notes (i) shall be issuable in denominations of U.S. $1,000 or
any multiple thereof; (ii) shall be registered, as to both principal and
interest, in the name of the holders; (iii) shall be transferable in whole or in
part upon presentation and surrender thereof for transfer at the Corporate Trust
Office, accompanied by appropriate instruments of assignment and transfer, duly
executed by the registered holder of the surrendered Note or by duly authorized
attorney, in form satisfactory to the Trustee; (iv) shall be dated as of the
date of issue unless issued in exchange for another Note bearing unpaid interest
from an earlier date, in which case
-14-
<PAGE> 21
they shall be dated as of such earlier date; (v) shall entitle the registered
holder to interest from the date thereof; and (vi) shall be exchangeable for an
aggregate principal amount of Notes of authorized denominations of like tenor
and maturity equal to the then unpaid principal amount of Notes being exchanged.
(d) Anything contained herein to the contrary notwithstanding, prior to
due presentment for registration of transfer, the parties hereto may deem and
treat the registered holder of any Notes as the absolute owner of such Notes for
all purposes and shall not be affected by any notice to the contrary.
(e) The Trustee shall cause to be kept at the Corporate Trust Office
books for the registration of transfer of the Notes and, upon presentation of
the Notes for such purpose, the Trustee shall register any transfer as
hereinabove provided, and under such reasonable regulations as it may prescribe.
(f) Each Note delivered pursuant to any provision of this Agreement in
exchange or substitution for, or upon the transfer of the whole or any part, as
the case may be, of one or more other Notes shall carry all the rights to
principal and to interest accrued and unpaid and to accrue, which were carried
by the whole or such part, as the case may be, of such one or more other Notes,
and, notwithstanding anything contained in this Agreement, such Note shall be so
dated that neither gain nor loss in interest or principal shall result from such
exchange, substitution or transfer and a notation of all previous principal
payments shall be endorsed on the reverse side thereof.
The Trustee shall not be required to issue, transfer or exchange Notes
for a period of 10 days next preceding any interest payment date.
(g) Except as provided in Section 2.08, the definitive Notes (the
"Registered Notes") shall be printed, lithographed, typewritten or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Notes may
be listed, all as determined by the officer executing such Notes as evidenced by
such execution.
SECTION 2.03 Authentication of Notes. The Trustee shall duly
authenticate and deliver Notes in authorized denominations equalling in the
aggregate the aggregate principal amount of the Notes to be issued hereunder.
SECTION 2.04 Registration of Transfer and Exchange of Notes. The
Trustee shall cause to be kept at the Corporate Trust Office or the office or
agency to be maintained by it in accordance with the provisions of Section 7.12
a register (the "Register") in which, subject to such reasonable regulations as
it may prescribe, the Trustee shall provide for the registration of Notes and of
transfers and exchanges of Notes as herein provided. The Trustee shall initially
-15-
<PAGE> 22
be the registrar (the "Registrar") for the purpose of registering Notes and
transfers and exchanges of Notes as herein provided.
Upon presentation for registration of transfer of any Note at the
Corporate Trust Office or such other office or agency, the Trustee shall
execute, authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes in authorized denominations of a like
aggregate unpaid principal amount.
At the option of a Noteholder, Notes may be exchanged for other Notes
of authorized denominations of a like aggregate unpaid principal amount, upon
surrender of the Notes to be exchanged at any such office or agency. Whenever
any Notes are so surrendered for exchange, the Trustee shall execute,
authenticate and deliver the Notes that the Noteholder making the exchange is
entitled to receive. Every Note presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Trustee and the Registrar
duly executed by the Noteholder thereof or its attorney duly authorized in
writing.
No service charge shall be made to a Noteholder for any registration of
transfer or exchange of Notes, but the Trustee shall require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Notes.
All Notes surrendered for registration of transfer and exchange shall
be canceled and subsequently destroyed by the Trustee. The Trustee shall provide
the Company with written certification as to the destruction of all such Notes.
SECTION 2.05 Persons Deemed Owners. Prior to due presentation of a Note
for registration of transfer, the Trustee, the Registrar, and any Paying Agent
of the Trustee may treat the Person in whose name any Note is registered as the
owner of such Note for all purposes whatsoever, and neither the Trustee, the
Registrar, nor any Paying Agent of the Trustee shall be affected by any notice
to the contrary.
SECTION 2.06 Cancellation. All Notes surrendered for payment or
transfer or exchange shall, if surrendered to any Person party hereto other than
the Registrar, be delivered to the Registrar for cancellation. No Notes shall be
authenticated in lieu of or in exchange for any Notes canceled as provided in
this Section, except as expressly permitted by this Indenture. All canceled
Notes held by the Registrar shall be destroyed in due course and a certification
of their destruction delivered to the Trustee and the Company.
SECTION 2.07. Replacement of Lost Notes. In case any Note shall become
mutilated or defaced or be lost, destroyed or stolen, then on the terms herein
set forth, and not otherwise, the Trustee shall execute and deliver a new Note
in the then unpaid principal amount of the predecessor Note and bearing such
identifying number or designation as the Trustee may determine, in exchange and
substitution for, and upon cancellation of, the mutilated or defaced
-16-
<PAGE> 23
Note, or in lieu of and in substitution for the same if lost, destroyed or
stolen. The applicant for a new Note pursuant to this Section shall furnish to
the Trustee and to the Company evidence to their satisfaction of the loss,
destruction or theft of such Note alleged to have been lost, destroyed or stolen
and of the ownership and authenticity of such mutilated, defaced, lost,
destroyed or stolen Note, and also shall furnish such security or indemnity as
may be required by the Trustee and the Company in their discretion, and shall
pay all expenses and charges of such substitution or exchange. In the case of
each of the original purchasers of Notes or any institutional investor
transferee, a letter of indemnity in form reasonably satisfactory to the Company
and the Trustee from such purchaser shall be sufficient security and indemnity.
All Notes are held and owned upon the express condition that the foregoing
provisions are exclusive in respect of the replacement of mutilated, defaced,
lost, destroyed or stolen Notes and shall preclude any and all other rights and
remedies, any law or statute now existing or hereafter enacted to the contrary
notwithstanding.
SECTION 2.08 Book-Entry and Registered Notes.
(a) The Notes may be issued in the form of one or more typewritten
Notes representing the Book-Entry Notes, to be delivered to The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of, the Noteholders. In
such case, the Notes delivered to The Depository Trust Company shall initially
be registered on the Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Noteholder will receive a Registered Note
representing such Noteholder's interest in the Notes, except as provided above
and in Subsection (c) below. Unless and until Registered Notes have been issued
pursuant to subsection (c) below:
(i) the provisions of this Section 2.04 shall be in full
force and effect;
(ii) the Company, the Paying Agent, the Registrar and the
Trustee may deal with the Clearing Agency for all purposes (including
the making of distributions on the Notes) as the authorized
representative of the Noteholders;
(iii) to the extent that the provisions of this Section 2.04
conflict with any other provisions of this Indenture, the provisions of
this Section 2.04 shall control;
(iv) the rights of Noteholders of Book-Entry Notes shall be
exercised only through the Clearing Agency and shall be limited to
those established by law and agreements between such Noteholders of
Book-Entry Notes and the Clearing Agency Participants; and until
Registered Notes are issued pursuant to subsection (c) below, the
Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit distributions of principal
and interest on the Notes to such Clearing Agency Participants; and
-17-
<PAGE> 24
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Noteholders representing
a specified percentage of the aggregate unpaid principal then
outstanding, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to such
effect from Noteholders of Book-Entry Notes and/or Clearing Agency
Participants owning or representing, respectively, such required
percentage of the aggregate unpaid principal then outstanding and has
delivered such instructions to the Trustee. The Trustee shall have no
obligation to determine whether the Clearing Agency has in fact
received any such instructions.
(b) Whenever notice or other communication to the Noteholders is
required under this Indenture, unless and until Registered Notes shall have been
issued pursuant to subsection (c) below, the Trustee shall give all such notices
and communications specified herein to be given to Noteholders to the Clearing
Agency and shall make available additional copies as requested by such Clearing
Agency Participants.
(c) If (i) the Company advises the Trustee in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
and the Trustee or the Company is unable to locate a qualified successor, (ii)
the Company, at its option, advises the Trustee in writing that it elects to
terminate the book-entry system through the Clearing Agency or (iii) after the
occurrence of an Event of Default, Noteholders of Book-Entry Notes representing
not less than 51% of the aggregate unpaid principal then outstanding, by Act of
such Noteholders delivered to the Company and the Trustee, advise the Trustee
and the Clearing Agency through the Clearing Agency Participants in writing that
the continuation of a book-entry system through the Clearing Agency is no longer
in the best interests of the Noteholders, then the Trustee shall notify all
Noteholders, through the Clearing Agency, of the occurrence of any such event
and of the availability of Registered Notes. Upon surrender to the Trustee of
all the Notes held by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency for registration of Registered Notes in
the names of Noteholders, the Trustee shall issue and deliver the Registered
Notes in accordance with the instructions of the Clearing Agency. Neither the
Company, the Registrar, the Paying Agent nor the Trustee shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such registration instructions. Upon the issuance of
Registered Notes, the Trustee shall recognize the Persons in whose name the
Registered Notes are registered as the Noteholders hereunder. Neither the
Company nor the Trustee shall be liable if the Trustee and the Company are
unable to locate a qualified successor Clearing Agency.
(d) The Trustee shall enter into the Letter of Representations and
fulfill its responsibilities thereunder.
-18-
<PAGE> 25
ARTICLE THREE
Collateral
SECTION 3.01. Additional and Substituted Equipment Subject Hereto. In
the event that the Company shall, as provided in Section 3.04, cause to be
transferred to the Trustee other Equipment or cash in addition to or in
substitution for any of the Equipment herein specifically described or subjected
hereto, such other Equipment or cash shall be included as part of the Collateral
by supplement hereto to be executed by the Trustee and the Company in accordance
with Article Eight and shall be subject to all the terms and conditions hereof
in all respects as though it had been part of the Equipment herein specifically
described.
