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General American Transportation Corporation
$___________
[Debt Securities]
Underwriting Agreement
[date]
[Underwriters' Addresses]
As Representatives of the several Underwriters
Ladies and Gentlemen:
General American Transportation Corporation, a New York corporation (the
"Company"), proposes to sell to the underwriters named in Schedule I hereto
(the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, $_________ principal amount of its [Debt Securities] (the
"Securities"), to be issued under an indenture (the "Indenture") dated as of
October 1, 1987, as supplemented pursuant to the First Supplemental Indenture
thereto dated as of May 15, 1988, the Second Supplemental Indenture thereto
dated as of March 15, 1990, the Third Supplemental Indenture thereto dated as
of June 15, 1990, and the Fourth Supplemental Indenture thereto dated as of
December __, 1995, between the Company and The Chase Manhattan Bank (National
Association), as trustee (the "Trustee").
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 and elsewhere in this
Agreement are defined in paragraph (l) hereof.
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933 (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission")
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a registration statement (file number 33-_____) on such Form, including a
basic preliminary prospectus in accordance with Rule 429, which has
become effective, for the registration under the Act of $__________
aggregate principal amount of debt securities, including the Securities.
Such registration statement, as amended at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(l)(ix) or (x) under the
Act and complies in all other material respects with such Rule. The
Company will file with the Commission pursuant to the applicable paragraph
of Rule 424(b) and Rule 429 under the Act a supplement to the form of
prospectus included in such registration statement relating to the
Securities and the plan of distribution thereof (the "Prospectus
Supplement").
(b) As of the Execution Time, on the Effective Date, when the
Prospectus Supplement is filed in accordance with Rule 424(b) and on the
Closing Date (as hereinafter defined), the Registration Statement, as
amended as of any such time, the Prospectus, as supplemented as of any
such time, and the Indenture will comply in all material respects with the
applicable requirements of the Act, the Securities Exchange Act of 1934
(the "Exchange Act") and the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the respective rules thereunder; (ii) on the Effective
Date, the Registration Statement, as amended as of any such time, 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; and (iii) the
Prospectus, as supplemented as of any such time, will not contain 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 constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives specifically
for use in connection with the preparation of the Registration Statement
or the Prospectus (or any supplement thereto).
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(c) Neither the Company nor any of its subsidiaries is in
violation of its corporate charter or bylaws or in default under any
agreement, indenture or instrument, the effect of which violation or
default would be material to the Company and its subsidiaries taken as a
whole; the execution, delivery and performance of this Agreement and
compliance by the Company with the provisions of the Securities and the
Indenture will not conflict with, result in the creation or imposition of
any lien, charge or encumbrance upon any of the assets of the Company or
of any of its subsidiaries pursuant to the terms of, or constitute a
default under, any agreement, indenture or instrument, or result in a
violation of the corporate charter or bylaws of the Company or of any of
its subsidiaries or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company or any of its
subsidiaries, the effect of which violation or default would be material
to the Company and its subsidiaries taken as a whole; and, except as
required by the Act, the Trust Indenture Act, the Exchange Act and
applicable state securities laws, no consent, authorization or order of,
or filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of this Agreement and
the Indenture.
(d) Except as described in the Registration Statement and the
Prospectus, there has not been any material adverse change in, or any
adverse development which materially affects or will materially affect the
business, properties, condition (financial or other), or results of
operations of the Company and its subsidiaries taken as a whole since the
dates as of which information is given in the Registration Statement and
the Prospectus.
(e) Ernst & Young, whose reports have been incorporated by
reference or included in the Company's most recent Annual Report on Form
10-K which is incorporated by reference in the Prospectus, are independent
public accountants as required by the Act and the rules and regulations
thereunder.
(f) As of the time the Securities are issued and sold hereunder (i)
the Indenture will have been duly authorized, executed and delivered by
the Company and will constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms, (ii) the
Securities will
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have been duly authorized, executed, authenticated and, upon payment
therefor as provided in this Agreement, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture, and (iii) the Indenture conforms and the Securities will
conform to the descriptions thereof contained in the Prospectus.
