Exhibit 1.1
FORM OF
GENERAL AMERICAN RAILCAR CORPORATION II
1998-1 PASS THROUGH TRUST
$167,000,000 [ ]% General American Railcar Corporation II
Pass Through Certificates, Series 1998-1
UNDERWRITING AGREEMENT
New York, New York
September [ ], 1998
Xxxxxxx Xxxxx Xxxxxx Inc.
Seven World Trade Center
New York, New York 10048
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 10036-8293
Ladies and Gentlemen:
General American Railcar Corporation II, a Delaware corporation (the
"Company"), in connection with the financing of the debt portion of [three
separate] leveraged lease transactions in which the Company is lessee, proposes
that State Street Bank and Trust Company, as trustee (the "Pass Through
Trustee") of the General American Railcar Corporation II 1998-1 Pass Through
Trust (the "Pass Through Trust") established under the Pass Through Trust
Agreement, to be dated as of September [ ], 1998 (the "Basic Agreement"),
between the Pass Through Trustee and the Company, and Trust Supplement No. 1
thereto, to be dated as of September [ ], 1998 (the "Trust Supplement" and,
together with the Basic Agreement, the "Pass Through Trust Agreement"), between
the Pass Through Trustee and the Company, will issue and sell $167,000,000
aggregate principal amount of Pass Through Certificates, Series 1998-1 (the
"Securities"), 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 capitalized terms used herein but not
defined herein shall have the meanings attributed to them in each of the [three]
Trust Indenture and Security Agreements, dated as of September ___, 1998 between
the applicable Owner Trustee and the applicable Indenture Trustee (each an
"Indenture" and collectively, the "Indentures") whether expressly set forth
therein or by reference to another agreement. All other capitalized terms used
herein shall, for the purposes hereof, have the meanings attributed to them in
this Agreement.
The terms that follow, when used in this Agreement, shall have the
meanings indicated. The term "Effective Date" shall mean such 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. "Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) below contained in the Registration Statement at
the Effective Date that omits Rule 430A Information. "Prospectus" shall mean the
prospectus relating to the Pass Through Certificates that is first filed
pursuant to Rule 424(b) after the Execution Time or, if no filing pursuant to
Rule 424(b) is required, shall mean the form of final prospectus relating to the
Securities included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred to in
paragraph 1(a) below including incorporated documents and exhibits, 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. Such term
shall include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A. "Rule 424" and "Rule 430" refer to such
rules or regulations under the Securities Act of 1933, as amended (the "Act").
Any reference herein to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which were
filed under the Securities and Exchange Act of 1934 (the "Exchange Act") on or
before the Effective Date or the issue date of any Preliminary Prospectus or the
Prospectus, as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date of
the Registration Statement, or, the issue date of any Preliminary Prospectus or
the Prospectus, as the case may be, deemed to be incorporated therein by
reference.
All of the outstanding equity securities of the Company are owned by
General American Transportation Corporation, a New York corporation ("GATC"). As
an inducement to the Underwriters to enter into this Agreement, and in
consideration of the benefits that each of the Company and GATC expects to
receive from the sale of the Securities, GATC hereby agrees to certain
representations and warranties and covenants and agrees to indemnify or
reimburse each Underwriter and certain related persons against or for certain
liabilities, as set forth herein.
Representations and Warranties of the Company.
The Company and GATC each represents and warrants to, and agrees with,
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 333-58731) on such
Form including a Preliminary Prospectus, for the registration under the Act
of the offering and sale of the Securities. If the Company shall have
filed any amendments thereto, or used a Preliminary Prospectus, each such
amendment or Preliminary Prospectus has previously been furnished to the
Underwriters. Such Registration Statement, as amended, has become
effective. The Company will next file with the Commission pursuant to Rule
424(b) and 430A of the Act, a final prospectus relating to the Securities
and the offering thereof. As filed, such amendment and form of final
prospectus or such Prospectus shall include all Rule 430A Information,
together with all other required information with respect to the Securities
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 latest Preliminary Prospectus) as the Company has advised the
Underwriters, prior to the Execution Time, will be included or made
therein.
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(b) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in accordance
with Rule 424(b) of the Act, and on the Closing Date (as hereinafter
defined), the Prospectus (and any supplements thereto) will, comply in all
material respects with the applicable requirements of the Act and the
Exchange Act, and the respective rules and regulations thereunder, on the
Effective Date, the Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; on the Effective Date and on the Closing Date, the
Pass Through Trust 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 Prospectus, if not filed pursuant to Rule
424(b), did not or will not, and on the date of any filing pursuant to Rule
424(b) and on the Closing Date, the Prospectus (together with any
supplement thereto) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the registration
Statement which shall constitute the Statement of eligibility (Form T-1)
under the Trust Indenture Act of the Pass Through Trustee and (ii) the
information contained in or omitted from the Registration Statement or the
Prospectus (or any supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of any
Underwriters specifically for use in connection with the preparation of the
Registration Statement or the Prospectus (or any supplement thereto) (which
the parties agree consists solely of the offering price and the last
paragraph of the cover page, the stabilizing legend and the information
included under the heading "Underwriting" therein).
(c) [The documents incorporated by reference in any Preliminary
Prospectus or the 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 material respects with the
requirements of the Exchange Act, and the rules and regulations
thereunder.]
(d) Since the respective dates as of which information is given
in the Registration Statement, any Preliminary Prospectus or the
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.
