EXHIBIT 1.2
UNDERWRITING AGREEMENT
__________, 20__
GATX Financial Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We (the "Manager") understand that GATX Financial Corporation, a
Delaware corporation (the "Company"), proposes to issue and sell $___________
aggregate principal amount of its [title of securities] (the "Offered
Securities"). The Offered Securities will be issued pursuant to an Indenture
dated as of _________, ____, between the Company, as issuer, and JPMorgan Chase
Bank, as trustee. Subject to the terms and conditions, and in reliance upon the
representations and warranties, set forth herein or incorporated by reference
herein, the Company hereby agrees to sell and the underwriters (including
ourselves) named below (such underwriters being herein called the
"Underwriters") agree to purchase, severally and not jointly, the principal
amounts of such Offered Securities set forth opposite their names below at a
purchase price of ______% of the principal amount of the Offered Securities plus
accrued interest, if any, from _________ to the date of payment and delivery.
Name of Underwriter Principal Amount
of Offered Securities
to be Purchased
$
Total: $
Delivery of and payment for the Offered Securities shall be made at
11:00 A.M.,
New York City time, on _________, ____, which date and time may be
postponed by agreement between the Manager and the Company or as provided in
Section IX hereof (such date and time of delivery and payment for the Offered
Securities being herein called the "Closing Date"). Delivery of the Offered
Securities shall be made to the Manager for the respective accounts of the
several Underwriters against payment by the several Underwriters through the
Manager for the purchase price therefor to or upon the order of the Company by
wire transfer of immediately available funds or by such other manner of payment
as may be agreed upon by the Company and the Manager. Delivery and release of
the Offered Securities shall be to The Depository Trust Company and payment for
such Offered Securities shall be made at the office of Mayer, Brown, ▇▇▇▇ & Maw,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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The Offered Securities shall have the terms set forth in the Prospectus
dated _________, 20__, including the following:
Maturity: ________, 20__
Interest Rate: ____%
Redemption Provisions:
Interest Payment Dates: __________ and __________ of each year
All the provisions contained in the document entitled
GATX Financial
Corporation
Underwriting Agreement Standard Provisions (Debt Securities) dated
_____, 20__, a copy of which you have previously received, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below and returning the signed
copy to the undersigned.
[signature page follows]
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This Agreement may be signed in any number of counterparts with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
Very truly yours,
[Insert names of Underwriters]
By: [Insert name of Manager]
By:
-------------------------------
Name:
Title:
Acting severally on behalf of themselves and the Underwriters
Accepted:
By:
GATX FINANCIAL CORPORATION
By:
-------------------------------
Name:
Title:
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GATX FINANCIAL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT SECURITIES)
_________, 20__
From time to time,
GATX Financial Corporation, a Delaware
corporation (the "Company"), may enter into one or more
underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such
underwriting agreement (the "
Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this "Agreement." Unless otherwise defined
herein, terms defined in the
Underwriting Agreement are used herein as therein
defined.
I.
The Company proposes to issue from time to time debt
securities (the "Securities") pursuant to the provisions of an Indenture dated
as of ________, ___, between the Company and JPMorgan Chase Bank, as Trustee
(the "Senior Indenture"), or an Indenture that may be entered into between the
Company and a trustee to be designated (together with the Senior Indenture, the
"Indenture"). The Securities may have varying designations, maturities, rates
and times of payment of interest, if any, selling prices, redemption terms, if
any, and other specific terms.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
relating to the Securities under the Securities Act of 1933, as amended (the
"Securities Act"). The term "Registration Statement" means the registration
statement on Form S-3 (Reg. No. 333-_____), including the exhibits thereto, as
amended to the date of the
Underwriting Agreement. The term "Basic Prospectus"
means the prospectus included in the Registration Statement, as amended to the
date of the
Underwriting Agreement. The term "Prospectus" means the Basic
Prospectus together with the prospectus supplement specifically relating to the
Offered Securities (the "Prospectus Supplement"), as filed with, or transmitted
for filing to, the Commission pursuant to Rule 424. The term "preliminary
prospectus" means a preliminary prospectus supplement specifically referring to
the Offered Securities, together with the Basic Prospectus. As used herein, the
terms "Registration Statement," "Basic Prospectus," "Prospectus" and
"preliminary prospectus" shall include in each case the documents, if any,
incorporated by reference therein. The terms "supplement," "amendment" and
"amend" as used herein shall include all documents deemed to be incorporated by
reference in the Registration Statement, the Prospectus or the preliminary
prospectus that are filed subsequent to the date of the Basic Prospectus by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
The term "Underwriters' Securities" means the Offered
Securities to be purchased by the Underwriters herein. The term "Contract
Securities" means the Offered Securities, if any, to be purchased pursuant to
the delayed delivery contracts referred to below.