SECTION 3.02. Termination of Security. After all payments which are
required to be made on the Notes pursuant to this Agreement have been completed
and fully made by the Company, (1) any moneys remaining in the hands of the
Trustee after providing for all outstanding Notes and after paying the expenses
of the Trustee, including its reasonable compensation, shall be paid to the
Company and (2) the Trustee shall execute for record in public offices, at the
expense of the Company, such instrument or instruments in writing as reasonably
shall be requested by the Company in order to make clear upon public records the
release of the Equipment from the security interest granted hereunder, under the
laws of any jurisdiction.
SECTION 3.03. Indemnity. The Company covenants and agrees to indemnify
the Trustee against any and all claims arising out of or connected with the use
of any of the Equipment, and particularly against any and all claims arising out
of the use of any patented inventions in and about the Equipment, and to comply
in all respects with the laws of the United States of America and of all the
states and other jurisdictions in which the Equipment, or any unit thereof, may
be operated, and with all lawful acts, rules, regulations and orders of any
commissions, boards and other legislative, executive, administrative or judicial
bodies or officers having power to regulate or supervise any of the Equipment,
including without limitation all lawful acts, rules, regulations and orders of
any body having competent jurisdiction relating to automatic coupler devices or
attachments, air brakes or other appliances; provided, however, that the Company
may in good faith contest the validity of any such law, act, rule, regulation or
order, or the application thereof to the Equipment or any part thereof, in any
manner which will not in the judgment of the Trustee endanger the rights or
interests of the Trustee or of the holders of the Notes. The Company shall not
be relieved from any of its obligations hereunder by reason of the assertion or
enforcement of any such claims or the commencement or prosecution of any
litigation in respect thereof. The Company's obligation to indemnify the Trustee
under this Section 3.03 shall survive the termination of this Agreement.
SECTION 3.04. Substitution and Replacement of Collateral. Upon Request,
the Trustee shall, at any time and from time to time, execute and deliver a
release of all the right and interest of the Trustee in and to any of the units
of Collateral as provided herein; provided, however, that, at the option of the
Company, (a) there shall be paid to the Trustee cash in an amount not less than
the Value, as of the date of such Request, of the units of Collateral to be
released by the Trustee or (b) there shall be conveyed to the Trustee, at the
time of release of any units of Collateral, other units of Equipment and of a
Value not less than the Value, as of the date of such Request, of the units of
Collateral to be released.
-19-
<PAGE> 26
At the time of delivery of any Request pursuant to the first paragraph
of this Section, the Company shall, if other Equipment is to be conveyed to the
Trustee in substitution for the Collateral to be released by the Trustee,
deliver to the Trustee the following papers:
(1) an Officers' Certificate stating (i) the Value, as of the
date of said Request, of the Collateral so to be released by the
Trustee and the date such Collateral was first put into use (or that
such Collateral was first put into use not later than a specified
date), (ii) that the requested release by the Trustee will not impair
the security under this Agreement in contravention of the provisions
hereof, (iii) the Value of such substituted Equipment as of such date
and the date such substituted Equipment was first put into use (or that
such substituted Equipment was first put into use not earlier than a
specified date), (iv) that each such unit so to be substituted is
Equipment as herein defined and (v) that the Company is not in Default;
(2) an Opinion of Counsel to the effect that a proper
supplement hereto in respect of each substituted unit of Collateral has
been duly executed by the Trustee and the Company as required by
Section 8.04 and to the effect set forth in the second paragraph of
Section 5.03; and
(3) if the Cost of the Collateral to be released by the
Trustee, less 1/20th of such Cost for each full year elapsed between
the date such Collateral was first put into use (as previously so
certified) and the date as of which the Value thereof is to be
determined hereunder, plus the Cost of all other Collateral so released
within the prior twelve months, less 1/20th of such Cost for each full
year elapsed between the date such other Collateral was first put into
use (as previously so certified) and the date as of which the Value
thereof was determined, as set forth in the Note or Notes required by
this Section 3.04, is more than 10% of the principal amount of Notes
then outstanding, a certificate by an Independent Engineer stating, as
of the date of said Request, both the Value of the Collateral so to be
released by the Trustee and the Value of such substituted Collateral.
At the time of delivery of any Request pursuant to the first paragraph
of this Section, the Company shall, if cash is to be paid to the Trustee in
respect of the Collateral to be released by the Trustee, deliver to the Trustee
an Officers' Certificate stating to the effect set forth in clauses (i), (ii)
and (vi) of subparagraph (1) of the second paragraph of this Section.
Cash deposited with the Trustee pursuant to this Section or Section
3.05 shall, from time to time, be paid over by the Trustee to the Company upon
Request, against granting to the Trustee of a security interest hereunder in
units of Equipment having a Value, as of the date of said Request, not less than
the amount of cash so paid, and upon delivery to the Trustee of papers
corresponding to those set forth in the second paragraph of this Section, with
such appropriate modifications as may be approved by the Trustee.
-20-
<PAGE> 27
SECTION 3.05. Maintenance of Collateral; Casualty Occurrences. The
Company agrees that it will maintain and keep all the Collateral in good order
and proper repair at its own cost and expense, unless and until it becomes worn
out, unsuitable for use or lost or destroyed (such occurrences being hereinafter
called Casualty Occurrences). Whenever any of the Collateral shall suffer a
Casualty Occurrence, the Company shall on or before the next following May 15,
deliver to the Trustee an Engineer's Certificate describing such Collateral and
stating the Value thereof as of the date such Collateral suffered such Casualty
Occurrence. When the total Value of all units of the Collateral having suffered
a Casualty Occurrence (exclusive of units having suffered a Casualty Occurrence
in respect of which a payment shall have been made to the Trustee pursuant to
this Section) shall exceed U.S. $750,000 or 1% of the principal amount of the
Notes then outstanding, whichever is less, the Company, within 30 days after it
shall have been informed of such event, shall deliver to the Trustee an
Engineer's Certificate describing such Collateral and stating the Value thereof
as of the date such Collateral suffered such Casualty Occurrence and either (i)
deposit with the Trustee an amount in cash equal to the Value of such units as
of the date of the Casualty Occurrence in respect of each thereof or (ii) convey
to the Trustee, in accordance with the procedures and requirements of Section
3.04, units of Equipment with a Value, as of the date of such conveyance, not
less than the Value of the units suffering such Casualty Occurrence(s), as of
the date of the Casualty Occurrence in respect of each thereof. The rights and
remedies of the Trustee to enforce its security interest hereunder shall not be
affected by reason of any Casualty Occurrence. Cash deposited with the Trustee
pursuant to this Section shall be held and applied as provided in the fourth
paragraph of Section 3.04.
Upon the deposit of cash with the Trustee pursuant to this Section
3.05, the Trustee shall execute and deliver a release in the form reasonably
requested by the Company releasing to the Company all the right, title and
interest of the Trustee in and to the Collateral which has suffered a Casualty
Occurrence and in respect of which such deposit is made.
The Company agrees to furnish to the Trustee on or before May 15 in
every calendar year commencing May 15, 2000, and during the continuance of the
security interest granted hereunder, an Officers' Certificate, dated as of the
preceding February 14, (1) stating the description and numbers of all units of
Collateral that may have suffered a Casualty Occurrence or which have been
withdrawn from use pending major repairs (other than running repairs) since the
date of the last preceding statement (or the date of this Agreement in the case
of the first such statement), (2) that no Event of Default has occurred and is
continuing, (3) that, in the opinion of the signers, the Company is in
compliance with all of the terms of this Agreement and (4) covering such other
matters as the Trustee may reasonably request.
The Trustee, by its agents, shall have the right at any reasonable time
(which may be more frequent than once in each calendar year), but shall be under
no duty, to inspect the Collateral at the then existing locations thereof.
-21-
<PAGE> 28
SECTION 3.06. Possession of Collateral. Except as provided in this
Section 3.06, without first obtaining the written consent of the Trustee, the
Company will not (a) assign or transfer its rights hereunder, (b) transfer the
Collateral or any part thereof or (c) part with the possession of, or suffer or
allow to pass out of its possession and control, any of the Collateral. An
assignment or transfer to any corporation which shall acquire all or
substantially all the property of the Company (by merger, consolidation or
otherwise) and which, by execution of an appropriate instrument satisfactory to
the Trustee, shall assume and agree to perform each and all the obligations and
covenants of the Company hereunder shall not be deemed a breach of this covenant
and such assignment, transfer or assumption shall have the effect of releasing
the Company from its obligations hereunder. The appointment of a receiver or
receivers in equity or reorganization or a trustee or trustees in bankruptcy or
reorganization for the Company or for its property shall not be deemed an
unauthorized assignment if, prior to any action by the Trustee to exercise the
remedies herein provided, such receiver or receivers or trustee or trustees
shall, pursuant to court order or decree, in writing duly assume and agree to
pay or perform each and all of the obligations and covenants of the Company
hereunder, in such manner that such obligations shall have the same status as
obligations incurred by such receiver or receivers or trustee or trustees.
Notwithstanding the foregoing, so long as the Company shall not be in
Default, the Company and any of its Affiliates shall be entitled to the
possession and use of the Collateral in accordance with the terms hereof, and
the Company or such Affiliates may also (a) furnish the Collateral or any part
thereof to railroad companies for use upon the lines of railroad owned or
operated by them or over which they have trackage rights and upon connecting and
other railroads in the usual interchange of traffic, or to other than railroad
companies for use in their business, and (b) lease or contract to others located
in the United States and Canada all or any part of the Collateral, but only, in
either case, upon and subject to all the terms and conditions of this Agreement.
Any such lease or contract may provide that the party acquiring the use
of units of the Collateral, so long as it shall not be in default under such
lease or contract, shall be entitled, subject to the rights of the Trustee
hereunder, to the possession of such units and the use thereof and may provide
for lettering or marking upon such Equipment for convenience of identification
of the leasehold interest of such sublessee therein. Every such lease or
contract shall contain provisions which have the effect of subjecting the rights
of the party acquiring the use of units of the Collateral under such lease or
contract to the rights and remedies of the Trustee in respect of such units.
The Trustee shall have the right to declare an Event of Default
hereunder in case of any unauthorized assignment or transfer of the Company's
rights hereunder or in case of any unauthorized transfer or lease of any of the
Collateral.