(e) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware, with full
corporate power and authority to own its properties and conduct its
business as described in any Preliminary Prospectus or the Prospectus, and
it is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, except
in such jurisdictions in which the failure to qualify would not have a
material adverse effect on the Company, and has all corporate power and
authority necessary to own or hold its properties and to perform its
obligations under this Agreement, the Participation Agreements, the Pass
Through Trust Agreement, each Lease and the other Operative Agreements to
which it is a party or is to become a party and the Intercreditor
Agreement, the Transfer and Contribution Agreement, the Management
Agreement, the Administrative Services Agreement, the Lockbox Agreements,
the Insurance Agreement and each Sublease (collectively, the "Company
Documents"), to grant security as contemplated by the Intercreditor
Agreement and otherwise to
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conduct the business in which it proposes to be engaged. The Company has
not engaged in any business or activity other than as contemplated by the
Company Documents and the Operative Agreements to which it is a party.
(f) The Company has all necessary corporate power and authority
to execute and deliver this Agreement and perform its obligations
hereunder, under the Company Documents and under the Operative Agreements
to which the Company is a party and this Agreement and such Company
Documents and Operative Agreements have each been duly authorized, executed
and delivered by the Company.
(g) Each of the Company Documents and the Operative Agreements
to which the Company is a party has been duly authorized by the Company;
and when duly executed and delivered by the Company (assuming due
authorization, execution and delivery by the other parties thereto), each
of the Company Documents and the Operative Agreements to which the Company
is a party will constitute the legal, valid and binding obligations of the
Company enforceable in accordance with its respective terms, except as such
enforceability may be limited in each case by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or similar laws affecting
the enforceability of creditors' rights generally (and to the possible
judicial application of foreign laws or governmental action affecting the
rights of creditors generally) and except as such enforceability is subject
to the application of general principles of equity (regardless of whether
the issue of enforceability is considered in a proceeding in equity or at
law), including without limitation (i) the possible unavailability of
specific performance, injunctive relief or any other equitable remedy, (ii)
concepts of materiality, reasonableness, good faith and fair dealing. The
Pass Through Trust Agreement and the Securities conform in all material
respects to the descriptions thereof in the Prospectus.
(h) The execution, delivery and performance of the Company
Documents and the Operative Agreements to which the Company is a party, the
issuance, authentication, sale and delivery of the Securities, and
compliance with the terms thereof, and the consummation by the Company of
the transactions contemplated hereby and thereby will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result (except as contemplated by the
Intercreditor Agreement) in the creation or imposition of any lien or
encumbrance upon any properties or assets of the Company pursuant to the
terms of, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the properties or assets of the Company
is subject, and which is material to the Company nor will such actions
result in any violation of, or conflict with, the provisions of the
certificate of incorporation of the Company or any statute or any order,
decree, Rule or regulation of any court or governmental agency or body
having proper jurisdiction over the Company or any of its properties or
assets.
(i) Except for such consents as have been obtained and are in
full force and effect and except for compliance with the securities or
"blue sky" laws of the various states and jurisdictions other than the
United States, no consent, approval, authorization or order of, or filing
or registration with, any court or governmental agency or body having
jurisdiction over the Company or any of its properties or assets is
required for the execution, delivery and performance of the Company
Documents and the Operative Agreements to which the Company is a party by
the Company and the consummation of the transactions contemplated hereby
and thereby, including the issuance, authentication, sale and delivery of
the Securities, and compliance with the terms thereof.
(j) Except as disclosed in the Prospectus, there are no legal
or governmental
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proceedings pending to which the Company is a party or of which any
property of the Company is the subject (i) asserting the invalidity of the
Securities, this Agreement or any other Company Document or Operative
Agreement to which the Company is a party, (ii) seeking to prevent the
issuance of the Securities or the consummation of any of the transactions
contemplated by any of the Company Documents or Operative Agreements to
which the Company is a party, (iii) seeking any determination or ruling
that would materially and adversely affect the performance by the Company
of its respective obligations under the Company Documents or Operative
Agreements to which the Company is a party, (iv) seeking any determination
or ruling that would adversely affect the validity or enforceability of the
Securities, any Company Document or any Operative Agreement or (v) seeking
to affect adversely the United States Federal or State of New York income
tax attributes of the Company, the Pass Through Trust, the Securities, any
Company Document or any payments to be made by any party under this
Agreement, the Pass Through Trust Agreement, the Securities, the Company
Documents or any Operative Agreement.
(k) The Company has not taken any corporate action nor, to the
best of its knowledge, have any other steps been taken or legal proceedings
been started or threatened against it which would reasonably be expected to
cause it to become bankrupt or cause its winding-up, dissolution or
reorganization or for the appointment of a receiver, administrator,
administrative receiver, examiner or similar officer of it or of any or all
of its assets or revenues.
(l) Assuming due authorization and execution by the Pass Through
Trust and due authentication by the Pass Through Trustee, the Securities
will be duly issued and delivered by the Pass Through Trust, will be
entitled to the benefits of the Pass Through Trust Agreement and will
constitute valid and binding obligations of the Pass Through Trust,
enforceable against the Pass Through Trust in accordance with their terms
(subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws affecting creditors'
rights generally from time to time in effect, and subject, as to
enforceability, to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(m) Since the date as of which information is given in the
Prospectus through the date hereof, the Company has not (i) issued or
granted any securities, (ii) incurred any liability or obligation
(including without limitation with respect to any debt securities), direct
or contingent (excluding liabilities and obligations which were incurred in
the ordinary course of business and on ordinary business terms), (iii)
entered into any transaction not set forth in the Company Documents or the
Operative Agreements or in the ordinary course of business or (iv) declared
or paid any dividend on its capital stock.