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II.
The Company represents and warrants to and agrees with each of the
Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus, complied or will
comply when so filed in all material respects with the Exchange Act and the
rules and regulations of the Commission thereunder and will be timely filed as
required thereby, (ii) each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (iii) the Registration Statement,
when it became effective, and the Prospectus, as of its date, complied and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act, the Exchange Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and the applicable rules and regulations of
the Commission thereunder and (iv) the Prospectus, as of its date, did not
contain and as of the Closing Date, as amended or supplemented, if applicable,
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
Section II(b) do not apply (x) to statements or omissions in the Registration
Statement or the Prospectus based upon information concerning the Underwriters
furnished to the Company in writing by the Underwriters expressly for use
therein or (y) to that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act, of the Trustee.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus, and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, considered as one
enterprise.
(d) Each subsidiary of the Company that is a "significant subsidiary"
as defined in Rule 405 of Regulation C promulgated pursuant to the Securities
Act (a "Significant Subsidiary") has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus, and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise.
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(e) This Agreement has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company, except as
rights to indemnity and contribution hereunder may be limited under applicable
law.
(f) The Senior Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company, is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditor's rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(g) The Delayed Delivery Contracts (as defined in Section III below),
if any, have been duly authorized, executed and delivered by the Company and are
valid and binding agreements of the Company, enforceable in accordance with
their respective terms except (i) as the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting or relating to creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(h) The Offered Securities have been duly authorized and, when the
Offered Securities have been executed and authenticated in accordance with the
provisions of the Indenture and delivered to and duly paid for by the purchasers
thereof, they will conform to the descriptions thereof in the Prospectus, will
be entitled to the benefits of the Indenture and will be valid and legally
binding obligations of the Company, enforceable in accordance with their terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement, the
Indenture and the Offered Securities will not contravene any provision of
applicable law or the certificate of incorporation or bylaws of the Company or
result in the creation or imposition of any lien, charge or encumbrance upon any
of the assets of the Company or any of its subsidiaries pursuant to the terms
of, or constitute a default under, any agreement or other instrument binding
upon the Company or any of its subsidiaries that is material to the Company and
its subsidiaries, considered as one enterprise, or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the Company
or any subsidiary, and, to the best of the Company's knowledge, no consent,
approval or authorization of any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture or the Offered Securities, except such as have been obtained under the
Securities Act, the Exchange Act and the Trust Indenture Act and such as may be
required under the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Offered Securities.
(j) There has not been any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, considered as one enterprise, from that set forth in the
Prospectus.
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(k) There are no legal or governmental proceedings pending or, to the
best of the Company's knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any
of its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or, to the
best of the Company's knowledge, any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that are
not described or filed as required.
(l) Each of the Company and each of its Significant Subsidiaries has
all necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and use
its properties and assets and to conduct its business in the manner described in
the Prospectus, as then amended or supplemented, except to the extent that the
failure to obtain or file would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
(m) Ernst & Young LLP, whose reports have been included in the
Prospectus or are 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 Securities Act and the rules and
regulations thereunder.
(n) The financial statements included or incorporated by reference in
the Registration Statement or the Prospectus present fairly in all material
respects the financial conditions 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 prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved.
III.
If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Manager shall receive from the
Company as compensation, for the accounts of the Underwriters, a commission in
the form of a discount as set forth in the Underwriting Agreement in respect of
the principal amount of Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of the Delayed
Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the principal amount of Offered Securities
set forth opposite each Underwriter's name in the Underwriting
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Agreement, except to the extent that the Manager determines that such reduction
shall be otherwise and so advises the Company.
IV.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
V.
