<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 1, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GENERAL AMERICAN TRANSPORTATION CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
NEW YORK 36-2827991
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
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500 West Monroe Street
Chicago, Illinois 60661-3676
(312) 621-6200
(Address, including zip code and telephone number, including area code, of
registrant's principal executive offices)
David B. Anderson, Esq.
General American Transportation Corporation
500 West Monroe Street
Chicago, Illinois 60661-3676
(312) 621-6200
(Name, address, including zip code, and telephone number including area code, of
agent for service)
Copies to:
<TABLE>
<S> <C>
David A. Schuette, Esq. F. Ellen Duff, Esq.
Mayer, Brown & Platt Winston & Strawn
190 South LaSalle Street 35 West Wacker Drive
Chicago, Illinois 60603 Chicago, Illinois 60601
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT(3) PRICE(3) REGISTRATION FEE(4)
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<S> <C> <C> <C> <C>
Debt Securities and Pass
Through Certificates.............. $577,713,000(1)(2) 100%(1) $577,713,000(1)(2) $199,212
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</TABLE>
(1) Pursuant to Rule 457(o) under the Securities Act of 1933, which permits the
registration fee to be calculated on the basis of the maximum offering price
of all the securities listed, the table does not specify by each class
information as to the amount to be registered, proposed maximum offering
price per unit or proposed maximum aggregate offering price. There are being
registered hereunder such presently indeterminate principal amount of Debt
Securities and Pass Through Certificates as may be offered from time to
time, with an aggregate initial offering price not to exceed $577,713,000.
(2) If any Debt Securities are issued at an original issue discount, such
greater amount as shall result in the initial offering prices for the Debt
Securities aggregating $577,713,000. Any offering of Debt Securities
denominated in any foreign currencies or foreign currency units will be
treated as the equivalent in U.S. dollars based on the exchange rate
applicable to the purchase of such Debt Securities from the Registrant.
(3) Estimated in accordance with Rule 457 solely for the purpose of calculating
the registration fee.
(4) Does not include any registration fee with respect to $72,287,000 of Debt
Securities and Pass Through Certificates previously registered pursuant to
Registration Statement No. 33-52301 and as to which a filing fee of $24,927
has previously been paid.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUSES
CONTAINED HEREIN CONSTITUTE COMBINED PROSPECTUSES RELATING ALSO TO AN AGGREGATE
OF $72,287,000 UNSOLD PRINCIPAL AMOUNT OF PREVIOUSLY REGISTERED DEBT SECURITIES
AND PASS THROUGH CERTIFICATES REGISTERED PURSUANT TO REGISTRATION STATEMENT NO.
33-52301.
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<PAGE> 2
EXPLANATORY NOTE
This Registration Statement contains a Prospectus (the "Pass Through
Certificate Prospectus") relating to up to $650,000,000 aggregate principal
amount of pass through certificates of General American Transportation
Corporation (the "Company") and a Prospectus (the "Debt Security Prospectus")
relating to up to $650,000,000 aggregate principal amount of debt securities of
the Company. The aggregate principal amount of pass through certificates to be
offered and sold pursuant to this Registration Statement is subject to reduction
by the aggregate principal amount of debt securities sold pursuant to this
Registration Statement and vice versa.
Upon the public offering or sale of the pass through certificates or debt
securities registered under this Registration Statement, a Prospectus Supplement
describing the particular terms of such offer or sale will be filed in
accordance with the rules of the Securities and Exchange Commission together
with either the Pass Through Certificate Prospectus or the Debt Security
Prospectus, as applicable.
<PAGE> 3
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THAT THE REGISTRATION
STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER
TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE
OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE
WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED DECEMBER 1, 1995
PROSPECTUS
$650,000,000 [LOGO]
GENERAL AMERICAN TRANSPORTATION CORPORATION
PASS THROUGH CERTIFICATES
Up to $650,000,000 aggregate principal amount of Pass Through Certificates may
be offered for sale from time to time pursuant to this Prospectus and related
Prospectus Supplements. Pass Through Certificates may be issued in one or more
series in amounts, at prices and on terms to be determined at the time of the
offering. In respect of each offering of Pass Through Certificates, a separate
General American Transportation Corporation Pass Through Trust for each series
of Pass Through Certificates being offered (each, a "Trust") will be formed
pursuant to the Pass Through Trust Agreement (the "Basic Agreement") and a
supplement thereto (a "Trust Supplement") relating to such Trust between General
American Transportation Corporation ("GATC" or the "Company") and, unless
otherwise specified in the Prospectus Supplement, The First National Bank of
Chicago (the "Pass Through Trustee"), as pass through trustee under each Trust.
Each Pass Through Certificate in a series will represent a fractional undivided
interest in the related Trust and will have no rights, benefits or interest in
respect of any other Trust. The property of each Trust will consist of equipment
notes (the "Equipment Notes") (a) issued, with recourse to GATC, by GATC to
finance all or a portion of the equipment cost of, or to purchase all or a
portion of the outstanding debt with respect to, certain railcars (the
"Equipment Units"), which have been or will be purchased by GATC (the "Owned
Equipment") or (b) issued on a nonrecourse basis by one or more owner trustees
pursuant to separate leveraged lease transactions to finance or refinance a
portion of the equipment cost of Equipment Units which have been or will be
leased to GATC (the "Leased Equipment"). The Prospectus Supplement relating to
each offering of Pass Through Certificates will describe certain terms of the
Pass Through Certificates being offered, the Trust or Trusts relating thereto,
the Equipment Notes to be purchased by such Trust or Trusts, the Equipment Units
relating to such Equipment Notes and the leveraged lease transactions, if any,
relating thereto.
The Equipment Notes issued in respect of the Leased Equipment (the "Leased
Equipment Notes") will not be direct obligations of, or guaranteed by, GATC, but
the amounts unconditionally payable by GATC for the lease of such Leased
Equipment will be sufficient to pay in full when due all payments required to be
made on such Leased Equipment Notes. The Equipment Notes issued in respect of
the Owned Equipment (the "Owned Equipment Notes") will be direct obligations of
GATC, secured by a security interest in the Owned Equipment.
Equipment Notes may be issued in respect of Equipment Units in one or more
series, each series having a different interest rate and final maturity date. A
separate Trust will purchase one or more series of the Equipment Notes issued
with respect to each group of Equipment Units (an "Equipment Group"). All of the
Equipment Notes held in such Trust will have an interest rate equal to the
interest rate applicable to the Pass Through Certificates issued by such Trust
and maturity dates occurring on or before the final distribution date applicable
to such Pass Through Certificates. The Equipment Notes issued with respect to
each Equipment Group will be secured by a security interest in such Equipment
Group and, in the case of the Leased Equipment, by the lease relating thereto
(each, a "Lease"), including the right to receive rentals payable in respect of
such Equipment Group by GATC.
Interest paid on the Equipment Notes held in each Trust will be passed through
to the holders of the Pass Through Certificates relating to such Trust on the
dates and at the rate per annum set forth in the Prospectus Supplement relating
to such Pass Through Certificates until the final distribution date for such
Trust. Principal paid on the Equipment Notes held in each Trust will be passed
through to the holders of the Pass Through Certificates relating to such Trust
in scheduled amounts on the dates set forth in the Prospectus Supplement
relating to such Pass Through Certificates until the final distribution date for
such Trust.
The Pass Through Certificates may be sold through underwriters, dealers or
agents or directly to purchasers. See "Plan of Distribution." The Prospectus
Supplement will set forth the names of any underwriters, dealers or agents
involved in the sale of the Pass Through Certificates in respect of which this
Prospectus is being delivered and any applicable fee, commission or discount
arrangements with them.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is December , 1995
<PAGE> 4
AVAILABLE INFORMATION
General American Transportation Corporation, a New York corporation ("GATC"
or the "Company") is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports and other information filed by GATC
with the Commission can be inspected and copied at the Public Reference Section
of the Commission, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the public reference facilities of the
Commission's Regional Offices at 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661, and Seven World Trade Center, New York, New York 10048. Copies
of such material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. GATC has filed with the Commission a registration statement on Form S-3
(herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information, reference is hereby made to the Registration Statement.
DOCUMENTS INCORPORATED BY REFERENCE
GATC's Annual Report on Form 10-K for the year ended December 31, 1994, its
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995, June 30,
1995, and September 30, 1995, respectively, and its Current Report on Form 8-K
dated July 19, 1995 heretofore filed with the Commission pursuant to the
Exchange Act, are hereby incorporated by reference.
All documents filed by GATC pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the securities offered hereby shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified and superseded, to constitute a part of
this Prospectus.
GATC will provide without charge to each person, including any beneficial
owner, to whom this Prospectus is delivered, upon the written or oral request of
such person, a copy of any or all of the foregoing documents incorporated herein
by reference (other than exhibits unless specifically incorporated therein).
Requests for such documents should be directed to General American
Transportation Corporation, 500 West Monroe Street, Chicago, Illinois
60661-3676, Attention: Secretary (telephone 312-621-6200).
THE COMPANY
GATC is a wholly owned subsidiary of GATX Corporation ("GATX") and is
principally engaged in railcar leasing and management. GATX Terminals
Corporation ("Terminals"), a wholly owned subsidiary of the Company, is engaged
in the operation of public bulk liquid terminals and domestic pipeline systems.
The Company is the largest lessor of railroad tank cars in the United States,
and Terminals is one of the largest independent operators of public bulk liquid
terminals in the world. The principal offices of the Company are located at 500
West Monroe Street, Chicago, Illinois 60661-3676 (telephone: (312) 621-6200).
The Company leases specialized railcars, primarily tank cars and to a
lesser extent Airslide(R) covered hoppers and plastic pellet cars, under full
service leases. The Company's railcars have a useful life of approximately 30 to
33 years. The average age of the railcars in the Company's fleet is
approximately
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15 years. The Company's customers typically lease new equipment for a term of
five years or longer, whereas renewals or leases of used cars are typically for
periods ranging from less than a year to seven years with an average lease term
of about three years. Under its full service leases, the Company maintains and
services its railcars, pays ad valorem taxes and provides many ancillary
services.
Terminals is engaged in the storage, handling and intermodal transfer of
petroleum and chemical commodities at key points in the bulk liquid distribution
chain. Terminals owns and operates terminals in the United States and the United
Kingdom; Terminals also has joint venture interests in facilities in Europe and
the Pacific Rim. All of its terminals are located near major distribution and
transportation points and most are capable of receiving and shipping bulk
liquids by ship, rail, barge and truck. Many of the terminals are also linked
with major interstate pipelines. In addition to storing, handling and
transferring bulk liquids, Terminals also provides blending and testing services
at most of its facilities.
RELATIONSHIP WITH GATX
All of the Company's outstanding common stock is owned by GATX. GATX is
also the parent of American Steamship Company, a shipping company which operates
self-unloading vessels on the Great Lakes, GATX Logistics, Inc., which provides
distribution and logistics support services, warehousing facilities, and related
real estate services throughout North America, and GATX Financial Services,
which through its principal subsidiary, GATX Capital Corporation as well as its
subsidiaries and joint ventures, arranges and services the financing of
equipment and other capital assets on a worldwide basis.
GATX will not guarantee the Pass Through Certificates and does not
guarantee any other indebtedness of the Company. The Company, in the normal
course of business, pays dividends to GATX to provide for GATX's normal
operating expenses. Additional amounts have been advanced to GATX from time to
time for general corporate purposes, the redemption of GATX preferred stock and
the retirement of debt. In addition, GATX may make advances to subsidiaries of
the Company in the normal course of business. These advances have no fixed
maturity date.
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FORMATION OF THE TRUSTS
In respect of each offering of Pass Through Certificates, one or more
Trusts will be formed, and the related Pass Through Certificates will be issued,
pursuant to separate Trust Supplements to be entered into between the Pass
Through Trustee and GATC in accordance with the terms of the Basic Agreement.
All Pass Through Certificates with respect to each Trust will represent
fractional undivided interests in such Trust and the property held in such
Trust, and will have no rights, benefits or interest in respect of any other
Trust or the property held therein. Concurrently with the execution and delivery
of each Trust Supplement, the Pass Through Trustee, on behalf of the Trust
formed thereby, will enter into one or more financing, refinancing, purchase or
participation agreements (each such agreement being herein referred to as a
"Participation Agreement") relating to one or more Equipment Groups described in
the applicable Prospectus Supplement. Pursuant to the applicable Participation
Agreement, the Pass Through Trustee, on behalf of such Trust, will purchase the
Equipment Notes issued with respect to each such Equipment Group so that all of
the Equipment Notes held in such Trust will have an interest rate equal to the
interest rate applicable to the Pass Through Certificates issued by such Trust.
The maturity dates of the Equipment Notes acquired by each Trust will occur on
or before the final distribution date applicable to the Pass Through
Certificates issued with respect to such Trust. The Pass Through Trustee will
distribute the amount of payments of principal, premium, if any, and interest
received by it as holder of the Equipment Notes to the Certificateholders of the
Pass Through Certificates with respect to the Trust in which such Equipment
Notes are held. See "Description of the Pass Through Certificates" and
"Description of the Equipment Notes."
USE OF PROCEEDS
The Pass Through Certificates offered pursuant to any Prospectus Supplement
will be issued in order to facilitate the financing of all or a portion of the
cost of Owned Equipment described in such Prospectus Supplement or the financing
or refinancing of the debt component of one or more separate leveraged lease
transactions entered into by GATC, as lessee, with respect to Leased Equipment
described therein. The proceeds from the sale of such Pass Through Certificates
will be used by the Pass Through Trustee on behalf of the applicable Trust or
Trusts to purchase, at par, the Owned Equipment Notes issued by GATC to finance
all or a portion of the cost of Owned Equipment purchased or to be purchased by
GATC or the Leased Equipment Notes to be issued by the respective Owner Trustee
or Owner Trustees to finance or refinance all or a portion of the equipment cost
of Leased Equipment. Simultaneously with the acquisition of such Leased
Equipment, the respective Owner Trustee leased or will lease such Leased
Equipment to GATC. As described in the applicable Prospectus Supplement, a
portion of the Equipment Notes issued with respect to one or more Equipment
Groups may be purchased by investors other than the Pass Through Trustee. Unless
otherwise specified in the applicable Prospectus Supplement, GATC will use the
proceeds from each Owned Equipment Note issued by it and from each separate
leveraged lease transaction for general corporate purposes.
The Equipment Notes with respect to each Equipment Group will be issued
under a separate Trust Indenture and Security Agreement (each, an "Indenture")
between a bank or trust company as trustee thereunder (each, an "Indenture
Trustee") and (a) with respect to the Owned Equipment, GATC or (b) with respect
to the Leased Equipment, an owner trustee, not in its individual capacity
(except as expressly set forth therein) but solely as trustee (each, an "Owner
Trustee"), of a separate trust for the benefit of one or more institutional or
corporate investors (each, an "Owner Participant"). In the case of Leased
Equipment, each Owner Participant will provide, from sources other than the
Equipment Notes, the balance of the equipment cost of the related Equipment
Group. No Owner Participant, however, will be personally liable for any amount
payable under the related Indenture or the Leased Equipment Notes issued
thereunder. Subject to certain restrictions, each Owner Participant may transfer
its interest in the related Equipment Group.
Because GATC's obligation to make payments on the Owned Equipment Notes and
to make payments under the Leases relating to the Leased Equipment Notes will be
unconditional, and not
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affected by the financial performance of the railcars within the related
Equipment Groups, GATC believes that historical financial information with
respect to the Equipment Groups will not be relevant to purchasers of the Pass
Through Certificates.
DESCRIPTION OF THE PASS THROUGH CERTIFICATES
In connection with each offering of Pass Through Certificates, one or more
separate Trusts will be formed and one or more series of Pass Through
Certificates will be issued pursuant to the Basic Agreement and one or more
Trust Supplements to be entered into between GATC and the Pass Through Trustee.
The following summary relates to the Basic Agreement and each of the Trust
Supplements, the Trusts to be formed thereby and the Pass Through Certificates
to be issued by each Trust except to the extent, if any, described in the
applicable Prospectus Supplement. Citations to the relevant sections of the
Basic Agreement appear below in parentheses. The statements under this caption
are a summary and do not purport to be complete. This summary makes use of terms
defined in and is qualified in its entirety by reference to all of the
provisions of the Basic Agreement, the form of which has been filed as an
exhibit to the Registration Statement of which this Prospectus is a part. The
form of the Trust Supplement relating to each series of Pass Through
Certificates and the forms of the Leases, if any, Participation Agreements,
Indentures and Equipment Notes relating thereto will be filed as exhibits to a
report by the Company on Form 8-K, 10-Q, or 10-K, as applicable, to be filed
with the Commission following the offering of such series of Pass Through
Certificates.
GENERAL
The Pass Through Certificates of each Trust will be issued in fully
registered form only. Each Pass Through Certificate will represent a fractional
undivided interest in the separate Trust created by the Trust Supplement
pursuant to which such Pass Through Certificate is issued. The property of each
Trust will include the Equipment Notes held in such Trust, all monies at any
time paid thereon and all monies due and to become due thereunder and funds from
time to time deposited with the Pass Through Trustee in accounts relating to
such Trust. Each Pass Through Certificate will correspond to a pro rata share of
the outstanding principal amount of the Equipment Notes and other property held
in the related Trust and will be issued in denominations of $1,000 or any
integral multiple of $1,000. (Sections 2.01, 2.02 and 3.01)
Except as otherwise provided in the applicable Trust Supplement, Pass
Through Certificates will be registered in the name of Cede & Co. ("Cede") as
the nominee of The Depository Trust Company ("DTC") and no person acquiring an
interest in Pass Through Certificates (a "Certificate Owner") will be entitled
to receive a certificate representing such person's interest in the related
Trust unless "Definitive Certificates" are issued as described below. Unless
Definitive Certificates are issued, all references to actions by
Certificateholders shall refer to actions taken by DTC upon instructions from
DTC Participants (as defined below), and all references herein to distributions,
notices, reports and statements to Certificateholders shall refer, as the case
may be, to distributions, notices, reports and statements to DTC or Cede, as the
registered holder of the Pass Through Certificates, or to DTC Participants for
distribution to Certificate Owners in accordance with DTC procedures. See
"Description of the Pass Through Certificates -- Book-Entry Registration."
(Section 3.09)
Interest will be passed through to Certificateholders of each Trust at the
rate per annum set forth on the cover page of the applicable Prospectus
Supplement and will be calculated on the basis of a 360-day year of twelve
30-day months.
The Pass Through Certificates of each series represent interests only in
the related Trust and all payments and distributions shall be made only from the
related Trust Property. (Section 3.08) The Pass Through Certificates do not
represent an interest in or obligation of GATC, the Pass Through Trustee, the
Owner Trustee, if any, in its individual capacity, the Owner Participant, if
any, or any affiliate of any thereof.
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<PAGE> 8
The Basic Agreement does not and, except as otherwise described in the
applicable Prospectus Supplement, the Indentures will not, include financial
covenants or "event risk" provisions specifically designed to afford
Certificateholders protection in the event of a highly leveraged transaction
affecting GATC. However, the Certificateholders of each series will have the
benefit of a lien on the specific Equipment Group securing the related Equipment
Notes held in the related Trust, as discussed under the caption "Description of
the Equipment Notes -- Security."
BOOK-ENTRY REGISTRATION
Except as otherwise described in the applicable Prospectus Supplement, Pass
Through Certificates will be subject to the provisions described under this
caption for book-entry registration with DTC.
DTC. DTC has advised GATC that it is a limited purpose trust company
organized under the laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the New York
Uniform Commercial Code and a "clearing agency" registered pursuant to Section
17A of the Exchange Act. DTC was created to hold securities for its participants
("DTC Participants") and to facilitate the clearance and settlement of
securities transactions between DTC Participants through electronic
book-entries, thereby eliminating the need for physical movement of
certificates. DTC Participants include securities brokers and dealers, banks,
trust companies and clearing corporations. Indirect access to the DTC system
also is available to others such as banks, brokers, dealers and trust companies
that clear through or maintain a custodial relationship with a DTC Participant
either directly or indirectly ("Indirect Participants").
Certificate Owners that are not DTC Participants or Indirect Participants
but desire to purchase, sell or otherwise transfer ownership of, or other
interests in, Pass Through Certificates may do so only through DTC Participants
and Indirect Participants. In addition, Certificate Owners will receive all
distributions of principal, premium, if any, and interest from the Pass Through
Trustee through DTC Participants or Indirect Participants, as the case may be.
Under a book-entry format, Certificate Owners may experience some delay in their
receipt of payments, because such payments will be forwarded by the Pass Through
Trustee to Cede, as nominee for DTC. DTC will forward such payments to DTC
Participants, which thereafter will forward them to Indirect Participants or
Certificate Owners, as the case may be, in accordance with customary industry
practices. The forwarding of such distributions to the Certificate Owners will
be the responsibility of such DTC Participants. The only "Certificateholder"
will be Cede, as nominee of DTC. Certificate Owners will not be recognized by
the Pass Through Trustee as Certificateholders, as such term is used in the
Basic Agreement, and Certificate Owners will be permitted to exercise the rights
of Certificateholders only indirectly through DTC and DTC Participants.
Under the rules, regulations and procedures creating and affecting DTC and
its operations (the "Rules"), DTC is required to make book-entry transfers of
Pass Through Certificates among DTC Participants on whose behalf it acts with
respect to the Pass Through Certificates and to receive and transmit
distributions of principal of, premium, if any, and interest on the Pass Through
Certificates. DTC Participants and Indirect Participants with which Certificate
Owners have accounts with respect to the Pass Through Certificates similarly are
required to make book-entry transfers and receive and transmit such payments on
behalf of their respective Certificate Owners. Accordingly, although Certificate
Owners will not possess Pass Through Certificates, the Rules provide a mechanism
by which Certificate Owners will receive payments and will be able to transfer
their interests.
Because DTC can only act on behalf of DTC Participants, who in turn act on
behalf of Indirect Participants, the ability of a Certificate Owner to pledge
Pass Through Certificates to persons or entities that do not participate in the
DTC system, or to otherwise act with respect to such Pass Through Certificates,
may be limited due to the lack of a physical certificate for such Pass Through
Certificates.