(g) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing and in good standing under the laws of
the jurisdiction in which it is chartered or organized, is duly qualified
to do business and is in good standing as a foreign corporation under the
laws of each jurisdiction in which its ownership of property or the
conduct of its business requires such qualification, except where the
failure so to qualify would not have a material adverse effect on the
Company and its subsidiaries taken as a whole, and has power and authority
necessary to own or hold its property and to conduct the business in which
it is engaged.
(h) Except as described in the Prospectus, there is no material
litigation or governmental proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries which
might result in any material adverse change in the business, properties,
condition (financial or other), results of operations or prospects of the
Company and its subsidiaries taken as a whole or which is required to be
disclosed in the Registration Statement.
(i) The financial statements filed as part of the Registration
Statement or included in the Prospectus present, or (in the case of any
amendment or supplement to any such document, or any material incorporated
by reference in any such document, filed with the Commission after the
date as of which this representation is being made) will present at all
times during the effectiveness of this Agreement, fairly, the financial
condition and results of operations of the Company and its subsidiaries
taken as a whole, at the dates and for the periods indicated, and have
been, and (in the case of any amendment or supplement to any such
document, or any material incorporated by reference in any such document,
filed with the Commission after the date as of which this representation
is being made) will in all material respects be at all times during the
effectiveness of this Agreement, prepared in
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conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved.
(j) The documents incorporated by reference into the Prospectus
have been, and (in the case of any amendment or supplement to any such
document, or any material incorporated by reference in any such document,
filed with the Commission after the date as of which this representation
is being made) will in all material respects be at all times during the
effectiveness of this Agreement, prepared by the Company in conformity
with the applicable requirements of the Act and the Exchange Act and the
respective rules and regulations of the Commission thereunder and such
documents have been, or (in the case of any amendment or supplement to any
such document, or any material incorporated by reference in any such
document, filed with the Commission after the date as of which this
representation is being made) will be at all times during the
effectiveness of this Agreement, timely filed as required thereby.
(k) There are no contracts or other documents which are required to
be filed as exhibits to the Registration Statement by the Act or by the
rules and regulations of the Commission thereunder, or which were required
to be filed as exhibits to any document incorporated by reference in the
Prospectus by the Exchange Act or the rules and regulations of the
Commission thereunder, which have not been filed as exhibits to the
Registration Statement or to such document or incorporated therein by
reference as permitted by the rules and regulations of the Commission
under the Act and the Exchange Act as required.
(l) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each
date that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "Execution Time" shall
mean the date and time that this Agreement is executed and delivered by
the parties hereto. "Basic Prospectus" shall mean the form of basic
prospectus relating to the Securities contained in the Registration
Statement at the Effective Date. "Prospectus" shall mean the Basic
Prospectus as supplemented by the Prospectus Supplement. "Registration
Statement" shall mean the registration statements referred to in paragraph
(a)
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above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time. "Rule 415", "Rule 424", and
"Rule 429" refer to such rules under the Act. Any reference herein to
the Registration Statement, the Basic Prospectus, the Prospectus
Supplement 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 of the Registration Statement or the issue date of the Basic
Prospectus or the Prospectus Supplement, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus or the
Prospectus Supplement shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus or the
Prospectus Supplement, as the case may be, deemed to be incorporated
therein by reference.
(m) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter
92-198, An Act Relating to Disclosure of Doing Business with Cuba, and the
Company further agrees that if it 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 Securities and Exchange Commission or with the Florida Department of
Banking and Finance (the "Department"), whichever date is later, or if the
information reported in the Prospectus, if any, concerning the Company's
business with Cuba or with any person or affiliate located in Cuba changes
in any material way, the Company will provide the Department notice of
such business or change, as appropriate, in a form acceptable to the
Department.
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 each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of ____% of the
principal amount thereof, plus accrued interest on the Securities from
______________, to the Closing Date, the principal amount of the Securities set
forth opposite such Underwriter's name in Schedule I hereto.