-22-
<PAGE> 29
SECTION 3.07. Marking of Collateral. The Company shall not change, or
permit to be changed, the numbers of any of the Collateral at any time covered
hereby (or any numbers which may have been substituted as herein provided)
except in accordance with a statement of new numbers to be substituted therefor
which previously shall have been filed with the Trustee by the Company and which
shall be filed and recorded in like manner as this Agreement.
The Collateral may be lettered, in case of a lease of any equipment
made pursuant to Section 3.06 hereof, in such manner as may be appropriate for
convenience of identification of the leasehold interest therein; but the
Company, during the continuance of the security interest provided for herein,
will not allow any lettering or designation to be placed on any of the
Collateral claiming ownership thereof by any person, firm, association or
corporation other than the Company.
ARTICLE FOUR
Events of Default and Remedies
SECTION 4.01. Events of Default. The Company covenants and agrees
that in case:
(a) the Company shall default in any payment of, interest
under the Notes for more than 30 days after the same shall have become
due and payable, or the payment of principal of the Notes, or
(b) the Company shall make or suffer any unauthorized
assignment or transfer of its rights hereunder or shall make any
unauthorized transfer or lease (including, for the purpose of this
clause, contracts for the use thereof) of any of the Collateral, or,
except as herein authorized, shall part with the possession of any of
the Collateral, and shall fail or refuse either to cause such
assignment or transfer or lease to be canceled by agreement of all
parties having any interest therein and recover possession of such
Collateral within 30 days after the Trustee shall have demanded in
writing such cancellation and recovery of possession, or within said 30
days to deposit with the Trustee a sum in cash equal to the Value, as
of the date of such unauthorized action, of such Collateral (any sum so
deposited to be returned to the Company upon the cancellation of such
assignment, transfer or lease and the recovery of possession by the
Company of such Collateral), or
(c) the Company shall fail or refuse to comply with any other
of the terms and covenants hereof on its part to be kept and performed,
or to make provision satisfactory to the Trustee for such compliance,
for a period which is the shorter of (i) 60 days after the Trustee
shall have demanded in writing performance thereof and (ii) 30 days
after the Company has knowledge of any failure on its part to so
comply, or
-23-
<PAGE> 30
(d) any order, judgment or decree is entered under any
bankruptcy, reorganization, compromise, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction (herein called the "Bankruptcy Law") adjudicating the
Company bankrupt or insolvent, or the Company petitions or applies to
any tribunal for, or consents to, the appointment of, or taking
possession by, a trustee, receiver, custodian, liquidator or similar
official, of the Company or of substantially all the assets of the
Company or commences a voluntary case under the Bankruptcy Law or any
proceedings relating to the Company under the Bankruptcy Law, whether
now or hereafter in effect; or any such petition or application is
filed, or any such proceedings are commenced, against the Company and
the Company by any act or failure to act indicates its approval
thereof, consent thereto or acquiescence therein, or an order for
relief is entered in an involuntary case against the Company under the
Bankruptcy Law, as now or hereafter constituted, or an order, judgment
or decree is entered appointing any such trustee, receiver, custodian,
liquidator or similar official, or approving the petition in any such
proceedings, and such order, judgment or decree remains unstayed and in
effect for more than 60 days,
then, in any such case (herein sometimes called an "Event of Default"), the
Trustee in its discretion may, and upon the written request of the holders of
more than 50% in aggregate principal amount of the then outstanding Notes shall,
by notice in writing delivered to the Company, declare to be due and payable
forthwith the unpaid principal amount of all Notes then outstanding. Thereupon
the entire amount of such principal shall forthwith become and shall be due and
payable immediately without further demand, together with interest at the
Penalty Rate, to the extent legally enforceable, on any portion thereof overdue.
All rights of action and to assert claims under this Agreement, or
under any of the Notes, may be enforced by the Trustee without the possession of
any of the Notes or the production thereof on any trial or other proceedings
relative thereto, and any such action or proceedings instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the holders of the
Notes. In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Agreement to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Notes, and it shall not be necessary to make any holders of the Notes
parties to such proceedings.
SECTION 4.02. Incidents of Sale of Collateral. Upon any sale of all or
any part of the Collateral made either under the power of sale given under this
Indenture or otherwise for the enforcement of this Indenture, the following
shall be applicable:
(a) Receipt of Trustee Shall Discharge Purchaser. The receipt
of the Trustee or of the officer making such sale shall be a sufficient
discharge to any purchaser for his purchase money, and, after paying
such purchase money and receiving such receipt, such purchaser or its
personal representative or assigns shall not be obliged to see to the
application of such purchase money, or be in any way answerable for any
loss, misapplication or non-application thereof.
-24-
<PAGE> 31
(b) Application of Moneys Received Upon Sale. Any moneys
collected by the Trustee upon any sale made either under the power of
sale given by this Indenture or otherwise for the enforcement of this
Indenture, shall be applied as provided in Section 4.09.
SECTION 4.03. Judicial Proceedings Instituted by Trustee.
(a) Trustee May Bring Suit. If there shall be a failure to make payment
of the principal of or interest on a Note when due and payable then the Trustee,
in its own name, and as trustee of an express trust, shall be, to the extent
permitted by and in accordance with the terms of this Indenture and the Notes,
entitled and empowered to institute any suits, actions or proceedings at law, in
equity or otherwise, for the collection of the sums so due and unpaid on such
Notes or under this Indenture and may prosecute any such claim or proceeding to
judgment or final decree with respect to the whole amount of any such sums so
due and unpaid.
(b) Trustee May File Proofs of Claim; Appointment of Trustee as
Attorney-in-Fact in Judicial Proceedings. The Trustee in its own name, or as
trustee of an express trust, or as attorney-in-fact for the Noteholders, or in
any one or more of such capacities (irrespective of whether distributions on the
Notes shall then be due and payable as therein expressed or by declaration or
otherwise) shall be entitled and empowered to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee and of the Noteholders allowed in any receivership,
insolvency, bankruptcy, liquidation, readjustment, reorganization or any other
judicial proceedings relative to the Company or its creditors or property. Any
receiver, assignee, trustee, liquidator, sequestrator (or similar official) in
any judicial proceeding is hereby authorized by each Noteholder to make payments
in respect of such claim to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Noteholders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel. Nothing
contained in this Indenture shall be deemed to give to the Trustee any right to
accept or consent to any plan of reorganization or otherwise by action of any
character in any such proceeding to waive of change in any way any right of any
Noteholder.
SECTION 4.04. Control by Noteholders. The Noteholders holding Notes
representing more than 50% of the aggregate unpaid principal amount then
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee under this Indenture, provided that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture and would not involve the Trustee in
personal liability or expense,
-25-
<PAGE> 32
(b) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Noteholders not taking
part in such direction, and
(c) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 4.05. Waivers of Default. Prior to the declaration of the
acceleration of the maturity of all the Notes as provided in Section 4.01, the
holders of more than 50% in aggregate unpaid principal amount of the Notes at
the time outstanding may on behalf of the holders of all the Notes waive any
past Default and its consequences, except a Default in the payment of the
principal of, or interest on, the Notes, but no such waiver shall extend to or
affect any subsequent Default or impair any right consequent thereon.
If at any time after the principal of all the Notes shall have been
declared and become due and payable as provided in Section 4.01, the expenses
and reasonable compensation of the Trustee, together with all expenses of the
Trustee occasioned by the Company's Default, and all other sums which shall have
become due and payable hereunder shall be paid by the Company before any sale or
lease by the Trustee of any of the Collateral, and every other Default shall be
made good or secured to the satisfaction of the Trustee and the holders of the
Notes, or provision deemed by the Trustee to be adequate shall be made therefor,
then, and in every such case, the Trustee, if so requested by the holders of
more than 50% in aggregate unpaid principal amount of the Notes then outstanding
according to their terms, shall by written notice to the Company waive the
Default by reason of which there shall have been such declaration or
declarations and the consequences of such Default, but no such waiver shall
extend to or affect any subsequent Default or impair any right consequent
thereon.
SECTION 4.06. Undertaking to Pay Court Costs. All parties to this
Indenture, and each Noteholder by his acceptance of a Note, shall be deemed to
have agreed that any court may in its discretion require, in any suit, action or
proceeding for the enforcement of any right or remedy under this Indenture, or
in any suit, action or proceeding against the Trustee for any action taken or
omitted by it as Trustee hereunder, the filing by any party litigant in such
suit, action or proceeding of an undertaking to pay the costs of such suit,
action or proceeding, and that such court may, in its discretion, assess
reasonable costs, including reasonable attorney's fees, against any party
litigant in such suit, action or proceeding, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; provided,
however, that the provisions of this Section shall not apply to (a) any suit,
action or proceeding instituted by any Noteholder or group of Noteholders
representing more than 10% of the aggregate unpaid principal amount then
outstanding, (b) any suit, action or proceeding instituted by any Noteholder for
the enforcement of the payment of principal or interest on the Notes on or after
the respective due dates expressed herein or (c) any suit, action or proceeding
instituted by the Trustee.
-26-
<PAGE> 33
SECTION 4.07. Unconditional Right of Holders of Notes To Sue for
Principal and Interest. Notwithstanding any other provision in this Agreement,
the right of any holder of any Note to receive payment of the principal of and
interest on such Note, on or after the due date expressed in such Note, or to
institute suit for the enforcement of any such payment on or after such date,
shall not be impaired or affected without the consent of such holder, except no
such suit shall be instituted if and to the extent that the institution or
prosecution thereof or the entry of judgment therein would, under applicable
law, result in the surrender, impairment, waiver or loss of the title reserved
under this Agreement upon any property subject hereto.
