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GENERAL AMERICAN TRANSPORTATION CORPORATION
PASS THROUGH CERTIFICATES, SERIES _____
UNDERWRITING AGREEMENT
[date]
[Underwriters' Addresses]
Dear Sirs:
General American Transportation Corporation, a New York corporation
(the "COMPANY"), in connection with the financing of [all or a portion of the
cost of Owned Equipment] [the financing or refinancing of the debt component of
one or more separate leveraged lease transactions in which the Company is
lessee], proposes that The First National Bank of Chicago, as trustee (the
"TRUSTEE") of the GATC [ ] Pass Through Trust (the "PASS THROUGH TRUST")
established under the Pass Through Trust Agreement, dated as of August 1, 1992
(the "BASIC AGREEMENT"), between the Trustee and the Company, and Supplement
No. __ thereto, dated as of __________ (the "TRUST SUPPLEMENT"), between the
Trustee and the Company, will issue and sell $__________ aggregate principal
amount of Pass Through Certificates, Series ________ (the "PASS THROUGH
CERTIFICATES"), with the interest rate and final distribution date set forth
on Schedule A hereto to you, as underwriters (the "UNDERWRITERS").
As used in this Agreement the terms "CERTIFICATEHOLDER," "EQUIPMENT,"
"EQUIPMENT NOTES," "EXCEPTED PROPERTY," "INDENTURE ESTATE," "INDENTURE
SUPPLEMENT," "INDENTURE TRUSTEE," ["LEASE,"] ["LEASE SUPPLEMENT,"] ["LEASED
EQUIPMENT NOTES,"] "LIEN," "OPERATIVE AGREEMENTS," ["OWNED EQUIPMENT,"] ["OWNED
EQUIPMENT NOTES,"] "OWNER TRUSTEE," "PARTICIPATION AGREEMENT," "PERMITTED
LIENS," "RENT" and "TRUST ESTATE" shall have the meanings attributed to them in
each of the [ ] Trust Indenture and Security Agreement[s], dated as of
___________ between the Owner Trustee and the Indenture Trustee (each an
"INDENTURE" AND COLLECTIVELY, THE "INDENTURES"). All other capitalized terms
used herein shall, for the purposes hereof, have the meanings attributed to
them in this Agreement.
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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 (as hereinafter defined) 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. The "BASIC PROSPECTUS" shall mean the prospectus referred
to in paragraph (a) below contained in the Registration Statement at the
Effective Date. "PRELIMINARY FINAL PROSPECTUS" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the Pass Through
Certificates and the offering thereof and is used prior to filing of the Final
Prospectus, together with the Basic Prospectus. "FINAL PROSPECTUS" shall mean
the prospectus supplement relating to the Pass Though Certificates that is
first filed pursuant to Rule 424(b) after the Execution Time, together with the
Basic Prospectus. "REGISTRATION STATEMENT" shall mean the registration
statement referred to in paragraph (a) below including incorporated documents,
exhibits and financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined), shall also mean
such registration statement as so amended. "RULE 405", "RULE 415", "RULE 424"
and "RULE 429" refer to such rules or regulations under the Securities Act of
1933, as amended (the "ACT"). Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3 which were filed under the
Securities and Exchange Act of 1934, as amended, (the "Exchange Act") on or
before the Effective Date or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the Effective
Date of the Registration Statement, or, the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case may be,
deemed to be incorporated therein by reference. A "DELAYED OFFERING" shall
mean an offering of securities pursuant to Rule 415 which does not commence
promptly after the effective date of a Registration Statement, with the result
that only information required pursuant to Rule 415 need be included in such
Registration
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Statement at the effective date thereof with respect to the securities so
offered.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for the use of Form S-3
under the Act and has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement (file number 33-_____) on such Form
including a Basic Prospectus, for the registration under the Act of the
offering and sale of up to $__________ of pass through certificates. If the
Company may have filed any amendments thereto, or used a Preliminary Final
Prospectus, each such amendment or Preliminary Final Prospectus has previously
been furnished to the Underwriters. Such registration statement, as amended,
has become effective. The offering of the Pass Through Certificates is a
Delayed Offering and, accordingly, it is not necessary that any further
information has been included in an amendment to such Registration Statement
prior to the Effective Date with respect to the Pass-Through Certificates and
the offering thereof required by the Act and the rules thereunder to be
included in the Final Prospectus. The Company will next file with the
Commission pursuant to Rules 415, 424(b)(2) or (5) and 429 a final supplement
to the form of prospectus included in such Registration Statement relating to
the Pass-Through Certificates and the offering thereof. As filed, such Final
Prospectus supplement shall include all required information with respect to
the Pass-Through Certificates and the offering thereof and, except to the
extent the Underwriters shall agree in writing to a modification, shall be in
all substantive respects in the form furnished to the Underwriters prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond
that contained in the Basic Prospectus and any Preliminary Final Prospectus) as
the Company has advised the Underwriters, prior to the Execution Time, will be
included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as hereinafter defined), the Final
Prospectus (and any supplements thereto) will, comply in all material respects
with the applicable requirements of the Act and the Exchange Act, and the
respective rules and regulations thereunder, on the Effective Date, the
Registration
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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 Basic Agreement and the Trust Supplement did or
will comply in all material respects with the requirements of the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together
with any supplements 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 (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 Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of any Underwriter specifically for use
in connection with the preparation of the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) The consolidated financial statements incorporated by
reference in the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus present fairly the consolidated
financial position of the Company and its subsidiaries as at the dates
indicated and the consolidated results of their operations and cash flows for
the periods specified and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis during the periods
involved, except as indicated therein, and the supporting schedules
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein.