Payment for the Underwriters' Securities shall be made by the several
Underwriters through the Manager to or upon the order of the Company by wire
transfer of immediately available funds or by such other manner of payment as
may be agreed upon by the Company and the Manager at the time and place set
forth in the Underwriting Agreement, upon delivery to or as directed by the
Manager for the respective accounts of the several Underwriters of the
Underwriters' Securities registered in such names and in such denominations as
the Manager shall request in writing not less than two full business days prior
to the date of the delivery.
VI.
The several obligations of the Underwriters hereunder are subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the date and time the Underwriting Agreement is executed
and delivered by the parties hereto (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:
(a) Subsequent to the Execution Time or, if earlier in the case of
clause (i), the dates as of which information is given in the Registration
Statement and the Prospectus, and on or prior to the Closing Date:
(i) There shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations, of the
Company and its subsidiaries, taken as a whole, from that set forth in
the Prospectus, as amended or supplemented as of the Execution Time,
that, in the reasonable judgment of the Manager, is material and
adverse and that makes it, in the reasonable judgment of the Manager,
impracticable to market the Offered Securities on the terms and in the
manner contemplated in the Prospectus, as so amended or supplemented;
(ii) There shall not have occurred any (A) suspension or
material limitation of trading in securities generally on the
New York
Stock Exchange, the American Stock Exchange, the Nasdaq National
Market, the Chicago Board Options Exchange, the Chicago Mercantile
Exchange
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or the Chicago Board of Trade; (B) suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (C) declaration of a general moratorium on commercial banking
activities in
New York by either federal or
New York state authorities;
(D) material disruption in securities settlement, payment or clearance
services in the United States; or (E) any outbreak or escalation of any
hostilities or any change in financial markets or any calamity or
crisis that, in the reasonable judgment of the Manager, is material and
adverse and, in the case of any of the events described in clauses
(ii)(A) through (E), such event, singly or together with any other such
event, makes it, in the reasonable judgment of the Manager,
impracticable to market the Offered Securities on the terms and in the
manner contemplated by the Prospectus;
(iii) There shall not have been any decrease in the rating of
any of the Company's debt securities by ▇▇▇▇▇'▇ Investors Service to a
rating lower than ___, or any decrease in the rating of any of the
Company's debt securities by Standard & Poor's Credit Rating Service to
a rating lower than ___;
(b) The Manager shall have received on the Closing Date an opinion from
_______________, counsel to the Company, dated the Closing Date, to the effect
set forth in Exhibit A hereto.
(c) The Manager shall have received on the Closing Date an opinion of
___________, counsel for the Underwriters, dated the Closing Date, with respect
to the issuance and sale of the Offered Securities, the Indenture, the
Registration Statement, the Prospectus (together with any supplement thereto)
and other related matters as the Manager may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Manager shall have received, on the Closing Date, a
certificate, dated the Closing Date and 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 to the effect that (i) the
representations and warranties of the Company contained herein are true and
correct as of such date with the same effect as if made on such date and the
Company has complied with all the agreements and satisfied all the conditions
required by this Agreement to be performed or satisfied by it at or before such
date; (ii) since the date of the most recent financial statements included or
incorporated by reference in the Prospectus, as amended or supplemented as of
the Execution Time, there has been no material adverse effect on the condition,
financial or otherwise, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus, as so
amended or supplemented; and (iii) 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.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
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(e) The Manager shall have received on the date hereof and confirmed on
the Closing Date, a letter dated the date hereof or the Closing Date, as
applicable, in form and substance satisfactory to the Manager, from the
independent public accountants of the Company, and from such other independent
public accountants as the Manager may reasonably request, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Registration Statement and the Prospectus.
(f) If filing of the Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b) under the Securities Act, 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.