SECTION 4.08. Remedies. In case of the happening and continuance of any
Event of Default, the Trustee may by its agents enter upon the premises of the
Company and any of its Affiliates or lessees (or other person having acquired
the use of the Collateral) where any of the Collateral may be and take
possession of all or any part of the Collateral and withdraw the same from said
premises, and shall be entitled to collect, receive and retain all unpaid
mileage, hourly or other charges of any kind earned by the Collateral or any
part thereof, and may lease or otherwise contract for the use of the Collateral
or any part thereof, or with or without retaking possession thereof (but only
after declaring due and payable the entire amount of the principal of all the
then outstanding Notes, as provided in Section 5.01) may sell the same or any
part thereof, free from any and all claims of the Company at law or in equity in
one lot and as an entirety or in separate lots, at public or private sale, for
cash or upon credit, in its discretion, and may proceed otherwise to enforce its
rights and the rights of the holders of then outstanding Notes, all subject to
any mandatory requirements of law applicable thereto. Upon any such sale, the
Trustee itself may bid for the property offered for sale or any part thereof.
Any such sale may be held or conducted at such place and at such time as the
Trustee may specify, or as may be required by law, and without gathering at the
place of sale the Collateral to be sold, and in general in such manner as the
Trustee may determine, but so that the Company may and shall have a reasonable
opportunity to bid at any such sale. Upon such taking possession or withdrawal
or lease or sale of the Collateral, the Company shall cease to have any rights
or remedies in respect of the Collateral hereunder, but all such rights and
remedies shall be deemed thenceforth to have been waived and surrendered by the
Company, and no payments theretofore made by the Company for the rent or use of
the Collateral or any of it shall give to the Company any legal or equitable
interest or title in or to the Collateral or any of it or any cause or right of
action at law or in equity in respect of the Collateral against the Trustee or
the holders of interests hereunder. No such taking possession, withdrawal, lease
or sale of the Collateral by the Trustee shall be a bar to the recovery by the
Trustee from the Company of principal and interest in respect of the Notes, and
the Company shall be and remain liable for the same until such sums have been
realized as, with the proceeds of the lease or sale of the Collateral, shall be
sufficient for the discharge and payment in full of all the obligations of the
Company under this Agreement.
SECTION 4.09. Application of Proceeds. If the Trustee shall exercise
any of the powers conferred upon it by this Article Four, all payments made by
the Company to the Trustee, and the proceeds of any judgment collected from the
Company by the Trustee, and the proceeds of every sale or lease by the Trustee
of any of the Collateral, together with any other sums which may
-27-
<PAGE> 34
then be held by the Trustee under any of the provisions hereof (other than sums
held in trust for the payment of specific Notes or a part thereof, or interest
thereon), shall be applied by the Trustee to the payment, in the following order
of priority, (a) of all proper charges, expenses or advances made or incurred by
the Trustee in accordance with the provisions of this Agreement and (b) of the
interest then due, with interest on overdue interest at the Penalty Rate, to the
extent legally enforceable, and of the Make-Whole Amount then due, if any, with
interest thereon at the Penalty Rate, to the extent legally enforceable, and of
the principal of all the outstanding Notes, with interest thereon at the Penalty
Rate, to the extent legally enforceable, from the last preceding interest
payment date, whether such Notes shall have then matured by their terms or not,
all such payments to be pro rata and in full if such proceeds shall be
sufficient, and if not sufficient, then first to interest, then to the
Make-Whole Amount and then to principal.
After all such payments shall have been made in full, the title to any
of the Collateral remaining unsold shall be conveyed by the Trustee to the
Company free from any further liabilities or obligations to the Trustee
hereunder. If after applying all such sums of money realized by the Trustee as
aforesaid there shall remain any amount due to the Trustee under the provisions
hereof, the Company agrees to pay the amount of such deficit to the Trustee. If
after applying as aforesaid the sums of money realized by the Trustee there
shall remain a surplus in the possession of the Trustee, such surplus shall be
paid to the Company.
SECTION 4.10. Obligations of Company Not Affected by Remedies. No
retaking of possession of the Collateral by the Trustee, or any withdrawal,
lease or sale thereof, nor any action or failure or omission to act against the
Company or in respect of the Collateral, on the part of the Trustee or on the
part of the holder of any Note, nor any delay or indulgence granted to the
Company by the Trustee or by any such holder, shall affect the obligations of
the Company hereunder. The Company hereby waives presentation and demand in
respect of any of the Notes and waives notice of presentation, of demand and of
any Default in the payment of the principal of and interest on the Notes.
SECTION 4.11. Company To Deliver Collateral to Trustee. In case the
Trustee shall rightfully demand possession of any of the Collateral under
Section 4.08, the Company will, at its own expense, forthwith and in the usual
manner and at usual speed, cause such Collateral to be drawn to such point or
points as shall reasonably be designated by the Trustee and will there deliver
or cause to be delivered the same to the Trustee; or, at the option of the
Trustee, the Trustee may keep such Collateral, at the expense of the Company, on
any lines of railroad or premises approved by the Trustee until the Trustee
shall have leased, sold or otherwise disposed of the same. The performance of
the foregoing covenant is of the essence of this Agreement and upon application
to any court having jurisdiction in the premises, the Trustee shall be entitled
to a decree against the Company requiring the specific performance thereof.
SECTION 4.12. Limitations on Suits by Holders of Notes. No holder of
any Note shall have any right by virtue or by availing of any provision of this
Agreement to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise, upon or under or with respect to
-28-
<PAGE> 35
this Agreement, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of a Default and of the continuance thereof, as herein
provided, and unless also the holders of more than 50% in aggregate principal
amount of the Notes then outstanding shall have made written request to the
Trustee to institute such action or proceeding in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for 30 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 4.04; and no one or more holders
of Notes shall have any right in any manner whatever to affect or prejudice the
rights of any other holder of Notes, or to obtain or seek to obtain priority
over any other such holder or to enforce any right under this Agreement, except
in the manner herein provided and for the equal, ratable and common benefit of
all holders of Notes. For the protection and enforcement of the provisions of
this Section, each and every holder of a Note and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION 4.13. Remedies Cumulative; Subject to Mandatory Requirements of
Law. The remedies in this Agreement provided in favor of the Trustee and the
holders of the Notes shall not be deemed exclusive, but shall be cumulative, and
shall be in addition to all other remedies in their favor existing at law or in
equity; and such remedies shall be subject in all respects to any mandatory
requirements of law at the time applicable thereto, to the extent such
requirements may not be waived on the part of the Company.
ARTICLE FIVE
Additional Agreements by the Company
SECTION 5.01. Discharge of Liens. The Company agrees that it will pay
and discharge, or make adequate provision for the payment or discharge of, any
debt, tax, charge, assessment, obligation or claim which if unpaid might become
a lien or charge upon or against any of the Collateral; but this provision shall
not require the payment of any such debt, tax, charge, assessment, obligation or
claim so long as the validity thereof shall be contested in good faith and by
appropriate legal proceedings that do not materially endanger the rights or
interests of the Trustee or of the holders of the Notes and the Company shall
have furnished the Trustee with an Opinion of Counsel to such effect.
If the Company does not forthwith pay and discharge, or cause to be
paid and discharged, or make adequate provision for the satisfaction or
discharge of, any such debt, tax, charge, assessment, obligation or claim as
required by this Section, the Trustee may, but shall not be obligated to, pay
and discharge the same and any amounts so paid shall be secured by and under
this Agreement until reimbursed by the Company.
-29-
<PAGE> 36
SECTION 5.02. Further Assurances. The Company agrees to do all such
acts and execute all such instruments of further assurance as it shall be
reasonably requested by the Trustee to do or execute for the purpose of fully
carrying out and effectuating this Agreement and the intent hereof.
SECTION 5.03. Payment of Expenses; Recording. The Company agrees to pay
the expenses incident to the preparation and execution of the Notes to be issued
hereunder, or connected with the preparation, execution, recording and filing of
this Agreement and of any instruments executed under the provisions hereof. The
Company shall, promptly after the execution and delivery of this Agreement and
each supplement hereto, respectively, cause this Agreement and such supplement,
as the case may be, to be duly filed with the Surface Transportation Board of
the Department of Transportation in accordance with 49 U.S.C. ss. 11301 and to
be duly deposited with the Registrar General of Canada pursuant to Section 105
of the Canada Transportation Act and shall provide for publication of notice of
such deposit in The Canada Gazette in accordance with said Section 105. The
Company will from time to time reregister, refile and rerecord this Agreement
and each supplement hereto and do and perform any other act and will execute,
acknowledge, deliver, file, register and record any and all further instruments
required by the law of any jurisdiction in which use of the Equipment is
permitted by Section 3.06 hereof or reasonably requested by the Trustee for the
purpose of proper protection of the security interest of the Trustee and the
rights of the holders of the Notes and of fully carrying out and effectuating
this Agreement and the intent hereof; provided, however, that the Company shall
not be required to take any such action if (1) such action is unduly burdensome
and (2) after giving effect to the failure to take such action, the Company has
taken all action required by law so as to protect the security interest of the
Trustee to units of Collateral having a Value of not less than 90% of the
aggregate Value of all the Collateral.
Promptly after the execution and delivery of this Agreement and each
supplement hereto, the Company shall furnish to the Trustee an Opinion of
Counsel stating that, in the opinion of such counsel, this Agreement or such
supplement, as the case may be, has been properly recorded, filed and deposited
in compliance with the preceding paragraph of this Section and reciting the
details of such action and no other filing or recordation or refiling or
rerecordation or depositing or redepositing is necessary for the protection of
the rights of the Trustee in the United States of America, any State thereof or
the District of Columbia or Canada or any subdivision thereof. The Company shall
furnish to the Trustee, not later than May in each year, commencing with the
year 2000, an Opinion of Counsel stating that, in the opinion of such counsel,
either (i) such action has been taken with respect to the recording, filing,
registering and depositing and rerecording, refiling, reregistering and
redepositing of this Agreement and each supplement hereto as is necessary to
comply with the preceding paragraph of this Section and reciting the details of
such action or (ii) no such action is necessary for such purpose. In rendering
any such opinion, such counsel may conclusively rely upon an Officers'
Certificate as to the location of the Collateral.
-30-
<PAGE> 37
SECTION 5.04 Maintenance of Corporate Existence. The Company, at its
own cost and expense, will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises, except as otherwise specifically permitted in Section 5.05;
provided, however, that the Company shall not be required to preserve any right
or franchise if it shall determine that the preservation thereof is no longer
desirable in the conduct of its business.