GATC understands that DTC will take any action permitted to be taken by
Certificateholders only at the direction of one or more DTC Participants to
whose accounts with DTC the Pass Through Certificates are credited.
Additionally, GATC understands that DTC will take such actions with respect to
any specified percentage of the beneficial interest of Certificateholders held
in each Trust only at the direction
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of and on behalf of DTC Participants whose holders include undivided interests
that satisfy any such percentage. DTC may take conflicting actions with respect
to other undivided interests to the extent that such actions are taken on behalf
of DTC Participants whose holders include such undivided interests.
Neither GATC nor the Pass Through Trustee will have any liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of the Pass Through Certificates held by Cede, as nominee
for DTC, or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The information contained in this section concerning DTC and DTC's
book-entry system has been obtained from sources that the Company believes to be
reliable, but the Company takes no responsibility for the accuracy thereof.
DEFINITIVE CERTIFICATES. With respect to each Trust, the related Pass
Through Certificates will be issued in fully registered, certificated form
("Definitive Certificates") to Certificate Owners or their nominees, rather than
to DTC or its nominee, only if (i) GATC advises the Pass Through Trustee in
writing that DTC is no longer willing or able to properly discharge its
responsibilities as depository with respect to such Pass Through Certificates
and the Pass Through Trustee or GATC is unable to locate a qualified successor,
(ii) GATC, at its option, elects to terminate the book-entry system through DTC
or (iii) after the occurrence of an Event of Default (as defined below),
Certificate Owners representing an aggregate percentage interest in such Trust
of not less than a majority advise the Pass Through Trustee through DTC in
writing that the continuation of a book-entry system through DTC (or a successor
thereto) is no longer in the Certificate Owners' best interest. (Section 3.09)
Upon the occurrence of any event described in the immediately preceding
paragraph, the Pass Through Trustee will be required to notify all affected
Certificate Owners through DTC Participants of the availability of Definitive
Certificates. Upon surrender by DTC of the certificates representing the Pass
Through Certificates and receipt of instructions for re-registration, the Pass
Through Trustee will reissue the Pass Through Certificates as Definitive
Certificates to Certificate Owners. (Section 3.09)
Distributions of principal of, premium, if any, and interest on the Pass
Through Certificates will thereafter be made by the Pass Through Trustee in
accordance with the procedures set forth in the Basic Agreement and the
applicable Trust Supplements, directly to holders of Definitive Certificates in
whose names such Definitive Certificates were registered at the close of
business on the applicable record date. Such distributions will be made by check
mailed to the address of each such holder as it appears on the register
maintained with respect to the applicable Trust. The final payment on any Pass
Through Certificate, however, will be made only upon presentation and surrender
of such Pass Through Certificate at the office or agency specified in the notice
of final distribution to Certificateholders. (Section 4.02)
Definitive Certificates will be freely transferable and exchangeable at the
office of the Pass Through Trustee upon compliance with the requirements set
forth in the Basic Agreement and the applicable Trust Supplements. No service
charge will be imposed for any registration of transfer or exchange, but payment
of a sum sufficient to cover any tax or other governmental charge shall be
required. (Section 3.04)
SAME-DAY SETTLEMENT AND PAYMENT. Settlement for the Pass Through
Certificates will be required to be made in immediately available funds. So long
as the Pass Through Certificates are registered in the name of Cede, all
payments made by GATC to the Indenture Trustees, as assignees of the Owner
Trustees' rights under the Leases, in the case of Leased Equipment Notes, or on
the Owned Equipment Notes, in the case of Owned Equipment Notes, will be in
immediately available funds and will be passed through by the Pass Through
Trustee to DTC in immediately available funds.
Secondary trading in long-term notes and debentures of corporate issuers is
generally settled in clearinghouse or next-day funds. In contrast, the Pass
Through Certificates will trade in DTC's Same Day Funds Settlement System until
maturity, and secondary market trading activity in the Pass Through Certificates
will therefore be required by DTC to settle in immediately available funds. No
assurance can
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be given as to the effect, if any, of settlement in immediately available funds
on trading activity in the Pass Through Certificates.
PAYMENTS AND DISTRIBUTIONS
Payments received by the Pass Through Trustee of principal of, premium, if
any, and interest on the Equipment Notes held in each Trust will be distributed
by the Pass Through Trustee to the Certificateholders of such Trust on the date
such receipt is confirmed, except in certain cases when some or all of such
Equipment Notes are in default. See "Description of the Pass Through
Certificates -- Events of Default and Certain Rights Upon an Event of Default."
Payments of principal of, and interest on the unpaid principal amount of,
the Equipment Notes held in each Trust will be scheduled to be received by the
Pass Through Trustee on the dates specified in the applicable Prospectus
Supplement (such scheduled payments of principal of, and interest on, the
Equipment Notes are herein referred to as "Scheduled Payments," and the dates
specified therefor in the applicable Prospectus Supplement are herein referred
to as "Regular Distribution Dates"). The Pass Through Trustee of each Trust will
distribute on each Regular Distribution Date to the Certificateholders of such
Trust all Scheduled Payments, the receipt of which is confirmed by the Pass
Through Trustee on such Regular Distribution Date. Each such distribution of
Scheduled Payments will be made by the Pass Through Trustee to the holders of
record of the Pass Through Certificates of such Trust on the fifteenth day
immediately preceding such Regular Distribution Date, subject to certain
exceptions. (Sections 4.01 and 4.02) If a Scheduled Payment is not received by
the Pass Through Trustee on a Regular Distribution Date but is received within
five days thereafter, it will be distributed on the date received to such
holders of record. If it is received after such five-day period, it will be
treated as a Special Payment and distributed as described below.
Each Certificateholder of each Trust will be entitled to receive a pro rata
share of any distribution in respect of Scheduled Payments of principal and
interest made on the Equipment Notes held in such Trust. Scheduled Payments of
principal on the Equipment Notes held in each Trust will be set forth in the
applicable Prospectus Supplement. After a partial or full prepayment or default
in respect of some or all of such Equipment Notes, a Certificateholder should
refer to the information with respect to the Pool Balance and the Pool Factor
for such Trust reported periodically by the Pass Through Trustee. See
"Description of the Pass Through Certificates -- Pool Factors" and "Description
of the Pass Through Certificates -- Statements to Certificateholders."
Payments of principal, premium, if any, and interest received by the Pass
Through Trustee on account of a partial or full prepayment, if any, of the
Equipment Notes held in a Trust, and payments received by the Pass Through
Trustee following a default in respect of the Equipment Notes held in a Trust
(including, in the case of Leased Equipment Notes, payments received by the Pass
Through Trustee on account of their purchase by the related Owner Trustee or
payments received on account of the sale of such Equipment Notes by the Pass
Through Trustee) ("Special Payments") will be distributed on the dates specified
therefor in the applicable Prospectus Supplement (a "Special Distribution
Date"). In general, the Pass Through Trustee will mail notice to the
Certificateholders of record of any Trust not less than 20 days prior to the
Special Distribution Date on which any Special Payment is scheduled to be
distributed by the Pass Through Trustee stating such anticipated Special
Distribution Date. (Section 4.02) Each distribution of a Special Payment, other
than a final distribution, on a Special Distribution Date for any Trust will be
made by the Pass Through Trustee to the holders of record of the Pass Through
Certificates of such Trust on the fifteenth day preceding such Special
Distribution Date. See "Description of the Equipment Notes -- Prepayments" and
"Description of the Pass Through Certificates -- Events of Default and Certain
Rights Upon an Event of Default."
The Basic Agreement requires that the Pass Through Trustee establish and
maintain, for each Trust and for the benefit of the Certificateholders of such
Trust, one or more non-interest bearing accounts (the "Certificate Account") for
the deposit of payments representing Scheduled Payments on the Equipment Notes
held in such Trust. (Section 4.01) The Basic Agreement also requires that the
Pass Through Trustee establish and maintain, for each Trust and for the benefit
of the Certificateholders of such Trust,
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one or more accounts (the "Special Payments Account") for the deposit of
payments representing Special Payments.
Pursuant to the terms of the Basic Agreement, the Pass Through Trustee is
required to deposit any Scheduled Payments relating to the applicable Trust
received by it in the Certificate Account of such Trust and to deposit any
Special Payments so received by it in the Special Payments Account of such
Trust. (Section 4.01) All amounts so deposited will be distributed by the Pass
Through Trustee on a Regular Distribution Date or a Special Distribution Date as
appropriate. (Section 4.02)
At such time, if any, as the Pass Through Certificates of any Trust are
issued in the form of Definitive Certificates and not to Cede, as nominee for
DTC, distributions by the Pass Through Trustee from the Certificate Account or
the Special Payments Account of such Trust on a Regular Distribution Date or a
Special Distribution Date, as appropriate, will be made by check mailed to each
Certificateholder of such Trust of record on the applicable record date at its
address appearing on the register maintained with respect to such Trust.
(Section 4.02) The final distribution for each Trust, however, will be made only
upon presentation and surrender of the Pass Through Certificates for such Trust
at the office or agency of the Pass Through Trustee specified in the notice
given by the Pass Through Trustee of such final distribution. The Pass Through
Trustee will mail such notice of the final distribution to the
Certificateholders of such Trust, specifying the date set for such final
distribution and the amount of such distribution. (Section 11.01) See
"Description of the Pass Through Certificates -- Termination of the Trusts."
If any Regular Distribution Date or Special Distribution Date is not a
Business Day, distributions scheduled to be made on such Regular Distribution
Date or Special Distribution Date may be made on the next succeeding Business
Day without additional interest. (Section 12.10)
POOL FACTORS
Unless there has been a prepayment, or a default in respect of one or more
issues of the Equipment Notes held in a Trust, as described in the applicable
Prospectus Supplement or below in "Description of the Pass Through Certificates
- -- Events of Default and Certain Rights Upon an Event of Default," the Pool
Factor for such Trust will decline in proportion to the scheduled repayments of
principal on the Equipment Notes held in such Trust as described in the
applicable Prospectus Supplement. In the event of a partial or full prepayment
or default, the Pool Factor and the Pool Balance of each Trust so affected will
be recomputed after giving effect thereto and notice thereof will be mailed to
Certificateholders of such Trust. Each Trust will have a separate Pool Factor
and Pool Balance.
Unless otherwise described in the applicable Prospectus Supplement, the
"Pool Balance" for each Trust indicates, as of any date, the aggregate unpaid
principal amount of the Equipment Notes held in such Trust on such date plus any
amounts in respect of principal on such Equipment Notes held by the Pass Through
Trustee and not yet distributed plus the amount of any moneys held in the
related escrow account (other than earnings thereon). The Pool Balance for each
Trust as of any Regular Distribution Date or Special Distribution Date shall be
computed after giving effect to the payment of principal, if any, on the
Equipment Notes held in such Trust and distribution thereof to be made on that
date.
Unless otherwise described in the applicable Prospectus Supplement, the
"Pool Factor" for each Trust, as of any date, is the quotient (rounded to the
seventh decimal place) computed by dividing (i) the Pool Balance of such Trust,
by (ii) the aggregate original principal amount of the Equipment Notes held in
such Trust. The Pool Factor for each Trust as of any Regular Distribution Date
or Special Distribution Date shall be computed after giving effect to the
payment of principal, if any, on the Equipment Notes held in such Trust and
distribution thereof to be made on that date. The Pool Factor for each Trust
will initially be 1.0000000; thereafter, the Pool Factor for each Trust will
decline as described above to reflect reductions in the Pool Balance of such
Trust. The amount of a Certificateholder's pro rata share of the Pool Balance of
a Trust can be determined by multiplying the original denomination of the
Certificateholder's Pass Through Certificate of such Trust by the Pool Factor
for such Trust as of the applicable Regular Distribution Date or Special
Distribution Date. The Pool Factor and the Pool Balance
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for each Trust will be mailed to Certificateholders of record of such Trust on
each Regular Distribution Date and Special Distribution Date.
STATEMENTS TO CERTIFICATEHOLDERS
On each Regular Distribution Date and Special Distribution Date, if any,
the Pass Through Trustee will include with each distribution of a Scheduled
Payment or Special Payment to Certificateholders of record of the related Trust
a statement, giving effect to such distribution to be made on such Regular
Distribution Date or Special Distribution Date, if any, setting forth the
following information (per $1,000 in aggregate principal amount of Pass Through
Certificates for such Trust, as to (i) and (ii) below):
(i) the amount of such distribution allocable to principal and the amount
allocable to premium, if any;
(ii) the amount of such distribution allocable to interest; and
(iii) the Pool Balance and the Pool Factor for such Trust. (Section 4.03)
So long as the Pass Through Certificates of any Trust are registered in the
name of Cede, as nominee for DTC, on the applicable record date prior to each
Regular Distribution Date and Special Distribution Date, the Pass Through
Trustee will request from DTC a Securities Position Listing setting forth the
names of all DTC Participants reflected on DTC's books as holding interests in
the Pass Through Certificates of such Trust on such record date. On each Regular
Distribution Date and Special Distribution Date, the Pass Through Trustee will
mail to each such DTC Participant the statement described above, and will make
available additional copies as requested by such DTC Participant, to be
available for forwarding to Certificate Owners. (Section 3.09)
In addition, after the end of each calendar year, the Pass Through Trustee
will prepare for each Certificateholder of record of each Trust at any time
during the preceding calendar year a report containing the sum of the amounts
determined pursuant to clauses (i) and (ii) above with respect to the Trust for
such calendar year or, in the event such person was a Certificateholder of
record during a portion of such calendar year, for the applicable portion of
such calendar year, and such other items as are readily available to the Pass
Through Trustee and which a Certificateholder shall reasonably request as
necessary for the purpose of such Certificateholder's preparation of its federal
income tax returns. (Section 4.03) Such report and such other items shall be
prepared on the basis of information supplied to the Pass Through Trustee by the
DTC Participants, and shall be delivered by the Pass Through Trustee to such DTC
Participants to be available for forwarding by such DTC Participants to
Certificate Owners in the manner described above.
At such time, if any, as the Pass Through Certificates of a Trust are
issued in the form of Definitive Certificates, the Pass Through Trustee will
prepare and deliver the information described above to each Certificateholder of
record of such Trust as the name and period of record ownership of such
Certificateholder appears on the records of the Registrar of the Pass Through
Certificates.
VOTING OF EQUIPMENT NOTES
The Pass Through Trustee, as holder of the Equipment Notes held in each
Trust, has the right to vote and give consents and waivers in respect of such
Equipment Notes under the applicable Indenture. The Basic Agreement sets forth
the circumstances in which the Pass Through Trustee shall direct any action or
cast any vote as the holder of the Equipment Notes held in the applicable Trust
at its own discretion and the circumstances in which the Pass Through Trustee
shall seek instructions from the Certificateholders of such Trust. Prior to an
Event of Default with respect to any Trust, the principal amount of the
Equipment Notes held in such Trust directing any action or being voted for or
against any proposal shall be in proportion to the principal amount of Pass
Through Certificates held by the Certificateholders of such Trust taking the
corresponding position. (Sections 6.01 and 10.01)
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EVENTS OF DEFAULT AND CERTAIN RIGHTS UPON AN EVENT OF DEFAULT
The Basic Agreement defines an event of default with respect to a Trust (an
"Event of Default") as the occurrence and continuance of an event of default
under one or more of the related Indentures (an "Indenture Event of Default").
The Indenture Events of Default will be described in the applicable Prospectus
Supplement and, in the case of Leased Equipment Notes, will include events of
default under the related Lease. Because the Equipment Notes issued under an
Indenture may be held in more than one Trust, a continuing Indenture Event of
Default under such Indenture would result in an Event of Default with respect to
each such Trust. There will be, however, no cross-default provisions in the
Indentures and events resulting in an Indenture Event of Default under any
particular Indenture (or a default under any other indebtedness of the Company)
will not necessarily result in an Indenture Event of Default occurring under any
other Indenture. If an Indenture Event of Default occurs in fewer than all of
the Indentures related to a Trust, the Equipment Notes issued pursuant to the
related Indentures with respect to which an Indenture Event of Default has not
occurred will continue to be held in such Trust and payments of principal and
interest on such Equipment Notes will continue to be distributed to the holders
of the Pass Through Certificates of such Trust as originally scheduled.
In the case of Leased Equipment, the Owner Trustee and the Owner
Participant under each Indenture will each have the right under certain
circumstances to cure an Indenture Event of Default that results from the
occurrence of a Lease Event of Default under the related Lease. If the Owner
Trustee or the Owner Participant chooses to exercise such cure right, the
Indenture Event of Default and consequently the Event of Default with respect to
the related Trust or Trusts will be deemed to be cured.
The Basic Agreement provides that, as long as an Indenture Event of Default
under any Indenture relating to Equipment Notes held in a Trust shall have
occurred and be continuing, the Pass Through Trustee of such Trust may vote all
of the Equipment Notes issued under such Indenture that are held in such Trust,
and upon the direction of the holders of Pass Through Certificates evidencing
fractional undivided interests aggregating not less than a majority in interest
of such Trust, shall vote not less than a corresponding majority of such
Equipment Notes in favor of directing the related Indenture Trustee to declare
the unpaid principal amount of all Equipment Notes issued under such Indenture
and any accrued and unpaid interest thereon to be due and payable. The Basic
Agreement also provides that, if an Indenture Event of Default under any
Indenture relating to Equipment Notes held in a Trust shall have occurred and be
continuing, the Pass Through Trustee of such Trust may, and upon the direction
of the holders of Pass Through Certificates evidencing fractional undivided
interests aggregating not less than a majority in interest of such Trust shall,
subject to certain conditions, vote all of the Equipment Notes issued under such
Indenture that are held in such Trust in favor of directing the related
Indenture Trustee as to the time, method and place of conducting any proceeding
for any remedy available to such Indenture Trustee or of exercising any trust or
power conferred on such Indenture Trustee under such Indenture. (Sections 6.01
and 6.04)
The ability of the holders of the Pass Through Certificates issued with
respect to any one Trust to cause the Indenture Trustee with respect to any
Equipment Notes held in such Trust to accelerate the payment on such Equipment
Notes under the related Indenture or to direct the exercise of remedies by such
Indenture Trustee under the related Indenture will depend, in part, upon the
percentage of the aggregate principal amount of all Equipment Notes outstanding
under such Indenture that are represented by the Equipment Notes outstanding
under such Indenture and held in such Trust. Each Trust will hold Equipment
Notes with different terms from those of the Equipment Notes held in the other
Trusts and therefore the Certificateholders of a Trust may have divergent or
conflicting interests from those of the Certificateholders of the other Trusts
holding Equipment Notes relating to the same Equipment Group. In addition, so
long as the same institution acts as Pass Through Trustee of each Trust, in the
absence of instructions from the Certificateholders of any such Trust, the Pass
Through Trustee for such Trust could for the same reason be faced with a
potential conflict of interest upon an Indenture Event of Default. In such
event, the Pass Through Trustee has indicated that it would resign as trustee of
one or all such Trusts, and a successor trustee for one or all of such Trusts
would be appointed in accordance with the terms of the Basic Agreement.
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As an additional remedy, if an Indenture Event of Default shall have
occurred and be continuing, the Basic Agreement provides that the Pass Through
Trustee of a Trust holding Equipment Notes issued under such Indenture may, and
upon the direction of the holders of Pass Through Certificates evidencing
fractional undivided interests aggregating not less than a majority in interest
of such Trust shall, sell all or part of such Equipment Notes for cash to any
person. (Sections 6.01 and 6.02) Any proceeds received by the Pass Through
Trustee upon any such sale shall be deposited in the Special Payments Account
for such Trust and shall be distributed to the Certificateholders of such Trust
on a Special Distribution Date. (Sections 4.01 and 4.02) The market for
Equipment Notes in default may be very limited and there can be no assurance
that they could be sold for a reasonable price. Furthermore, so long as the same
institution acts as Trustee of each Trust, it may be faced with a conflict in
deciding from which Trust to sell Equipment Notes to available buyers. If the
Pass Through Trustee sells any such Equipment Notes with respect to which an
Indenture Event of Default exists for less than their outstanding principal
amount, the Certificateholders of such Trust will receive a smaller amount of
principal distributions than anticipated and will not have any claim for the
shortfall against GATC, the related Owner Trustee or the related Owner
Participant, in the case of any Leased Equipment, or the Pass Through Trustee.
Furthermore, neither the Pass Through Trustee nor the Certificateholders of such
Trust could take any action with respect to any remaining Equipment Notes held
in such Trust so long as no Indenture Event of Default existed with respect
thereto.