VII.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) Prior to the termination of the offering of the Offered Securities
pursuant to this Agreement, the Company will not file any amendment or
supplement to the Registration Statement or the Basic Prospectus (including any
Prospectus Supplement relating to the Offered Securities) unless the Company has
previously furnished to the Manager a copy thereof for its review and will not
file any such proposed amendment or supplement to which the Manager reasonably
objects; provided that the foregoing requirement shall not apply to any of the
Company's periodic filings with the Commission required to be filed pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, which filings the Company
will cause to be timely filed with the Commission and copies of which filings
the Company will cause to be delivered to the Manager promptly after being
mailed for filing with the Commission. Subject to the foregoing sentence, the
Company will promptly cause each Prospectus Supplement to be filed with or
transmitted for filing to the Commission in accordance with Rule 424(b) under
the Securities Act. The Company will promptly advise the Manager (i) of the
filing of any amendment or supplement to the Basic Prospectus, (ii) of the
filing and effectiveness of any amendment to the Registration Statement, (iii)
of any request by the Commission for any amendment of the Registration Statement
or any amendment of or supplement to the Basic 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 Offered 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 or notice of suspension
of qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Securities Act, or until the
distribution of any Offered Securities an Underwriter may own as principal has
been completed, any event occurs or condition exists as a result of which (i)
the Registration Statement or the Prospectus as then amended or supplemented
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would include an untrue statement of a material fact, or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading when the Prospectus, as then amended or supplemented, is delivered to
a purchaser, not misleading, or (ii) if, in the opinion of the Manager or in the
opinion of the Company, it is necessary at any time to amend or supplement the
Registration Statement or the Prospectus, as then amended or supplemented, to
comply with applicable law, the Company will immediately notify each Underwriter
by telephone (with confirmation in writing) to suspend solicitation of offers to
purchase Offered Securities or any resale thereof and, if so notified by the
Company, each Underwriter shall forthwith suspend such solicitation or resale
and cease using the Prospectus as then amended or supplemented. The Company
shall, at its expense, prepare and cause to be filed promptly with the
Commission, subject to the first sentence of paragraph (a) of this Section VII,
an amendment or supplement to the Registration Statement or Prospectus as then
amended or supplemented that will correct such statement or omission or effect
such compliance and will supply such amended or supplemented Prospectus to each
Underwriter in such quantities as such Underwriter may reasonably request.
(c) The Company will make generally available to its security holders
and to the Manager as soon as practicable earnings statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder covering the twelve-month period beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the date of the Underwriting Agreement. If such fiscal quarter is the
last fiscal quarter of the Company's fiscal year, such earnings statement shall
be made available not later than 90 days after the close of the period covered
thereby and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(d) The Company will furnish to the Manager without charge two signed
copies of the Registration Statement and all amendments thereto, including
exhibits and any documents incorporated by reference therein, and, during the
period mentioned in Section VII(b) above, as many copies of the Prospectus, any
documents incorporated by reference therein and any supplements and amendments
thereto as the Manager may reasonably request.
(e) The Company will qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and will pay all reasonable expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered Securities
for investment under the laws of such jurisdictions as the Manager may
designate, provided that the Company shall not be obligated to so qualify the
Offered Securities if such qualification requires it to file any general consent
to service of process or to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified.
(f) Prior to the termination of the offering of the Offered Securities,
the Company shall furnish to the Manager such relevant documents and
certificates of officers of the Company relating to the business, operations and
affairs of the Company, the Registration Statement, the Basic Prospectus, any
amendments or supplements thereto, the Indenture, the Offered Securities, the
Underwriting Agreement and the performance by the Company of its obligations
hereunder or thereunder as the Manager may from time to time reasonably request
and shall notify the Manager promptly in writing of any downgrading or of its
receipt of any notice of (i) any
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intended or potential downgrading or (ii) any review or possible change that
does not indicate the direction of a possible change in the rating accorded any
of the Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(g) The Company will, whether or not any sale of Offered Securities is
consummated, pay all expenses incident to the performance of its obligations
under the Underwriting Agreement, including: (i) the preparation and filing of
the Registration Statement and the Prospectus and all amendments and supplements
thereto; (ii) the preparation, issuance and delivery of the Offered Securities;
(iii) the fees and disbursements of the Company's counsel and accountants and of
the Trustee and its counsel; (iv) the qualification of the Offered Securities
under securities or Blue Sky laws in accordance with the provisions of Section
VII(e), including filing fees and the reasonable fees and disbursements of the
counsel for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky memoranda ("Blue Sky Memoranda"); (v) the printing
and delivery to the Underwriters in quantities as hereinabove stated of copies
of the Registration Statement and all amendments thereto, and of the Basic
Prospectus and any amendments or supplements thereto; (vi) the printing and
delivery to the Underwriters of copies of the Indenture and any Blue Sky
Memoranda; (vii) any fees charged by rating agencies for the rating of the
Offered Securities; (viii) any reasonable out-of-pocket expenses incurred by the
Underwriters with the approval of the Company and (ix) the fees and expenses, if
any, incurred with respect to any filing with the National Association of
Securities Dealers, Inc.