SECTION 5.05 Consolidation, Merger or Sale of Assets Permitted.
(a) The Company shall not consolidate with or merge into any other
corporation or sell or convey all or substantially all of its assets to any
Person, unless the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by sale or conveyance all or
substantially all of the assets of the Company, shall be a corporation organized
and existing under the laws of the United States of America or any State or the
District of Columbia, and shall execute and deliver to the Trustee an agreement
in form reasonably satisfactory to the Trustee containing an assumption by such
successor corporation of the due and punctual performance and observance of each
covenant and condition of this Indenture to which the Company is a party.
(b) Immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would become
an Event of Default, shall have occurred and be continuing.
Upon any consolidation or merger, or any sale or conveyance, of all or
substantially all of the assets of the Company, the successor corporation formed
by such consolidation or into which the Company is merged or to which such sale
or conveyance is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor corporation had been named as the Company herein. No such
sale or conveyance of all or substantially all of the assets of the Company as
an entirety shall have the effect of releasing the Company or any successor
corporation which shall theretofore have become such from its liability
hereunder.
(c) The Trustee may accept an Officer's Certificate and an Opinion of
Counsel of the Company as conclusive evidence that any such consolidation,
merger, sale, lease or conveyance, and any such assumption complies with the
provisions of this Section 5.05.
-31-
<PAGE> 38
ARTICLE SIX
Concerning the Holders of Notes
SECTION 6.01 Company to Furnish Trustee with Names and Addresses of
Noteholders. The Company will furnish to the Trustee within 15 days after each
Record Date with respect to a Scheduled Payment, and at such other times as the
Trustee may request in writing, within 30 days after receipt by the Company of
any such request, a list, in such form as the Trustee may reasonably require, of
all information in the possession or control of the Company as to the names and
addresses of the Noteholders, in each case as of a date not more than 15 days
prior to the time such list is furnished; provided, however, that so long as the
Trustee is the sole Registrar, no such list need be furnished; and provided
further, however, that no such list need be furnished for so long as a copy of
the Register is being furnished to the Trustee pursuant to Section 7.12.
SECTION 6.02 Preservation of Information; Communications to
Noteholders. The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Noteholders contained in the most recent
Register or list furnished to the Trustee as provided in Section 7.12 or Section
6.01, as the case may be, and the names and addresses of holders of Registered
Notes received by the Trustee in its capacity as Registrar, if so acting. The
Trustee may destroy any Register or list furnished to it as provided in Section
7.12 or Section 6.01, as the case may be, upon receipt of a new Register or list
so furnished.
SECTION 6.03 Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the year
2000, the Trustee shall transmit to the Noteholders, as provided in Section
313(c) of the Trust Indenture Act, a report dated as of such May 15, if required
by Section 313(a) of the Trust Indenture Act. The Trustee shall also comply with
Section 313(b) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of transmission to
Noteholders, be filed by the Trustee with each stock exchange (if any) upon
which the Notes are listed, and also with the Commission. The Companies will
notify the Trustee when the Notes are listed on any stock exchange and any
subsequent change with respect thereto.
SECTION 6.04 Reports by the Company. The Company shall:
(a) file with the Trustee, within 30 days after it is required to file
the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which it is required to file with the Commission pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934, as amended; or if it
is not required to file information, documents or reports pursuant to either of
such sections, then to file with the Trustee and the Commission, in accordance
with rules and regulations prescribed by the Commission pursuant to Section
314(a)(1) of the Trust Indenture Act, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934, as amended, in respect of a security
listed and registered on a national securities exchange as may be prescribed in
such rules and regulations;
-32-
<PAGE> 39
(b) file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed by the Commission, such additional information,
documents and reports with respect to compliance by it with the conditions and
covenants provided for in this Agreement, as may be required by such rules and
regulations, including, in the case of annual reports, if required by such rules
and regulations, certificates or opinions of independent public accountants,
conforming to the requirements of Section 1.2;
(c) transmit to all Noteholders, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act such summaries of any
information, documents and reports required to be filed by the Company pursuant
to subsections (a) and (b) of this Section 6.04 as may be required by rules and
regulations prescribed by the Commission; and
(d) furnish to the Trustee, not less often than annually, a certificate
from the principal executive officer, principal financial officer or principal
accounting officer thereof as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Agreement. For purposes
of this subsection (d), such compliance shall be determined without regard to
any period of grace or requirement of notice provided under this Agreement.
ARTICLE SEVEN
The Trustee
SECTION 7.01 Certain Duties and Responsibilities. (a) Except during the
continuance of an Event of Default,
(i) the Trustee undertakes to perform only such
duties as are specifically set forth in this Indenture, and no implied
covenants, duties or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the form
of the same to determine whether or not they substantially conform to
the requirements of this Indenture, but shall be under no duty to
investigate the facts contained therein.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the right and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
-33-
<PAGE> 40
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(i) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgement made in good faith by a Responsible Officer of the Trustee;
(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of Notes representing more
than 50% of the aggregate unpaid principal amount of Notes then
outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds in the performance of any of
its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that payment
of such funds or adequate indemnity against such risk is not reasonably
assured to it.
(d) Whether or not herein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 7.02 Notice of Defaults. As promptly as practicable after, and
in any event within 30 days after, the occurrence of any default (as such term
is defined below) hereunder, the Trustee shall transmit by mail to the
Noteholders and the Company, in accordance with Section 313(c) of the Trust
Indenture Act, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of or interest on a Note,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the registered holders of the
Notes. For the purpose of this Section, the term "default" means the occurrence
of any Event of Default, except that in determining whether any such Event of
Default has occurred for the purposes of this paragraph any grace period or
notice in connection therewith shall be disregarded.
SECTION 7.03 Certain Rights of Trustee. Except as otherwise provided in
Section 7.01:
-34-
<PAGE> 41
(i) the Trustee may rely and shall be protected in
acting or refraining from acting in reliance upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(ii) any request or direction of the Company
mentioned herein shall be sufficiently evidenced by a Request;
(iii) whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter be proved
or established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon any
Officer's Certificate;
(iv) the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(v) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Noteholders pursuant to this
Indenture, unless such Noteholders shall have offered to the Trustee
reasonable security or indemnity against the cost, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(vi) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document;
(vii) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(viii) to the extent the provisions of this Section
7.03 are inconsistent with the duties of the Trustee as required by
Section 315 of the Trust Indenture Act, the requirements of such
Section 315 shall prevail.
SECTION 7.04. Not Responsible for Recitals or Issuance of Notes. The
recitals contained herein and in the Notes, except the Notes of authentication,
shall not be taken as the statements of the Trustee, and the Trustee assumes no
responsibility for their correctness. The
-35-
<PAGE> 42
Trustee makes no representations as to the validity or sufficiency of this
Indenture or the Notes, except that the Trustee hereby represents and warrants
that this Indenture has been executed and delivered by one of its officers who
is duly authorized to execute and deliver such document on its behalf.
SECTION 7.05. May Hold Notes. The Trustee or any of its Affiliates, in
their respective individual or any other capacity, may become the owner or
pledgee of Notes and, subject to Sections 310(b) and 311 of the Trust Indenture
Act, may otherwise deal with the Company with the same rights it would have if
it were not Trustee.
SECTION 7.06 Money Held by Trustee. Any money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required herein or by law and the Trustee shall not have any liability for
interest upon any such moneys except as provided for herein.
SECTION 7.07. Compensation and Reimbursement. The Company agrees:
(i) to pay, or cause to be paid, to the Trustee from
time to time reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein,
to reimburse, or cause to be reimbursed, the Trustee upon its request
for all reasonable out-of-pocket expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence,
willful misconduct or bad faith or as may be incurred due to the
Trustee's breach of its representations and warranties set forth in
Section 7.04;
(iii) to indemnify, or cause to be indemnified, the
Trustee for, and to hold it harmless against, any loss, liability or
expense (other than for or with respect to any tax) incurred without
negligence, willful misconduct or bad faith, on its part, arising out
of or in connection with the acceptance or administration of this
Indenture, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder, except for any such loss,
liability or expense incurred by reason of the Trustee's breach of its
representations and warranties set forth in Section 7.04. The Trustee
shall notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel with
the consent of the Company, and the Company will pay the reasonable
fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent; and
-36-
<PAGE> 43
(iv) to indemnify, or cause to be indemnified, the
Trustee for, and to hold it harmless against, any tax (other than for
or with respect to any tax referred to in the next paragraph, provided
that no indemnification shall be available with respect to any tax
attributable to the Trustee's compensation for serving as such)
incurred without negligence, willful misconduct or bad faith, on its
part, arising out of or in connection with the acceptance or
administration of this Pass Through Trust, including any costs and
expenses reasonably incurred in contesting the imposition of any such
tax. The Trustee, shall notify the Company promptly of any tax for
which it may seek indemnity. The Company shall defend against the
imposition of such tax and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel with the consent of the Company,
and the Company will pay the reasonable fees and expenses of such
counsel. The Company need not pay for any taxes paid, in settlement or
otherwise, without its consent.
In addition, the Trustee shall be entitled to reimbursement from, and
shall have a lien prior to the Notes upon, all property and funds held or
collected by the Trustee in its capacity as Trustee for any tax incurred without
negligence, bad faith or willful misconduct, on its part, arising out of or in
connection with the acceptance or administration of this Indenture (other than
any tax attributable to the Trustee's compensation for serving as such),
including any costs and expenses reasonably incurred in contesting the
imposition of any such tax. If the Trustee reimburses itself for any such tax,
it will within 30 days mail a brief report setting forth the circumstances
thereof to all Noteholders as their names and addresses appear in the Register.
The Trustee shall have a lien prior to the Notes upon all property and
funds held or collected by the Trustee in its capacity as Trustee.