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3. Delivery and Payment. Delivery of and payment for the
Securities shall be made on the date and at the time and location set forth on
Schedule A hereto, which date and time may be postponed by agreement between
the Representatives and the Company or as provided in Section 9 hereof (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 the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by Federal funds check or
other immediately available funds. Certificates for the Securities shall be
registered in such names and in such denominations as the Representatives may
request not less than ____ full business days in advance of the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 PM on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set
forth in the Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus (except for (i) periodic or current reports
filed under the Exchange Act or (ii) a supplement relating to an offering
of securities other than the Securities) 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 either of the Representatives
may reasonably object. Subject to the foregoing sentence, the Company
will cause the Prospectus Supplement to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. The Company will promptly advise the
Representatives (i) when the Prospectus, and any supplement thereto, shall
have been filed with the
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Commission pursuant to Rule 424(b), (ii) when, prior to termination of the
offering of the Securities, any amendment of the Registration Statement
shall have been filed or become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or amendment of
or supplement to the Prospectus or for any additional information, (iv) 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 (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a Prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus, as then supplemented, would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary to amend
the Registration Statement or to supplement the Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the
Company will promptly (i) prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (ii) supply any such amended or supplemented Prospectus to
the Representatives in such quantities as they may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto), and each amendment to the Registration
Statement (including solely in
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the case of the Representatives, when filed with the Commission, all
documents incorporated by reference therein) and, so long as delivery of a
prospectus may be required by the Act, as many copies of the Prospectus
and any amendments thereof and supplements thereto as the Representatives
may reasonably request.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities.
(f) The Company shall, whether or not any sale of the Securities is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement, including the fees and disbursements of
its accountants and counsel, the cost of printing or other production and
delivery of the Registration Statement, the Prospectus, all amendments
thereof and supplements thereto, the Indenture, this Agreement and all
other documents relating to the offering, the cost of preparing, printing,
packaging and delivering the Securities, the fees and disbursements,
including fees of counsel, incurred in compliance with Section 5(e), the
fees and disbursements of the Trustee and the fees of any agency that
rates the Securities.
(g) The Company will not, from the date hereof to and including the
Closing Date, without prior written consent of the Representatives, offer,
sell or contract to sell, or otherwise dispose of, directly or indirectly,
or announce the offering of, any debt securities issued or guaranteed by
the Company (other than the Securities or any debt securities issued or
guaranteed by the Company with maturities of less than 270 days).
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters 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 pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
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(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus and any such supplement
shall have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion or opinions of the assistant general counsel of the Company or
other counsel to the Company acceptable to the Representatives, dated the
Closing Date, to the effect that:
(i) each of the Company and its subsidiaries (excluding
subsidiaries which, considered in the aggregate, would not constitute
a "significant subsidiary" under Commission Regulation S-X) 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 properties or conducts
material business, except where the failure so to qualify would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole;
(ii) the Company's authorized equity capitalization is as set
forth in the Prospectus;
(iii) 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 such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other
approvals (specified in such opinion) as have been obtained;
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(iv) neither the execution and delivery of the Indenture,
the issue and sale of the Securities, nor the consummation of any
other of the transactions herein contemplated nor the fulfillment of
the terms hereof will conflict with, result in a breach of or
constitute a default under, the Articles of Incorporation or bylaws
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 by which any of them are bound that is
material to the Company and its subsidiaries as a whole, 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 (except that
such counsel need not express any opinion on any order or regulation
which does not materially affect the validity of the Securities);
(v) 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 arbitration 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 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; and the statements included or
incorporated in the Prospectus describing any legal proceedings or
material contracts or agreements relating to the Company or any of
its subsidiaries fairly summarize such matters;
(vi) the Registration Statement and any amendments thereto have
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 prescribed by Rule
424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Prospectus (other
than the financial statements
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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 thereunder; and no facts
have come to the attention of such counsel which cause him to believe
that at the Effective Date or the Closing Date the Registration
Statement (other than the financial statements and other financial
and statistical information contained therein as to which such
counsel need express no opinion) contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus (other than the financial
statements and other financial and statistical information contained
therein as to which such counsel need express no opinion) includes
any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(vii) this Agreement has been duly authorized, executed and
delivered by the Company.