Any amount distributed to the Pass Through Trustee of any Trust by the
Indenture Trustee under any Indenture on account of the Equipment Notes held in
such Trust following an Indenture Event of Default under such Indenture shall be
deposited in the Special Payments Account for such Trust and shall be
distributed to the Certificateholders of such Trust on a Special Distribution
Date. In addition, if, following an Indenture Event of Default under any
Indenture relating to Leased Equipment, the related Owner Trustee exercises its
option, if any, to purchase the outstanding Leased Equipment Notes issued under
such Indenture as described in the related Prospectus Supplement, the price paid
by such Owner Trustee to the Pass Through Trustee of any Trust for the Leased
Equipment Notes issued under such Indenture and held in such Trust shall be
deposited in the Special Payments Account for such Trust and shall be
distributed to the Certificateholders of such Trust on a Special Distribution
Date. (Sections 4.01 and 4.02)
Any funds held by the Pass Through Trustee in the Special Payments Account
for a Trust representing either payments received with respect to any Equipment
Notes held in such Trust following an Indenture Event of Default or proceeds
from the sale by the Pass Through Trustee of any such Equipment Notes, shall, to
the extent practicable, be invested and reinvested by the Pass Through Trustee
in Permitted Government Investments pending the distribution of such funds on a
Special Distribution Date. Permitted Government Investments are defined as being
obligations of the United States and agencies thereof maturing in not more than
60 days or such lesser time as is required for the distribution of any such
funds on a Special Distribution Date. (Sections 4.01 and 4.04)
The Basic Agreement provides that the Pass Through Trustee of each Trust
shall, within 90 days after the occurrence of a default (as defined below) in
respect of such Trust, give to the Certificateholders of such Trust notice,
transmitted by mail, of all uncured or unwaived defaults with respect to such
Trust known to it; provided that, except in the case of default in the payment
of principal of, premium, if any, or interest on any of the Equipment Notes held
in such Trust, the Pass Through Trustee shall be protected in withholding such
notice if it in good faith determines that the withholding of such notice is in
the interest of such Certificateholders. The term "default," for the purpose of
the provision described in this paragraph only, shall mean the occurrence of any
Event of Default with respect to a Trust as specified above, except that in
determining whether any such Event of Default has occurred any grace period or
notice in connection therewith shall be disregarded. (Section 7.02)
The Basic Agreement contains a provision entitling the Pass Through Trustee
of each Trust, subject to the duty of the Pass Through Trustee during a default
to act with the required standard of care, to be indemnified by the holders of
the Pass Through Certificates of such Trust before proceeding to exercise any
right or power under the Basic Agreement at the request of such
Certificateholders. (Section 7.03)
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In certain cases, the holders of Pass Through Certificates of a Trust
evidencing fractional undivided interests aggregating not less than a majority
in interest of such Trust may on behalf of the holders of all Pass Through
Certificates of such Trust waive any past default or Event of Default with
respect to such Trust and thereby annul any direction given by the Pass Through
Trustee on behalf of such holders to the related Indenture Trustee with respect
thereto, except (i) a default in the deposit of any Scheduled Payment or Special
Payment or in the distribution of any such payment, (ii) a default in payment of
the principal of, premium, if any, or interest on any of the Equipment Notes
held in such Trust, and (iii) a default in respect of any covenant or provision
of the Basic Agreement or the related Trust Supplement that cannot be modified
or amended without the consent of each Certificateholder of such Trust affected
thereby. (Section 6.05) Each Indenture will provide that, with certain
exceptions, the holders of a majority in aggregate unpaid principal amount of
the Equipment Notes issued thereunder may on behalf of all such holders waive
any past default or Indenture Event of Default thereunder. In the event of a
waiver with respect to a Trust as described above, the principal amount of the
Equipment Notes issued under the related Indenture held in such Trust shall be
counted as waived in the determination of the majority in aggregate unpaid
principal amount of Equipment Notes required to waive a default or an Indenture
Event of Default under such Indenture. Therefore, if the Certificateholders of a
Trust waive a past default or Event of Default such that the principal amount of
the Equipment Notes held in such Trust constitutes the required majority in
aggregate unpaid principal amount under the applicable Indenture, such past
default or Indenture Event of Default under such Indenture shall be waived. For
a discussion of waivers of Indenture Events of Default under the Indentures, see
"Description of the Equipment Notes -- Indenture Events of Default and
Remedies."
MODIFICATIONS OF THE BASIC AGREEMENT
The Basic Agreement contains provisions permitting GATC and the Pass
Through Trustee of each Trust to enter into supplemental trust agreements,
without the consent of the holders of any of the Pass Through Certificates of
such Trust, (i) to evidence the succession of another corporation to GATC and
the assumption by such corporation of GATC's obligations under the Basic
Agreement and the applicable Trust Supplement, (ii) to add to the covenants of
GATC for the benefit of the holders of such Pass Through Certificates, (iii) to
cure any ambiguity, to correct any manifest error or to correct or supplement
any defective or inconsistent provision of such Basic Agreement, the applicable
Trust Supplement or any supplemental trust agreement, or to make any other
provisions with respect to matters or questions arising thereunder, provided
such action shall not adversely affect the interest of the holders of such Pass
Through Certificates, (iv) to evidence and provide for a successor Trustee for
some or all of the Trusts, or (v) to make any other amendments or modifications
which shall only apply to Pass Through Certificates of one or more series to be
issued thereafter. (Section 9.01)
The Basic Agreement also contains provisions permitting GATC and the Pass
Through Trustee of each Trust, with the consent of the Certificateholders of
such Trust evidencing fractional undivided interests aggregating not less than a
majority in interest of such Trust, to execute supplemental trust agreements
adding any provisions to or changing or eliminating any of the provisions of the
Basic Agreement, to the extent relating to such Trust, and the applicable Trust
Supplement, or modifying the rights of such Certificateholders, except that no
such supplemental trust agreement may, without the consent of the holder of each
such Pass Through Certificate so affected, (a) reduce in any manner the amount
of, or delay the timing of, any receipt by the Pass Through Trustee of payments
on the Equipment Notes held in such Trust, or distributions in respect of any
Pass Through Certificate of such Trust, or make distributions payable in coin or
currency other than that provided for in such Pass Through Certificates, or
impair the right of any Certificateholder of such Trust to institute suit for
the enforcement of any such payment when due, (b) permit the disposition of any
Equipment Note held in such Trust, except as provided in the Basic Agreement or
the applicable Trust Supplement, or (c) reduce the percentage of the aggregate
fractional undivided interests of the Trust provided for in the Basic Agreement
or the applicable Trust Supplement, the consent of the holders of which is
required for any such supplemental trust agreement or for any waiver provided
for in the Basic Agreement or such Trust Supplement. (Section 9.02)
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MODIFICATION AND CONSENTS AND WAIVERS UNDER THE INDENTURES AND RELATED
AGREEMENTS
In the event that the Pass Through Trustee, as the holder of any Equipment
Notes held in a Trust, receives a request for its consent to any amendment,
modification or waiver under the Indenture, Lease, if any, or other document
relating to such Equipment Notes, which requires the consent of the
Certificateholders of such Trust, the Pass Through Trustee shall mail a notice
of such proposed amendment, modification or waiver to each Certificateholder of
such Trust as of the date of such notice. The Pass Through Trustee shall request
instructions from the Certificateholders of such Trust as to whether or not to
consent to such amendment, modification or waiver. The Pass Through Trustee
shall vote or consent with respect to such Equipment Notes in such Trust in the
same proportion as the Pass Through Certificates of such Trust were actually
voted by the holders thereof by a certain date. Notwithstanding the foregoing,
if an Event of Default in respect of such Trust shall have occurred and be
continuing, the Pass Through Trustee, subject to the voting instructions
referred to under "Description of the Pass Through Certificates -- Events of
Default and Certain Rights Upon an Event of Default," may in its own discretion
consent to such amendment, modification or waiver, and may so notify the
Indenture Trustee to which such consent relates. (Section 10.01)
TERMINATION OF THE TRUSTS
The obligations of GATC and the Pass Through Trustee with respect to a
Trust will terminate upon the distribution to Certificateholders of such Trust
of all amounts required to be distributed to them pursuant to the Basic
Agreement and the applicable Trust Supplement and the disposition of all
property held in such Trust. The Pass Through Trustee will mail to each
Certificateholder of record of such Trust notice of the termination of such
Trust, the amount of the proposed final payment and the proposed date for the
distribution of such final payment for such Trust. The final distribution to any
Certificateholder of such Trust will be made only upon surrender of such
Certificateholder's Pass Through Certificates at the office or agency of the
Pass Through Trustee specified in such notice of termination. (Section 11.01)
DELAYED PURCHASE
In the event that, on the date of issuance of any Pass Through
Certificates, all of the proceeds from the sale of such Pass Through
Certificates are not used to purchase the Equipment Notes contemplated to be
held in the related Trust, such Equipment Notes may be purchased by the Pass
Through Trustee at any time on or prior to the date specified in the applicable
Prospectus Supplement. In such event, the Pass Through Trustee will hold the
proceeds from the sale of such Pass Through Certificates not used to purchase
Equipment Notes in an escrow account pending the purchase of the Equipment Notes
not so purchased. Such proceeds will be invested in Specified Investments at the
direction and risk of, and for the account of, GATC. Earnings on Specified
Investments in the escrow account for each Trust will be paid to GATC
periodically, and GATC will be responsible for any losses realized on such
Specified Investments. (Section 2.02)
On the Regular Distribution Date occurring after the issuance of such Pass
Through Certificates, GATC will pay to the Pass Through Trustee an amount equal
to the interest that would have accrued on any Equipment Notes which are
purchased after the date of the issuance of such Pass Through Certificates from
the date of the issuance of such Pass Through Certificates to, but excluding,
the date of the purchase of such Equipment Notes by the Pass Through Trustee.
(Section 2.02)
To the extent that Equipment Notes are not purchased by the Pass Through
Trustee on or prior to the date specified in the applicable Prospectus
Supplement, the unexpended proceeds from the sale of such Pass Through
Certificates, together with interest thereon at the rate applicable to such Pass
Through Certificates, will be distributed to the holders of such Pass Through
Certificates as a Special Payment.
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MERGER, CONSOLIDATION AND TRANSFER OF ASSETS
GATC will be prohibited from consolidating with or merging into any other
corporation or transferring substantially all of its assets as an entirety to
any other corporation unless any successor or transferee corporation shall be a
corporation organized and existing under the laws of the United States or any
state or the District of Columbia and shall expressly assume all of the
obligations of GATC contained in the Basic Agreement, and, in the case of Leased
Equipment Notes held in a Trust, both immediately prior to and after giving
effect to such consolidation, merger or transfer, no Lease Event of Default
shall have occurred and be continuing. (Section 5.02)
THE PASS THROUGH TRUSTEE
Unless otherwise specified in the applicable Prospectus Supplement, The
First National Bank of Chicago will be the Pass Through Trustee for each of the
Trusts. The Pass Through Trustee and any of its affiliates may hold Pass Through
Certificates in their own names. (Section 7.05) With certain exceptions, the
Pass Through Trustee makes no representations as to the validity or sufficiency
of the Basic Agreement, the Trust Supplements, the Pass Through Certificates,
the Equipment Notes, the Indentures, the Leases, if any, or other related
documents. (Section 7.04) Unless otherwise specified in a Prospectus Supplement,
The First National Bank of Chicago will also be the Indenture Trustee of the
Indentures under which the Equipment Notes are issued. The Company maintains
banking relationships in the ordinary course of business with The First National
Bank of Chicago.
The Pass Through Trustee may resign with respect to any or all of the
Trusts at any time, in which event GATC will be obligated to appoint a successor
trustee. If the Pass Through Trustee ceases to be eligible to continue as
Trustee with respect to a Trust or becomes incapable of acting as Trustee or
becomes insolvent, GATC may remove such Trustee. In addition, any holder of Pass
Through Certificates of such Trust for at least six months may in such
circumstances, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of such Trustee and the
appointment of a successor trustee. Any resignation or removal of the Pass
Through Trustee with respect to a Trust and appointment of the successor trustee
for such Trust does not become effective until acceptance of the appointment by
the successor trustee. (Section 7.09) Pursuant to such resignation and successor
trustee provisions, it is possible that a different trustee could be appointed
to act as the successor trustee with respect to each Trust. All references in
this Prospectus to the Pass Through Trustee are to the trustee acting in such
capacity under each of the Trusts and should be read to take into account the
possibility that each of the Trusts could have a different successor trustee in
the event of such a resignation or removal.
The Basic Agreement provides that GATC will pay the Pass Through Trustee's
fees and expenses and will indemnify the Pass Through Trustee in accordance with
the Participation Agreement with respect to certain taxes. To the extent not
indemnified by GATC with respect to such taxes, the Pass Through Trustee may be
entitled to be reimbursed by the applicable Trust. (Section 7.07)
DESCRIPTION OF THE EQUIPMENT NOTES
The statements under this caption are summaries and do not purport to be
complete. Except as otherwise indicated below or as described in the applicable
Prospectus Supplement, the following summaries will apply to the Equipment
Notes, the Indenture, the Lease, if any, and the Participation Agreement
relating to each Equipment Group. Additional provisions with respect to the
Equipment Notes, the Indentures, the Leases, if any, and the Participation
Agreements relating to any particular Equipment Group will be described in the
applicable Prospectus Supplement.
GENERAL
Each Equipment Note issued under the same Indenture will relate to a single
Equipment Group. The Equipment Notes with respect to each Equipment Group will
be issued under a separate Indenture
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between the related Indenture Trustee and GATC (in the case of Owned Equipment
Notes) or the related Indenture Trustee and the Owner Trustee of a trust for the
benefit of the Owner Participant which is the beneficial owner of such Equipment
Group (in the case of Leased Equipment Notes).
GATC's obligations under each Indenture relating to Owned Equipment and
under the related Owned Equipment Notes will be direct obligations of GATC,
secured by a security interest in such Owned Equipment. The Leased Equipment
Notes will be nonrecourse obligations of the related Owner Trustee. Except in
certain circumstances involving GATC's purchase of Leased Equipment and the
assumption of the Leased Equipment Notes related thereto, the Leased Equipment
Notes will not be direct obligations of, or guaranteed by, GATC; however. GATC
will be obligated to make or cause to be made rental and other payments to the
related Owner Trustee under the Lease of the related Equipment Group in amounts
that will be at least sufficient to pay when due all payments required to be
made on the Leased Equipment Notes issued with respect to such Equipment Group.
GATC's rental obligations under each Lease will be general obligations of GATC.
PRINCIPAL AND INTEREST PAYMENTS
Interest paid on the Equipment Notes held in each Trust will be passed
through to the Certificateholders of such Trust on the dates and at the rate per
annum set forth in the applicable Prospectus Supplement until the final
distribution date for such Trust. Principal paid on the Equipment Notes held in
each Trust will be passed through to the Certificateholders of such Trust in
scheduled amounts on the dates set forth in the applicable Prospectus Supplement
until the final distribution date for such Trust.
If any date scheduled for any payment of principal of, premium, if any, or
interest on the Equipment Notes is not a Business Day, such payment may be made
on the next succeeding Business Day without any additional interest.
PREPAYMENTS
The applicable Prospectus Supplement will describe the circumstances,
whether voluntary or involuntary, under which the related Equipment Notes may be
prepaid or purchased, the premium (if any) related to certain prepayments or
purchases and other terms applying to prepayments or purchases of such Equipment
Notes.
SECURITY
The Leased Equipment Notes issued with respect to an Equipment Group will
be secured by (i) an assignment by the related Owner Trustee to the related
Indenture Trustee of such Owner Trustee's rights (except for certain limited
rights described in the Prospectus Supplement) under the Lease with respect to
such Equipment Group, including the right to receive payments of rent thereunder
and (ii) a perfected security interest to such Indenture Trustee in such
Equipment Group, subject to the rights of GATC under such Lease. Unless and
until an Indenture Event of Default with respect to an Equipment Group has
occurred and is continuing, the Indenture Trustee may not exercise the rights of
the Owner Trustee under the related Lease, except the right to receive payments
of rent due thereunder.
The Owned Equipment Notes issued with respect to an Equipment Group will be
secured by a perfected security interest from GATC to the related Indenture
Trustee in such Equipment Group.
The Equipment Notes issued under different Indentures will not be
cross-collateralized and consequently the Equipment Notes issued in respect of
any one Equipment Group will not be secured by any other Equipment Group or, in
the case of Leased Equipment Notes, the Lease related to any other Equipment
Group.
GATC will be required to file each Indenture, any indenture supplement,
each Lease, if any, and any lease supplement with respect to each Equipment
Group under the Interstate Commerce Act (or successor law) and will be further
required to deposit such documents with the Registrar General of Canada under
the Railway Act of Canada and to publish notice of such deposit in accordance
with such
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Act. The filing under the Interstate Commerce Act (or successor law) will give
the Indenture Trustee a perfected security interest in each Equipment Unit in
such Equipment Group whenever it is located in the United States and in the
Lease, if any. Such deposit and publication in Canada will be done in order to
protect the lien of the Indenture Trustee in and to the Lease, if any, and the
Equipment Units created by the Indenture in Canada or any province or territory
thereof, to the extent provided for in the Railway Act of Canada.
Each Equipment Unit may be operated by GATC or, subject to certain
limitations, under sublease or interchange arrangements in the United States,
Canada or Mexico. The extent to which the Indenture Trustee's security interest
would be recognized in an Equipment Unit located in countries other than the
United States is uncertain.
Funds, if any, held from time to time by the Indenture Trustee with respect
to any Equipment Units, including funds held as the result of the loss or
destruction of such Equipment Units or termination of the Lease, if any,
relating thereto, will be invested and reinvested by such Indenture Trustee, at
the direction of GATC (except in the case of a Lease Event of Default under the
applicable Lease, if any), in Specified Investments. GATC will pay the amount of
any loss resulting from any such investment directed by it.
GATC will be obligated, at its cost and expense, to maintain, repair and
keep each Equipment Unit in accordance with prudent industry maintenance
practices and in compliance in all material respects with all laws and
regulations.
LIMITATION OF LIABILITY
The Owned Equipment Notes will be direct obligations of GATC. Except in
certain circumstances involving GATC's purchase of Leased Equipment and the
assumption of the Leased Equipment Notes related thereto, the Leased Equipment
Notes will not be direct obligations of, or guaranteed by, GATC or the Owner
Trustees. None of the Owner Trustees, the Owner Participants or the Indenture
Trustees, or any affiliates thereof, shall be personally liable to any holder of
a Leased Equipment Note or, in the case of the Owner Trustees and the Owner
Participants, to the Indenture Trustees for any amounts payable under the Leased
Equipment Notes or, except as provided in each Indenture, for any liability
under such Indenture. Except in the circumstances described above, all payments
of principal of, premium, if any, and interest on Leased Equipment Notes issued
with respect to any Equipment Group (other than payments made in connection with
an optional prepayment or purchase by the related Owner Trustee) will be made
only from the assets subject to the lien of the Indenture with respect to such
Equipment Group or the income and proceeds received by the related Indenture
Trustee therefrom (including rent payable by GATC under the Lease with respect
to such Equipment Group).
Except as otherwise provided in the Indentures, each Owner Trustee in its
individual capacity shall not be answerable or accountable under the Indentures
or under the Leased Equipment Notes under any circumstances except for its own
wilful misconduct or gross negligence. None of the Owner Participants will have
any duty or responsibility under any of the Indentures or the Leased Equipment
Notes to the Indenture Trustees or to any holder of any Leased Equipment Note.
INDENTURE EVENTS OF DEFAULT AND REMEDIES
The applicable Prospectus Supplement will describe the Indenture Events of
Default under the related Indentures, the remedies that the Indenture Trustee
may exercise with respect to the related Equipment Group, either at its own
initiative or upon instruction from holders of the related Equipment Notes, and
other provisions relating to the occurrence of an Indenture Event of Default and
the exercise of remedies. There will be no cross-default provisions in the
Indentures and events resulting in an Indenture Event of Default under any
particular Indenture (or a default under any other indebtedness of the Company)
will not necessarily result in an Indenture Event of Default under any other
Indenture.
In the case of Leased Equipment Notes, in the event of the bankruptcy of an
Owner Participant, it is possible that, notwithstanding that the related
Equipment Group is owned by an Owner Trustee in trust,
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such Equipment Group and the Lease and the Leased Equipment Notes related
thereto might become part of the bankruptcy proceeding. In such event, payments
on such Leased Equipment Notes might be interrupted and the ability of the
Indenture Trustee to exercise its remedies under the applicable Indenture might
be restricted, although the Indenture Trustee would retain its status as a
secured creditor in respect of such Lease and the related Equipment Group. In
addition, in the event of an Owner Participant bankruptcy, the estate might seek
court approval to reject the related Lease as an executory contract. Such a
Lease rejection, if successful, would leave the Indenture Trustee as a secured
creditor in respect of the related Equipment Group with a claim for damages
against the estate.
THE LEASES
In the case of Leased Equipment Notes, the following provisions will be
applicable unless otherwise disclosed in the Prospectus Supplement.
TERM AND RENTALS. In the case of Leased Equipment, each Equipment Group
will be leased separately by the related Owner Trustee to GATC for a term
commencing on the delivery date thereof to such Owner Trustee and expiring on a
date not earlier than the latest maturity date of the Leased Equipment Notes
issued with respect to such Equipment Group unless previously terminated as
permitted by the related Lease. The basic rental payments by GATC under each
Lease will be payable on the dates specified in the applicable Prospectus
Supplement, and will be assigned by the Owner Trustee under the related
Indenture to provide the funds necessary to make payments of principal and
interest due from such Owner Trustee on the Leased Equipment Notes issued under
such Indenture. Although in certain cases the basic rental payments under the
Leases may be adjusted, under no circumstances will rental payments be less than
the scheduled payments of principal and interest on the Leased Equipment Notes
issued under the Indenture relating to such Lease. The balance of any basic
rental payments under each Lease, after payment of the scheduled principal and
interest on the Leased Equipment Notes issued under the Indenture relating to
such Lease, will be paid over to the related Owner Trustee. GATC's obligation to
pay rent and to cause other payments to be made under each Lease will be a
general obligation of GATC.
NET LEASE. GATC's obligations in respect of each Equipment Group leased by
an Owner Trustee will be those of a lessee under a "net lease." Accordingly,
GATC will be obligated, at its cost and expense, to maintain, repair and keep
each Equipment Unit in any such Equipment Group in accordance with prudent
industry maintenance practices and in compliance in all material respects with
all laws and regulations and consistent with maintenance practices used by GATC
in respect of equipment owned or leased by GATC similar in type to such
Equipment Unit. Subject to certain exceptions, GATC will, at its expense, make
all alterations, replacements or modifications required to be made by the
Association of American Railroads, the United States Department of
Transportation, or any other United States, state or local governmental agency.
GATC reserves the right to contest the validity or applicability of any required
alterations, replacements or modifications. GATC shall have the right to make
alterations, modifications and improvements with respect to each Equipment Unit
in any such Equipment Group, provided that no such alteration, modification or
improvement shall materially diminish the fair market value, utility or
remaining economic useful life of such Unit.
INSURANCE. Unless waived or otherwise excused by the terms of any Lease,
GATC will be required to procure from reputable insurance companies, property
damage and public liability insurance, and, subject to certain limited
exceptions, maintain such insurance in such amounts and for such risks and with
such insurance companies and subject to such deductibles and self insurance no
less comprehensive in amounts and against risks customarily insured against by
GATC in respect of equipment owned or leased by it similar in type to the
related Equipment Units and consistent with prudent industry standards for
companies engaged in full service leasing of railcars, if any.