SECTION 7.08. Corporate Trustee Required; Eligibility. This Indenture
shall at all times have a Trustee which shall be eligible to act as a trustee
under Section 310(a) of the Trust Indenture Act and shall have a combined
capital and surplus of at least $100,000,000 or the obligations of which,
whether now in existence or hereafter incurred, are fully and unconditionally
guaranteed by a corporation organized and doing business under the laws of the
United States of America, any State or Territory thereof or of the District of
Columbia and having a combined capital and surplus of at least $100,000,000. Any
successor Trustee shall have a combined capital of at least $250,000,000 or
shall have its obligations unconditionally guaranteed by a corporation meeting
the criteria set forth in the immediately preceding sentence, and having a
combined capital and surplus of at least $250,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, State, Territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section 7.08, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
-37-
<PAGE> 44
The Trustee shall comply with Section 310(b) of the Trust Indenture
Act.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.08, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.09.
SECTION 7.09. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 7.10.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Company, within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Noteholders
holding Notes representing more than 50% of the aggregate unpaid principal
amount of Notes then outstanding delivered to the Trustee and the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 310
of the Trust Indenture Act after written request therefor by the
Company or by any Noteholder who has been a bona fide Noteholder for at
least six months; or
(ii) the Trustee shall cease to be eligible under
Section 7.08 and shall fail to resign after written request therefor by
the Companies or by any such Noteholder; or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any case, (x) the Company may remove the Trustee or (y) subject to
Section 4.06, any Noteholder who has been a bona fide Noteholder for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(e) If a Responsible Officer of the Trustee shall obtain actual
knowledge of an Avoidable Tax (as hereinafter defined) which has been or is
likely to be asserted, the Trustee shall promptly notify the Company and shall,
within 30 days of such notification, resign hereunder unless within such 30-day
period the Trustee shall have received notice that the Company has agreed to pay
such tax. The Company shall promptly appoint a successor Trustee in a
jurisdiction where there
-38-
<PAGE> 45
are no Avoidable Taxes. As used herein, an "Avoidable Tax" means a state or
local tax: (i) upon (w) the Indenture, (x) the Collateral, (y) Noteholders or
(z) the Trustee for which the Trustee is entitled to seek reimbursement from the
Collateral, and (ii) which would be avoided if the Trustee were located in
another state, or jurisdiction within a state, within the United States. A tax
shall not be an Avoidable Tax if the Company shall agree to pay, and shall pay,
such tax.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
the Company shall promptly appoint an interim successor Trustee. If, within one
year after such resignation, removal or incapacity, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Noteholders
representing more than 50% of the aggregate unpaid principal then outstanding
delivered to the Company and the interim successor Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee and supersede the interim successor Trustee. If no
successor Trustee shall have been so appointed as provided above and accepted
appointment in the manner hereinafter provided, any Noteholder who has been a
bona fide Noteholder for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(g) The successor Trustee shall give notice of the resignation and
removal of the Trustee and appointment of the successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Noteholders as their names and addresses appear in the Register. Each notice
shall include the name of such successor Trustee and the address of its
Corporate Trust Office.
SECTION 7.10. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its lien, if any, provided for in Section 7.07. Upon request of
any such successor Trustee, the Company, the retiring Trustee and such successor
Trustee shall execute and deliver any and all instruments containing such
provisions as shall be necessary or desirable to transfer and confirm to, and
for more fully and certainly vesting in, such successor Trustee all such rights,
powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
-39-
<PAGE> 46
SECTION 7.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
SECTION 7.12. Maintenance of Agencies. (a) There shall at all times be
maintained in the Borough of Manhattan, The City of New York, an office or
agency where Notes may be presented or surrendered for registration of transfer
or for exchange, and for payment thereof and where notices and demands to or
upon the Trustee in respect of the Notes or of this Indenture may be served.
Such office or agency shall be initially at __________________________. Written
notice of the location of each such other office or agency and of any change of
location thereof shall be given by the Trustee to the Company and the
Noteholders. In the event that no such office or agency shall be maintained or
no such notice of location or of change of location shall be given,
presentations and demands may be made and notices may be served at the Corporate
Trust Office of the Trustee.
(b) There shall at all times be a Registrar and a Paying Agent (each an
"Authorized Agent") hereunder. Each such Authorized Agent shall be a bank or
trust company, shall be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof or of the
District of Columbia, with a combined capital and surplus of at least
$100,000,000, or, if the Trustee shall be acting as the Registrar or Paying
Agent hereunder, a corporation the obligations of which are guaranteed by a
corporation organized and doing business under the laws of the United States of
America or any State or Territory thereof or of the District of Columbia, with a
combined capital and surplus of at least $100,000,000, and shall be authorized
under such laws to exercise corporate trust powers, subject to supervision by
Federal or state authorities. The Trustee shall initially be the Paying Agent
and Registrar hereunder. Each Registrar shall furnish to the Trustee, at stated
intervals of not more than six months, and at such other times as the Trustee
may request in writing, a copy of the Register.
(c) Any corporation into which any Authorized Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authorized Agent shall
be a party, or any corporation succeeding to the corporate trust business of any
Authorized Agent, shall be the successor of such Authorized Agent hereunder, if
such successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the parties
hereto or such Authorized Agent or such successor corporation.
-40-
<PAGE> 47
(d) Any Authorized Agent may at any time resign by giving written
notice of resignation to the Trustee and the Company. The Company may, and at
the request of the Trustee shall, at any time terminate the agency of any
Authorized Agent by giving written notice of termination to such Authorized
Agent and to the Trustee. Upon the resignation or termination of an Authorized
Agent or in case at any time any such Authorized Agent shall cease to be
eligible under this Section (when, in either case, no other Authorized Agent
performing the functions of such Authorized Agent shall have been appointed),
the Company shall promptly appoint a qualified successor Authorized Agent,
reasonably satisfactory to the Trustee, to perform the functions of the
Authorized Agent which has resigned or whose agency has been terminated or who
shall have ceased to be eligible under this Section. The Company shall give
written notice of any such appointment made by them to the Trustee; and in each
case the Trustee shall mail notice of such appointment to all Noteholders as
their names and addresses appear on the Register.
(e) The Company agrees, severally and not jointly, to pay, or cause to
be paid, pursuant to separate agreements from time to time to each Authorized
Agent reasonable compensation for its services and to reimburse it for its
reasonable expenses.
SECTION 7.13. Money for Note Payments to Be Held by Trustee. All moneys
deposited with any Paying Agent for the purpose of any payment on Notes shall be
deposited and held in trust for the benefit of the Noteholders entitled to such
payment, subject to the provisions of this Section.
The Trustee will cause each Paying Agent other than the Trustee to
execute and deliver to it an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(a) hold all sums held by it for payments on Notes in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by any obligor upon
the Notes in the making of any such payment; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Trustee may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, direct
any Paying Agent to pay to the Trustee all sums held in trust by such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by such Paying Agent; and, upon such payment by any
-41-
<PAGE> 48
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
SECTION 7.14. Preferential Collection of Claims. The Trustee shall
comply with Sections 311(a) and (b) of the Trust Indenture Act, excluding any
creditor relationship arising under Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated.
ARTICLE EIGHT
SUPPLEMENTS TO INDENTURE
SECTION 8.01 Supplements to Indenture Without Consent of Noteholders.
Without the consent of the Noteholders, the Company may, and the Trustee
(subject to Section 8.03) shall, at any time and from time to time enter into
one or more agreements supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(a) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein contained;
(b) to add to the covenants of the Company for the benefit of
the Noteholders, or to surrender any right or power herein conferred
upon the Company;
(c) to cure any ambiguity, to correct any manifest error to
correct or supplement any provision herein which may be defective or
inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this
Indenture, provided that any such action shall not adversely affect the
interests of the Noteholders; or
(d) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to continue the
qualification of this Indenture (including any supplemental agreement)
under the Trust Indenture Act, or under any similar Federal statute
hereafter enacted, and to add to this Indenture such other provisions
as may be expressly permitted by the Trust Indenture Act, excluding,
however, the provisions referred to in Section 316(a)(2) of the Trust
Indenture Act as in effect at the date as of which this instrument was
executed or any corresponding provision in any similar Federal statute
hereafter enacted.
SECTION 8.02 Supplements to Indenture with Consent of Noteholders. With
the consent of the Noteholders representing more than 50% of the aggregate
unpaid principal then outstanding, by Act of such Noteholders delivered to the
Company and the Trustee, the Company may, and the Trustee (subject to Section
8.03) shall, enter into an agreement or agreements supplemental hereto for the
purpose of adding any provisions to or changing in any
-42-
<PAGE> 49
manner or eliminating any of the provisions of this Indenture or of modifying in
any manner the rights and obligations of the Noteholders under this Indenture;
provided, however, that no such supplemental agreement shall, without the
consent of each registered holder of an outstanding Note affected thereby:
(a) reduce in any manner the amount of, or change the date of,
any payments on the Notes, or change the place of payment where, or the
coin or currency in which, any Note is payable, or impair the right to
institute suit for the enforcement of any such payment or distribution
on or after the Scheduled Payment Date applicable thereto;
(b) permit the disposition of any Collateral except as
permitted by this Indenture;
(c) reduce the percentage of the aggregate unpaid principal
then outstanding required for any such supplemental agreement, or
reduce such percentage required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided or in this Indenture;
(d) modify any of the provisions of this Section or Section
4.05, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the registered holder of each Note affected thereby.
It shall not be necessary for any Act of Noteholders under this Section
to approve the particular form of any proposed supplemental agreement, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 8.03 Documents Affecting Immunity or Indemnity. If in the
opinion of the Trustee any document required to be executed by it pursuant to
the terms of Section 8.01 or 8.02 affects any interest, right, duty, obligation,
immunity or indemnity in favor of the Trustee under this Indenture, the Trustee
may in its discretion decline to execute such document.
SECTION 8.04 Execution of Supplements to Indentures. In executing, or
accepting the additional trusts created by, any supplemental agreement permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental agreement is authorized or permitted by this Indenture.
SECTION 8.05 Effect of Supplements to Indenture. Upon the execution of
any supplemental agreement under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental agreement shall form a part of
this Indenture for all purposes; and every Noteholder theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
-43-
<PAGE> 50
SECTION 8.06 Conformity with Trust Indenture Act. Every supplemental
agreement executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 8.07 Reference in Notes to Supplements to Indentures. Notes
authenticated and delivered after the execution of any supplemental agreement
pursuant to this Article may bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental agreement, and, in such case,
suitable notation may be made upon outstanding Notes after proper presentation
and demand.