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of
the Company and public officials. References to the Prospectus in this
paragraph (b) include any supplements thereto at the date such opinion is
rendered.
(c) The Company shall have furnished to the Representatives the
opinion of Xxxxx, Xxxxx & Xxxxx, counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity); and the
Securities have
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been duly authorized and, when the terms and forms thereof have been
established and the Securities have been executed and authenticated
in accordance with the provisions of the Indenture and delivered to
and paid for by the Representatives, the Securities will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity); and the Indenture
conforms and the Securities will conform to the descriptions thereof
in the Prospectus;
(ii) the Registration Statement and any amendments thereto have
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 prescribed by Rule
424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Prospectus (other
than material incorporated by reference therein and the financial
statements and other financial and statistical information contained
therein as to which such counsel need express no opinion) comply as
to form in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules thereunder; and
no facts have come to the attention of such counsel which cause them
to believe that at the Effective Date or the Closing Date the
Registration Statement (other than the financial statements and other
financial and statistical information contained therein as to which
such counsel need express no opinion) contained any untrue statement
of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading or that the Prospectus (other than the financial
statements and other financial and statistical information contained
therein as to which such counsel need express no opinion) includes
any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light
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of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact, to
the extent deemed proper, on certificates of responsible officers of the
Company and public officials. References to the Prospectus in this
paragraph (c) include any supplements thereto at the date such opinion is
rendered.
(d) The Representatives shall have received from Winston & Xxxxxx,
counsel for the Underwriters, 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 the Representatives 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.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the President or any Vice President
(in the financial area) and the principal financial or accounting officer
or the Treasurer of the Company, dated the Closing Date, to the effect
that the signers of such certificate have examined the Registration
Statement, the Prospectus, any supplement to the Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the date of such certificate with the same effect as if made on the
date of such certificate and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied as a condition of the obligation of the
Underwriters to purchase the Securities;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus, there has been no
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material adverse change in the business, properties, condition
(financial or other), results of operations or, to the best of their
knowledge, the prospects of the Company and its subsidiaries taken as
a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus.
(f) At the Closing Date, Ernst & Young shall have furnished to the
Representatives a letter or letters, dated as of the Closing Date, in form
and substance satisfactory to the Representatives, confirming that they
are independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable published rules and regulations
thereunder and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated in the
Registration Statement and the Prospectus and reported on by them
comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of the
minutes of the meetings of the stockholders and directors of the
Company and standing committees thereof; and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most recent
audited financial statements included or incorporated in the
Prospectus, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus
do not comply in form
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in all material respects with applicable accounting
requirements and with the published rules and regulations of
the Commission with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under the
Exchange Act; and said unaudited financial statements are not
in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included or incorporated in the
Registration Statement and the Prospectus;
(2) with respect to the period subsequent to the date of
the most recent financial statements (other than any capsule
information), audited or unaudited, in or incorporated in the
Registration Statement and the Prospectus, there were any
changes, at a specified date not more than five business days
prior to the date of the letter, in the advances to,
investments in or receivables from related parties, or in the
capital stock or long-term debt of the Company and its
subsidiaries or any decreases in the stockholders' equity of
the Company or consolidated net current assets or net assets as
compared with the amounts shown on the most recent consolidated
balance sheet included or incorporated in the Registration
Statement and the Prospectus, or for the period from the date
of the most recent financial statements included or
incorporated in the Registration Statement and the Prospectus
to such specified date there were any decreases, as compared
with the corresponding period in the preceding year in net
operating revenues or in income before income taxes or in total
and net income of the Company and its subsidiaries, except in
all instances for changes or decreases set forth in such
letter; or
(3) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Prospectus do not agree with the amounts set
forth in the unaudited financial statements for the same
periods or were not determined on a basis substantially
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consistent with that of the corresponding amounts in the
audited financial statements included or incorporated in the
Registration Statement and the Prospectus; and
(iii) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus and in Exhibit
12 to the Registration Statement, agrees with the accounting records
of the Company and its subsidiaries, excluding any questions of legal
interpretation.