(d) The documents incorporated by reference in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, at the
time they were or hereafter are filed with the Commission, complied and (in the
case of any amendment or supplement to any such document, or any material
incorporated by reference in any document filed with the Commission after the
date as of which this representation is being made) will comply in all
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material respects with the requirements of the Exchange Act, and the rules and
regulations thereunder.
(e) Since the respective dates as of which information is given in
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, except as otherwise stated therein or
contemplated thereby, there has been no material adverse change in the
business, properties, condition (financial or other), or results of operation
of the Company and its subsidiaries taken as a whole.
(f) The Company and each Significant Subsidiary (with such term
having the meaning attributed to it under Rule 405 under the Act) 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 Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction which requires such
qualification wherein it owns or leases material properties or conducts
material business except in such jurisdictions in which the failure to so
qualify would not have a material adverse effect on the Company taken as a
whole.
(g) The execution and delivery by the Company of this Agreement,
each Participation Agreement, the Basic Agreement, the Trust Supplement
[each Lease] and the other Operative Agreements to which the Company is, or is
to be, a party, the consummation by the Company of the transactions herein and
therein contemplated, and the compliance by the Company with the terms hereof
and thereof do not and will not conflict with, or result in a breach of any of
the terms or provisions of, or constitute a default under, the Articles of
Incorporation or By-Laws, as amended, of the Company or any agreement or
instrument binding upon the Company or any of its subsidiaries that is material
to the Company and its subsidiaries taken as a whole, or any provision of
applicable law, judgment, order or decree of any government, governmental
instrumentality or court having jurisdiction over the Company or any of its
subsidiaries; and 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 on the
part of the Company for the valid authorization, issuance and delivery of the
Pass Through Certificates and the Equipment Notes, the valid
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authorization, execution, delivery and performance by the Company of this
Agreement, each Participation Agreement, the Basic Agreement, the Trust
Supplement [, each Lease,] and the other Operative Agreements to which the
Company is, or is to be a party, or the consummation by the Company of the
transactions contemplated by this Agreement, each Participation Agreement, the
Basic Agreement, the Trust Supplement [, each Lease,] and the other Operative
Agreements to which the Company is, or is to be, a party, except (x) such as
are required under the Act, the Trust Indenture Act and the securities or Blue
Sky laws of the various states and (y) such filings or recordings with the
Interstate Commerce Commission and the Registrar General of Canada under the
Railway Act of Canada as may be required.
(h) This Agreement, each Participation Agreement, the Basic
Agreement, the Trust Supplement [, each Lease] and the other Operative
Agreements to which the Company is, or is to be, a party, have each been duly
authorized by the Company and, when executed and delivered by the Company, will
constitute valid and binding obligations of the Company, and the Basic
Agreement will have been duly qualified under the Trust Indenture Act. On the
Closing Date (as hereinafter defined), [each Lease,] and the other Operative
Agreements to which the Company is, or is to be, a party will constitute the
valid and binding obligations of the Company. The Pass Through Certificates,
the Equipment Notes, the Indenture[s], each Participation Agreement, the Basic
Agreement, the Trust Supplement[, each Lease] and the other Operative
Agreements to which the Company is, or is to be, a party will conform in all
material respects to the descriptions thereof in the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus.
(i) ▇▇▇▇▇ & ▇▇▇▇▇, who reported on the annual consolidated
financial statements of the Company incorporated by reference in the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, are independent auditors as required by the Act and
the rules and regulations thereunder.
(j) Assuming the due authority of the Trustee to execute, deliver
and carry out the terms of the Basic Agreement and the Trust Supplement, the
Pass Through Certificates, when duly executed, authenticated and delivered by
the Trustee in accordance with the terms of the Basic Agreement, the Trust
Supplement and this Agreement, will be duly issued under the Basic Agreement
and the Trust Supplement, and will constitute valid and binding
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obligations of the Trustee; and the holders thereof will be entitled to the
benefits of the Basic Agreement and the Trust Supplement.