ARTICLE NINE
Miscellaneous
SECTION 9.01. Rights Confined to Parties and Holders. Nothing expressed
or implied herein shall be construed to confer upon any person, firm or
corporation, other than the parties hereto and the holders of the Notes, any
right, remedy or claim under or by reason of this Agreement or of any term,
agreement or condition herein, and all the terms, covenants and conditions
herein shall be for the sole and exclusive benefit of the parties hereto and
their successors and of the holders of the Notes.
SECTION 9.02. No Recourse. No recourse under this Agreement shall be
had against any person, solely by reason of the fact that he is a stockholder,
officer or director of the Company, as such, by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of any statute or
otherwise; it being expressly agreed that this Agreement is solely a corporate
obligation, and that no personal liability whatever shall attach to or be
incurred by any person, solely by reason of the fact that he is a stockholder,
officer or director of the Company, under or by reason of any of the terms,
agreements or conditions contained in this Agreement, or implied therefrom, and
that any and all such personal liability, either at common law or in equity, or
by statute or constitution, is hereby expressly waived as a condition of and
consideration for the execution of this Agreement.
SECTION 9.03. Binding Upon Assigns. Except as otherwise provided
herein, the provisions of this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns.
SECTION 9.04. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been received by the
addressee on the date of actual receipt (if such date is a Business Day,
otherwise on the next Business Day), if transmitted by mail, telex, telecopy
(confirmed by hard copy) or similar transmission, or by hand, addressed as
follows: (a) in the case of the Company, 225 West Washington Street, Chicago,
Illinois 60606, marked to the attention of its Treasurer, or such other address
as may hereafter be furnished to the Trustee in writing by the Company, (b) in
the case of the Trustee, the address set forth in the
-44-
<PAGE> 51
definition of Corporate Trust Office in Section 1.01 or such other address as
may hereafter be furnished to the Company in writing by the Trustee and (c) in
the case of any holder of Notes, at its address shown on the registry books
maintained by the Trustee or at such other address as such holder may from time
to time furnish to the Trustee for such purpose. An affidavit by any person
representing or acting on behalf of the Company or the Trustee, as to such
mailing, having the registry receipt attached, shall be conclusive evidence of
the giving of such demand, notice or communication.
SECTION 9.05. Effect of Headings; Date Executed; and Governing Law. (a)
The Article and Section headings herein are for convenience only and shall not
affect the construction hereof.
(b) This Agreement shall be deemed to have been executed on the date of
the acknowledgment thereof by the officer of the Trustee who signed it on behalf
of the Trustee.
(c) This Agreement shall be governed by the laws of the State of
Illinois.
SECTION 9.06. Legal Holidays. In any case where any date for payment of
interest, date for payment of rental or date of maturity of any installment of
principal on the Notes shall not be a Business Day, then, notwithstanding any
other provision of this Agreement or the Notes, payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on such date for payment of interest, date for payment of
rental or date of maturity of any installment of principal on the Notes, and if
payment is made on such next succeeding Business Day no interest shall accrue on
the amount of such payment for the period from and after such date for payment
of interest, or for payment of rental or date of maturity of any installment of
principal on the Notes, as the case may be, to and including such next
succeeding Business Day.
SECTION 9.07. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and all of which counterparts
shall constitute but one and the same instrument.
-45-
<PAGE> 52
IN WITNESS WHEREOF, the Company and the Trustee have caused their names
to be signed hereto by their respective officers thereunto duly authorized and
their respective corporate seals, duly attested, to be hereunto affixed as of
the day and year first above written.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By
----------------------------------
Title:
Attest:
- -------------------------
UNION TANK CAR COMPANY
By
----------------------------------
Title:
Attest:
- -------------------------
Secretary
-46-
<PAGE> 53
STATE OF ____________, )
) ss.:
COUNTY OF __________, )
On this ____ day of May 1999, before me personally appeared
___________________, to me personally known, who, being by me duly sworn, says
that such person is ______________________ of THE FIRST NATIONAL BANK OF
CHICAGO, and that said instrument was signed on behalf of said bank by authority
of its Board of Directors and he acknowledged that the execution of the
foregoing instrument was the free act and deed of said bank.
----------------------------
Notary Public
[Notarial Seal]
My Commission expires _______________
<PAGE> 54
STATE OF ILLINOIS, )
) ss.:
COUNTY OF COOK, )
On this ____ day of May 1999, before me personally appeared
___________________, to me personally known, who, being by me duly sworn, says
that he is _________________________ of UNION TANK CAR COMPANY, and that said
instrument was signed on behalf of said corporation by authority of its Board of
Directors and he acknowledged that the execution of the foregoing instrument was
the free act and deed of said corporation.
--------------------------
Notary Public
[Notarial Seal]
My Commission expires _______________
<PAGE> 55
FORM OF
LETTER OF REPRESENTATIONS
UNION TANK CAR COMPANY
Issuer
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
May __, 1999
Attention: General Counsel's Office
The Depository Trust Company
55 Water Street; 49th Floor
New York, New York 10041
Re: Senior Secured Notes Due 2010
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain
matters relating to the above-referenced issue (the "Bonds"). The First National
Bank of Chicago will act as trustee (the "Trustee") with respect to the Bonds
pursuant to an indenture dated as of May __, 1999. Pursuant to an underwriting
agreement dated May __, 1999, by and among the Issuer and Salomon Smith Barney
("Underwriter"), the Issuer has agreed to issue, and Underwriter has agreed to
purchase, the Bonds.
To induce The Depository Trust Company ("DTC") to accept the Bonds as
eligible for deposit at DTC, and act in accordance with its Rules with respect
to the Bonds, the Issuers and the Trustee make the following representations to
DTC:
1. Subsequent to Closing on the Bonds on May __, 1999, there shall be
deposited with DTC one Bond certificate in registered form registered in the
name of DTC's nominee, Cede & Co., [for each stated maturity of the Bonds in the
face amount set
<PAGE> 56
forth on Schedule A hereto, the total of which represents [__________%] of the
principal amount of such Bonds.] [If, however, the aggregate principal amount of
any maturity exceeds $[___________], one certificate will be issued with respect
to each $[___________] of principal amount and an additional certificate will be
issued with respect to any remaining principal amount. Each $100,000,000 Bond
certificate shall bear the following legend:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
2. In the event of any solicitation of consents from and voting by
holders of the Bonds, the Issuer or Trustee shall establish a record date for
such purposes (with no provision for revocation of consents or votes by
subsequent holders) and shall, to the extent possible, send notice of such
record date not less than 15 calendar days in advance of such record date to the
extent possible.
3. In the event of a full or partial redemption or an advance refunding
of outstanding Bonds, the Issuer or Trustee shall send notice of such event to
DTC not less than 30 days nor more than 60 days prior to the redemption date or,
in the case of an advance refunding, the date the proceeds are deposited in
escrow.
4. In the event of a partial redemption or an advance refunding of part
of the Bonds, the Issuer or Trustee shall send a notice to DTC specifying: (a)
the amount of the redemption or refunding; (b) in the case of a refunding, the
maturity date(s) established under the refunding; and (c) the date such notice
is to be mailed to Bondholders or published (the "Publication Date"). Such
notice shall be sent to DTC by a secure means (e.g., legible telecopy,
registered or certified mail, overnight delivery) in a timely manner designed to
assure that such notice is in DTC's possession no later than the close of
business on the business day before the Publication Date. The Issuer or the
Trustee will forward such notice either in a separate secure transmission for
each CUSIP number or in a secure transmission for multiple CUSIP numbers (if
applicable) which includes a manifest or list of each CUSIP submitted in that
transmission. (The party sending such notice shall have a method to verify
subsequently the use of such means and timeliness of the notice.) The
Publication Date shall not be less than 30 days nor more than 60 days prior to
the redemption date.
2
<PAGE> 57
5. In the event of an invitation to tender the Bonds, notice by the
Issuers or the Trustee to Bondholders specifying the terms of the tender and the
Publication Date shall be sent to DTC by a secure means.
6. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Bonds.
7. Notices to DTC pursuant to Paragraph 2 by telecopy shall be sent to
DTC's Reorganization Department at (212) 709-6896 or (212) 709-6897, and receipt
of such notices shall be confirmed by telephoning (212) 709-6870. Notices to DTC
pursuant to Paragraph 2 by mail or by any other means shall be sent to:
Supervisor; Proxy
Reorganization Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, NY 10004-2695
8. Notices to DTC pursuant to Paragraphs 3 and 4 by telecopy shall be
sent to DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190,
and receipt of such notices shall be confirmed by telephoning (516) 227-4070.
Notices to DTC pursuant to Paragraphs 3 and 4 by mail or by any other means
shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, NY 11530-4719
9. Notices to DTC pursuant to Paragraph 5 and notices of other
corporate actions (including mandatory tenders, exchanges, and capital changes)
by telecopy shall be sent to DTC's Reorganization Department at (212) 709-1093
or (212) 709-1094, and receipt of such notices shall be confirmed by telephoning
(212) 709-6884. Notices to DTC pursuant to the above by mail or by any other
means shall be sent to:
Manager; Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, NY 10004-2695
10. Trustee shall send DTC written notice with respect to the dollar
amount per $1,000 original face value (or other minimum authorized denomination
if less than
3
<PAGE> 58
$1,000 face value) payable on each payment date allocated as to the interest and
principal portions thereof preferably five, but not less than two, business days
prior to such payment date. Such notices, which shall also contain Trustee
contact's name and telephone number, shall be sent by telecopy to DTC's Dividend
Department at (212) 709-1723, or by mail or by any other means to:
Manager; Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 22nd Floor
New York, New York 10004
Telecopier: (212) 709-2695
11. Interest payments and payments of principal that are part of
periodic principal-and-interest payments shall be received by Cede & Co., as
nominee of DTC, or its registered assigns in same-day funds on each payment date
(or the equivalent in accordance with existing arrangements between the Issuers
or Trustee and DTC). Such payments shall be made payable to the order of Cede &
Co. Absent any other existing arrangements such payments shall be addressed as
follows:
Manager; Cash Receipts
Dividend Department
The Depository Trust Company
7 Hanover Square, 4th Floor
New York, New York 10004
12. Securities Eligible for DTC's Same-Day Funds Settlement System
("SDFS")
Other payments of principal (redemption payments) shall be made in same
day funds by Trustee in the manner set forth in the SDFS Paying Agent Operating
Procedures, a copy of which previously has been furnished to the Trustee.