References to the Registration Statement and the Prospectus in this
paragraph (f) include any amendment thereof or supplement thereto at the
date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the 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 paragraph (f) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the business, properties, condition (financial or other) or
results of operation 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 the reasonable judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
public offering or 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 been any decrease in the rating of any of the
Company's long-term debt securities by Standard & Poor's Corporation or
Xxxxx'x Investors Services, Inc. or any notice given of any intended or
potential decrease in any such rating or of any review of or possible
change in any such rating that does not indicate the direction of the
possible change.
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(i) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as either Representative may reasonably request.
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 the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at
any time at or prior to the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
if any termination pursuant to Section 10 hereof shall occur or in the case 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 any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses that shall have been
incurred by them (including reasonable fees and disbursements of counsel) in
connection with this Agreement.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Prospectus or in any amendment thereof
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or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them 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 any Underwriter through the
Representatives specifically for inclusion therein, and (ii) such indemnity
with respect to the Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling any Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Securities
which are the subject thereof if such person did not receive a copy of the
Prospectus (or the Prospectus as 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 (A) such delivery is required by
the Act, (B) the untrue statement or omission of a material fact contained in
the Prospectus was corrected in the Prospectus (or the Prospectus as
supplemented) and (C) if a copy of such Prospectus (or the Prospectus as
supplemented) had been so sent or given, such delivery would have cured the
defect giving rise to the claim asserted by such person. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the
statements set forth under the heading "Underwriters" in the Prospectus
constitutes the only
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information furnished in writing by or on behalf of the several Underwriters
for inclusion in the documents referred to in the foregoing indemnity, and you,
as the Representatives, confirm that such statements with respect to you are
correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ one separate counsel and one
separate local counsel for all such indemnified parties in such action and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the
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expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or
proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectus. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information
provided by the Company or the Underwriters. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations
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referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either the Act or
the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to take
up and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all
the remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any
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nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in securities of the Company or of GATX Corporation, the Company's
corporate parent (the "Parent"), shall have been suspended by the Commission,
trading in the Parent's securities shall have been suspended by the New York
Stock Exchange or the Chicago Stock Exchange or 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 by either Federal or New York State authorities, or
(iii) there shall have occurred any outbreak or material escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the reasonable judgment of the Representatives, impracticable to
market the Securities.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters 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 any Underwriter or the Company or any
of the 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.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule A hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000-0000, Attention: Treasurer.
13. 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
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controlling persons referred to in Section 8 hereof, and no other person will
have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
* * * * *
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance by each of you shall represent a
binding agreement among the Company and the several Underwriters.
Very truly yours,
General American Transportation
Corporation
By:_____________________________
Its:____________________________
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[Underwriter]
By:______________________________
Its:_____________________________
[Underwriter]
By:______________________________
Its: ____________________________
For themselves and the other
several Underwriters named in
Schedule B to the foregoing
Agreement.
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SCHEDULE A
AGGREGATE INTEREST FINAL
NOTES PRINCIPAL AMOUNT RATE DISTRIBUTION DATE
----- ---------------- ---- -----------------
_____% $___________ _____%
Closing Date, Time and Location:
[Date]
[time] Chicago time
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Address for notices pursuant to Section 12:
[Underwriter]
[Underwriter]
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SCHEDULE B
PRINCIPAL AMOUNT
OF SECURITIES TO
BE PURCHASED
----------------
UNDERWRITERS
$___________
___________
____________
Total . . . . . . . . . . . . . . . . . . . . . . . . . $___________
===========
Address for Notice to Underwriters:
Notices to [Underwriter] shall be directed to it at
_____________, Attention: ______________________.
Notices to [Underwriter] shall be directed to it at
_______________, Attention:________________.
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