(k) The Equipment Notes to be issued under the Indenture[s], when
duly authorized, executed and delivered by [the Owner Trustee] [or the Company,
as the case may be,] and duly authenticated by the Indenture Trustee in
accordance with the terms of the Indenture[s], will be duly issued under the
Indenture[s] and will constitute valid and binding obligations of [the Owner
Trustee] [or the Company, as the case may be]; and the holders thereof will be
entitled to the benefits of the Indenture[s].
(l) As of the Closing Date, the Pass Through Certificates will be
rated [ ] by Standard & Poor's Corporation ("S&P") and [ ] by ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's").
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 cause the Trustee to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Trustee, at a purchase
price of 100% of the principal amount thereof, plus accrued interest, if any,
on the Pass Through Certificates from ___________ to the Closing Date, the
principal amount of the Pass Through Certificates set forth opposite such
Underwriter's name in Schedule B hereto.
As compensation to the Underwriters for their commitment and
obligations hereunder in respect of the Pass Through Certificates, including
their undertaking to offer the Pass Through Certificates for sale to the
public, the Company will pay, or cause to be paid to the Underwriters by the
Owner Trustee pursuant to each Participation Agreement, an amount equal to [
%] of the aggregate principal amount of the Pass Through Certificates. Such
payment shall be made simultaneously with the payment by the Underwriters to
the Trustee of the purchase price of the Pass Through Certificates 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 [Underwriter].
3. DELIVERY AND PAYMENT. Delivery of and payment for the Pass
Through Certificates shall be made on the date and at the time and location
specified in Schedule A hereto, which date and time may be postponed by
agreement between the Underwriters and the Company (such date and time of
delivery and payment for the Pass
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Through Certificates being herein called the "CLOSING DATE"). Delivery of the
Pass Through Certificates shall be made to each of the Underwriters' respective
accounts at The Depository Trust Company against payment by the Underwriters of
the purchase price thereof to or upon the order of the Trustee by Federal funds
check or other immediately available funds. The Pass Through Certificates
shall be registered in such names and in such denominations as each Underwriter
may request not less than _____ full business days in advance of the Closing
Date or such other date as may be agreed upon.
The Company agrees to have the Pass Through Certificates available for
inspection, checking and packaging by the Underwriters in New York, not later
than 1:00 p.m. on the business day prior to the Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that, after this
Agreement has been entered into and the Registration Statement becomes
effective, the Underwriters propose to offer the Pass Through Certificates for
sale to the public as set forth in the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus.
5. AGREEMENTS. The Company agrees with the Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective and the Basic Agreement to be qualified
under the Trust Indenture Act. Prior to the Closing Date, the Company will not
file any amendment of the Registration Statement or supplement to the Final
Prospectus unless the Company has furnished the Underwriters a copy for your
review prior to filing and will not file any such proposed amendment or
supplement to which the Underwriters reasonably object. Subject to the
foregoing sentence, if filing of the Final Prospectus is required under Rule
424(b), the Company will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and will
provide evidence satisfactory to the Underwriters of such timely filing. The
Company will promptly advise the Underwriters (i) when the Registration
Statement, if not effective at the Execution Time, and any amendment thereto,
shall have become effective, (ii) when the Final Prospectus, and any supplement
thereto, shall have been filed
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(if required) with the Commission pursuant to Rule 424(b), (iii) when, prior to
termination of the offering of the Pass Through Certificates, any amendment to
the Registration Statement shall have been filed or become effective, (iv) of
any request by the Commission for any amendment of the Registration Statement
or supplement to the Final Prospectus or for any additional information, (v) of
the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose, (vi) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Pass
Through Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vii) during the period when
a prospectus relating to the Pass Through Certificates is required to be
delivered under the Act, of the mailing or the delivery to the Commission for
filing of any document to be filed pursuant to the Exchange Act. 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 Pass Through
Certificates is required to be delivered under the Act, any event occurs as a
result of which the Final Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary to
amend the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules and regulations
thereunder, the Company promptly will prepare and file with the Commission,
subject to paragraph (a) of this Section 5, an amendment or supplement which
will correct such statement or omission or an amendment which will effect such
compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriters an earnings statement
or statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and the applicable rules and Rule 158
under the Act.
(d) The Company will furnish to each Underwriter and the
Underwriters' counsel, without charge, a signed copy of the Registration
Statement (including exhibits thereto and materials incorporated by reference
therein) and, so long as delivery of a prospectus by the Underwriters or a
dealer may be required by the
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Act, as many copies of the Basic Prospectus, each Preliminary Final Prospectus
and the Final Prospectus and any amendments thereof and supplements thereto as
any Underwriter may reasonably request.
(e) The Company will arrange for the qualification of the Pass
Through Certificates for sale under the laws of such jurisdictions as each of
you may designate, will maintain such qualifications in effect so long as
required for the distribution of the Pass Through Certificates; PROVIDED,
HOWEVER, that the Company will not be required to file any general consent to
service of process or qualify to do business in any jurisdiction in order to
effect such qualification.