(n) The Company (i) is not in violation of its certificate of
incorporation, (ii) is not in default in any respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is subject or
(iii) is not in violation of any law, ordinance, governmental rule,
regulation or court decree to which it or its properties or assets may be
subject, nor has it failed to obtain any license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
conduct by the Company of its business.
(o) The Company has not engaged in any material activities since
its incorporation (other than those incidental to its registration under
applicable laws and the authorization of the Company Documents and the
Operative Documents to which the Company is a
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party) and has neither paid any dividends nor made any distributions since
incorporation.
(p) The Intercreditor Agreement upon its execution and delivery
will be effective to create in favor of the Collateral Agent for the
benefit of the Beneficiaries, as security for the payment and performance
of the Secured Obligations (as defined therein), a valid and perfected Lien
in the Collateral (as defined therein) purported to be covered thereby,
superior in right to any other Liens or interests.
(q) The Company is not, and following the sale of the
Securities, will not be, an "investment company", or an entity "controlled"
by an "investment company", as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(r) All filings, recordings, registrations and other actions
have been, or on or prior to the Closing Date will be, made, obtained and
taken in all relevant jurisdictions that are necessary to create and
perfect the Liens purported to be granted by the Intercreditor Agreement in
all right, title, estate and interest of the Company in the Collateral (as
defined in the Intercreditor Agreement) subject to no prior or equal Liens.
(s) As of the Closing Date, all of the issued shares of capital
stock of the Company will have been duly and validly authorized and issued,
fully paid and non-assessable, and owned by [GATC]; and the Company, as of
the date hereof, has no subsidiaries.
(t) The Company has not sustained, since the date of the
Prospectus, any material loss or interference with its business from any
court or governmental action, order or decree; and, since such date, there
has not been any change in the capital stock or debt of the Company or any
material adverse change in or affecting the financial condition, results of
operations or business of the Company whether or not arising from
transactions in the ordinary course of business, other than as set forth in
or contemplated by the Prospectus.
(u) There are no facts, circumstances, conditions or occurrences
that could reasonably be expected to
(i) form the basis of an environmental claim arising
against the Company, that individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect on the
business or operations of the Company or on its ability to
perform its obligations under the Company Documents or the
Operative Agreements to which the Company is a party,
(ii) cause the Company to be subject to any
restrictions on ownership, occupancy, use or transferability
under any environmental law which are reasonably expected to
result in a material adverse change in the business, results of
operations, condition (financial or otherwise) or property of the
Company, or
(iii) require the filing or recording of any notice,
registration or permit under any environmental law which are
reasonably expected to result in a material adverse change in the
business, results of operations, condition (financial or
otherwise) or property of the Company.
(v) The Equipment Notes to be issued under the Indentures, when
duly
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authorized, executed and delivered by the Owner Trustee and duly
authenticated by the Indenture Trustee in accordance with the
terms of the Indentures, will be duly issued under the Indentures
and will constitute valid and binding obligations of the Owner
Trustee; and the holders thereof will be entitled to the benefits
of the Indentures.
(w) As of the Closing Date, the Securities will be
rated ["AA"] by Standard & Poor's Corporation ("S&P") and "[Aa2]"
by Xxxxx'x Investors Service, Inc. ("Moody's").
2. Representations and Warranties of GATC.
GATC represents and warrants to and agrees with, the Underwriters as
set forth below in this Section 2.
(a) GATC is duly incorporated and is validly existing under the
laws of its jurisdiction of incorporation, is duly qualified to do business
in each jurisdiction in which the ownership or leasing of its properties,
the conduct of its business or its performance of this Agreement and the
Operative Agreements and Company Documents, to which it is a party requires
such qualification, except where the failure to be so qualified would not
have a material adverse effect on the consolidated financial condition,
results of operations or business of GATC and its subsidiaries, taken as a
whole, or its performance of this Agreement and such Operative Agreements
and Company Documents, with full corporate power and authority necessary to
own or hold its properties and to conduct the business in which it is
engaged as described in the Prospectus.
(b) GATC has all necessary corporate power and authority to
execute and deliver this Agreement and perform its obligations hereunder
and under the Operative Agreements and Company Documents to which GATC is a
party and this Agreement and such Operative Agreements and Company
Documents have each been duly authorized, executed and delivered by GATC.
(c) GATC has all necessary corporate power and authority to
execute and deliver each of the Operative Agreements and Company Documents
to which it is a party and to perform its obligations thereunder, and each
Operative Agreement and Company Document to which GATC is a party has been
or will be duly authorized, executed and delivered and constitutes or will
constitute a valid and binding agreement of GATC, enforceable against GATC
in accordance with its terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws
affecting creditors' rights generally from time to time in effect, and
subject, as to enforceability, to general principles of equity, regardless
of whether such enforceability is considered in a proceeding in equity or
at law).
(d) There are no legal or governmental proceedings pending to
which GATC is a party or of which any property of GATC is the subject (i)
asserting the invalidity of this Agreement or any Operative Agreement or
Company Document to which it is a party, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement or
any Operative Agreement or Company Document to which it is a party, (iii)
seeking any determination or ruling that would materially and adversely
affect the performance by GATC of its obligations under this Agreement or
any Operative Agreement or Company Document to which it is a party, or (iv)
seeking any determination or ruling that would adversely affect the
validity or enforceability of this Agreement or any Operative Agreement or
Company Document to which it is a party.