LEASE EVENTS OF DEFAULT; REMEDIES. The applicable Prospectus Supplement
will describe the Lease Events of Default under the related Lease, the remedies
that the Owner Trustee, or Indenture
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Trustee as assignee of the Owner Trustee, may exercise with respect to an
Equipment Group, and other provisions relating to the occurrence of a Lease
Event of Default and the exercise of remedies.
Lease Events of Default under each Lease will include, among other things,
(a) failure by GATC to make rental payments under the Lease, (b) failure to
maintain insurance as required by the Lease, (c) use of the Equipment Group in
contravention of the Lease, (d) breach of any representation or warranty made by
GATC in the Lease or in the related Participation Agreement and (e) the
occurrence of certain events of bankruptcy, reorganization or insolvency of
GATC. Upon the occurrence of a Lease Event of Default under any Lease, the
related Indenture Trustee, as assignee of the related Owner Trustee's rights
under such Lease, will be entitled to repossess the Equipment Units and use or
sell such Equipment Units free and clear of GATC's rights therein.
If GATC were to become a debtor in a bankruptcy or reorganization case
under the Bankruptcy Code, GATC or its bankruptcy trustee could reject any or
all Leases to which it is a party. In such event, there could be no assurance
that the amount of any claim for damages under such Leases that would be allowed
in such bankruptcy case would be in an amount sufficient to provide for the
repayment of the related Leased Equipment Notes. In any case, rejection of a
Lease by GATC or its bankruptcy trustee would not deprive the related Indenture
Trustee of its security interest in the related Equipment Group.
GATC is not a railroad, and the protections against the automatic stay in
bankruptcy under Section 1168 of the Bankruptcy Code which are granted to
lessors, conditional vendors and purchase money financiers of rolling stock to a
common carrier by railroad will not be available to an Indenture Trustee upon
the occurrence of a Lease Event of Default.
THE PARTICIPATION AGREEMENTS
GATC will be required to indemnify each Indenture Trustee and the Pass
Through Trustee and, in the case of Leased Equipment, each Owner Participant and
Owner Trustee for certain losses and claims and for certain other matters. Each
Owner Participant will be required to discharge certain liens or claims on or
against the assets subject to the lien of the related Indenture that arise out
of any act of or failure to act by or claim against such Owner Participant.
Subject to certain restrictions, each Owner Participant may transfer its
interest in the related Equipment Group.
ERISA CONSIDERATIONS
Unless otherwise indicated in the applicable Prospectus Supplement, Pass
Through Certificates may be purchased by an employee benefit plan (a "Plan")
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"). A fiduciary of a Plan must determine that the purchase of a Pass
Through Certificate is consistent with its fiduciary duties under ERISA and does
not result in a non-exempt prohibited transaction as defined in Section 406 of
ERISA or Section 4975 of the Code. Employee benefit plans which are governmental
plans (as defined in Section 3(32) of ERISA) and certain church plans (as
defined in Section 3(33) of ERISA) are not subject to the fiduciary
responsibility provisions of ERISA.
FEDERAL INCOME TAX CONSEQUENCES
The following is a general discussion by GATC of the anticipated material
federal income tax consequences of the purchase, ownership and disposition of
Pass Through Certificates. The summary is based on laws, regulations, rulings
and decisions now in effect, all of which are subject to change, possibly with
retroactive effect, or different interpretation. The discussion below does not
purport to address federal income tax consequences applicable to particular
categories of investors, some of which (for example, insurance companies,
dealers in securities, financial institutions or foreign investors) may be
subject to special rules. In addition, this summary is generally limited to
investors who will hold the Pass Through Certificates as "capital assets"
(generally, property held for investment) within the meaning of Section 1221 of
the Internal Revenue Code of 1986, as amended (the "Code"). Investors
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should consult their own tax advisors in determining the federal, state, local,
and any other tax consequences to them of the purchase, ownership and
disposition of Pass Through Certificates, including the advisability of making
any election discussed below. Prospective investors should note that no rulings
have been or will be sought from the Internal Revenue Service (the "IRS") with
respect to any of the federal income tax consequences discussed below, and no
assurance can be given that the IRS will not take contrary positions. It is
anticipated that the Trusts will not be indemnified for any federal income taxes
that may be imposed upon them, and the imposition of any such taxes on any Trust
could result in a reduction in the amounts available for distribution to the
Certificateholders of such Trust.
Mayer, Brown & Platt, counsel to GATC, has advised GATC that, in its
opinion, based upon its interpretation of analogous authorities under currently
applicable law, the Trusts will not be classified as associations taxable as
corporations, but, rather will be classified as grantor trusts under subpart E,
Part I of Subchapter J of the Code, and that each Certificateholder of a Trust
will be treated as the owner of a pro rata undivided interest in each of the
Equipment Notes or any other property held in such Trust.
GENERAL
GATC believes that each Certificateholder in a Trust will be required to
report on its federal income tax return its pro rata share of the entire income
from the Equipment Notes or any other property held in such Trust, in accordance
with such Certificateholder's method of accounting. A Certificateholder using
the cash method of accounting should take into account its pro rata share of
income as and when received by the Pass Through Trustee of such Trust. A
Certificateholder using an accrual method of accounting should take into account
its pro rata share of income as it accrues or is received by such Trustee,
whichever is earlier.
A purchaser of a Pass Through Certificate will be treated as purchasing an
interest in each Equipment Note and any other property in a Trust at a price
determined by allocating the purchase price paid for the Pass Through
Certificate among such Equipment Notes and other property in proportion to their
fair market values at the time of purchase of such Pass Through Certificate.
GATC believes that at the time of formation of a particular Trust, the purchase
price paid for a Pass Through Certificate with respect to such Trust by an
original purchaser of a Pass Through Certificate will be allocated among the
Equipment Notes in such Trust in proportion to their respective principal
amounts. The portion of such Certificateholder's purchase price allocated to
each Equipment Note will constitute such Certificateholder's initial tax basis
in such Equipment Note.
SALES OF PASS THROUGH CERTIFICATES
A Certificateholder's tax basis in a Pass Through Certificate will equal
its cost of such Pass Through Certificate, reduced by any amortized premium (as
described below) and any payments other than interest made on such Pass Through
Certificate and increased by any market discount or original issue discount
included in the Certificateholder's income. A Certificateholder that sells a
Pass Through Certificate will recognize gain or loss (in the aggregate) in an
amount equal to the difference between its adjusted tax basis in the Pass
Through Certificate and the amount realized on the sale (except to the extent
attributable to accrued interest, which should be taxable as interest income)
and, if an Equipment Note or other asset of the related Trust is disposed of, or
an Equipment Note of the related Trust is prepaid, a Certificateholder will
recognize gain or loss (in the aggregate) in an amount equal to the difference
between such Certificateholder's adjusted tax basis in such Equipment Note or
other asset and the Certificateholder's pro rata portion of the amount realized
on the disposition by the Trust or upon such prepayment (except to the extent
attributable to accrued interest, which should be taxable as interest income).
Subject to the market discount provisions of the Code (described below), any
such gain or loss will be capital gain or loss if the Pass Through Certificate
was held as a capital asset and, if the Pass Through Certificate was held for
more than one year, will be long-term capital gain or loss to the extent the
Equipment Notes have been held by a Trust for more than one year. Any long-term
capital gains realized will be taxable under current law to corporate taxpayers
at the rates applicable to ordinary income, and to individual taxpayers at a
maximum marginal rate of 28%. Any capital losses realized will
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be deductible by a corporate taxpayer only to the extent of capital gains and by
an individual taxpayer only to the extent of capital gains plus $3,000 of other
income.
MARKET DISCOUNT
A purchaser of a Pass Through Certificate will be considered to have
acquired an interest in an Equipment Note held in a Trust at a "market discount"
to the extent the remaining principal amount of such Equipment Note allocable to
the Pass Through Certificate exceeds the Certificateholder's tax basis allocable
to such Equipment Note, unless the excess does not exceed a prescribed de
minimis amount. In the event such excess exceeds the de minimis amount, the
Certificateholder will be subject to the market discount rules of Sections 1276
and 1278 of the Code with regard to its interest in the Equipment Note.
In the case of a sale or other disposition of a Certificateholder's
interest in an Equipment Note subject to the market discount rules, Section 1276
of the Code requires that gain, if any, from such sale or disposition be treated
as ordinary income to the extent such gain represents market discount that has
accrued during the period in which the interest was held by such
Certificateholder. In addition, a disposition of a Certificateholder's interest
in an Equipment Note by gift (and in certain other circumstances), could result
in the recognition of market discount income, computed as if such Note had been
sold for its fair market value.
In the case of a partial principal payment on a Certificateholder's
interest in an Equipment Note subject to the market discount rules, Section 1276
of the Code requires that such payment be included in gross income as ordinary
income to the extent such payment does not exceed the market discount that has
accrued during the period such interest was held by such Certificateholder. The
amount of any accrued market discount later required to be included in income
upon a disposition or subsequent partial principal payment, will be reduced by
the amount of accrued market discount previously included in income.
Generally, market discount accrues under a straight line method, or, at the
election of the taxpayer, under a constant interest rate method. However, in the
case of bonds the principal of which may be paid in two or more installments
(such as the Equipment Notes), the manner in which market discount is to be
accrued will be described in Treasury regulations that have yet to be issued.
Until such Treasury regulations are issued, the explanatory Conference Committee
Report to the Tax Reform Act of 1986 (the "Conference Report") indicates that
holders of such obligations may elect to accrue market discount either on the
basis of a constant interest rate or as follows: (1) for those obligations that
have OID, market discount shall be deemed to accrue in proportion to the accrual
of OID for any accrual period, and (2) for those obligations which do not have
OID, the amount of market discount that is deemed to accrue is the amount of
market discount that bears the same ratio to the total amount of remaining
market discount that the amount of stated interest paid in the accrual period
bears to the total amount of stated interest remaining to be paid on the
obligation as of the beginning of such period.
Under Section 1277 of the Code, if in any taxable year interest paid or
accrued by a Certificateholder on indebtedness incurred or continued to purchase
or carry its interest in an Equipment Note subject to the market discount rules
exceeds the interest (including OID) currently includible in income with respect
to such interest in an Equipment Note, deduction of such interest must be
deferred to the extent of the market discount allocable to the taxable year. The
deferred portion of any interest expense will generally be deductible when such
market discount is included in income upon the sale or other disposition
(including repayment) of the indebtedness.
Section 1278 of the Code allows a taxpayer to make an election to include
market discount in its gross income currently. If such election is made, the
rules of Sections 1276 and 1277 (described above) will not apply to the
taxpayer.
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Due to the complexity of the market discount rules, prospective
Certificateholders are advised to consult their tax advisors as to the
applicability and operation of the market discount rules as they may apply to a
Certificateholder's interest in the Equipment Notes held by a Trust.
PREMIUM
A Certificateholder will generally be considered to have acquired an
interest in an Equipment Note at a premium to the extent the Certificateholder's
tax basis allocable to such interest exceeds the remaining principal amount of
the Equipment Note allocable to such interest. In that event, a
Certificateholder who holds a Pass Through Certificate as a capital asset may
amortize that premium as an offset to interest income under Section 171 of the
Code, with corresponding reductions in the Certificateholder's tax basis in its
interest in the Equipment Note if an election under Section 171 of the Code is
or has been made with respect to all debt instruments held by the taxpayer
(including the Pass Through Certificates). Generally, such amortization is on a
constant yield basis. However, in the case of bonds the principal of which may
be paid in two or more installments (such as the Equipment Notes), the
Conference Report indicates a Congressional intent that amortization will be in
accordance with the same rules that will apply to the accrual of market discount
on such obligations (see the discussion of market discount above).
In the case of obligations which may be called at a premium prior to
maturity, amortizable bond premium may be determined by reference to an early
call date. Due to the complexities of the amortizable premium rules,
particularly where there is more than one possible call date and the amount of
any premium is uncertain, Certificateholders are urged to consult their own tax
advisors as to the amount of any amortizable premium and the advisability of
making the election.
BACKUP WITHHOLDING
Payments made on the Pass Through Certificates and proceeds from the sale
of the Pass Through Certificates to or through certain brokers may be subject to
a "backup" withholding tax of 31% unless the Certificateholder complies with
certain reporting procedures or is an exempt recipient under Section 6049(b)(4)
of the Code. Any such withheld amounts will be allowed as a credit against the
Certificateholder's federal income tax.
CERTAIN ILLINOIS TAXES
Mayer, Brown & Platt has advised GATC that, in its opinion, under existing
Illinois law as of the date hereof (i) the Trusts will not be classified as
associations taxable as corporations for purposes of franchise and income
taxation by the State of Illinois or any political subdivision thereof; (ii)
Certificateholders will be treated as the owners of undivided interests in the
assets of the Trusts for purposes of franchise and income taxation by the State
of Illinois and any political subdivision thereof; (iii) the Trusts will not be
subject to taxation or any other governmental fee or charge by the State of
Illinois or any political subdivision thereof; (iv) neither the Equipment Notes
nor the Pass Through Certificates will be subject to ad valorem taxation or any
other tax on intangible property by the State of Illinois or any political
subdivision thereof; (v) neither the delivery of the Equipment Notes to the
Trusts nor the acquisition, ownership or disposition of the interest of any
Certificateholder in any Pass Through Certificate will be subject to any sales,
use or transfer taxes imposed by the State of Illinois or any political
subdivision thereof; and (vi) a Certificateholder will not be subject to
taxation or any governmental fee or charge by the State of Illinois or any
political subdivision thereof, if a Certificateholder (a) is not a resident of
the State of Illinois, or otherwise subject to any tax, governmental charge or
fee imposed by the State of Illinois or any political subdivision thereof, (b)
does not otherwise have part of its receipt or income includible (either
directly or indirectly) in a tax return filed by a Certificateholder (or an
affiliate of the Certificateholder) in the State of Illinois, and (c) would not
be subject to taxation or any governmental fee or charge by the State of
Illinois if, instead of owning said Pass Through Certificates, the
Certificateholder owned its share of the assets of a Trust directly.
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Neither the Trusts nor the Certificateholders will be indemnified for any
state or local taxes imposed on them, and the imposition of any such taxes on a
Trust could result in a reduction in the amounts available for the distribution
to the Certificateholders of such Trust. In general, should a Certificateholder
or a Trust be subject to any state or local tax which would not be imposed if
the Pass Through Trustee were located in a different jurisdiction in the United
States, the Pass Through Trustee will resign and a new Trustee in such other
jurisdiction will be appointed.
PLAN OF DISTRIBUTION
The Company may sell the Pass Through Certificates being offered hereby:
(i) through agents, (ii) to or through underwriters, (iii) through dealers, (iv)
directly to purchasers or (v) through a combination of any such methods of sale.
The distribution of the Pass Through Certificates may be effected from time
to time in one or more transactions either (i) at a fixed price or prices, which
may be changed, or (ii) at market prices prevailing at the time of sale, or
(iii) at prices related to such prevailing market prices, or (iv) at negotiated
prices.
Offers to purchase the Pass Through Certificates may be solicited directly
by the Company or by agents designated by the Company from time to time. Any
such agent, which may be deemed to be an underwriter as that term is defined in
the Securities Act, involved in the offer or sale of the Pass Through
Certificates in respect of which this Prospectus is delivered will be named, and
any commissions payable by the Company to such agent will be set forth, in the
applicable Prospectus Supplement. Unless otherwise indicated in the Prospectus
Supplement, any such agent will be acting on a best efforts basis for the period
of its appointment.
If an underwriter or underwriters are utilized in the sale, the Company
will execute an underwriting agreement with such underwriters at the time of
sale to them and the names of the underwriters and the terms of the transaction,
including commissions, discounts and other compensation of the underwriters and
dealers, if any, will be set forth in the Prospectus Supplement, which will be
used by the underwriters to make resales of the Pass Through Certificates in
respect of which this Prospectus is delivered to the public.
If a dealer is utilized in the sale of the Pass Through Certificates in
respect of which this Prospectus is delivered, the Company or the Pass Through
Trustee, as the case may be, will sell such Pass Through Certificates to the
dealer, as principal. The dealer may then resell such Pass Through Certificates
to the public at varying prices to be determined by such dealer at the time of
resale.
Underwriters, dealers, agents and other persons may be entitled, under
agreements which may be entered into with the Company, to indemnification
against certain civil liabilities, including liabilities under the Securities
Act.
Underwriters, dealers and agents may be customers of, engage in
transactions with or perform services for the Company in the ordinary course of
business.
LEGAL OPINIONS
The validity of the Pass Through Certificates will be passed upon for GATC
by Mayer, Brown & Platt, Chicago, Illinois, and for any underwriters or agents,
by Winston & Strawn, Chicago, Illinois. Both Mayer, Brown & Platt and Winston &
Strawn will rely on the opinion of the Law Department of The First National Bank
of Chicago, as to basic matters relating to the authorization, execution and
delivery of the Pass Through Certificates under the Basic Agreement. From time
to time, Winston & Strawn has acted as special counsel to GATX Capital
Corporation, a wholly owned subsidiary of GATX.
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EXPERTS
The consolidated financial statements and related schedules of GATC
appearing in GATC's Annual Report (Form 10-K) for the year ended December 31,
1994, have been audited by Ernst & Young LLP, independent auditors, as set forth
in their report thereon included therein and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
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APPENDIX I
GLOSSARY OF CERTAIN TERMS
The following is a glossary of certain terms used in this Prospectus
relating to the Pass Through Certificates. The definitions of terms used in this
glossary that are also used in the Basic Agreement, Trust Supplements,
Indentures, Leases or Participation Agreements are qualified in their entirety
by reference to the definitions of such terms contained therein. Additional
terms or changes in the terms defined below may appear in the applicable
Prospectus Supplement.
"Basic Agreement" means the Pass Through Trust Agreement, dated as of
August 1, 1992, between GATC and the Pass Through Trustee.
"Business Day," when used with respect to the Pass Through Certificates of
any series, means any day other than a Saturday, a Sunday, or a day on which
commercial banking institutions in New York, New York, Chicago, Illinois or a
city and state in which the Pass Through Trustee or any related Indenture
Trustee maintains its Corporate Trust Office are authorized or obligated by law,
regulation or executive order to be closed.
"Certificate Account" means the one or more non-interest-bearing accounts
established and maintained by the Pass Through Trustee pursuant to the Basic
Agreement on behalf of the Certificateholders of each Trust for the deposit of
payments representing Scheduled Payments on the Equipment Notes held in such
Trust.
"Certificate Owner" means a person acquiring an interest in a Pass Through
Certificate registered in the name of Cede & Co. as the nominee of The
Depository Trust Company.
"Certificateholder" means the Person in whose name a Pass Through
Certificate is registered.
"Code" means the United States Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Equipment Group" means all the railcars (which may include various types
or categories of standard gauge rolling stock) in respect of which a particular
series of Equipment Notes is issued.
"Equipment Notes" means the Owned Equipment Notes and the Leased Equipment
Notes.
"Equipment Unit" or "Unit" means an individual railcar.
"Event of Default" means, with respect to the Equipment Notes held in any
Trust, the occurrence and continuance of an Indenture Event of Default under one
or more of the related Indentures.
"Indenture" means each of the separate trust indenture and security
agreements entered into from time to time between (a) GATC and an Indenture
Trustee with respect to the issuance of Owned Equipment Notes or (b) an Owner
Trustee and an Indenture Trustee with respect to the issuance of Leased
Equipment Notes, as each such agreement may be amended or supplemented in
accordance with its respective terms.
"Indenture Event of Default" means each of the events designated as an
event of default in an Indenture, as described in the applicable Prospectus
Supplement.
"Indenture Trustee," when used with respect to any Equipment Note or the
Indenture applicable thereto, means the bank or trust company designated as
indenture trustee under such Indenture, and any successor to such Indenture
Trustee as such trustee.
"Lease" means each of the lease agreements entered into with respect to
Leased Equipment between an Owner Trustee and GATC, as each such lease agreement
may from time to time be amended or supplemented.
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"Lease Event of Default" means each of the events designated as an event of
default in a Lease, as described in the applicable Prospectus Supplement.
"Leased Equipment" means each Equipment Group leased by an Owner Trustee to
GATC pursuant to a Lease.
"Leased Equipment Notes" means the equipment notes issued on a nonrecourse
basis by the Owner Trustees pursuant to the Indentures relating to Leased
Equipment.
"Owned Equipment" means each Equipment Group that is security for the
obligations of GATC under the Owned Equipment Notes.
Owned Equipment Notes" means the equipment notes issued, with recourse to
GATC, by GATC pursuant to the Indentures relating to Owned Equipment.
"Owner Participant" means each of the owner participants for whose benefit
an Owner Trustee owns an Equipment Group leased to GATC pursuant to a Lease and
its permitted successors and assigns.
"Owner Trustee," when used with respect to any Leased Equipment Note or the
Indenture applicable thereto or the Lease related thereto, means the "Owner
Trustee" referred to in the applicable Indenture, not in its individual capacity
but solely as trustee; and each other Person which may from time to time be
acting as Owner Trustee in accordance with the provisions of the applicable
Indenture, Lease or Participation Agreement.
"Participation Agreement" when used with respect to any Equipment Note,
means the note purchase, participation, refinancing or similar agreement or
agreements referred to in the related Indenture, providing for, among other
things, the purchase of Equipment Notes by the Pass Through Trustee.
"Pass Through Certificate" means each of the Pass Through Certificates to
be issued by each of the Trusts pursuant to the Basic Agreement and the related
Trust Supplement.
"Pass Through Trustee" means, unless otherwise specified in a Prospectus
Supplement, The First National Bank of Chicago, in its capacity as Pass Through
Trustee under each Trust, and each other person which may from time to time act
as successor Pass Through Trustee under such Trust.
"Pool Balance" means, for each Trust, as of any date, the aggregate unpaid
principal amount of the Equipment Notes held in such Trust on such date plus any
amounts in respect of principal on such Equipment Notes held by the Pass Through
Trustee and not yet distributed plus the amount of any moneys held in the
related escrow account (other than earnings thereon). The Pool Balance for each
Trust as of any Regular Distribution Date or Special Distribution Date shall be
computed after giving effect to the payment of principal, if any, on the
Equipment Notes held in such Trust and distribution thereof to be made on that
date.