(f) Between the date of this Agreement and the Closing Date, the
Company will not without the Underwriters' prior written consent offer, sell,
or enter into any agreement to sell, any public debt securities registered
under the Act which are substantially similar to the Pass Through Certificates
(other than the Pass Through Certificates).
(g) As of the date hereof 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 Commission or with the Florida Department of
Banking and Finance (the "DEPARTMENT"), whichever date is later, or if the
information reported in the Final Prospectus, if any, concerning the Company's
business with Cuba or with any person or affiliate located in Cuba changes in
any material way, the Company will provide the Department notice of such
business or change, as appropriate, in a form acceptable to the Department.
6. CONDITIONS TO THE OBLIGATION OF THE UNDERWRITERS. The
Underwriters' obligation to purchase the Pass Through Certificates shall be
subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates
delivered pursuant to the provisions hereof, to the performance by the Company
of its obligations hereunder and to the following additional conditions:
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(a) If the Registration Statement has not become effective prior
to the Execution Time, 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 Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final 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 representations and warranties of the Company contained in
each Participation Agreement, [each Lease,] and the other Operative Agreements
shall be true and correct in all material respects on and as of the Closing
Date with the same effect as though such representations and warranties had
been made on and as of such date, and the Company shall have delivered to you a
certificate, dated the Closing Date, signed in each case by the President or
any Vice President and its principal financial or accounting officer to the
effect that the signers of such certificate have carefully examined each
Participation Agreement, [each Lease,] and the other Operative Agreements, the
Registration Statement, the Preliminary Final Prospectus and the Final
Prospectus and that:
(i) The representations and warranties of the Company in
each Participation Agreement, [each Lease,] and the other Operative
Agreements, to which the Company is, or is to be, a party are true and
correct in all material respects on and as of the Closing Date as if
made on and as of the Closing Date.
(ii) The Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
on or prior to the Closing Date pursuant to the terms of the Basic
Agreement, the Trust Supplement, each Participation Agreement, [each
Lease,] and the other Operative Agreements, to which the Company is,
or is to be, a party.
(iii) Nothing has come to their attention that would lead
either of them to believe that the Registration Statement
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contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(c) The Company shall have furnished to the Underwriters and the
rating agencies (if so required) the opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, counsel to
the Company, dated the Closing Date, in form reasonably satisfactory to the
Underwriters, the rating agencies and to Winston & ▇▇▇▇▇▇, special counsel for
the Underwriters, to the effect that:
(i) the Company and each Significant Subsidiary has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered
or organized, with full corporate power and authority to own its
properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business, except in
such jurisdictions in which the failure to so qualify would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole;
(ii) the Company has the corporate power and authority
under New York law to perform its obligations hereunder and under each
Participation Agreement, the Basic Agreement, the Trust Supplement,
[each Lease,] and the other Operative Agreements to which the Company
is, or is to be, a party;
(iii) all the outstanding shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as otherwise
set forth in the Final Prospectus, all outstanding shares of capital
stock of each Significant Subsidiary are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any
perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interests, claims, liens or
encumbrances;
(iv) to the best knowledge of such counsel, there is no
pending or threatened action, suit or proceeding before any
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court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement or the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
which is not adequately disclosed, and there is no franchise, contract
or other document of a character required to be described in the
Registration Statement or the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or to be filed as an exhibit,
which is not described or filed as required;
(v) the execution and delivery by the Company of this
Agreement, each Participation Agreement, the Basic Agreement, the
Trust Supplement, [each Lease,] and the other Operative Agreements to
which the Company is, or is to be, a party, the consummation by the
Company of the transactions herein and therein contemplated and in the
manner herein and therein contemplated and compliance by the Company
with the terms hereof and thereof, do not and will not conflict with,
or result in a breach by the Company of, any of the terms or
provisions of, or constitute a default under its Articles of
Incorporation or By-laws, as amended, or any indenture or other
agreement or instrument known to such counsel to which the Company is
a party or by which the Company is bound that is material to the
Company and its subsidiaries taken as a whole, or any law, rule,
regulation, judgment or order known to such counsel to be applicable
to the Company of any court, regulatory body, administrative agency,
government or governmental body having jurisdiction over the Company,
except that such counsel need express no opinion or belief as to the
accuracy or completeness of the Registration Statement or Final
Prospectus except for the opinions expressed in clause (iv) (except
that such counsel need not express any opinion as to any violation of
any such law, rule or regulation, judgment or order (a) which does not
materially affect the validity of the Equipment Notes or the Pass
Through Certificates or (b) which reflects conclusions based on
misrepresentations to, concealment of information from or other
fraudulent acts perpetrated on such counsel);
(vi) each document filed pursuant to the Exchange Act and
incorporated by reference in the Final Prospectus (except for the
financial statements, including the notes thereto and related
schedules and other financial and statistical
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information included or incorporated by reference therein, as to which
such counsel need express no opinion) appeared on its face, as of its
respective filing date, to comply as to form in all material respects
with the requirements of the Exchange Act and the rules and
regulations thereunder; and
(vii) assuming due authorization, execution and delivery of
the Basic Agreement and the Trust Supplement by the Trustee, the Basic
Agreement and the Trust Supplement constitute valid and binding
obligations of the Company enforceable 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.