(e) The execution, delivery and performance of this Agreement by
GATC, and
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of the Operative Agreements and Company Documents to which GATC is a party,
and compliance with the terms of this Agreement and of such Operative
Agreements and Company Documents by GATC, and the consummation by GATC of
the transactions contemplated by this Agreement and such Operative
Agreements and Company Documents, will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien or
encumbrance upon any properties or assets of GATC pursuant to the terms of,
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which GATC is a party or by which GATC is bound or to
which any of the properties or assets of GATC is subject, and which is
material to GATC and its subsidiaries taken as a whole, nor will such
actions result in any violation of, or conflict with, the provisions of the
certificate of incorporation of GATC or any statute, or any order, decree,
Rule or regulation of any court or governmental agency or body having
proper jurisdiction over GATC or any of its properties or assets (except
for such statutes, orders, decrees, rules or regulations the violation of
which would not have a material adverse effect on the consolidated
financial condition, results of operation or business of GATC and its
subsidiaries, taken as a whole).
(f) No consent, approval, authorization or order of, or filing
or registration with, any court or governmental agency or body having
jurisdiction over GATC or any of its properties or assets is required for
the execution, delivery and performance of this Agreement and the Operative
Agreements and Company Documents to which GATC is a party and the
consummation of the transactions contemplated hereby and thereby (other
than such consents the failure of which to obtain would not have a material
adverse effect on the consolidated financial condition, results of
operations or business of GATC and its subsidiaries, taken as a whole).
(g) GATC is not, and following the sale of the Securities, will
not be an "investment company" or an entity "controlled" by an "investment
company", as such terms are defined by the Investment Company Act.
(h) All the information relating to GATC which GATC has supplied
to the Underwriters and the Rating Agencies in connection with the actual
or prospective issuance of the Securities (as supplemented or superseded
from time to time prior to the date of this Agreement) was at the time it
was supplied, and to the best of the knowledge of GATC is, true and correct
in all material respects and is not misleading in any material respect, and
did not fail to disclose any information which was necessary to make the
information so given not misleading in the context in which it was given.
3. Purchase and Sale.
(a) 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 the principal amount of the
Securities at a purchase price of 100% of the principal amount of the
Securities set forth opposite its name in Schedule I hereto (the "Selling
Price").
(b) The Company agrees to pay the Underwriters an underwriting
fee of $[________] payable upon on the Closing Date.
[(c) The Company agrees to pay the Underwriters a structuring
fee of $[_______], payable upon on the Closing Date. ]
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(d) The Underwriters may, to the extent permitted by applicable
laws, overallot and make purchases and sales of the Securities in the open
market or otherwise for the purpose of stabilizing the market in the
Securities, but in such event and in relation thereto the Underwriters
shall be acting on their own behalf and not as agent of the Company, and
any loss or profit resulting therefrom shall be for the account of the
Underwriters. The Underwriters acknowledge that the Company has not
authorized the issue of Securities in a principal amount exceeding the
amount set forth on the first page of this Agreement.
4. Delivery and Payment.
Delivery of and payment for the Securities shall be made at 10:00 AM,
New York City time, on _________________, 1998, which date and time may be
postponed by agreement between the Underwriters and the Company or as provided
in Section 11 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 each of the Underwriters' respective accounts at the Depository
Trust Company against payment by the Underwriters of the purchase price thereof
in Federal (same day) funds by wire transfer to an account in The City of New
York previously designated to the Underwriters by the Company.
The Securities shall be registered in such names and in such
denominations as each Underwriter may request, without interest coupons, in
minimum denominations of $100,000 and integral multiples of $1,000 in excess
thereof, not less than two full business days in advance of the Closing Date or
such other date as may be agreed upon. The Company agrees to have the Securities
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.
5. Offering by the Underwriters.
It is understood that, after this Agreement has been entered into and
the Registration Statement becomes effective, the Underwriters propose to offer
the Securities for sale to the public as set forth in any Preliminary Prospectus
and the Prospectus.
This Agreement has been duly authorized, executed and delivered by the
Underwriters.
6. 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 Pass Through Trust 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 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 may
reasonably object. Subject to the foregoing sentence, if filing of the
Prospectus is required under Rule 424(b), the Company will cause the
Prospectus, properly completed, and any supplement thereto to be filed with
the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Underwriters of such timely filing. The Company will promptly advise the
Underwriters (when the Registration Statement, if not effective at the
Execution Time, and any amendment thereto, shall have become effective,
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(ii) when the Prospectus, and any supplement thereto, shall have been filed
(if required) with the Commission pursuant to Rule 424(b), (iii) when,
prior to termination of the offering of the 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 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 Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose and (vii)
during the period when a prospectus relating to the Securities is required
to be delivered under the Act, of the mailing or the delivery to the
Commission for filing of any document to be filed pursuant to the Exchange
Act. The Company will use its 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 supplement the 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 6, 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 Act, as many copies of any
Preliminary Prospectus and the Prospectus and any amendments thereof and
supplements thereto as any Underwriters may reasonably request.
(e) The Company will arrange for the qualification of the
Securities 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 Securities; 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) The Company will not amend or supplement the Prospectus
without the prior consent of the Underwriters.
(g) The Company will notify the Underwriters promptly of any
change having or potentially having a material adverse effect on the
financial condition, results of operations or business of the Company or
relating to any of its representations, warranties, covenants or agreements
contained herein that occurs at any time prior to payment of the full
Selling Price to the Company on the Closing Date.
10
(h) The Company will use the net proceeds received from the
issuance of the Securities in the manner specified in the Prospectus under
"Use of Proceeds".