"Pool Factor" means, for each Trust, as of any date, the quotient (rounded
to the seventh decimal place) computed by dividing (i) the Pool Balance of such
Trust by (ii) the aggregate original principal amount of the Equipment Notes
held in such Trust. The Pool Factor for each Trust as of any Regular
Distribution Date or Special Distribution Date shall be computed after giving
effect to the payment of principal, if any, on the Equipment Notes held in such
Trust and distribution thereof to be made on that date.
"Regular Distribution Date" means each date on which a Scheduled Payment
will be distributed, as specified in the applicable Prospectus Supplement.
"Scheduled Payment" means each payment of interest or principal on an
Equipment Note scheduled to be received by the Pass Through Trustee on the
Regular Distribution Dates specified in the applicable Prospectus Supplement.
"Special Distribution Date" means each date on which a Special Payment will
be distributed, as specified in the applicable Prospectus Supplement.
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"Special Payment" means (i) any payment of principal, premium, if any, and
interest resulting from the prepayment or purchase of an Equipment Note held in
a Trust, (ii) any payment of principal and interest (including any interest
accruing upon default) on or any other amount in respect of an Equipment Note
held in a Trust upon an Indenture Event of Default in respect of, or upon
acceleration relating to, such Equipment Note, (iii) any payment of principal,
premium, if any, and interest on an Equipment Note which is not in fact paid
within five days of a Regular Distribution Date, (iv) any proceeds from the sale
of any Equipment Note upon an Event of Default, or (v) the amounts available for
distribution from a Trust as a result of the failure to apply such amounts to
the purchase of Equipment Notes on or prior to the date specified in the
applicable Prospectus Supplement.
"Special Payments Account" means the one or more accounts established and
maintained by the Pass Through Trustee pursuant to the Basic Agreement on behalf
of the Certificateholders of each Trust for the deposit of payments representing
Special Payments on the Equipment Notes held in such Trust.
"Specified Investments" when used with respect to any Trust, means, unless
otherwise specified in the related Prospectus Supplement, (i) direct obligations
of the United States of America and agencies thereof for which the full faith
and credit of the United States of America is pledged, (ii) obligations fully
guaranteed by the United States of America, (iii) certificates of deposit issued
by, or bankers' acceptances of, or time deposits with, any bank, trust company
or national banking association incorporated or doing business under the laws of
the United States of America or one of the states thereof having combined
capital and surplus and retained earnings of at least $500,000,000 (including
any Indenture Trustee or Owner Trustee if such conditions are met) and (iv)
repurchase agreements with any financial institution having a combined capital
and surplus of at least $750,000,000 fully collateralized by obligations of the
type described in clauses (i) through (iii) above; provided that if all of the
above investments are unavailable, the entire amounts to be invested may be used
to purchase Federal funds from an entity described in clause (iii) above; and
provided further that no investment shall be eligible as a "Specified
Investment" unless the final maturity or date of return of such investment is 91
days or less from the date of purchase thereof.
"Trust" means each of the General American Transportation Corporation Pass
Through Trusts to be formed pursuant to the Basic Agreement and a Trust
Supplement.
"Trust Property" means the Equipment Notes held as the property of a Trust
and all funds from time to time deposited in the related Certificate Account,
the related Special Payments Account and any other account maintained as a part
of such Trust, including any proceeds from the sale by the Pass Through Trustee
of any such Equipment Note in connection with an Event of Default.
"Trust Supplement" means each of the Pass Through Trust Supplements between
GATC and the Pass Through Trustee, pursuant to each of which a Trust is formed
and a series of Pass Through Certificates is issued to evidence fractional
undivided ownership interests in the Trust Property held in such Trust.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED DECEMBER 1, 1995
PROSPECTUS
$650,000,000 [LOGO]
GENERAL AMERICAN TRANSPORTATION
CORPORATION
DEBT SECURITIES
General American Transportation Corporation, a New York corporation ("GATC" or
the "Company") may offer from time to time, in one or more series, up to
$650,000,000 aggregate principal amount (or the equivalent in foreign currencies
or currency units) of its debt securities ("Debt Securities"), on terms to be
determined at the time the Debt Securities are offered for sale. Unless
otherwise provided in a Prospectus Supplement, the Debt Securities of any series
may be represented by a single global certificate registered in the name of a
depository's nominee and, if so represented, beneficial interests in the global
certificate will be shown on, and transfers thereof will be effected only
through, records maintained by the depository and its participants. Debt
Securities may be offered for sale directly to purchasers and may also be
offered through underwriters, dealers or agents. The names of any underwriters
or agents and any compensation to such underwriters or agents will be set forth
in the Prospectus Supplement.
The terms of the Debt Securities, including, where applicable, the specific
designation, aggregate principal amount, authorized denominations, currencies in
which such Debt Securities are issued or payable, maturity, rate (or manner of
calculation thereof) and time of payment of interest, if any, whether the Debt
Securities are issuable in registered form or bearer form or both, whether any
series of the Debt Securities will be represented by a single global
certificate, any terms for redemption or for sinking fund payments, whether the
Debt Securities are convertible into Debt Securities of a different series, the
initial public offering price, the net proceeds to the Company from the sale of
the Debt Securities and any other specific terms in connection with the offering
and sale of the Debt Securities in respect of which this Prospectus is being
delivered will be set forth in a Prospectus Supplement.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is December , 1995
<PAGE> 31
AVAILABLE INFORMATION
General American Transportation Corporation, a New York corporation ("GATC"
or the "Company") is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports and other information filed by GATC
with the Commission can be inspected and copied at the Public Reference Section
of the Commission, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the public reference facilities of the
Commission's Regional Offices at 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661, and Seven World Trade Center, New York, New York 10048. Copies
of such material can be obtained from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. GATC has filed with the Commission a registration statement on Form S-3
(herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all of the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information, reference is hereby made to the Registration Statement.
DOCUMENTS INCORPORATED BY REFERENCE
GATC's Annual Report on Form 10-K for the year ended December 31, 1994, its
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1995, June 30,
1995 and September 30, 1995, respectively, and its Current Report on Form 8-K
dated July 19, 1995 heretofore filed with the Commission pursuant to the
Exchange Act, are hereby incorporated by reference.
All documents filed by GATC pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the securities offered hereby shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified and superseded, to constitute a part of
this Prospectus.
GATC will provide without charge to each person, including any beneficial
owner, to whom this Prospectus is delivered, upon the written or oral request of
such person, a copy of any or all of the foregoing documents incorporated herein
by reference (other than exhibits unless specifically incorporated therein).
Requests for such documents should be directed to General American
Transportation Corporation, 500 West Monroe Street, Chicago, Illinois
60661-3676, Attention: Secretary (telephone 312-621-6200).
USE OF PROCEEDS
The net proceeds to be received by the Company from the sale of Debt
Securities will be added to the general funds of the Company and may be used to
repay the Company's outstanding short-term borrowings and long-term debt. The
proceeds may also be used to finance capital expenditures, to finance
acquisitions, or to make advances to GATX Corporation ("GATX"), of which the
Company is a wholly owned subsidiary. In addition, the proceeds may be used for
other corporate purposes or as may be described in the Prospectus Supplement.
The Company has not allocated a specific portion of the proceeds for any
particular use at this time. Pending such use, the net proceeds may be
temporarily invested in short-term securities.
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THE COMPANY
GATC is a wholly owned subsidiary of GATX Corporation and is principally
engaged in railcar leasing and management. GATX Terminals Corporation
("Terminals"), a wholly owned subsidiary of the Company, is engaged in the
operation of public bulk liquid terminals and domestic pipeline systems. The
Company is the largest lessor of railroad tank cars in the United States, and
Terminals is one of the largest independent operators of public bulk liquid
terminals in the world. The principal offices of the Company are located at 500
West Monroe Street, Chicago, Illinois 60661-3676 (telephone: (312) 621-6200).
The Company leases specialized railcars, primarily tank cars and to a
lesser extent Airslide(R) covered hoppers and plastic pellet cars, under full
service leases. The Company's railcars have a useful life of approximately 30 to
33 years. The average age of the railcars in the Company's fleet is
approximately 15 years. The Company's customers typically lease new equipment
for a term of five years or longer, whereas renewals or leases of used cars are
typically for periods ranging from less than a year to seven years with an
average lease term of about three years. Under its full service leases, the
Company maintains and services its railcars, pays ad valorem taxes and provides
many ancillary services.
Terminals is engaged in the storage, handling and intermodal transfer of
petroleum and chemical commodities at key points in the bulk liquid distribution
chain. Terminals owns and operates terminals in the United States and the United
Kingdom; Terminals also has joint venture interests in facilities in Europe and
the Pacific Rim. All of its terminals are located near major distribution and
transportation points and most are capable of receiving and shipping bulk
liquids by ship, rail, barge and truck. Many of the terminals are also linked
with major interstate pipelines. In addition to storing, handling and
transferring bulk liquids, Terminals also provides blending and testing services
at most of its facilities.
RELATIONSHIP WITH GATX
All of the Company's outstanding common stock is owned by GATX. GATX is
also the parent of American Steamship Company, a shipping company which operates
self-unloading vessels on the Great Lakes, GATX Logistics, Inc., which provides
distribution and logistics support services, warehousing facilities, and related
real estate services throughout North America, and GATX Financial Services,
which through its principal subsidiary, GATX Capital Corporation as well as its
subsidiaries and joint ventures, arranges and services the financing of
equipment and other capital assets on a worldwide basis.
GATX will not guarantee the Debt Securities and does not guarantee any
other indebtedness of the Company. The Company, in the normal course of
business, pays dividends to GATX to provide for GATX's normal operating
expenses. Additional amounts have been advanced to GATX from time to time for
general corporate purposes, the redemption of GATX preferred stock and the
retirement of debt. In addition, GATX may make advances to subsidiaries of the
Company in the normal course of business. These advances have no fixed maturity
date.
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<PAGE> 33
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms and provisions of the series of Debt Securities offered by a
Prospectus Supplement, including any additional covenants or changes to existing
covenants relating to such series, and the extent to which such general terms
and provisions described below may apply thereto, will be described in the
Prospectus Supplement relating to such series of Debt Securities.
The Debt Securities are to be issued under an Indenture, dated as of
October 1, 1987, as supplemented (the "Debt Indenture"), between the Company and
The Chase Manhattan Bank (National Association), as Trustee (the "Debt
Trustee"). The following summaries of certain provisions of the Debt Securities
and the Debt Indenture do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all provisions of the Debt
Securities and the Debt Indenture, including the definitions therein of certain
terms. Particular sections of the Debt Indenture which are relevant to the
discussion are cited parenthetically. Wherever particular sections or defined
terms of the Debt Indenture are referred to, it is intended that such sections
or defined terms shall be incorporated herein by reference. Capitalized terms
not otherwise defined herein shall have the meaning ascribed to such terms in
the Debt Indenture.
GENERAL
The Debt Indenture does not limit the amount of Debt Securities which can
be issued thereunder or the amount of debt which may otherwise be incurred by
the Company, and additional debt securities may be issued under the Debt
Indenture up to the aggregate principal amount which may be authorized from time
to time by, or pursuant to a resolution of, the Company's Board of Directors or
by a supplemental indenture. Reference is made to the Prospectus Supplement for
the following terms, if applicable, of the particular series of Debt Securities
being offered thereby: (i) the title of the Debt Securities of the series; (ii)
any limit upon the aggregate principal amount of the Debt Securities of the
series; (iii) the date or dates on which the principal of the Debt Securities of
the series will be payable; (iv) the rate or rates (or manner of calculation
thereof), if any, at which the Debt Securities of the series will bear interest,
the date or dates from which any such interest will accrue and on which such
interest will be payable, and, with respect to Debt Securities of the series in
registered form, the record date for the interest payable on any interest
payment date; (v) the place or places where the principal of and interest, if
any, on the Debt Securities of the series will be payable; (vi) any redemption
or sinking fund provisions; (vii) the denominations in which Debt Securities of
the series shall be issuable; (viii) if other than the principal amount thereof,
the portion of the principal amount of Debt Securities of the series which will
be payable upon declaration of acceleration of the maturity thereof; (ix)
whether the Debt Securities of the series will be issuable in registered or
bearer form or both, any restrictions applicable to the offer, sale or delivery
of Debt Securities in bearer form ("bearer Debt Securities") and whether and the
terms upon which bearer Debt Securities will be exchangeable for Debt Securities
in registered form ("registered Debt Securities") and vice versa; (x) any
provisions relating to the conversion of Debt Securities of the series into Debt
Securities of a different series; (xi) whether and under what circumstances the
Company will pay additional amounts on the Debt Securities of the series held by
a person who is not a U.S. person (as defined below) in respect of taxes or
similar charges withheld or deducted and, if so, whether the Company will have
the option to redeem such Debt Securities rather than pay such additional
amounts; (xii) the currencies in which payments of interest, premium or
principal are payable with respect to such Debt Securities; (xiii) whether the
Debt Securities of any series will be issued as one or more Global Securities;
(xiv) whether Debt Securities of the series will be issuable in Tranches; and
(xv) any additional provisions or other terms not inconsistent with the
provisions of the Debt Indenture, including any terms which may be required by
or advisable under United States laws or regulations or advisable in connection
with the marketing of Debt Securities of such series. (Section 2.01 and 2.02) To
the extent not described herein, principal and interest, if any, will be
payable, and the Debt Securities of a particular
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<PAGE> 34
series will be transferable, in the manner described in the Prospectus
Supplement relating to such series. "Principal" when used herein includes, when
appropriate, the premium, if any, on the Debt Securities.
Each series of Debt Securities will constitute unsecured and unsubordinated
indebtedness of the Company and will rank on a parity with the Company's other
unsecured and unsubordinated indebtedness. There are no covenants or "event
risk" provisions contained in the Debt Indenture that may afford holders of Debt
Securities protection in the event of a highly leveraged transaction involving
the Company.
Debt Securities of any series may be issued as registered Debt Securities
or bearer Debt Securities or both as specified in the terms of the series.
Additionally, Debt Securities of any series may be represented by a single
global note registered in the name of a depository's nominee and, if so
represented, beneficial interests in such global note will be shown on, and
transfers thereof will be effected only through, records maintained by a
designated depository and its participants. Unless otherwise indicated in the
Prospectus Supplement, Debt Securities will be issued in the denomination of
$1,000 and integral multiples thereof and bearer Debt Securities will not be
offered, sold, resold or delivered to U.S. persons in connection with their
original issuance. Debt Securities of any series may be denominated in and
payments of principal and interest may be made in United States dollars or any
other currency, including composite currencies such as the European Currency
Unit. For purposes of this Prospectus, "U.S. person" means a citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof, or any estate or trust the income of which is subject to United States
federal income taxation regardless of its source.
To the extent set forth in the Prospectus Supplement, except in special
circumstances set forth in the Debt Indenture, interest on bearer Debt
Securities will be payable only against presentation and surrender of the
coupons for the interest installments evidenced thereby as they mature at a
paying agency of the Company located outside of the United States and its
possessions. (Section 2.05(c)) The Company will maintain such an agency for a
period of two years after the principal of such bearer Debt Securities has
become due and payable. During any period thereafter for which it is necessary
in order to conform to United States tax laws or regulations, the Company will
maintain a paying agent outside of the United States and its possessions to
which the bearer Debt Securities and coupons related thereto may be presented
for payment and will provide the necessary funds therefor to such paying agent
upon reasonable notice. (Section 2.04)
Bearer Debt Securities and the coupons related thereto will be transferable
by delivery. (Section 2.08(f))
If appropriate, United States federal income tax consequences applicable to
a series of Debt Securities will be described in the Prospectus Supplement
relating thereto.
BOOK-ENTRY REGISTRATION
If the Prospectus Supplement so indicates, the Debt Securities will be
represented by one or more certificates (the "Global Securities"). The Global
Securities representing Debt Securities will be deposited with, or on behalf of,
The Depository Trust Company ("DTC") or other successor depository appointed by
the Company (DTC or such other depository is herein referred to as the
"Depository") and registered in the name of the Depository or its nominee. Debt
Securities represented by a Global Security will not be issuable in definitive
form.
DTC currently limits the maximum denomination of any single Global Security
to $200,000,000. Therefore, for purposes hereof, "Global Security" refers to the
Global Security or Global Securities representing the entire issue of Debt
Securities of a particular series.
DTC has advised the Company and any underwriters, dealers or agents named
in the Prospectus Supplement as follows: DTC is a limited-purpose trust company
organized under the laws of the State of New York, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the
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<PAGE> 35
New York Uniform Commercial Code and a "clearing agency" registered pursuant to
the provisions of Section 17A of the Securities Exchange Act of 1934. DTC was
created to hold securities of its participants and to facilitate the clearance
and settlement of securities transactions among its participants in such
securities through electronic book-entry changes in accounts of the
participants, thereby eliminating the need for physical movement of securities
certificates. DTC's participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations, some of
which (and/or their representatives) own DTC. Access to DTC's book-entry system
is also available to others, such as banks, brokers, dealers and trust
companies, that clear through or maintain a custodial relationship with a
participant, either directly or indirectly.
Upon the issuance by the Company of Debt Securities represented by a Global
Security, DTC will credit, on its book-entry registration and transfer system,
the respective principal amounts of the Debt Securities represented by such
Global Security to the accounts of participants. The accounts to be credited
shall be designated by the underwriters, dealers or agents. Ownership of
beneficial interests in the Global Security will be limited to participants or
persons that hold interests through participants. Ownership of beneficial
interests in Debt Securities represented by the Global Security will be shown
on, and the transfer of that ownership will be effected only through, records
maintained by DTC (with respect to interests of participants in DTC), or by
participants in DTC or persons that may hold interests through such participants
(with respect to persons other than participants in DTC). The laws of some
states require that certain purchasers of securities take physical delivery of
such securities in definitive form. Such limits and such laws may impair the
ability to transfer beneficial interests in the Global Security.
So long as the Depository for the Global Security, or its nominee, is the
registered owner of the Global Security, the Depository or its nominee, as the
case may be, will be considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the Debt Indenture.
Except as provided below, owners of beneficial interests in Debt Securities
represented by the Global Security will not be entitled to have Debt Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Debt Securities in definitive
form and will not be considered the owners or holders thereof under the Debt
Indenture.
Payments of principal of and interest, if any, on the Debt Securities
represented by the Global Security registered in the name of DTC or its nominee
will be made by the Company through the Debt Trustee under the Debt Indenture or
a paying agent (the "Paying Agent"), which may also be the Debt Trustee under
the Debt Indenture, to DTC or its nominee, as the case may be, as the registered
owner of the Global Security. Neither the Company, the Debt Trustee, nor the
Paying Agent will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of the Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company has been advised that DTC, upon receipt of any payment of
principal or interest in respect of a Global Security, will credit immediately
the accounts of the related participants with payment in amounts proportionate
to their respective holdings in principal amount of beneficial interest in such
Global Security as shown on the records of DTC. The Company expects that
payments by participants to owners of beneficial interests in a Global Security
will be governed by standing customer instructions and customary practices, as
is now the case with securities held for the accounts of customers in bearer
form or registered in "street name" and will be the responsibility of such
participants.
If the Depository with respect to a Global Security is at any time
unwilling or unable to continue as Depository and a successor Depository is not
appointed by the Company within 90 days, the Company will issue certificated
notes in exchange for the Debt Securities represented by such Global Security.
The information contained in this section concerning DTC and DTC's
book-entry system has been obtained from sources that the Company believes to be
reliable, but the Company takes no responsibility for the accuracy thereof.
6
<PAGE> 36
SAME-DAY SETTLEMENT
If the Prospectus Supplement so indicates, settlement for the Debt
Securities will be made by the underwriters, dealers or agents in immediately
available funds and all payments of principal and interest on the Debt
Securities will be made by the Company in immediately available funds. Secondary
trading in long-term notes and debentures of corporate issuers is generally
settled in clearinghouse or next-day funds. In contrast, the Debt Securities
subject to settlement in immediately available funds will trade in the
Depository's Same-Day Funds Settlement System until maturity, and secondary
market trading activity in such Debt Securities will therefore be required by
the Depository to settle in immediately available funds. No assurance can be
given as to the effect, if any, of settlement in immediately available funds on
trading activity in the Debt Securities.
EXCHANGE OF DEBT SECURITIES
Registered Debt Securities may be exchanged, subject to certain specified
restrictions, for an equal aggregate principal amount of registered Debt
Securities of the same series and date of maturity in such authorized
denominations as may be requested upon surrender of the registered Debt
Securities at an agency of the Company maintained for such purpose and upon
fulfillment of all other requirements of such agent. (Section 2.08(a))
To the extent permitted by the terms of a series of Debt Securities
authorized to be issued in registered form and bearer form, bearer Debt
Securities may be exchanged for an equal aggregate principal amount of
registered or bearer Debt Securities of the same series and date of maturity in
such authorized denominations as may be requested upon surrender of the bearer
Debt Securities with all unpaid coupons relating thereto at an agency of the
Company maintained for such purpose and upon fulfillment of all other
requirements of such agent. (Section 2.08(b)) As of the date of this Prospectus,
temporary United States Treasury regulations essentially prohibit exchanges of
registered Debt Securities for bearer Debt Securities and, unless such
regulations are modified, the terms of a series of Debt Securities will not
permit registered Debt Securities to be exchanged for bearer Debt Securities.
CERTAIN COVENANTS OF THE COMPANY
The Company may not declare or pay any dividend or make any distribution in
cash or property on its Capital Stock or to any stockholder (other than
dividends or distributions payable in Capital Stock of the Company), or
purchase, redeem or otherwise acquire or retire for value any Capital Stock or
warrants or rights to acquire Capital Stock of the Company or permit any
Subsidiary to purchase, redeem or otherwise acquire or retire for value any such
Capital Stock or warrants or rights to acquire Capital Stock, if, upon giving
effect to such dividend, distribution, purchase, redemption or other acquisition
or retirement, the aggregate amount expended for all such purposes subsequent to
December 31, 1989 shall exceed the sum of (a) the aggregate Consolidated Net
Income accrued during the period (taken as a cumulative whole) subsequent to
December 31, 1989, (b) the aggregate of the net proceeds received by the Company
from the issue or sale of, or conversion of indebtedness into, its Capital Stock
or warrants or rights to acquire Capital Stock subsequent to December 31, 1989,
other than to a Subsidiary, said net proceeds being deemed for this purpose to
equal the aggregate of (x) the cash, if any, received by the Company for such
issue or sale, plus (y) the fair value of consideration other than cash (as
determined by the Board of Directors, whose determination shall be conclusive
and evidenced by a Board Resolution filed with the Debt Trustee) received by the
Company from such issue, sale or conversion, and (c) $75 million. (Section 4.07)
The Company may not (or permit any Subsidiary to) make any loan or advance
to or any other investment in, extend any credit so as to result in any amount
being deemed receivable from, or make any payments with respect to any guaranty
of any indebtedness of, any Related Parties (including GATX and its other
Subsidiaries) if, after giving effect thereto, the sum of all such loans,
advances, investments, receivables and payments, less the sum of any loans and
advances from, and accounts
7
<PAGE> 37
payable to, any Related Parties, would exceed 75% of the Consolidated Tangible
Net Worth of the Company.