(d) The Company shall have furnished to the Underwriters and the
rating agencies (if so required) the opinion of ▇▇▇▇▇, Brown & ▇▇▇▇▇, special
counsel to the Company, dated the Closing Date, in form reasonably satisfactory
to the Underwriters, the rating agencies and to Winston & ▇▇▇▇▇▇, special
counsel for the Underwriters, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized, with full
corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus;
(ii) the execution and delivery by the Company of this
Agreement, each Participation Agreement, the Basic Agreement, the
Trust Supplement, [each Lease,] and the other Operative Agreements to
which the Company is, or is to be, a party, the consummation by the
Company of the transactions herein and therein contemplated and in the
manner herein and therein contemplated and compliance by the Company
with the terms hereof and thereof, do not and will not conflict with,
or result in a breach by the Company of, any of the terms or
provisions of, or constitute a default under, its Articles of
Incorporation or By-laws, as amended;
(iii) the Pass Through Certificates conform in all material
respects to the description thereof contained in the Final Prospectus,
and such description conforms in all
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material respects to the rights set forth in the instruments
defining the same;
(iv) no authorization, approval, consent, order or license
of or filing with or giving of notice to any government, governmental
instrumentality, regulatory body or authority or court in the United
States is required on the part of the Company for the valid
authorization, execution, delivery and performance by the Company of
this Agreement, each Participation Agreement, the Basic Agreement, the
Trust Supplement, [each Lease,] and the other Operative Agreements to
which the Company is, or is to be, a party, or theconsummation by the
Company of the transactions contemplated by this Agreement, each
Participation Agreement, the Basic Agreement, the Trust Supplement,
[each Lease,] and the other Operative Agreements to which the Company
is, or is to be, a party, except (x) such as are required under the
Act, the Trust Indenture Act and the securities or Blue Sky laws of
the various states and (y) such filings with the Interstate Commerce
Commission as may be required;
(v) the Registration Statement has become effective under
the Act; any filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements thereto,
required pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); the Basic Agreement
has become qualified under the Trust Indenture Act; 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 Final Prospectus and each amendment thereof or
supplement thereto (other than the financial statements, including the
notes thereto, 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, the Exchange Act and the
Trust Indenture Act and the respective rules and regulations
thereunder;
(vi) [title to the Equipment to be subjected to a Lease
will, when such Equipment shall have been transferred to the Owner
Trustee as provided in the related Participation Agreement, be validly
vested in the Owner Trustee, subject to no liens or encumbrances of
record at the Interstate Commerce
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Commission except for such Lease and the related Indenture] [the
Equipment to be owned by the Company shall have no liens or
encumbrances of record at the Interstate Commerce Commission except
for the related Indenture];
(vii) this Agreement, each Participation Agreement, [each
Lease,] and all other Operative Agreements to which the Company is, or
is to be, a party have been duly authorized by the Company and, on the
Closing Date, upon execution and delivery by the parties thereto, will
be 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 and, except, in the case of a Lease, as
limited by applicable laws which may affect the remedies provided in
such Lease, which laws, however, do not in such counsel's opinion make
the remedies provided in such Lease inadequate for the practical
realization of the rights and benefits provided thereby and, except,
in the case of this Agreement, for the indemnification and
contribution provisions hereof as a result of securities laws or
public policy;
(viii) the Equipment Notes, the Indenture[s], each
Participation Agreement, the Basic Agreement, the Trust Supplement,
[each Lease,] and the other Operative Agreements (to the extent
described therein) conform in all material respects to the
descriptions thereof contained in the Final Prospectus;
(ix) the statements in the Registration Statement and
Final Prospectus under the headings "Federal Income Tax Consequences",
"Certain Illinois Taxes" and "ERISA Considerations", to the extent
that they constitute matters of law or legal conclusions with respect
thereto, have been prepared or reviewed by such counsel and are
correct in all material respects;
(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) upon consummation of the transactions contemplated by
each Participation Agreement on the Closing Date, the
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Equipment Notes, when duly authorized, executed and delivered by [the
Owner Trustee] [or the Company, as the case may be,] and duly
authenticated by the Indenture Trustee, will constitute valid and
binding obligations of [the Owner Trustee] [or the Company, as the
case may be], enforceable against [the Owner Trustee] [or the Company,
as the case may be,] 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 and the holders of the Equipment Notes
will be entitled to the benefits of the Indenture[s];
(xii) although counsel is not aware of any judicial
authority, the Pass Through Trust is not required to be registered
under the Investment Company Act of 1940, as amended;
(xiii) assuming due authorization, execution and delivery of
each Indenture by the parties thereto, each Indenture will subject the
relevant Indenture Estate to the security interests created thereby;
and
(xiv) other than taxes, fees or other governmental charges
payable by the Trustee in its individual capacity and not upon the
trust created under each Indenture or the Pass Through Trust, there
are no taxes, fees or other governmental charges payable under the
laws of the State of Illinois or any political subdivision thereof in
connection with (x) the execution and delivery by the Trustee, as
Indenture Trustee, of each Indenture, each Participation Agreement and
the other Operative Agreements to which it is a party or (y) the
execution and delivery by the Trustee, as Pass Through Trustee, of the
Basic Agreement and the related Trust Supplement and the issuance,
execution and delivery of the Pass Through Certificates by the
Trustee, as Pass Through Trustee, pursuant to the Basic Agreement and
the Trust Supplement or (z) the issuance, authentication and delivery
of the Equipment Notes.