(i) The Company will obtain, make and keep in full force and
effect for so long as any of the Securities remain outstanding all
authorizations from and registrations with governmental authorities that
may be required for the issuance, validity or enforceability against the
Company of this Agreement, the Pass Through Trust Agreement and the
Securities.
(j) The Company will hold each Underwriter harmless against any
documentary, stamp or similar transfer or issue tax, including any interest
and penalties, on the issue, sale and delivery of the Securities in
accordance with the terms of this Agreement and on the execution and
delivery of the Pass Through Trust Agreement and this Agreement which are
or may be required to be paid under the laws of the United States or any
political subdivision or taxing authority thereof or therein; all payments
to be made by the Company hereunder shall be made in U.S. dollars, at such
place as indicated by the Underwriters, without withholding or deduction
for or on account of any present or future taxes, duties or governmental
charges whatsoever imposed or levied by or on behalf of the United States
or any taxing authority therein, unless the Company is compelled by law to
deduct or withhold such taxes, duties or charges; in that event, the
Company shall pay such additional amounts as may be necessary in order that
the net amounts after such withholding or deduction shall equal the amounts
that would have been payable if no such withholding or deduction had been
made.
(k) The Company will not be or become an open-end investment
company, unit investment trust or face-amount certificate company that is
or is required to be registered under Section 8 of the Investment Company
Act, nor is, nor will be or become, a closed-end investment company
required to be registered, but not registered, under the Investment Company
Act.
(l) The Company will cooperate with the Underwriters and use its
best efforts to permit the Securities to be eligible for clearance and
settlement through DTC.
(m) For a period of [one year] following the Closing Date, the
Company will notify the Underwriters prior to mailing any consent
solicitation or other request for an amendment, modification or waiver of
any of the Company Documents or Operative Agreements to the holders of any
of the Securities.
(n) To the extent, if any, that the ratings provided with
respect to the Securities by any Rating Agency are conditional upon the
furnishing of documents or the taking of any other actions by the Company,
the Company will furnish such documents and take any such other actions.
(o) 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 Securities
(other than the Pass Through Certificates).
[(p) 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
11
has become effective with the Commission or with the Florida Department of
Banking and Finance (the "Department"), whichever date is later, or if the
information reported in the Prospectus, if any, concerning the Company's
business with Cuba or with any person or affiliate located in Cuba changes
in any material way, the Company will provide the Department notice of such
business or change, as appropriate, in a form acceptable to the
Department.]
Agreement of GATC.
GATC agrees with each Underwriter to notify the Underwriters promptly
of any change affecting any of its representations, warranties, covenants,
agreements and indemnities herein at any time prior to payment for the
Securities being made to the Company by the Underwriters on the Closing Date.
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 and GATC contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company and GATC made in any
certificates pursuant to the provisions hereof, to the performance by the
Company and GATC of their obligations hereunder and to the following additional
conditions:
(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 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) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Pass Through
Trust Agreement, the Securities, the Company Documents, the other Operative
Agreements and all other legal matters relating to this Agreement and the
transactions contemplated hereby, shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Company shall
have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass on such matters.
(c) GATC shall have furnished to the Underwriters the opinion of
Xxxxxx X. Xxxxxxx, Esq., Assistant General Counsel for GATC, dated the
Closing Date, in form and substance reasonably satisfactory to the
Underwriters.
(d) The Company and GATC shall have furnished to the
Underwriters the opinion or opinions of Xxxxxx, Xxxxx, Xxxxxxx & Kammholz,
counsel for the Company and GATC, dated the Closing Date, in form and
substance reasonably satisfactory to the Underwriters.
(e) The Underwriters shall have received the opinion or opinions
of Xxxxxx, Xxxxx, Xxxxxxxx & Xxxxxxxx, special counsel for each Owner
Trustee, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters.
12
(f) The Underwriters shall have received the opinion or opinions
of (i) ____________, special counsel for the Owner Participants, and (ii)
the general counsel of each Owner Participant, each dated the Closing Date,
in form and substance reasonably satisfactory to the Underwriters.
(g) The Underwriters shall have received the opinion or opinions
of Xxxxxxx Xxxx LLP, special counsel of each Indenture Trustee, dated the
Closing Date, in form and substance reasonably satisfactory to the
Underwriters.
(h) The Company and GATC shall have furnished to the
Underwriters the opinion of Xxxxxxx Xxxx LLP, special counsel for the Pass
Through Trustee, dated the Closing Date, in form and substance reasonably
satisfactory to the Underwriters, and the Company and GATC shall have
furnished to such counsel such documents as they reasonably request for the
purpose of enabling them to pass upon such matters.
(i) The Underwriters shall have received from Milbank, Tweed,
Xxxxxx & XxXxxx, special counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and sale of
the Securities, the Pass Through Agreement, the Prospectus (together with
any amendment or supplement thereto) and other related matters as the
Underwriters may reasonably require, and the Company and GATC shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(j) The Underwriters shall have received a copy of each opinion
provided to any investment rating agency in connection with their rating of
the Securities, each of which shall state therein that the Underwriters may
rely thereon, in form and substance reasonably satisfactory to the
Underwriters.
(k) At the Execution Time and at the Closing Date, Xxxxx & Young
LLP shall have furnished to the Underwriters a comfort letter or letters,
dated as of the Execution Time and as of the Closing Date, respectively, in
form and substance reasonably satisfactory to the Underwriters.