"Consolidated Net Income" means, for any period, the consolidated net
income of the Company and its subsidiaries for such period determined in
accordance with generally accepted accounting principles in the United States on
the date of such computation.
"Consolidated Tangible Net Worth" means the consolidated shareholder's
equity of the Company and its subsidiaries, as reflected on the consolidated
balance sheet of the Company prepared in accordance with generally accepted
accounting principles in the United States at the conclusion of the immediately
preceding fiscal quarter for which such determination is made, less the amount
of intangible assets (including, without limitation, franchises, patents and
patent applications, trademarks and brand names, goodwill, research and
development expenses, and all write-ups in the book value of any asset
(excluding write-ups of assets resulting from the application of principles of
purchase accounting with respect to acquisitions made by the Company)).
"Investment" means all loans, advances, purchases of Capital Stock, capital
contributions and transfers of assets, and all sales and other dispositions of
assets for consideration consisting of evidences of indebtedness, Capital Stock
or other securities of the purchaser.
AMENDMENT AND WAIVER
Subject to certain exceptions, the Debt Indenture and the Debt Securities
may be amended or supplemented by the Company and the Debt Trustee with the
written consent of the holders of a majority in principal amount of the
outstanding Debt Securities of each series affected by the amendment or
supplement (with each series voting as a class), or compliance with any
provision may be waived with the consent of the holders of a majority in
principal amount of the outstanding Debt Securities of each series affected by
such waiver (with each series voting as a class). However, without the consent
of each Securityholder affected, an amendment or waiver may not (i) reduce the
amount of Debt Securities whose holders must consent to an amendment or waiver;
(ii) change the rate of or change the time for payment of interest on any Debt
Security; (iii) change the principal of or change the Stated Maturity of any
Debt Security; (iv) reduce any premium payable upon redemption of any Debt
Security; (v) waive a default in the payment of the principal of or interest on
any Debt Security; (vi) make any Debt Security payable in money other than that
stated in the Debt Security; or (vii) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security. (Section
9.02) The Debt Indenture may be amended or supplemented without the consent of
any Securityholder (i) to cure any ambiguity, defect or inconsistency in the
Debt Indenture or in the Debt Securities of any series; (ii) to provide for the
assumption of all the obligations of the Company under the Debt Securities and
any coupons appertaining thereto and under the Debt Indenture by any corporation
in connection with a merger, consolidation, or transfer or lease of the
Company's property and assets substantially as an entirety, as provided for in
the Debt Indenture; (iii) to secure the Debt Securities; (iv) to provide for
uncertificated Debt Securities in addition to or in place of certificated Debt
Securities; (v) to make any change that does not adversely affect the rights of
any Securityholder; (vi) to provide for the issuance of and establish the form
and terms and conditions of a series of Debt Securities or to establish the form
of any certifications required to be furnished pursuant to the terms of the Debt
Indenture or any series of Debt Securities; or (vii) to add to rights of
Securityholders. (Section 9.01)
SUCCESSOR ENTITY
The Company may consolidate with, or merge into, or be merged into, or
transfer or lease its property and assets substantially as an entirety to,
another U.S. corporation which assumes all the obligations of the Company under
the Debt Securities and any coupons appertaining thereto and under the Debt
Indenture if, after giving effect thereto, no default under the Debt Indenture
shall have occurred and be continuing. Thereafter, except in the case of a
lease, all such obligations of the Company shall terminate. (Section 5.01 and
Section 5.02)
8
<PAGE> 38
DEFEASANCE, SATISFACTION AND DISCHARGE OF THE DEBT SECURITIES PRIOR TO MATURITY
Defeasance. Unless provided for otherwise in the Prospectus Supplement, if
the Company shall deposit with the Debt Trustee, in trust, at or before
maturity, lawful money or direct obligations of the United States of America or
obligations the principal of and interest on which are guaranteed by the United
States of America in such amounts and maturing at such times that the proceeds
of such obligations to be received upon the respective maturities and interest
payment dates of such obligations will provide funds sufficient, in the opinion
of a nationally recognized firm of independent public accountants chosen by the
Company, to pay when due the principal of and interest on the Debt Securities to
maturity (such money or direct obligations of, or obligations guaranteed by, the
United States of America, initially deposited or equivalent cash or securities
subsequently exchanged therefor, to be held as security for the payment of such
principal and interest), then the Company may omit to comply with certain of the
terms of the Debt Indenture as they relate to the Debt Securities, including
certain of the restrictive covenants described herein under the caption
"Description of Debt Securities -- Certain Covenants of the Company" and the
Event of Default described in clause (iv) under the caption "Description of Debt
Securities -- Events of Default," and such other restrictive covenants or Events
of Default as may be set forth in the Prospectus Supplement. Defeasance of the
Debt Securities would be subject to the satisfaction of certain conditions,
including, among others, (i) the absence of an Event of Default at the date of
the deposit, (ii) the perfection of the holders' interest in such deposit and
(iii) that such deposit would not result in a breach of a material instrument by
which the Company is bound. (Section 8.02)
Satisfaction and Discharge. Upon the deposit of money or securities
contemplated above and the satisfaction of certain conditions, the Company may
omit to comply with its obligations duly and punctually to pay the principal of
and interest on the Debt Securities, or with any Events of Default with respect
thereto, and thereafter the holders of Debt Securities shall be entitled only to
payment out of the money or securities deposited with the Debt Trustee. Such
conditions may include, among others, (i) except in certain limited
circumstances involving a deposit made within one year of maturity, (A) the
absence of an Event of Default at the date of deposit or on the 91st day
thereafter, and (B) the delivery to the Debt Trustee by the Company of an
opinion of nationally recognized tax counsel to the effect that holders of Debt
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and discharge and will be subject to
Federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such deposit and discharge had not
occurred, and (ii) the receipt by the Company of an opinion of counsel to the
effect that such satisfaction and discharge will not result in a violation of
the rules of any nationally recognized exchange on which the Debt Securities are
listed. (Section 8.01)
EVENTS OF DEFAULT
The following events are defined in the Debt Indenture as "Events of
Default" with respect to a series of Debt Securities: (i) default in the payment
of interest on any Debt Security of such series for 30 days; (ii) default in the
payment of the principal of any Debt Security of such series; (iii) default in
the payment of any sinking fund installment required to be made by the Company
with respect to any series of Debt Securities; (iv) failure by the Company for
90 days after notice to it to comply with any of its other agreements in the
Debt Securities of such series, in the Debt Indenture or in any supplemental
indenture under which the Debt Securities of that series may have been issued;
and (v) certain events of bankruptcy or insolvency. (Section 6.01) If an Event
of Default occurs with respect to the Debt Securities of any series and is
continuing, the Debt Trustee or the holders of at least 25% in principal amount
of all of the outstanding Debt Securities of that series may declare the
principal (or, if the Debt Securities of that series are original issue discount
Debt Securities, such portion of the principal amount as may be specified in the
terms of that series) of, and any accrued interest on, all the Debt Securities
of that series to be due and payable. Upon such declaration, such principal (or,
in the case of original issue discount Debt Securities, such specified amount)
and all accrued interest thereon shall be due and payable immediately. (Section
6.02)
9
<PAGE> 39
Securityholders may not enforce the Debt Indenture or the Debt Securities,
except as provided in the Debt Indenture. (Section 6.06) The Debt Trustee may
require indemnity satisfactory to it before it enforces the Debt Indenture or
the Debt Securities. (Section 7.01(f)) Subject to certain limitations, holders
of a majority in principal amount of the Debt Securities of each series affected
(with each series voting as a class) may direct the Debt Trustee in its exercise
of any trust power. (Section 6.05) The Debt Trustee may withhold from
Securityholders notice of any continuing default (except a default in payment of
principal or interest) if it determines in good faith that withholding notice is
in their interests. (Section 7.05) The Company is not required under the Debt
Indenture to furnish any periodic evidence as to the absence of default or as to
compliance with the terms of the Debt Indenture.
CONCERNING THE DEBT TRUSTEE
The Company maintains banking relationships in the ordinary course of
business with the Debt Trustee.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities being offered hereby: (i) directly
to purchasers, (ii) through agents, (iii) to or through underwriters, (iv)
through dealers or (v) through a combination of any such methods of sale.
The distribution of the Debt Securities may be effected from time to time
in one or more transactions either (i) at a fixed price or prices, which may be
changed, or (ii) at market prices prevailing at the time of sale, or (iii) at
prices related to such prevailing market prices, or (iv) at negotiated prices.
Offers to purchase Debt Securities may be solicited directly by the Company
or by agents designated by the Company from time to time. Any such agent, which
may be deemed to be an underwriter as that term is defined in the Securities
Act, involved in the offer or sale of the Debt Securities in respect of which
this Prospectus is delivered will be named, and any commissions payable by the
Company to such agent will be set forth, in the Prospectus Supplement. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be acting
on a best efforts basis for the period of its appointment.
If an underwriter or underwriters are utilized in the sale, the Company
will execute an underwriting agreement with such underwriters at the time of
sale to them and the names of the underwriters and the terms of the transaction,
including commissions, discounts and other compensation of the underwriters and
dealers, if any, will be set forth in the Prospectus Supplement, which will be
used by the underwriters to make resales of the Debt Securities in respect of
which this Prospectus is delivered to the public.
If a dealer is utilized in the sale of the Debt Securities in respect of
which this Prospectus is delivered, the Company will sell such Debt Securities
to the dealer, as principal. The dealer may then resell such Debt Securities to
the public at varying prices to be determined by such dealer at the time of
resale.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase Debt Securities from the Company at the public offering
price set forth in the Prospectus Supplement pursuant to contracts providing for
payment and delivery on a specified date in the future. Such contracts will be
subject only to those conditions set forth in the Prospectus Supplement, and the
Prospectus Supplement will set forth the commission payable for solicitation of
such contracts.
Underwriters, dealers, agents and other persons may be entitled, under
agreements which may be entered into with the Company, to indemnification
against certain civil liabilities, including liabilities under the Securities
Act.
Underwriters, dealers and agents may be customers of, engage in
transactions with or perform services for the Company in the ordinary course of
business.
10
<PAGE> 40
LEGAL OPINIONS
Unless otherwise indicated in the Prospectus Supplement to this Prospectus,
certain legal matters in connection with the Debt Securities offered hereby will
be passed upon for the Company by Mayer, Brown & Platt, Chicago, Illinois, and
for any underwriters or agents, by Winston & Strawn, Chicago, Illinois. From
time to time, Winston & Strawn has acted as special counsel to GATX Capital
Corporation, a wholly owned subsidiary of GATX.
EXPERTS
The consolidated financial statements and related schedules of GATC
appearing in GATC's Annual Report (Form 10-K) for the year ended December 31,
1994, have been audited by Ernst & Young LLP, independent auditors, as set forth
in their report thereon included therein and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
11
<PAGE> 41
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
An itemized statement of the amount of all expenses, other than
underwriting discounts and commissions, incurred by the Company in connection
with the issuance and distribution of the Securities follows:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee....................... $ 199,212*
Trustees' Fees and Expenses............................................... 30,000
Printing Expenses......................................................... 75,000
Rating Agency Fees........................................................ 165,000
Accounting Fees and Expenses.............................................. 60,000
Legal Fees and Expenses................................................... 150,000
Blue Sky Fees and Expenses................................................ 30,000
Miscellaneous Expenses.................................................... 40,788
---------
Total.............................................................. $ 750,000
=========
</TABLE>
- ---------------
* Actual. All other amounts are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Certain provisions of the New York Business Corporation Law and Article II,
Section 11 of the Company's by-laws provide for the prompt indemnification of
directors and officers under certain conditions, including the possibility of
indemnification against liabilities under the Securities Act of 1933. The
by-laws also provide that the Company has the burden of proving that a director
is not entitled to indemnification in a particular instance.
In addition, the Company's directors and officers are insured under
directors and officers liability insurance policies maintained by GATX.
Reference is made to Section 8 of each of the forms of Underwriting
Agreement filed as Exhibits 1.1 and 1.2 hereto for provisions regarding
indemnification of the Company and its officers, directors and controlling
persons against certain liabilities.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
-------- -------------------------------------------------------------------------
<C> <S>
1.1 -- Proposed form of Underwriting Agreement relating to the Pass Through
Certificates.
1.2 -- Proposed form of Underwriting Agreement relating to the Debt
Securities.
4.1 -- Indenture relating to the Debt Securities, dated as of October 1,
1987, between the Company and The Chase Manhattan Bank (National Associa-
tion) (the "Debt Trustee"), as supplemented by the Supplemental
Indentures dated May 15, 1988, March 15, 1990 and June 15, 1990,
respectively. Incorporated by reference to the Company's Registration
Statement on Form S-3 (SEC No. 33-17692) filed October 8, 1987, as
supplemented by First Supplemental Indenture, dated as of May 15,
1988, incorporated by reference to the Company's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1988, Second Supplemental
Indenture, dated as of March 15, 1990, incorporated by reference to
the Company's Current Report on Form 8-K dated March 15, 1990, and
Third Supplemental Indenture, dated as of June 15, 1990, incorporated
by reference to the Company's Current Report on Form 8-K dated June
29, 1990.
</TABLE>
II-1
<PAGE> 42
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
-------- -------------------------------------------------------------------------
<C> <S>
4.2 -- Form of Fourth Supplemental Indenture.
4.3 -- Pass Through Trust Agreement, dated as of August 1, 1992, between the
Pass Through Trustee and the registrant relating to the Pass Through
Certificates. Incorporated by reference to the Company's Registration
Statement on Form S-3 (SEC No. 33-52301) filed February 16, 1994.
4.4 -- Proposed form of Pass Through Certificates (included in Exhibit 4.3).
5.1 -- Opinion of Mayer, Brown & Platt as to the legality of the Securities.
5.2 -- Opinion of counsel for the Pass Through Trustee as to the legality of
the Securities.
8.1 -- Tax Opinion of Mayer, Brown & Platt.
12.1 -- Statement of Computation of Ratio of Earnings to Fixed Charges.
Incorporated by reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1994 and the Company's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1995.
23.1 -- Consent of Ernst & Young LLP.
23.2 -- Consent of Mayer, Brown & Platt (included in Exhibits 5.1 and 8.1
above).
23.3 -- Consent of counsel to the Pass Through Trustee (included in Exhibit
5.2 above).
24.1 -- Power of Attorney (appears on the signature page of this Registration
Statement).
25.1 -- Form T-1, Statement of Eligibility of the Debt Trustee.
25.2 -- Form T-1, Statement of Eligibility of the Pass Through Trustee.
</TABLE>
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, indivi-dually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement. Provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the
II-2
<PAGE> 43
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-3
<PAGE> 44
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois on November 30, 1995.
GENERAL AMERICAN
TRANSPORTATION CORPORATION
By: /s/ D. Ward Fuller
-----------------------------------
D. Ward Fuller
President, Chief Executive Officer
and Director
Each of the undersigned hereby constitutes and appoints David B. Anderson
and Ronald J. Ciancio, and each of them (with full power to each of them to act
alone), his true and lawful attorney-in-fact and agent, for him and in his
behalf and his name, place and stead, in any and all capacities, to sign,
execute and file any amendment or amendments to this registration statement,
with all exhibits and any and all documents and supplementary information
required to be filed with respect thereto, granting unto said attorneys, and
each of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in order to effectuate the same as
fully to all intents and purposes as he himself might or could do if personally
present, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on November 30, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------ ------------------------------------------
<C> <S>
/s/ D. Ward Fuller President, Chief Executive Officer and
- ------------------------------------------------ Director
D. Ward Fuller
/s/ Donald J. Schaffer Vice President, Chief Financial Officer
- ------------------------------------------------ and Controller (Principal Financial
Donald J. Schaffer Officer and Principal Accounting Officer)
/s/ James J. Glasser Director
- ------------------------------------------------
James J. Glasser
/s/ Ronald H. Zech Director
- ------------------------------------------------
Ronald H. Zech
/s/ David M. Edwards Director
- ------------------------------------------------
David M. Edwards
/s/ David B. Anderson Director
- ------------------------------------------------
David B. Anderson
</TABLE>
II-4
<PAGE> 45
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
- ------ ------------------------------------------------------------------------ ------------
<C> <S> <C>
1.1 Proposed form of Underwriting Agreement relating to the Pass Through
Certificates. ..........................................................
1.2 Proposed form of Underwriting Agreement relating to the Debt
Securities..............................................................
4.1 Indenture relating to the Debt Securities, dated as of October 1, 1987,
between the Company and The Chase Manhattan Bank (National Association)
(the "Debt Trustee"), as supplemented by the Supplemental Indentures
dated May 15, 1988, March 15, 1990 and June 15, 1990, respectively.
Incorporated by reference to the Company's Registration Statement on
Form S-3 (SEC No. 33-17692) filed October 8, 1987, as supplemented by
First Supplemental Indenture, dated as of May 15, 1988, incorporated by
reference to the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1988, Second Supplemental Indenture, dated as of March
15, 1990, incorporated by reference to the Company's Current Report on
Form 8-K dated March 15, 1990, and Third Supplemental Indenture, dated
as of June 15, 1990, incorporated by reference to the Company's Current
Report on Form 8-K dated June 29, 1990. ................................
4.2 Form of Fourth Supplemental Indenture. .................................
4.3 Pass Through Trust Agreement, dated as of August 1, 1992, between the
Pass Through Trustee and the registrant relating to the Pass Through
Certificates. Incorporated by reference to the Company's Registration
Statement on Form S-3 (SEC No. 33-52301) filed February 16, 1994. ......
4.4 Proposed form of Pass Through Certificates (included in Exhibit
4.3). ..................................................................
5.1 Opinion of Mayer, Brown & Platt as to the legality of the
Securities. ............................................................
5.2 Opinion of counsel for the Pass Through Trustee as to the legality of
the Securities. ........................................................
8.1 Tax Opinion of Mayer, Brown & Platt. ...................................
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges.
Incorporated by reference to the Company's Annual Report on Form 10-K
for the year ended December 31, 1994 and the Company's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1995. .................
23.1 Consent of Ernst & Young LLP. ..........................................
23.2 Consent of Mayer, Brown & Platt (included in Exhibits 5.1 and 8.1
above). ................................................................
23.3 Consent of counsel to the Pass Through Trustee (included in Exhibit 5.2
above). ................................................................
24.1 Power of Attorney (appears on the signature page of this Registration
Statement). ............................................................
25.1 Form T-1, Statement of Eligibility of the Debt Trustee. ................
25.2 Form T-1, Statement of Eligibility of the Pass Through Trustee. ........
</TABLE>
<PAGE> 1
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.
<PAGE> 2
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
2
<PAGE> 3
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
3
<PAGE> 4
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
4
<PAGE> 5
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
5
<PAGE> 6
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) Ernst & Young, 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
6
<PAGE> 7
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 Moody's
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
7
<PAGE> 8
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
8
<PAGE> 9
(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
9
<PAGE> 10
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:
10
<PAGE> 11
(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
11
<PAGE> 12
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 Ronald J. Ciancio, counsel to
the Company, dated the Closing Date, in form reasonably satisfactory to the
Underwriters, the rating agencies and to Winston & Strawn, 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
12
<PAGE> 13
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
13
<PAGE> 14
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 Mayer, Brown & Platt, special
counsel to the Company, dated the Closing Date, in form reasonably satisfactory
to the Underwriters, the rating agencies and to Winston & Strawn, 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
14
<PAGE> 15
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
15
<PAGE> 16
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
16
<PAGE> 17
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 Ronald J. Ciancio, counsel to the Company, and Mayer, Brown & Platt,
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
17
<PAGE> 18
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 & Strawn,
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,
18
<PAGE> 19
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,
19
<PAGE> 20
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 & Strawn,
special counsel for the Underwriters, such opinion or
20
<PAGE> 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, Ernst & Young
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:
21
<PAGE> 22
(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
22
<PAGE> 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,
23
<PAGE> 24
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 Moody's 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
24
<PAGE> 25
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
25
<PAGE> 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
26
<PAGE> 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
27
<PAGE> 28
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
28
<PAGE> 29
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
29
<PAGE> 30
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 500 West Monroe Street, Chicago, Illinois
60661-3676, 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.
30
<PAGE> 31
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:__________________________
31
<PAGE> 32
SCHEDULE A
<TABLE>
<CAPTION>
PASS THROUGH AGGREGATE INTEREST FINAL
CERTIFICATE PRINCIPAL RATE DISTRIBUTION
DESIGNATION AMOUNT DATE
<S> <C> <C> <C>
__________ $__________ _____% __________
</TABLE>
Closing Date, Time and Location: [date]; [time] Chicago time; Mayer, Brown &
Platt, 190 South LaSalle Street, Chicago, Illinois 60603.
Addresses for notices pursuant to Section 11: [Underwriters].