Each of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, counsel to the Company, and ▇▇▇▇▇, Brown & ▇▇▇▇▇,
special counsel to the Company, shall also state that while such counsel has
not checked the accuracy or completeness of the statements contained in the
Registration Statement, in the course of such counsel's review and discussion
of the contents of
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the Registration Statement with certain officers and employees of the Company,
the Underwriters and their counsel and its independent accountants, but without
independent check or verification, such counsel has no reason to believe that
the Registration Statement or any amendment thereof (other than the financial
statements, including the notes thereto, and related schedules and other
financial and statistical information contained therein as to which such
counsel need express no opinion) at the Effective Date 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 Final Prospectus, as amended or supplemented as of the Closing Date
(other than the financial statements, including the notes thereto, and related
schedules 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. In rendering the foregoing opinions, each 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.
(e) The Underwriters and the rating agencies (if so required)
shall have received from the Law Department of The First National Bank of
Chicago, counsel for The First National Bank of Chicago ("First Chicago"),
individually, as Trustee and Indenture Trustee under each of the Indenture[s],
an opinion, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters, the rating agencies and Winston & ▇▇▇▇▇▇,
special counsel for the Underwriters, to the effect that:
(i) First Chicago is a national banking association duly
organized and validly existing in good standing under the laws of the
United States, and, in its individual capacity or as Trustee or
Indenture Trustee, as the case may be, has full corporate power and
authority to execute, deliver and carry out the terms of the
Indenture[s], each Participation Agreement, the Basic Agreement, the
Trust Supplement and the other Operative Agreements to which it is, or
is to be, a party;
(ii) First Chicago, the Trustee or the Indenture Trustee,
as the case may be, has duly authorized, executed and delivered each
Participation Agreement, the Basic Agreement,
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the Trust Supplement and the Indenture[s]; the Basic Agreement, the
Trust Supplement and each Participation Agreement constitute the valid
and binding obligations of First Chicago, the Trustee or the Indenture
Trustee, as the case may be, enforceable against First Chicago, the
Trustee or the Indenture Trustee, as the case may be, in accordance
with their respective terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditors' rights generally, and except
as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law);
(iii) the Pass Through Certificates have been duly
authorized and validly executed, authenticated, issued and delivered
by the Trustee, pursuant to the Basic Agreement and the Trust
Supplement; and the holders of the Pass Through Certificates are
entitled to the benefits of the Basic Agreement and the Trust
Supplement;
(iv) the authorization, execution, delivery and
performance by First Chicago, the Trustee or the Indenture Trustee, as
the case may be, of the Indenture[s], each Participation Agreement,
the Basic Agreement, the Trust Supplement and the other Operative
Agreements to which it is or will be party and the consummation of the
transactions therein contemplated and compliance with the terms
thereof and the issuance of the Pass Through Certificates thereunder
do not and will not result in the violation of the provisions of the
Articles of Association or By-Laws of First Chicago, and do not and
will not conflict with, or result in a breach of any terms or
provisions of, or constitute a default under, or result in the
creation or the imposition of any lien, charge or encumbrance upon any
property or assets of First Chicago, the Trustee or the Indenture
Trustee, as the case may be, under any indenture, mortgage or other
agreement or instrument known to such counsel to which the Trustee or
the Indenture Trustee, as the case may be, is a party or by which it
or any of its property is bound, or any state or Federal law, rule or
regulation governing First Chicago's, the Trustee's or the Indenture
Trustee's banking or trust powers, or of any judgment, order or decree
known to such counsel to be applicable to First Chicago, the Trustee
or the Indenture Trustee, as the case may be, of any court, regulatory
body,
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administrative agency, government or governmental body having
jurisdiction of First Chicago, the Trustee or the Indenture Trustee or
its properties; and
(v) no authorization, approval, consent, license or order
of, giving of notice to, registration with, or taking of any other
action in respect of, any Federal or state governmental authority or
agency pursuant to any Federal or state law governing the banking or
trust powers of First Chicago, the Trustee or the Indenture Trustee is
required for the authorization, execution, delivery and performance by
First Chicago, the Trustee or the Indenture Trustee of the
Indenture[s], each Participation Agreement, the Basic Agreement, the
Trust Supplement and the other Operative Agreements to which it is or
will be a party or the consummation of any of the transactions by the
Trustee or Indenture Trustee contemplated thereby or the issuance of
the Pass Through Certificates under the Basic Agreement and the Trust
Supplement (except as shall have been duly obtained, given or taken);
and such authorization, execution, delivery, performance, consummation
and issuance do not conflict with or result in a breach of the
provisions of any such law.