(l) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Prospectus (exclusive of any
amendment thereof or supplement thereto), there shall not have been any
change, or any development involving a prospective change, in or affecting
the business or properties of either of the Company or GATC, the effect of
which, in the judgment of the Underwriters, would be likely to impair
materially the marketability of the Securities or is so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Prospectus
(exclusive of any amendment thereof or supplement thereto).
(m) On or before the Closing Date, this Agreement, each
Operative Agreement and each Company Document shall each be satisfactory in
form and substance to the Underwriters, shall have been duly executed and
delivered by the parties thereto (except that the execution and delivery of
the documents referred to above (other than this Agreement) by a party
hereto or thereto shall not be a condition precedent to such party's
obligations hereunder), shall each be in full force and effect and executed
counterparts of each shall have been delivered to the Underwriters or their
counsel on or before the Closing Date.
13
(n) Each of the Company and GATC shall have furnished to the
Underwriters a certificate, dated the Closing Date, signed by its Chairman
of the Board or President and its principal financial or accounting
officer, to the effect that the signers of such certificate have carefully
examined this Agreement, the Prospectus, any amendment thereof or
supplement thereto and that:
(i) the representations and warranties of each of the
Company and GATC 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, each of the Company and
GATC 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, and the conditions precedent to the
obligations of the Underwriters set forth herein have been
fulfilled;
(ii) (A) nothing has come to their attention that would
lead either of them to conclude that the Registration Statement
included any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
to make the statements therein, under the circumstances in which
they were made, not misleading, and, (B) since the date of the
Registration Statement (exclusive of any amendment thereof or
supplement thereto), there has been no material adverse change in
the financial condition, earnings, business or properties of
either of the Company or GATC, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Registration Statement (exclusive
of any amendment thereof or supplement thereto); and
(iii) since such date there shall not have been any
change in the capital stock of the Company or GATC, or long-term
debt of the Company or GATC.
(o) Each of the Company and GATC shall have delivered to the
Underwriters a certificate, dated the Closing Date, of its secretary
certifying as to its articles or certificate of incorporation, by-laws or
other organizational documents; board resolutions authorizing the
execution, delivery and performance of the Company Documents or Operative
Agreements to which it is a party, as applicable; and the incumbency of all
officers that signed any of the Company Documents and such Operative
Agreements.
(p) The Underwriters shall have received (x) any certificate
relating to insurance that is required pursuant to [Section 12] of any
Lease and (y) a certificate from a nationally recognized insurance broker
in the form of [Exhibits A-1 and A-2] to the Participation Agreement with
respect to the public liability insurance required by [Section 12.1(b)] of
the Lease.
(q) Any Operative Agreements which are required to be executed
on or prior to the Closing Date that have not been executed by the date of
this Underwriting Agreement will be subject to a condition precedent which
requires such agreements to be in form and substance satisfactory to the
Underwriters.
(r) On or prior to the Closing Date, the Company and GATC shall
have furnished to the Underwriters such further information, certificates
and documents as the Underwriters may reasonably request.
14
(s) (i) Each of the Rating Agencies shall have delivered to the
Company and the Underwriters a final rating letter setting forth a rating
with respect to the Securities of at least ["AA"] by S&P and ["Aa2"] by
Xxxxx'x and (ii) subsequent to the execution and delivery of this Agreement
such organizations shall not have announced in writing (which shall
include, without limitation, any press release by such organization) that
it has under surveillance or review, with possible negative implications,
its rating of any of the Securities.
(t) On or before the Closing Date the Company shall have caused
the Lease, the Lease Supplements in respect of Units delivered on the
Closing Date, the Indenture and the Indenture Supplements in respect of the
Units delivered on the Closing Date, to be duly filed, recorded and
deposited with the Surface Transportation Board of the United States of
America in conformity with 49 U.S.C. (S)11301 and with the Registrar
General of Canada pursuant to Section 90 of the Railway Act of Canada and
all necessary actions shall have been taken to cause publication of notice
of such deposit in The Canada Gazette in accordance with said Section 90
within 21 days after the Closing Date, and the Company shall furnish the
Underwriters with proof thereof.
(u) Simultaneous with or prior to the Closing Date the Equipment
Notes shall have been issued and sold to the Pass Through Trust.
(v) On or prior to the Closing Date, the Company shall have
funded the Liquidity Reserve Account and the Cash Trapping Account with
cash in an amount equal to $___________ and $__________ respectively.
(w) The Company shall have furnished evidence to the
Underwriters that, upon consummation of the transactions contemplated
hereby on the Closing Date, it will have capital of at least $_________,
exclusive of Subleases, together with an Officer's Certificate as to the
solvency of the Company as of the Closing Date.
(x) Each of the conditions contained in [Section 4] of each of
the Participation Agreements shall have been fulfilled to the satisfaction
of the Underwriters.
If any of the conditions specified in this Section 8 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 counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriters[; provided that
the entire structuring fee set forth in Section 3(c) of this Agreement shall be
payable to the [Underwriters] in the event that at any time prior to the
expiration of two years after such cancellation a financing is consummated by
GATC or the Company involving a financing structure which is deemed to be
materially similar to the transactions described in the Prospectus. Notice shall
be given to the Company in writing or by telephone or telegraph confirmed in
writing].
The documents required to be delivered by this Section 8 shall be
delivered at the office of Vedder, Price, Xxxxxxx & Kammholz, special counsel
for the Company at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, XX 00000-1003, on the
Closing Date.
Expenses.