Securities Eligible for DTC's Next-Day Funds Settlement System ("NDFS")
Other payments of principal (redemption payments) shall be made in
next-day funds by Trustee to Cede & Co., as nominee of DTC, or its registered
assigns, on each payment date. Such payments shall be made payable to the order
of Cede & Co., and shall be addressed as follows:
NDFS Redemption Department
The Depository Trust Company
55 Water Street, 50th Floor
New York, NY 10041-0099
4
<PAGE> 59
13. DTC may direct the Issuer or Trustee to use any other telephone
number or address as the number or address to which notices or payments of
interest or principal may be sent.
14. In the event of a redemption, acceleration or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Trustee's invitation) necessitating a reduction in aggregate principal amount of
Bonds outstanding or an advance refunding of part of the Bonds outstanding, DTC,
in its discretion: (a) may request the Issuer or the Agent to issue and
authenticate a new Bond certificate, or (b) may make an appropriate notation on
the Bond certificate indicating the date and amount of such reduction in
principal except in the case of final maturity, in which case the certificate
must be presented to the Issuer or Agent prior to payment.
15. In the event that the Issuer determines that beneficial owners of
Bonds shall be able to obtain certificated Bonds, the Issuer or the Trustee
shall notify DTC of the availability of Bond certificates. In such event, the
Issuer or the Trustee shall issue, transfer and exchange Bond certificates in
appropriate amounts, as required by DTC and others.
16. DTC may determine to discontinue its service as securities
depository with respect to the Bonds at any time by giving reasonable notice to
the Issuer or the Trustee (at which time DTC will confirm with the Issuer or
the Trustee the aggregate principal amount of the Bonds outstanding). Under such
circumstances, at DTC's request the Issuer and the Trustee shall cooperate
fully with DTC by taking appropriate action to make available one or more
separate certificates evidencing Bonds to any DTC Participant having Bonds
credited to its DTC accounts.
5
<PAGE> 60
17. Nothing herein shall be deemed to require the Trustee to advance
funds on behalf of the Issuers.
Very truly yours,
UNION TANK CAR COMPANY
By:
--------------------------
Its:
-------------------------
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
By:
--------------------------
Its:
-------------------------
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:
Its:
cc:Salomon Smith Barney
Mayer, Brown & Platt
6
<PAGE> 1
Exhibit 5(a)
April 13, 1999
Union Tank Car Company
225 West Washington Street
Chicago, Illinois 60606
Re: Registration of $100,000,000 of Senior Secured Notes
Ladies and Gentlemen:
We have acted as counsel to Union Tank Car Company, a Delaware corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act"), of a Registration Statement on Form S-3 (the "Registration
Statement"). The Registration Statement and the Prospectus contained therein
relate to the public offering of $100,000,000 aggregate principal amount of
Senior Secured Notes (the "Notes"). The Notes will be issued under an Indenture
and Security Agreement (the "Indenture") between the Company and The First
National Bank of Chicago, as Trustee (the "Trustee").
As such counsel, we have examined the form of Indenture and such other
papers, documents and certificates of public officials and certificates of
officers of the Company as we have deemed relevant and necessary as a basis for
the opinions hereinafter expressed. In such examinations, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to
us as originals and the conformity to original documents of all documents
submitted to us as conformed or photostatic copies. We have also assumed that
the Indenture, when executed and delivered, will be substantially in the form
submitted to us for examination.
Based upon and subject to the foregoing, it is our opinion that:
1. The execution and delivery of the Indenture by the Company and the
issuance and sale of the Notes pursuant to the Indenture have been validly
authorized by all necessary corporate action on the part of the Company.
<PAGE> 2
Union Tank Car Company
Page 2
April 13, 1999
2. When (a) the Registration Statement shall become effective under
the Act, (b) the Indenture shall become qualified under the Trust Indenture
Act of 1939, as amended, (c) the securities or Blue Sky laws of certain
states shall have been complied with, (d) the Indenture shall have been
executed and delivered by the Company and the Trustee, (e) the Notes shall
have been executed by the Company and authenticated by the Trustee, (f) the
Notes shall have been issued as provided in the Indenture for the
consideration specified in the Prospectus, and (g) the Notes shall have
been sold pursuant to the provisions of the form of Underwriting Agreement
between the Company and Salomon Smith Barney Inc, then the Notes will be
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, moratorium, reorganization or other laws relating
to or affecting enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity). We express no opinion
herein with respect to the grant, perfection or priority of any security
interest or lien relating to the Notes.
We are members of the Bar of the State of Illinois, and we express no
opinion herein concerning any laws other than the law of the State of Illinois,
and the Delaware General Corporation Law.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Opinions" in the Prospectus.
As you are aware, a partner of our firm is a co-trustee of trusts which
beneficially own capital stock of Marmon Holdings, Inc., the ultimate beneficial
owner of all of the outstanding capital stock of the Company.
Very truly yours,
NEAL, GERBER & EISENBERG
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3) and related Prospectus of Union Tank Car
Company for the registration of $100,000,000 of Senior Secured Notes due 2010
and to the incorporation by reference therein of our report dated March 8, 1999,
with respect to the consolidated financial statements of Union Tank Car Company
included in its Annual Report (Form 10-K) for the year ended December 31,
1998, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Chicago, Illinois
April 12, 1999
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
a National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
------------------
UNION TANK CAR COMPANY
(Exact name of obligor as specified in its charter)
DELAWARE 36-3104688
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
225 West Washington Street
Chicago, Illinois 60606
(Address of principal executive offices) (Zip Code)
Senior Secured Notes Due 2010
(Title of Indenture Securities)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO
THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C..
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE
OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now
in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of Chicago and State of Illinois, on the 8th day of April,
1999.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY
-----------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25 TO THE REGISTRATION STATEMENT ON FORM S-3 OF U S
WEST CAPITAL FUNDING, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
MAY 6, 1998 (REGISTRATION NO. 333-51907).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
April 8, 1999
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the Indenture by and between Union Tank
Car Company and The First National Bank of Chicago, as Trustee, the undersigned,
in accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, hereby consents that the reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY
-----------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
DOLLAR AMOUNTS IN THOUSANDS ----
RCFD BIL MIL THOU
---- ------------
ASSETS
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1).................................... 0081 5,585,982 1.a
b. Interest-bearing balances(2)............................................................. 0071 4,623,842 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) ............................... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............ ................ 1773 11,181,405 2.b
3. Federal funds sold and securities purchased under agreements to resell 1350 9,853,544 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RC-C) ........................... 2122 31,155,998 4.a
b. LESS: Allowance for loan and lease losses................................................ 3123 411,963 4.b
c. LESS: Allocated transfer risk reserve.................................................... 3128 3,884 4.c
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c)..................................................... 2125 30,740,151 4.d
5. Trading assets (from Schedule RD-D)......................................................... 3545 7,635,778 5.
6. Premises and fixed assets (including capitalized leases) 2145 739,925 6.
7. Other real estate owned (from Schedule RC-M) 2150 4,827 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M).............................................................. 2130 202,359 8.
9. Customers' liability to this bank on acceptances outstanding 2155 269,516 9.
10. Intangible assets (from Schedule RC-M)...................................................... 2143 291,665 10.
11. Other assets (from Schedule RC-F)........................................................... 2160 3,071,912 11.
12. Total assets (sum of items 1 through 11).................................................... 2170 74,200,906 12.
</TABLE>
- ----------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/98
ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
-----------------
LIABILITIES RCON
13. Deposits: -----
<S> <C> <C> <C>
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)...............................................................2200 22,524,140 13.a
(1) Noninterest-bearing(1)................................................................6631 10,141,937 13.a1
(2) Interest-bearing......................................................................6636 12,382,203 13.a2
RCFN
----
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)........................................................2200 19,691,237 13.b
(1) Noninterest bearing...................................................................6631 408,126 13.b1
(2) Interest-bearing.......................... ...........................................6636 19,283,111 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 9,113,686 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 120,599 15.a
b. Trading Liabilities(from Sechedule RC-D)................................................ RCFD 3548 6,797,927 15.b
RCFD
----
16. Other borrowed money:
a. With original maturity of one year or less................................................2332 5,385,355 16.a
b. With original maturity of more than one year. ............................................A547 327,126 16.b
c. With original maturity of more than three years .............. ...........................A548 316,411 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding .....................................2920 269,516 18.
19. Subordinated notes and debentures............................................................3200 2,400,000 19.
20. Other liabilities (from Schedule RC-G).......................................................2930 2,137,443 20.
21. Total liabilities (sum of items 13 through 20)...............................................2948 69,083,440 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................................................3838 0 23.
24. Common stock.................................................................................3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) ....................................3839 3,201,435 25.
26. a. Undivided profits and capital reserves....................................................3632 1,695,446 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities................................................................................8434 6,349 26.b
27. Cumulative foreign currency translation adjustments .........................................3284 13,378 27.
28. Total equity capital (sum of items 23 through 27) ...........................................3210 5,117,466 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)........................................................3300 74,200,906 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the
bank by independent external auditors as of any date during 1996 ...
............RCFD 6724 ......[N/A] Number
M.1.
1. = Independent audit of the bank conducted in accordance performed by other
with generally accepted auditing standards by a certified required by state
chartering public accounting firm which submits a report on the bank
2. = Independent audit of the bank's parent holding company statements by
external conducted in accordance with generally accepted auditing standards
by a certified public accounting firm which financial statements by
external submits a report on the consolidated holding company (but not on
the bank separately) tax preparation work)
3. = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4. = Directors' examination of the bank external auditors (may be authority)
5. = Review of the bank's financial auditors
6. = Compilation of the bank's auditors
7. = Other audit procedures (excluding
8. = No external audit work deposits.
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