Such opinion shall be to such further effect with respect to other legal
matters relating to the Indenture[s], each Participation Agreement, the Basic
Agreement, the Trust Supplement and the other Operative Agreements, to which
First Chicago, the Trustee or the Indenture Trustee is, or is to be, a party,
and the sale of Pass Through Certificates hereunder as counsel for the
Underwriters may reasonably request. In giving such opinion, the Law
Department of The First National Bank of Chicago (A) may state that no opinion
is expressed as to laws other than the laws of the State of Illinois and
Federal law, (B) may rely as to the opinions expressed in clauses (ii) and
(iii), insofar as they involve matters relating to the laws of the State of New
York, upon the opinions referred to in Section 6(c) and (d) hereof, in which
case the opinion shall state that they believe that they and the Underwriters
are entitled to so rely and (C) may assume as to the opinions expressed in
clause (ii) relating to each Participation Agreement, insofar as they involve
matters relating to the laws of the State of New York, that such Participation
Agreement constitute legal, valid and binding instruments under such laws.
(f) The Underwriters shall have received from Winston & ▇▇▇▇▇▇,
special counsel for the Underwriters, such opinion or
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21
opinions, dated the Closing Date, with respect to the issuance and sale of the
Pass Through Certificates, the Basic Agreement, the Trust Supplement, the
Registration Statement, the Final Prospectus and other related matters as the
Underwriters 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.
(g) The Company shall have furnished to the Underwriters a
certificate of the Company, signed by the President or any Vice President and
the principal financial officer of the Company, dated the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on and as
of the Closing Date with the same effect as if made on the Closing
Date and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the Company's
knowledge, no proceedings for that purpose have been instituted or
threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus, there has been no
material adverse change in the business, properties, condition
(financial or otherwise) or results of operations 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 Final Prospectus.
(h) At the Execution Time and at the Closing Date, ▇▇▇▇▇ & ▇▇▇▇▇
shall have furnished to the Underwriters a letter or letters, dated,
respectively, as of the Execution Time and as of the Closing Date, in form and
substance satisfactory to the Underwriters, confirming that they are
independent accountants within the meaning of the Act and the Exchange Act and
the applicable published rules and regulations thereunder and stating in effect
that:
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(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated in the
Registration Statement and the Final Prospectus and reported on by
them comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of the
minutes of the meetings of the stockholders, directors 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 Final Prospectus, nothing
came to their attention which caused them to believe that:
(1) any unaudited financial statements included
or incorporated in the Registration Statement and the Final
Prospectus do not comply in form in all material respects with
applicable accounting requirements and with the published
rules and regulations of the Commission with respect to
financial statements included or incorporated in quarterly
reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated in the Registration
Statement and the Final Prospectus;
(2) with respect to the period subsequent to the
date of the most recent financial statements (other than any
capsule information), audited or unaudited, in or incorporated
in the Registration Statement and the Final Prospectus, there
were any changes (except for changes occurring in the normal
course of business), 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
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23
stock or long term debt of the Company and its subsidiaries or
any decreases in the shareholders' 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 Final Prospectus, or for the period from the date of
the most recent financial statements included or incorporated
in the Registration Statement and the Final Prospectus to such
specified date there were any decreases, as compared with the
corresponding period in the preceding year in net operating
revenues or in income before income taxes 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 Final Prospectus do not agree
with the amounts set forth in the unaudited financial
statements for the same periods or were not determined on a
basis substantially consistent with that of the corresponding
amounts in the audited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus; and
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which
is limited to accounting, financial or statistical information derived
from the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statement and the Final
Prospectus and in Exhibit 12 to the Registration Statement, agrees
with the accounting records of the Company and it subsidiaries,
excluding any questions of legal interpretation.
References to the Final Prospectus in paragraph (h) include any supplement
thereto at the date of the letter.
(i) Subsequent to the Execution Time or, if earlier, the
respective dates as of which information is given in the Registration Statement
and the Final Prospectus there shall not have been (i) any change or decrease
specified in the letters referred to in paragraph (h) of this Section 6 or (ii)
any change,
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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 Underwriters, so material and adverse as to make it impractical
or inadvisable to proceed with the public offering or the delivery of the Pass
Through Certificates as contemplated by the Registration Statement and the
Final Prospectus.