15
(a) The Company and GATC, jointly and severally, agree to pay
all expenses charged to either of them or the Underwriters incident to the
performance by any of them of their respective obligations under this
Agreement. The Underwriters will pay their own out-of-pocket expenses
incurred by the Underwriters in connection with the marketing, offer and
sale of the Securities, other than the costs and expenses of [Xxxxxx
Technologies] which shall be paid by the Company and GATC regardless of
whether the sale of the Securities provided for herein is consummated. The
reasonable fees and expenses of Milbank, Tweed, Xxxxxx & XxXxxx, special
counsel to the Underwriters, shall be paid by each Owner Trustee or Owner
Participant pursuant to Section 2.5 of each Participation Agreement.
(b) The Company and GATC, jointly and severally, agree to pay
all expenses incidental to the performance of their obligations under this
Agreement, the Company Documents and the other Operative Agreements,
including, without limitation, (i) the fees and expenses of the Pass
Through Trustee and its professional advisers; (ii) all expenses in
connection with the execution, issue, authentication, packaging and initial
delivery of the Securities, the preparation, printing and distribution of
this Agreement, the Securities, any Preliminary Prospectus and the
Prospectus and amendments and supplements thereto, the Pass Through Trust
Agreement, each of the other Company Documents and Operative Agreements and
any other document relating to the issuance, offer, sale and delivery of
the Securities, (iii) the costs incident to the authorization, issuance,
sale, authentication, transfer and delivery of the Equipment Notes to the
Pass Through and the Securities to the Underwriters; (iv) the fees and
expenses or qualifying the Securities under securities laws of the several
jurisdictions and of preparing, printing and distributing a Blue Sky
memorandum (including related fees and expenses of counsel to the
Underwriters); (v) the cost and charges of DTC and its nominee in
connection with the Securities, including the book-entry ownership system
for the Securities; (vi) the cost and charges of any transfer agent,
registrar or paying agent; (vii) the fees and disbursements of the
Company's and GATC's counsel and accountants and (viii) any fees charged by
investment rating agencies for the rating of the Securities, regardless of
whether the sale of the Securities provided for herein is consummated.
16
Indemnification and Contribution.
(a) Each of the Company and GATC jointly and severally agree to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls each
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 as originally filed or in any
amendment thereof, or in any Preliminary Prospectus or the Prospectus, or
in any amendment thereof or supplement thereto, or any information provided
by the Company or GATC to any holder or prospective purchaser of
Securities, 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 incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) none of the
Company or GATC will 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 in any Preliminary Prospectus or the Prospectus in reliance
upon and in conformity with written information furnished to the Company by
or on behalf of the Underwriters specifically for inclusion therein and
(ii) such indemnity with respect to any Preliminary Prospectus shall not
inure to the benefit of the Underwriters (or to the benefit of any person
controlling the Underwriters) if the person asserting any such loss, claim,
damage or liability purchased the Securities which are the subject thereof
but did not receive a copy of the Prospectus (or the Prospectus as amended
or supplemented) at or prior to the confirmation of the sale of such
Securities, in any case where (A) the untrue statement or omission of a
material fact contained in such Preliminary Prospectus was corrected in the
Prospectus (or the Prospectus as amended or supplemented) and (B) if a copy
of such Prospectus (or Prospectus as amended or supplemented) had been sent
or given to the person asserting any such loss, claim, damage or liability,
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 or GATC, as the case may be, may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless each of the Company and GATC, each of their respective directors,
officers, employees and agents, and each person who controls the Company or
GATC within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company and GATC 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 any Preliminary Prospectus or the
Prospectus. This indemnity agreement will be in addition to any liability
which any Underwriter may otherwise have. Each of the Company and GATC
acknowledges that the offering price and the statements set forth in the
last paragraph of the cover page, the stabilizing legend and the
information included under the heading "Underwriting" therein in any
Preliminary Prospectus or the Prospectus constitute the only information
furnished in writing by or on behalf of the Underwriters for inclusion in
any Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 10 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 10, notify the indemnifying party in
17
writing of the commencement thereof; but the failure 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 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 separate counsel (including local counsel), 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 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 10 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, each of the Company, GATC 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 the same) (collectively
"Losses") to which the Company, GATC 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 GATC, on one hand, and by the
Underwriters, on the other hand, from the offering of the Securities;
provided, however, that in no case shall any Underwriter 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 GATC, on the one hand, and the
Underwriters, on the other, shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company and GATC, on the one hand, and of the
Underwriters, on the other, 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 and GATC 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. Relative fault
shall be determined by reference to whether any alleged untrue statement or
omission relates to information provided by the Company and GATC, on the
one hand, or the Underwriters, on the other. The parties hereto
18
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 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 10, each
person who controls any Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of any
Underwriter shall have the same rights to contribution as such
Underwriters, and each person who controls either of the Company or GATC
within the meaning of either the Act or the Exchange Act and each officer
and director of either of the Company or GATC shall have the same rights to
contribution as the Company or GATC, as the case may be, subject in each
case to the applicable terms and conditions of this paragraph (d).
Termination.
This Agreement shall be subject to termination in the absolute
discretion of the Underwriters, by notice given to the Company prior to delivery
of and payment for the Securities, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such Exchange, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities, (iii) there shall have occurred any outbreak or material escalation
of hostilities in or involving the United States or the 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 judgment of
the Underwriters, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
amendment thereof or supplement thereto), (iv) any material adverse change in
United States or international financial, political or economic conditions such
as to make it, in the judgment of the Underwriters, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Prospectus (exclusive of any amendment thereof or supplement thereto), (v)
any downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical ratings organization" (as defined for
purposes of Section 436(g) under the Securities Act), or any public announcement
that any such organization has under surveillance or review any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading of such rating)
or (vi) there shall have been any material adverse effect with respect to the
Company or GATC, otherwise than as set forth or contemplated in the Prospectus,
so as to make it, in any such case, in the judgment of the Underwriters,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any amendment thereof
or supplement thereto).