32
<PAGE> 33
SCHEDULE B
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF
PASS THROUGH CERTIFICATES
UNDERWRITERS TO BE PURCHASED
------------ ---------------
<S> <C>
$_______________
_______________
TOTAL $
===============
</TABLE>
33
<PAGE> 1
General American Transportation Corporation
$___________
[Debt Securities]
Underwriting Agreement
[date]
[Underwriters' Addresses]
As Representatives of the several Underwriters
Ladies and Gentlemen:
General American Transportation Corporation, a New York corporation (the
"Company"), proposes to sell to the underwriters named in Schedule I hereto
(the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, $_________ principal amount of its [Debt Securities] (the
"Securities"), to be issued under an indenture (the "Indenture") dated as of
October 1, 1987, as supplemented pursuant to the First Supplemental Indenture
thereto dated as of May 15, 1988, the Second Supplemental Indenture thereto
dated as of March 15, 1990, the Third Supplemental Indenture thereto dated as
of June 15, 1990, and the Fourth Supplemental Indenture thereto dated as of
December __, 1995, between the Company and The Chase Manhattan Bank (National
Association), as trustee (the "Trustee").
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 and elsewhere in this
Agreement are defined in paragraph (l) hereof.
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933 (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission")
<PAGE> 2
a registration statement (file number 33-_____) on such Form, including a
basic preliminary prospectus in accordance with Rule 429, which has
become effective, for the registration under the Act of $__________
aggregate principal amount of debt securities, including the Securities.
Such registration statement, as amended at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(l)(ix) or (x) under the
Act and complies in all other material respects with such Rule. The
Company will file with the Commission pursuant to the applicable paragraph
of Rule 424(b) and Rule 429 under the Act a supplement to the form of
prospectus included in such registration statement relating to the
Securities and the plan of distribution thereof (the "Prospectus
Supplement").
(b) As of the Execution Time, on the Effective Date, when the
Prospectus Supplement is filed in accordance with Rule 424(b) and on the
Closing Date (as hereinafter defined), the Registration Statement, as
amended as of any such time, the Prospectus, as supplemented as of any
such time, and the Indenture will comply in all material respects with the
applicable requirements of the Act, the Securities Exchange Act of 1934
(the "Exchange Act") and the Trust Indenture Act of 1939 (the "Trust
Indenture Act") and the respective rules thereunder; (ii) on the Effective
Date, the Registration Statement, as amended as of any such time, did not
or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and (iii) the
Prospectus, as supplemented as of any such time, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to (i)
that part of the Registration Statement which constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives specifically
for use in connection with the preparation of the Registration Statement
or the Prospectus (or any supplement thereto).
2
<PAGE> 3
(c) Neither the Company nor any of its subsidiaries is in
violation of its corporate charter or bylaws or in default under any
agreement, indenture or instrument, the effect of which violation or
default would be material to the Company and its subsidiaries taken as a
whole; the execution, delivery and performance of this Agreement and
compliance by the Company with the provisions of the Securities and the
Indenture will not conflict with, result in the creation or imposition of
any lien, charge or encumbrance upon any of the assets of the Company or
of any of its subsidiaries pursuant to the terms of, or constitute a
default under, any agreement, indenture or instrument, or result in a
violation of the corporate charter or bylaws of the Company or of any of
its subsidiaries or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company or any of its
subsidiaries, the effect of which violation or default would be material
to the Company and its subsidiaries taken as a whole; and, except as
required by the Act, the Trust Indenture Act, the Exchange Act and
applicable state securities laws, no consent, authorization or order of,
or filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of this Agreement and
the Indenture.
(d) Except as described in the Registration Statement and the
Prospectus, there has not been any material adverse change in, or any
adverse development which materially affects or will materially affect the
business, properties, condition (financial or other), or results of
operations of the Company and its subsidiaries taken as a whole since the
dates as of which information is given in the Registration Statement and
the Prospectus.
(e) Ernst & Young, whose reports have been incorporated by
reference or included in the Company's most recent Annual Report on Form
10-K which is incorporated by reference in the Prospectus, are independent
public accountants as required by the Act and the rules and regulations
thereunder.
(f) As of the time the Securities are issued and sold hereunder (i)
the Indenture will have been duly authorized, executed and delivered by
the Company and will constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms, (ii) the
Securities will
3
<PAGE> 4
have been duly authorized, executed, authenticated and, upon payment
therefor as provided in this Agreement, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture, and (iii) the Indenture conforms and the Securities will
conform to the descriptions thereof contained in the Prospectus.
(g) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing and in good standing under the laws of
the jurisdiction in which it is chartered or organized, is duly qualified
to do business and is in good standing as a foreign corporation under the
laws of each jurisdiction in which its ownership of property or the
conduct of its business requires such qualification, except where the
failure so to qualify would not have a material adverse effect on the
Company and its subsidiaries taken as a whole, and has power and authority
necessary to own or hold its property and to conduct the business in which
it is engaged.
(h) Except as described in the Prospectus, there is no material
litigation or governmental proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries which
might result in any material adverse change in the business, properties,
condition (financial or other), results of operations or prospects of the
Company and its subsidiaries taken as a whole or which is required to be
disclosed in the Registration Statement.
(i) The financial statements filed as part of the Registration
Statement or included in the Prospectus present, or (in the case of any
amendment or supplement to any such document, or any material incorporated
by reference in any such document, filed with the Commission after the
date as of which this representation is being made) will present at all
times during the effectiveness of this Agreement, fairly, the financial
condition and results of operations of the Company and its subsidiaries
taken as a whole, at the dates and for the periods indicated, and have
been, and (in the case of any amendment or supplement to any such
document, or any material incorporated by reference in any such document,
filed with the Commission after the date as of which this representation
is being made) will in all material respects be at all times during the
effectiveness of this Agreement, prepared in
4
<PAGE> 5
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved.
(j) The documents incorporated by reference into the Prospectus
have been, and (in the case of any amendment or supplement to any such
document, or any material incorporated by reference in any such document,
filed with the Commission after the date as of which this representation
is being made) will in all material respects be at all times during the
effectiveness of this Agreement, prepared by the Company in conformity
with the applicable requirements of the Act and the Exchange Act and the
respective rules and regulations of the Commission thereunder and such
documents have been, or (in the case of any amendment or supplement to any
such document, or any material incorporated by reference in any such
document, filed with the Commission after the date as of which this
representation is being made) will be at all times during the
effectiveness of this Agreement, timely filed as required thereby.
(k) There are no contracts or other documents which are required to
be filed as exhibits to the Registration Statement by the Act or by the
rules and regulations of the Commission thereunder, or which were required
to be filed as exhibits to any document incorporated by reference in the
Prospectus by the Exchange Act or the rules and regulations of the
Commission thereunder, which have not been filed as exhibits to the
Registration Statement or to such document or incorporated therein by
reference as permitted by the rules and regulations of the Commission
under the Act and the Exchange Act as required.
(l) The terms which follow, when used in this Agreement, shall have
the meanings indicated. The term "the Effective Date" shall mean each
date that the Registration Statement and any post-effective amendment or
amendments thereto became or become effective. "Execution Time" shall
mean the date and time that this Agreement is executed and delivered by
the parties hereto. "Basic Prospectus" shall mean the form of basic
prospectus relating to the Securities contained in the Registration
Statement at the Effective Date. "Prospectus" shall mean the Basic
Prospectus as supplemented by the Prospectus Supplement. "Registration
Statement" shall mean the registration statements referred to in paragraph
(a)
5
<PAGE> 6
above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time. "Rule 415", "Rule 424", and
"Rule 429" refer to such rules under the Act. Any reference herein to
the Registration Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 which were filed under the Exchange Act on or before the Effective
Date of the Registration Statement or the issue date of the Basic
Prospectus or the Prospectus Supplement, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus or the
Prospectus Supplement shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus or the
Prospectus Supplement, as the case may be, deemed to be incorporated
therein by reference.
(m) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida, Chapter
92-198, An Act Relating to Disclosure of Doing Business with Cuba, and the
Company further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba after
the date the Registration Statement becomes or has become effective with
the Securities and Exchange Commission or with the Florida Department of
Banking and Finance (the "Department"), whichever date is later, or if the
information reported in the Prospectus, if any, concerning the Company's
business with Cuba or with any person or affiliate located in Cuba changes
in any material way, the Company will provide the Department notice of
such business or change, as appropriate, in a form acceptable to the
Department.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of ____% of the
principal amount thereof, plus accrued interest on the Securities from
______________, to the Closing Date, the principal amount of the Securities set
forth opposite such Underwriter's name in Schedule I hereto.
6
<PAGE> 7
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made on the date and at the time and location set forth on
Schedule A hereto, which date and time may be postponed by agreement between
the Representatives and the Company or as provided in Section 9 hereof (such
date and time of delivery and payment for the Securities being herein called
the "Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by Federal funds check or
other immediately available funds. Certificates for the Securities shall be
registered in such names and in such denominations as the Representatives may
request not less than ____ full business days in advance of the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 PM on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set
forth in the Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus (except for (i) periodic or current reports
filed under the Exchange Act or (ii) a supplement relating to an offering
of securities other than the Securities) unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which either of the Representatives
may reasonably object. Subject to the foregoing sentence, the Company
will cause the Prospectus Supplement to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. The Company will promptly advise the
Representatives (i) when the Prospectus, and any supplement thereto, shall
have been filed with the
7
<PAGE> 8
Commission pursuant to Rule 424(b), (ii) when, prior to termination of the
offering of the Securities, any amendment of the Registration Statement
shall have been filed or become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or amendment of
or supplement to the Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order
and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a Prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus, as then supplemented, would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it shall be necessary to amend
the Registration Statement or to supplement the Prospectus to comply with
the Act or the Exchange Act or the respective rules thereunder, the
Company will promptly (i) prepare and file with the Commission, subject to
the first sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (ii) supply any such amended or supplemented Prospectus to
the Representatives in such quantities as they may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto), and each amendment to the Registration
Statement (including solely in
8
<PAGE> 9
the case of the Representatives, when filed with the Commission, all
documents incorporated by reference therein) and, so long as delivery of a
prospectus may be required by the Act, as many copies of the Prospectus
and any amendments thereof and supplements thereto as the Representatives
may reasonably request.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities.
(f) The Company shall, whether or not any sale of the Securities is
consummated, pay all expenses incident to the performance of its
obligations under this Agreement, including the fees and disbursements of
its accountants and counsel, the cost of printing or other production and
delivery of the Registration Statement, the Prospectus, all amendments
thereof and supplements thereto, the Indenture, this Agreement and all
other documents relating to the offering, the cost of preparing, printing,
packaging and delivering the Securities, the fees and disbursements,
including fees of counsel, incurred in compliance with Section 5(e), the
fees and disbursements of the Trustee and the fees of any agency that
rates the Securities.
(g) The Company will not, from the date hereof to and including the
Closing Date, without prior written consent of the Representatives, offer,
sell or contract to sell, or otherwise dispose of, directly or indirectly,
or announce the offering of, any debt securities issued or guaranteed by
the Company (other than the Securities or any debt securities issued or
guaranteed by the Company with maturities of less than 270 days).
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
9
<PAGE> 10
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus and any such supplement
shall have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion or opinions of the assistant general counsel of the Company or
other counsel to the Company acceptable to the Representatives, dated the
Closing Date, to the effect that:
(i) each of the Company and its subsidiaries (excluding
subsidiaries which, considered in the aggregate, would not constitute
a "significant subsidiary" under Commission Regulation S-X) has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered
or organized, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus,
and is duly qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction which requires
such qualification wherein it owns or leases properties or conducts
material business, except where the failure so to qualify would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole;
(ii) the Company's authorized equity capitalization is as set
forth in the Prospectus;
(iii) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of
the transactions contemplated herein except such as have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other
approvals (specified in such opinion) as have been obtained;
10
<PAGE> 11
(iv) neither the execution and delivery of the Indenture,
the issue and sale of the Securities, nor the consummation of any
other of the transactions herein contemplated nor the fulfillment of
the terms hereof will conflict with, result in a breach of or
constitute a default under, the Articles of Incorporation or bylaws
of the Company or the terms of any indenture or other agreement or
instrument known to such counsel and to which the Company or any of
its subsidiaries is a party or by which any of them are bound that is
material to the Company and its subsidiaries as a whole, or any order
or regulation known to such counsel to be applicable to the Company
or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries (except that
such counsel need not express any opinion on any order or regulation
which does not materially affect the validity of the Securities);
(v) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitration involving
the Company or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Prospectus, and there is no contract or other
document of a character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit, which is not
described or filed as required; and the statements included or
incorporated in the Prospectus describing any legal proceedings or
material contracts or agreements relating to the Company or any of
its subsidiaries fairly summarize such matters;
(vi) the Registration Statement and any amendments thereto have
become effective under the Act; any required filing of the
Prospectus, and any supplements thereto, pursuant to Rule 424(b) has
been made in the manner and within the time period prescribed by Rule
424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Prospectus (other
than the financial statements
11
<PAGE> 12
and other financial and statistical information contained therein as
to which such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of the Act and
the Exchange Act and the respective rules thereunder; and no facts
have come to the attention of such counsel which cause him to believe
that at the Effective Date or the Closing Date the Registration
Statement (other than the financial statements and other financial
and statistical information contained therein as to which such
counsel need express no opinion) contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus (other than the financial
statements and other financial and statistical information contained
therein as to which such counsel need express no opinion) includes
any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(vii) this Agreement has been duly authorized, executed and
delivered by the Company.
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent deemed proper, on certificates of responsible officers of
the Company and public officials. References to the Prospectus in this
paragraph (b) include any supplements thereto at the date such opinion is
rendered.
(c) The Company shall have furnished to the Representatives the
opinion of Mayer, Brown & Platt, counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity); and the
Securities have
12
<PAGE> 13
been duly authorized and, when the terms and forms thereof have been
established and the Securities have been executed and authenticated
in accordance with the provisions of the Indenture and delivered to
and paid for by the Representatives, the Securities will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity); and the Indenture
conforms and the Securities will conform to the descriptions thereof
in the Prospectus;
(ii) the Registration Statement and any amendments thereto have
become effective under the Act; any required filing of the
Prospectus, and any supplements thereto, pursuant to Rule 424(b) has
been made in the manner and within the time period prescribed by Rule
424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Prospectus (other
than material incorporated by reference therein and the financial
statements and other financial and statistical information contained
therein as to which such counsel need express no opinion) comply as
to form in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules thereunder; and
no facts have come to the attention of such counsel which cause them
to believe that at the Effective Date or the Closing Date the
Registration Statement (other than the financial statements and other
financial and statistical information contained therein as to which
such counsel need express no opinion) contained any untrue statement
of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading or that the Prospectus (other than the financial
statements and other financial and statistical information contained
therein as to which such counsel need express no opinion) includes
any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light
13
<PAGE> 14
of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact, to
the extent deemed proper, on certificates of responsible officers of the
Company and public officials. References to the Prospectus in this
paragraph (c) include any supplements thereto at the date such opinion is
rendered.
(d) The Representatives shall have received from Winston & Strawn,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the issuance and sale of the Securities, the
Indenture, the Registration Statement, the Prospectus and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the President or any Vice President
(in the financial area) and the principal financial or accounting officer
or the Treasurer of the Company, dated the Closing Date, to the effect
that the signers of such certificate have examined the Registration
Statement, the Prospectus, any supplement to the Prospectus and this
Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the date of such certificate with the same effect as if made on the
date of such certificate and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied as a condition of the obligation of the
Underwriters to purchase the Securities;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus, there has been no
14
<PAGE> 15
material adverse change in the business, properties, condition
(financial or other), results of operations or, to the best of their
knowledge, the prospects of the Company and its subsidiaries taken as
a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus.
(f) At the Closing Date, Ernst & Young shall have furnished to the
Representatives a letter or letters, dated as of the Closing Date, in form
and substance satisfactory to the Representatives, confirming that they
are independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable published rules and regulations
thereunder and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated in the
Registration Statement and the Prospectus and reported on by them
comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of the
minutes of the meetings of the stockholders and directors of the
Company and standing committees thereof; and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the most recent
audited financial statements included or incorporated in the
Prospectus, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus
do not comply in form
15
<PAGE> 16
in all material respects with applicable accounting
requirements and with the published rules and regulations of
the Commission with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under the
Exchange Act; and said unaudited financial statements are not
in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included or incorporated in the
Registration Statement and the Prospectus;
(2) with respect to the period subsequent to the date of
the most recent financial statements (other than any capsule
information), audited or unaudited, in or incorporated in the
Registration Statement and the Prospectus, there were any
changes, at a specified date not more than five business days
prior to the date of the letter, in the advances to,
investments in or receivables from related parties, or in the
capital stock or long-term debt of the Company and its
subsidiaries or any decreases in the stockholders' equity of
the Company or consolidated net current assets or net assets as
compared with the amounts shown on the most recent consolidated
balance sheet included or incorporated in the Registration
Statement and the Prospectus, or for the period from the date
of the most recent financial statements included or
incorporated in the Registration Statement and the Prospectus
to such specified date there were any decreases, as compared
with the corresponding period in the preceding year in net
operating revenues or in income before income taxes or in total
and net income of the Company and its subsidiaries, except in
all instances for changes or decreases set forth in such
letter; or
(3) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Prospectus do not agree with the amounts set
forth in the unaudited financial statements for the same
periods or were not determined on a basis substantially
16
<PAGE> 17
consistent with that of the corresponding amounts in the
audited financial statements included or incorporated in the
Registration Statement and the Prospectus; and
(iii) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus and in Exhibit
12 to the Registration Statement, agrees with the accounting records
of the Company and its subsidiaries, excluding any questions of legal
interpretation.
References to the Registration Statement and the Prospectus in this
paragraph (f) include any amendment thereof or supplement thereto at the
date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement and the
Prospectus, there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph (f) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the business, properties, condition (financial or other) or
results of operation of the Company and its subsidiaries taken as a whole,
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the reasonable judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
public offering or delivery of the Securities as contemplated by the
Registration Statement and the Prospectus.
(h) Subsequent to the Execution Time and prior to the Closing Date,
there shall not have been any decrease in the rating of any of the
Company's long-term debt securities by Standard & Poor's Corporation or
Moody's Investors Services, Inc. or any notice given of any intended or
potential decrease in any such rating or of any review of or possible
change in any such rating that does not indicate the direction of the
possible change.
17
<PAGE> 18
(i) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as either Representative may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at
any time at or prior to the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
if any termination pursuant to Section 10 hereof shall occur or in the case of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses that shall have been
incurred by them (including reasonable fees and disbursements of counsel) in
connection with this Agreement.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Prospectus or in any amendment thereof
18
<PAGE> 19
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein, and (ii) such indemnity
with respect to the Prospectus shall not inure to the benefit of any
Underwriter (or any person controlling any Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased the Securities
which are the subject thereof if such person did not receive a copy of the
Prospectus (or the Prospectus as supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the sale of such
Securities to such person in any case where (A) such delivery is required by
the Act, (B) the untrue statement or omission of a material fact contained in
the Prospectus was corrected in the Prospectus (or the Prospectus as
supplemented) and (C) if a copy of such Prospectus (or the Prospectus as
supplemented) had been so sent or given, such delivery would have cured the
defect giving rise to the claim asserted by such person. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the
statements set forth under the heading "Underwriters" in the Prospectus
constitutes the only
19
<PAGE> 20
information furnished in writing by or on behalf of the several Underwriters
for inclusion in the documents referred to in the foregoing indemnity, and you,
as the Representatives, confirm that such statements with respect to you are
correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ one separate counsel and one
separate local counsel for all such indemnified parties in such action and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the
20
<PAGE> 21
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or
proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Prospectus. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information
provided by the Company or the Underwriters. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations
21
<PAGE> 22
referred to above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either the Act or
the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to take
up and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all
the remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five days, as the Representatives shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company and any
22
<PAGE> 23
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in securities of the Company or of GATX Corporation, the Company's
corporate parent (the "Parent"), shall have been suspended by the Commission,
trading in the Parent's securities shall have been suspended by the New York
Stock Exchange or the Chicago Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared by either Federal or New York State authorities, or
(iii) there shall have occurred any outbreak or material escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the reasonable judgment of the Representatives, impracticable to
market the Securities.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter or the Company or any
of the officers, directors or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, at the address specified in
Schedule A hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 500 West Monroe Street, Chicago, Illinois
60661-3676, Attention: Treasurer.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and
23
<PAGE> 24
controlling persons referred to in Section 8 hereof, and no other person will
have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
* * * * *
24
<PAGE> 25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance by each of you shall represent a
binding agreement among the Company and the several Underwriters.
Very truly yours,
General American Transportation
Corporation
By:_____________________________
Its:____________________________
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[Underwriter]
By:______________________________
Its:_____________________________
[Underwriter]
By:______________________________
Its: ____________________________
For themselves and the other
several Underwriters named in
Schedule B to the foregoing
Agreement.
25
<PAGE> 26
SCHEDULE A
<TABLE>
<CAPTION>
AGGREGATE INTEREST FINAL
NOTES PRINCIPAL AMOUNT RATE DISTRIBUTION DATE
----- ---------------- ---- -----------------
<S> <C> <C> <C>
_____% $___________ _____%
</TABLE>
Closing Date, Time and Location:
[Date]
[time] Chicago time
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, IL 60603
Address for notices pursuant to Section 12:
[Underwriter]
[Underwriter]
26
<PAGE> 27
SCHEDULE B
<TABLE>
<S> <C>
PRINCIPAL AMOUNT
OF SECURITIES TO
BE PURCHASED
----------------
UNDERWRITERS
$___________
___________
____________
Total . . . . . . . . . . . . . . . . . . . . . . . . . $___________
===========
</TABLE>
Address for Notice to Underwriters:
Notices to [Underwriter] shall be directed to it at
_____________, Attention: ______________________.
Notices to [Underwriter] shall be directed to it at
_______________, Attention:________________.
27
<PAGE> 1
GENERAL AMERICAN TRANSPORTATION CORPORATION
TO
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION),
Trustee
FOURTH SUPPLEMENTAL INDENTURE
Dated as of December __, 1995
To Indenture dated as of October 1, 1987
(as supplemented by First Supplemental Indenture
dated as of May 15, 1988,
Second Supplemental Indenture
dated as of March 15, 1990 and
Third Supplemental Indenture
dated as of June 15, 1990)
<PAGE> 2
THIS FOURTH SUPPLEMENTAL INDENTURE, dated as of December __, 1995,
between GENERAL AMERICAN TRANSPORTATION CORPORATION, a corporation duly
organized and existing under the laws of the State of New York (herein called
the "Company"), and THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national
banking association duly organized and existing under the laws of the United
States of America, as Trustee (herein called the "Trustee"), as Trustee under
an Indenture dated as of October 1, 1987, as supplemented by a First
Supplemental Indenture dated as of May 15, 1988, a Second Supplemental
Indenture dated as of March 15, 1990 and a Third Supplemental Indenture dated
as of June 15, 1990 (such Indenture, as so supplemented, being herein called
the "Indenture").