(j) 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 S&P or ▇▇▇▇▇'▇ 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.
(k) Prior to the Closing Date, the Company shall have furnished or
caused to be furnished to the Underwriters and the rating agencies such further
information, certificates, opinions and documents as either Underwriter or the
rating agencies 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 Underwriters and your counsel, this Agreement and all your
obligations hereunder may be canceled at, or at any time prior to, the Closing
Date by the Underwriters. Notice of such cancellation shall be given to the
Company in writing or by telephone or telegraph confirmed in writing.
7. Payment by the Company of Certain Expenses. Whether or not
any sale of the Pass Through Certificates is consummated, the Company agrees to
pay or cause to be paid all of the Company's expenses incident to the
performance of its obligations under this Agreement, the Basic Agreement and
the related Trust Supplement, including, but not limited to:
(i) the preparation, printing and distribution of this
Agreement, the Registration Statement, the Basic Prospectus, the
Preliminary Final Prospectus, the Final Prospectus and all amendments
and supplements to the foregoing, the Basic
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Agreement, the Trust Supplement and each of the other Operative
Agreements,
(ii) the preparation, issuance and delivery of the Pass
Through Certificates,
(iii) the fees and disbursements of the Company's counsel
and accountants,
(iv) the qualification of the Pass Though Certificates
under securities or Blue Sky laws in accordance with the provisions of
Section 5(e), including filing fees and the fees and disbursements of
your counsel in connection therewith and in connection with the
preparation of any Blue Sky memorandum,
(v) the fees and expenses of the Trustee and the fees and
disbursements of counsel for the Trustee, and
(vi) any fees charged by rating agencies for the rating of
the Pass Through Certificates,
provided, however, that the Company shall be under no obligation to pay or
cause to be paid, the fees and disbursements of your counsel in connection with
item (iv) above, if the sale of the Pass Through Certificates is not
consummated as a result of the breach by the Underwriters of their obligations
hereunder.
In addition to the foregoing, the Company agrees to pay certain fees
and disbursements of the Underwriters' counsel as agreed in each Participation
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 Pass Through Certificates as originally filed or in any
amendment thereof, or in the Basic Prospectus, any
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26
Preliminary Final Prospectus or the Final Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and agrees
to reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred 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 specifically for
inclusion therein, and (ii) such indemnity with respect to the Basic Prospectus
or any Preliminary Final Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) if
the person asserting any such loss, claim, damage or liability purchased the
Pass Through Certificates which are the subject thereof but did not receive a
copy of the Final Prospectus (or the Final Prospectus as amended or
supplemented), excluding documents incorporated therein by reference, at or
prior to the confirmation of the sale of such Pass Through Certificates, in any
case where (A) such delivery is required by the Act, (B) the untrue statement
or omission of a material fact contained in such Basic Prospectus or
Preliminary Final Prospectus was corrected in the Final Prospectus (or the
Final Prospectus as amended or supplemented) and (C) if a copy of such Final
Prospectus (or Final Prospectus as amended or 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 specifically for inclusion in the
documents referred to in clause (a) of this Section 8. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the
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27
statements set forth under the heading "Underwriting" in any Preliminary Final
Prospectus and the Final Prospectus constitute the only information furnished
in writing by or on behalf of the Underwriters for inclusion in any Preliminary
Final Prospectus or the Final Prospectus, and the Underwriters 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 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
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
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authorize the indemnified party to employ separate counsel at the expense of
the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 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 Pass Through Certificates; 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 Pass Through Certificates) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Pass Through Certificates 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
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account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 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. Termination. This Agreement shall be subject to termination
in the Underwriters' absolute discretion by notice given to the Company prior
to delivery of and payment for the Pass Through Certificates, if prior to such
time (i) trading in securities 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 either by 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 Underwriters,
impracticable to market the Pass Though Certificates.
If the sale of the Pass Through Certificates provided for herein is
not consummated because any condition to the Underwriters' 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 any Underwriter, the Company will
reimburse the Underwriters upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by each
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of you in connection with the proposed purchase and sale of the Pass Through
Certificates.
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of 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 Pass Through
Certificates. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, 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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, 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 no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
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If the foregoing is in accordance with each of 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 the 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:__________________________
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SCHEDULE A
PASS THROUGH AGGREGATE INTEREST FINAL
CERTIFICATE PRINCIPAL RATE DISTRIBUTION
DESIGNATION AMOUNT DATE
__________ $__________ _____% __________
Closing Date, Time and Location: [date]; [time] Chicago time; ▇▇▇▇▇, Brown &
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Addresses for notices pursuant to Section 11: [Underwriters].
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SCHEDULE B
PRINCIPAL AMOUNT OF
PASS THROUGH CERTIFICATES
UNDERWRITERS TO BE PURCHASED
------------ ---------------
$_______________
_______________
TOTAL $
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