Agreements, Representations and Indemnities to Survive.
The respective agreements, representations, warranties, indemnities
and other statements of the Company and GATC or their respective 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
the Underwriters, the Company, GATC or any of the officers, directors or
controlling persons referred to in Section 10 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 9 and 10 hereof
shall survive the termination or cancellation of this Agreement.
Notices.
All communications hereunder will be in writing and effective only on
receipt, and, if sent
19
to the Underwriters, will be mailed, delivered or telegraphed and confirmed to
Salomon Brothers Inc at Seven World Trade Center, New York, New York 10048
Attention: ___________; 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; and if sent to GATC, will be mailed, delivered
or telegraphed and confirmed to it at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000-0000, Attention: Secretary.
Persons Entitled to Benefit of Agreement.
This Agreement shall inure to the benefit of and be binding upon each
Underwriter, the Company, GATC and their respective successors. This Agreement
and the terms and provisions hereof are for the sole benefit of only those
Persons, except that the representations, warranties, indemnities and agreements
of the Company and GATC contained in this Agreement shall also be deemed to be
for the benefit of the Person or Persons, if any, who control any Underwriter
within the meaning of Section 15 of the Act. Nothing in this Agreement is
intended or shall be construed to give any Person, other than the Persons
referred to in this Section 14, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
15. Governing Law.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(b) Any legal action or proceeding relating in any way to this
Agreement, may be brought and enforced in the Federal courts of the United
States for the Southern District of New York, and each of the Company and
GATC accepts for itself and in respect of its property, generally,
irrevocably and unconditionally, the jurisdiction of each such court in
respect of any such action or proceeding but only such action or
proceeding; provided that, if for whatever reason the Federal courts of the
United States for the Southern District of New York will not or cannot hear
such action or proceeding, it may be brought and enforced in the courts of
the State of New York in The City of New York, Borough of Manhattan. Each
of the Company and GATC agrees that a judgment, after exhaustion of all
available appeals, in any such action or proceeding shall be conclusive and
binding upon, and may be enforced in any other jurisdiction by a suit upon
such judgment, a certified copy of which shall be conclusive evidence of
the judgment.
(c) Each of the Company and GATC irrevocably waives, to the
fullest extent permitted by applicable law, all immunity (whether on the
basis of sovereignty or otherwise) from jurisdiction, attachment (both
before and after judgment) and execution to which they might otherwise be
entitled in any action or proceeding relating in any way to this Agreement,
and, in the case of the Company, the Pass Through Trust Agreement, the
Securities or any other Company Document, in any case, in the courts of the
United States, of the State of New York or of any other country or
jurisdiction, and none of the Company or GATC shall raise a claim or cause
to be pleaded any such immunity at or in respect of any such action or
proceeding.
(d) Each of the Company and GATC hereby irrevocably waives any
objection that it may now or hereafter have to the laying of venue of any
of the aforesaid actions or proceedings arising out of or in connection
with this Agreement, the Pass Through Trust Agreement, the Securities or
any Company Document, or Operative Agreement to which it is a party brought
in the courts referred to in clause (b) above, and hereby further
irrevocably waives and agrees not to plead or claim in any such court that
any such action or proceeding brought in any such court has been brought in
an inconvenient forum. TO THE EXTENT PERMITTED BY
20
APPLICABLE LAW, EACH OF THE COMPANY AND GATC HEREBY IRREVOCABLY WAIVES ALL
RIGHT OF TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
THIS AGREEMENT, THE PASS THROUGH TRUST AGREEMENT, THE SECURITIES OR ANY
COMPANY DOCUMENT OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.
Headings.
The headings herein are inserted for convenience of reference only and
are not intended to be part of, or to affect the meaning or interpretation of,
this Agreement.
Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original but all such counterparts shall together constitute one
and the same instrument.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, GATC and each Underwriter.
Very truly yours,
GENERAL AMERICAN RAILCAR CORPORATION II
By:
------------------------------
Name:
Title:
GENERAL AMERICAN TRANSPORTATION
CORPORATION
By:
------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX XXXXXX INC.
By:
--------------------------
Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By:
--------------------------
Name:
Title:
22
SCHEDULE A
PASS THROUGH AGGREGATE INTEREST FINAL
CERTIFICATE PRINCIPAL RATE DISTRIBUTION
DESIGNATION AMOUNT DATE
1998-1 [$167,000,000] _______ _________, ____
Closing Date, Time and Location: _______, 1998; 11:00 a.m. Chicago time;
Xxxxxx, Xxxxx, Xxxxxxx & Kammholz, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, XX 00000-
0000.
Addresses for notices pursuant to Section 11: Xxxxxxx Xxxxx Xxxxxx Inc. at
Seven World Trade Center, New York, New York 10048 Attention: Legal Department;
Xxxxxx Xxxxxxx & Co. Incorporated, 1585 Broadway, New York, New York 10036-8293
Attention: _______________________________.
23
SCHEDULE B
PRINCIPAL AMOUNT OF
PASS THROUGH CERTIFICATES
UNDERWRITERS TO BE PURCHASED
------------ -------------------------
Xxxxxxx Xxxxx Xxxxxx Inc.
-------------------
Xxxxxx Xxxxxxx & Co. Incorporated
-------------------
-------------------
TOTAL [$167,000,000]
-------------------
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