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee the Indenture, providing for the issuance from time to time of one or
more Series of Securities (such terms and all other capitalized terms used but
not defined in this Fourth Supplemental Indenture having the meanings assigned
to them in the Indenture); and
WHEREAS, the Company desires and has requested the Trustee to join with
it in the execution and delivery of this Fourth Supplemental Indenture in order
to amend the Indenture as set forth herein; and
WHEREAS, this Fourth Supplemental Indenture is being entered into
pursuant to subsections (1) and (5) of Section 9.01 of the Indenture which
provide that a supplemental indenture may be entered into by the Company and
the Trustee without the consent of the Securityholders to cure any ambiguity,
defect or inconsistency in the Indenture or in the Securities of any Series and
to make any change that does not adversely affect the rights of any
Securityholder; and
WHEREAS, all things necessary to make this Fourth Supplemental
Indenture a valid agreement of the Company and the Trustee and a valid
amendment of and supplement to the Indenture have been done.
NOW, THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities of any
Series originally issued on or after the date hereof, as follows:
<PAGE> 3
ARTICLE I
With respect to all Series of Securities issued after the date hereof,
the following definition of Consolidated Tangible Net Worth shall be applicable
in lieu of the definition set forth in Section 1.01 of the Indenture:
The term "Consolidated Tangible Net Worth" means the consolidated
shareholder's equity of the Company and its subsidiaries, as reflected on the
consolidated balance sheet of the Company at the conclusion of the immediately
preceding fiscal quarter for which such determination is made, less the amount
of intangible assets (including, without limitation, franchises, patents and
patent applications, trademarks and brand names, goodwill, research and
development expenses, and all write-ups in the book value of any asset
(excluding write-ups of assets resulting from the application of principles of
purchase accounting with respect to acquisitions made by the Company)).
* * * * * * * *
2
<PAGE> 4
IN WITNESS WHEREOF, General American Transportation Corporation has
caused this Fourth Supplemental Indenture to be signed in its corporate name
and acknowledged by one of its duly authorized officers, and its corporate seal
to be affixed hereunto or impressed hereon, and the same to be attested by its
Secretary or an Assistant Secretary, and The Chase Manhattan Bank (National
Association), Trustee, has caused this Fourth Supplemental Indenture to be
signed and acknowledged by one of its vice-presidents, has caused its corporate
seal to be affixed hereto or impressed hereon, and the same to be attested by
one of its assistant secretaries, as of the day and year first written above.
GENERAL AMERICAN
TRANSPORTATION CORPORATION
By:
-------------------------
[Corporate Seal]
Attest:
- ---------------------------
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), TRUSTEE
By:
-------------------------
Vice President
[Corporate Seal]
Attest:
- ---------------------------
Assistant Secretary
3
<PAGE> 1
[MAYER, BROWN & PLATT LETTERHEAD]
Exhibit 5.1
November 30, 1995
General American Transportation
Corporation
500 West Monroe Street
Chicago, Illinois 60661
Re: Shelf Registration of $650,000,000 of
Debt Securities and Pass Through Certificates
Ladies and Gentlemen:
We have acted as counsel to General American Transportation
Corporation, a New York corporation (the "Company"), in connection with the
corporate proceedings (the "Corporate Proceedings") taken and to be taken
relating to the public offering of up to $650,000,000 aggregate principal
amount of debt securities (the "Debt Securities") and pass through certificates
(the "Pass Through Certificates") that may be issued in one or more series from
time to time. Each series of Debt Securities will be issued under an Indenture
dated as of October 1, 1987, (as supplemented from time to time, the
"Indenture") between the Company and The Chase Manhattan Bank (National
Association) as Trustee. Each series of Pass Through Certificates will be
issued under a Pass Through Trust Agreement dated as of August 1, 1992 (as
supplemented from time to time, the "Basic Agreement") between the Company and
the First National Bank of Chicago, as Trustee (the "Pass Through Trustee"), as
supplemented by a trust supplement relating to such series of Pass Through
Certificates (each, a "Trust Supplement").
In so acting, we have examined and relied upon the originals, or
copies certified or otherwise identified to our satisfaction, of such records,
documents, certificates and other instruments as in our judgment are necessary
or appropriate to enable us to render the opinion expressed below.
Based upon the foregoing, we are of the opinion that:
1. Upon the completion of the Corporate Proceedings, the
Debt Securities will have been duly authorized for issuance and, when
the Debt Securities are duly executed, authenticated, issued and
delivered and upon receipt of payment therefor, the
<PAGE> 2
MAYER, BROWN & PLATT
General American Transportation
Corporation
November 30, 1995
Page 2
Debt Securities will constitute valid and legally binding obligations
of the Company entitled to the benefits of the Indenture, except as
may be limited by (a) applicable bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting enforcement of
creditors' rights generally and (b) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding at law or in equity).
2. Assuming the due authorization, execution and
delivery by the Trustee of the Basic Agreement and the Trust
Supplement relating to each series of Pass Through Certificates and
the due authorization, execution, issuance, authentication and
delivery of each series of Pass Through Certificates by the Trustee in
accordance with the terms of the Basic Agreement and the Trust
Supplement relating to each such series, each series of Pass Through
Certificates will constitute valid and binding obligations of the
Trustee entitling the holders thereof to the benefits of the Basic
Agreement and the Trust Supplement relating to such series except as
may be limited by (a) applicable bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting enforcement of
creditors' rights generally and (b) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding at law or in equity).
In rendering the foregoing opinion in paragraph 2 above, we have
relied on the opinion of the Law Department of The First National Bank of
Chicago, counsel to the Trustee, with respect to all matters opined to therein,
and our opinion is subject to all the assumptions contained in such opinion.
We hereby consent to the filing of this opinion as an exhibit to the
registration statement relating to the Debt Securities and the Pass Through
Certificates and the use of our name under the caption "Legal Opinions"
contained therein.
Very truly yours,
/s/ MAYER, BROWN & PLATT
MAYER, BROWN & PLATT
<PAGE> 1
[FIRST CHICAGO LOGO]
THE LAW DEPARTMENT
November 21, 1995
General American Transportation Corporation
500 West Monroe Street
Chicago, Illinois 60601
Re: General American Transportation Corporation
Pass Through Certificates
Ladies and Gentlemen:
We are counsel to the Corporation Trust Services Division of The First
National Bank of Chicago (the "First Chicago"), and have represented it in
connection with (i) the Pass Through Trust Agreement dated as of August 1, 1992
(the "Basic Agreement") between General American Transportation Corporation
(the "Company") and First Chicago, as Trustee, and (ii) the Pass Through
Certificates issued under the Basic Agreement from time to time.
We are attorneys licensed to practice law in the State of Illinois and
do not purport to be experts on the laws of any state other than the State of
Illinois. Consequently, with regard to the following opinion, no opinion is
expressed as to matters relating to the laws of any jurisdiction other than the
laws of the State of Illinois and federal laws applicable to national banks,
and no opinion is expressed herein as to the Securities Act of 1933, as
amended, the Trust Indenture Act of 1939, as amended, or any state securities
or so-called "blue-sky" laws.
As such counsel we are familiar with the Articles of Association and
the By-Laws of First Chicago, with certificates of authority to exercise
corporate trust powers issued to First Chicago by the Federal Reserve Board of
the United States (as predecessor in jurisdiction to the Comptroller of the
Currency of the United States), and with certain Resolutions of the Board of
Directors of First Chicago pertaining to the operation of the Corporate Trust
Services Division of First Chicago with respect to the authorization, execution
and delivery of the above-described document.
Basing our conclusions on such examination and familiarity, we are of
the opinion that:
1) First Chicago has been duly organized and is validly existing
as a national banking association in good standing under the
laws of the United States of America with full corporate trust
power and authority to enter int and perform its obligations
under the Basic Agreement.
<PAGE> 2
2) The execution and delivery of the Basic Agreement and the Pass
Through Certificates have been duly authorized by First
Chicago, and assuming the due authorization, execution and
delivery of the Basic Agreement by the Company, and assuming
that the Basic Agreement, upon execution and delivery thereof
by First Chicago, will constitute the legal, valid, binding
and enforceable obligation of the Company, the Basic Agreement
constitutes the legal, valid and binding obligation of First
Chicago, enforceable against First Chicago in accordance with
its terms, except as the enforceability thereof may be (a)
limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation or other similar laws now or hereafter in effect
relating to creditors' rights, and (b) subject to general
principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
3) Upon the due execution, authentication and delivery thereof in
accordance with the Basic Agreement, the Pass Through
Certificates will have been duly and validly issued and will
be entitled to the benefits of the Basic Agreement.
4) Neither the execution nor the delivery by First Chicago of the
Basic Agreement nor the consummation of any of the
transactions by First Chicago contemplated thereunder requires
the consent or approval of, the giving of notice to, or the
registration with, or the taking of any other action with
respect to, any governmental authority or agency under any
existing Federal law governing the banking or trust powers of
First Chicago.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement of the Company pursuant to which the Pass Through
Certificates are being registered under the Securities Act of 1933 and to the
reference to the Law Department of The First National Bank of Chicago under the
caption "Legal Opinions" in the Registration Statement.
This opinion is furnished to you solely for your benefit in
connection with the transactions contemplated by the Basic Agreement, and may
not be used, circulated, quoted or otherwise referred to without our prior
written consent.
Respectfully submitted,
/s/ The Law Department
The Law Department
The First National Bank of Chicago
2
<PAGE> 1
[MAYER, BROWN & PLATT LETTERHEAD]
Exhibit 8.1
November 30, 1995
General American Transportation
Corporation
500 West Monroe Street
Chicago, Illinois 60661
Re: Shelf Registration of $650,000,000 of Debt
Securities and Pass Through Certificates
Ladies and Gentlemen:
We have acted as counsel to General American Transportation
Corporation, a New York corporation (the "Company"), in connection with the
preparation and filing with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended, of a shelf
Registration Statement on Form S-3 (the "Registration Statement"). The
Registration Statement relates to up to $650,000,000 aggregate principal amount
of debt securities and pass through certificates (the "Pass Through
Certificates") that may be issued in one or more series from time to time on a
delayed basis.
In rendering this opinion, we have relied upon the Internal Revenue
Code of 1986, as amended, legislative history, Treasury regulations, judicial
authorities, published positions of the Internal Revenue Service and such other
authorities as we have considered relevant, all as in effect on the date hereof
and all of which are subject to change, which change may be retroactive, or
different interpretations, which interpretations may have retroactive
application. This opinion is subject to the explanations and qualifications
set forth under the captions "Federal Income Tax Consequences" and "Certain
Illinois Taxes" in the Prospectus relating to the Pass Through Certificates
which constitutes a part of the Registration Statement.
On the basis of and subject to the foregoing, we confirm that the
discussions set forth in the Prospectus relating to the Pass Through
Certificates under the captions "Federal Income Tax Consequences" and "Certain
Illinois Taxes" accurately summarize the material federal and Illinois income
tax consequences to U.S. holders of the ownership and disposition of the Pass
<PAGE> 2
General American Transportation
Corporation
November 30, 1995
Page 2
Through Certificates except to the extent that the characteristics of any
series of Pass Through Certificates differs from the characteristics described
in the Prospectus.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the use of our name under the captions "Federal
Income Tax Consequences" and "Certain Illinois Taxes" in the Prospectus
relating to the Pass Through Certificates which constitutes a part of the
Registration Statement.
Very truly yours,
/s/ MAYER, BROWN & PLATT
MAYER, BROWN & PLATT
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of General American
Transportation Corporation for the registration of $650 million of Pass Through
Certificates and Debt Securities and to the incorporation by reference therein
of our report dated January 24, 1995, with respect to the consolidated
financial statements and schedules of General American Transportation
Corporation included in its Annual Report (Form 10-K) for the year ended
December 31, 1994, filed with the Securities and Exchange Commission.
November 30, 1995
Chicago, Illinois
/s/ Ernst & Young LLP
<PAGE> 1
Securities Act of 1933 File No. _________
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305 (b) (2))
================================================================================
--------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)___________
--------------
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 CHASE MANHATTAN PLAZA, NEW YORK, NEW YORK
(Address of principal executive offices)
10081
(Zip Code)
---------------
GENERAL AMERICAN TRANSPORTATION CORPORATION
(Exact name of obligor as specified in its charter)
NEW YORK
(State or other jurisdiction of incorporation or organization)
36-2827991
(I.R.S. Employer Identification No.)
500 WEST MONROE STREET
CHICAGO, ILLINOIS
(Address of principal executive offices)
60661-3676
(Zip Code)
---------------
DEBT SECURITIES
(Title of the indenture securities)
================================================================================
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The Trustee is not the obligor, nor is the Trustee directly
or indirectly controlling, controlled by, or under common
control with the obligor.
(See Note on Page 2.)
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of
eligibility.
*1. -- A copy of the articles of association of the trustee as now in
effect. (See Exhibit T-1 (Item 12), Registration No.
33-55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan
Bank (National Association) and The Chase Bank of New York
(National Association) to commence business and a copy of
approval of merger of said corporations, all of which
documents are still in effect. (See Exhibit T-1 (Item 12),
Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank
(National Association) to exercise corporate trust powers,
both of which documents are still in effect. (See Exhibit
T-1 (Item 12), Registration No. 2-67437).
*4. -- A copy of the existing by-laws of the trustee. (See Exhibit
T-1 (Item 12(a)), Registration No. 33-60809.)
*5. -- A copy of each indenture referred to in Item 4, if the obligor
is in default. (Not applicable).
*6. -- The consents of United States institutional trustees required
by Section 321(b) of the Act. (See Exhibit T-1, (Item 12),
Registration No. 22-19019.)
7. -- A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
*The Exhibits thus designated are incorporated herein by reference. Following
the description of such Exhibits is a reference to the copy of the Exhibit
heretofore filed with the Securities and Exchange Commission, to which there
have been no amendments or changes.
----------------
1.
<PAGE> 3
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base a responsive answer to Item 2 the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized , all in the City of New York, and the
State of New York, on the 20th day November, 1995
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By: /s/ Valerie Dunbar
---------------------------
Valerie Dunbar
Vice President
----------------
2
<PAGE> 4
EXHIBIT 7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
THE CHASE MANHATTAN BANK, N.A.
of New York in the State of New York, at the close of business on September 30,
1995, published in response to call made by Comptroller of the Currency, under
title 12, United States Code, Section 161.
<TABLE>
<CAPTION>
CHARTER NUMBER 2370 COMPTROLLER OF THE CURRENCY NORTHEASTERN DISTRICT
STATEMENT OF RESOURCES AND LIABILITIES
THOUSANDS
ASSETS OF DOLLARS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.................................... $ 5,081,000
Interest-bearing balances............................................................. 5,957,000
Held to maturity securities.............................................................. 1,678,000
Available-for-sale securities............................................................ 5,303,000
Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds sold.................................................................... 1,806,000
Securities purchased under agreements to resell....................................... 23,000
Loans and lease financing receivable:
Loans and leases, net of unearned income......................... $ 55,682,000
LESS: Allowance for loan and lease losses........................ 1,112,000
LESS: Allocated transfer risk reserve........................... 0
------------
Loans and leases, net of unearned income, allowance, and reserve...................... 54,570,000
Assets held in trading accounts.......................................................... 12,551,000
Premises and fixed assets (including capitalized leases)................................. 1,755,000
Other real estate owned.................................................................. 400,000
Investments in unconsolidated subsidiaries and associated companies...................... 30,000
Customers' liability to this bank on acceptances outstanding............................. 1,091,000
Intangible assets........................................................................ 1,344,000
Other assets............................................................................. 6,322,000
------------
TOTAL ASSETS............................................................................. $ 97,911,000
============
LIABILITIES
Deposits:
In domestic offices.................................................................... $ 31,007,000
Noninterest-bearing.......................................... $ 12,166,000
Interest-bearing............................................. 18,841,000
----------
In foreign offices, Edge and Agreement subsidiaries, and IBFs......................... 36,015,000
Noninterest-bearing.......................................... $ 3,258,000
Interest-bearing............................................. 32,757,000
----------
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and in
IBFs:
Federal funds purchased............................................................... 1,673,000
Securities sold under agreements to repurchase........................................ 233,000
Demand notes issued to the U.S. Treasury................................................. 25,000
Trading liabilities...................................................................... 9,105,000
Other borrowed money:
With original maturity of one year or less............................................ 2,783,000
With original maturity of more than one year.......................................... 395,000
Mortgage indebtedness and obligations under capitalized leases........................... 40,000
Bank's liability on acceptances executed and outstanding................................. 1,100,000
Subordinated notes and debentures........................................................ 1,960,000
Other liabilities........................................................................ 5,747,000
------------
TOTAL LIABILITIES........................................................................ 90,083,000
------------
Limited-life preferred stock and related surplus......................................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................................ 0
Common stock............................................................................. 921,000
Surplus.................................................................................. 5,244,000
Undivided profits and capital reserves................................................... 1,695,000
Net unrealized holding gains (losses) on available-for-sale securities................... (43,000)
Cumulative foreign currency translation adjustments...................................... 11,000
------------
TOTAL EQUITY CAPITAL..................................................................... 7,828,000
------------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK,
AND EQUITY CAPITAL................................................................. $ 97,911,000
============
</TABLE>
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the above
named bank do hereby declare that this Report of Condition is true and correct
to the best of my knowledge and belief. (Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) _____
---------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
---------------
GENERAL AMERICAN TRANSPORTATION CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
NEW YORK 36-2827991
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
500 WEST MONROE STREET
CHICAGO, ILLINOIS 60601
(ADDRESS OF PRINCIPAL EXECUTIVE (ZIP CODE)
OFFICES)
PASS THROUGH CERTIFICATES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE> 3
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 21st day of November, 1995.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /S/ R. D. MANELLA
R. D. MANELLA
VICE PRESIDENT
* EXHIBIT 1,2,3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 12 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 26 TO THE REGISTRATION STATEMENT ON FORM S-3 OF THE
CIT GROUP HOLDINGS, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON
FEBRUARY 16, 1993 (REGISTRATION NO. 33-58418).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(B) OF THE ACT
November 21, 1995
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a Pass Through Trust Agreement between
General American Transportation Corporation and The First National Bank of
Chicago, the undersigned, in accordance with Section 321(b) of the Trust
Indenture Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State authorities
authorized to make such examinations, may be furnished by such authorities to
the Securities and Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /S/ R. D. MANELLA
R. D. MANELLA
VICE PRESIDENT
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/95 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-1
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN C400 <-
THOUSANDS RCFD BIL MIL THOU ------
----------------- ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) . . . . . 0081 3,184,875 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . . . . . 0071 8,932,069 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A). . . . 1754 249,502 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) . . 1773 536,856 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold . . . . . . . . . . . . . . . . . . . . . . . 0276 2,897,736 3.a.
b. Securities purchased under agreements to resell . . . . . . . . 0277 1,417,129 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 16,567,408 4.a.
b. LESS: Allowance for loan and lease losses . . . . . . . . . . . RCFD 3123 358,877 4.b.c.
c. LESS: Allocated transfer risk reserve. . . . . . . . . . . . . . RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . . 2125 16,208,531 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . . . . . 3545 13,486,931 5.
6. Premises and fixed assets (including capitalized leases) . . . . . 2145 516,279 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . 2150 11,216 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . 2130 12,946 8.
9. Customers' liability to this bank on acceptances outstanding . . . 2155 501,943 9.
10. Intangible assets (from Schedule RC-M). . . . . . . . . . . . . . . 2143 111,683 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . 2160 1,258,270 11.
12. Total assets (sum of items 1 through 11). . . . . . . . . . . . . . 2170 49,325,966 12.
</TABLE>
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
5
<PAGE> 6
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/95 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-2
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
----------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) . . . . . . . . . . . . . . . RCON 2200 14,889,235 13.a.
(1) Noninterest-bearing(1) . . . . . . . . . . . . . . . . RCON 6631 5,895,584 13.a.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . RCON 6636 8,993,651 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) . . . . . . . . . . . . RCFN 2200 13,289,760 13.b.
(1) Noninterest bearing . . . . . . . . . . . . . . . . . RCFN 6631 315,549 13.b.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . RCFN 6636 12,974,211 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased . . . . . . . . . . . . . . . . . RCFD 0278 2,942,186 14.a.
b. Securities sold under agreements to repurchase . . . . . . RCFD 0279 1,160,512 14.b.
15. a. Demand notes issued to the U.S. Treasury . . . . . . . . . RCON 2840 112,768 15.a.
b. Trading Liabilities . . . . . . . . . . . . . . . . . . . RCFD 3548 7.872,221 15.b.
16. Other borrowed money:
a. With original maturity of one year or less . . . . . . . . RCFD 2332 2,402,829 16.a.
b. With original maturity of more than one year . . . . . . RCFD 2333 643,987 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2910 278,108 17.
18. Bank's liability on acceptance executed and outstanding RCFD 2920 501,943 18.
19. Subordinated notes and debentures . . . . . . . . . . . . . . RCFD 3200 1,225,000 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . . RCFD 2930 981,938 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . . RCFD 2948 46,300,487 21.
22. Limited-Life preferred stock and related surplus . . . . . . RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . . . RCFD 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,314,642 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . RCFD 3632 510,093 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . . RCFD 8434 (880) 26.b.
27. Cumulative foreign currency translation adjustments . . . . . RCFD 3284 766 27.
28. Total equity capital (sum of items 23 through 27) RCFD 3210 3,025,479 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) . . . . . . . . . . . . RCFD 3300 49,325,966 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing
work performed for the bank by independent external Number
auditors as of any date during 1993 . . . . . . . . . RCFD 6724 N/A M.1.
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4.= Directors' examination of the bank performed by other
external auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
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(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