(h) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, the Company will
not, without the prior consent of the Manager, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company substantially similar to
the Offered Securities (other than (i) the Offered Securities that are to be
sold pursuant to such agreement, (ii) Offered Securities previously agreed to be
sold by the Company and (iii) commercial paper issued in the ordinary course of
business), except as may otherwise be provided in any such agreement.
VIII.
(a) The Company agrees to indemnify and hold harmless each Underwriter,
the officers, directors, employees and agents of such Underwriter, and each
person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages or liabilities, joint or several,
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or in any amendment thereof, or in the
Prospectus (if used within the period set forth in paragraph (b) of Section VII)
or any preliminary prospectus, or in any amendment thereof or supplement
thereto, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or alleged omission based upon information furnished to the
Company in writing by or on behalf of such Underwriter expressly for use
therein.
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(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company to each such
Underwriter, but only with reference to information relating to such Underwriter
furnished in writing by such Underwriter expressly for use in the Registration
Statement or the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing; and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel,
(ii) the actual or potential parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified 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 use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest or (iv) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such proceeding. It is understood that
the indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager, in
the case of parties indemnified pursuant to paragraph (a) above and by the
Company in the case of parties indemnified pursuant to paragraph (b) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but, if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of each
14
indemnified party from all liability on claims that are the subject matter of
such proceeding. Failure to notify the indemnifying party as required by the
first sentence of this paragraph (c) (1) will not relieve the indemnifying party
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 (2) 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.
(d) If the indemnification provided for in paragraph (a) or (b) of this
Section VIII is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein in connection
with any offering of Offered Securities, then the Company and the Underwriters
severally agree that each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other in connection with the offering of the Offered Securities shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of such Offered Securities (before deducting expenses) received by the
Company and the total discounts and commissions received by the Underwriters in
respect thereof, in each case as set forth in the Prospectus, bear to the total
aggregate public offering price of such Offered 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 Offered Securities)
be responsible for any amount in excess of the underwriting discount or
commission applicable to the Offered Securities purchased by such Underwriter
hereunder. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or allegedly untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section VIII were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section VIII, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Offered
15
Securities offered and sold to the public through such Underwriter exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or allegedly untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section VIII are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any indemnified party at
law or in equity.
The indemnity and contribution agreements contained in this Section
VIII and the representations and warranties of the Company in this Agreement
shall remain operative and in full force and effect regardless of (i)
termination of this Agreement, (ii) any investigation made by any Underwriter or
on behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Company, its directors or officers or any person controlling
the Company and (iii) acceptance of and payment for any of the Offered
Securities.
IX.
If any one or more Underwriters shall fail to purchase and pay for any
of the Offered Securities agreed to be purchased by such Underwriter or
Underwriters 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 Offered Securities set
forth opposite their names in the Underwriting Agreement bears to the aggregate
principal amount of Offered Securities set forth opposite the names of all the
remaining underwriters) the Offered Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Offered Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate principal amount of Offered Securities set forth in
the Underwriting Agreement, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Offered Securities, and if such nondefaulting Underwriters do not purchase all
the Offered 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 IX, the Closing Date shall be postponed
for such period, not exceeding five days, as the Manager 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 nondefaulting Underwriter for damages occasioned by
its default hereunder.
X.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Company, if prior to the
Closing Date (i) trading in securities generally on the
New York Stock Exchange,
the American Stock Exchange, the Nasdaq National Market, the Chicago Board
Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in
New York shall have been declared by either
Federal or New
16
York State authorities, (iii) there shall have occurred a material disruption in
securities settlement, payment or clearance services in the United States or
(iv) there shall have occurred any material outbreak or escalation of
hostilities or other calamity or crisis and, in the case of any of the events
described in clauses (i) through (iv), the effect of such event on the financial
markets of the United States is such as to make it, in the reasonable judgment
of the Manager, impractical to market the Offered Securities on the terms and in
the manner contemplated by the Prospectus.
XI.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement except pursuant to Section IX hereof, the Company will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally through the Manager on demand, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of
New York applicable to a contract executed and
performed in such State without giving effect to the conflicts of laws
principles thereof.
17
Schedule I
DELAYED DELIVERY CONTRACT
----------, -------
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from
GATX Financial
Corporation, a Delaware corporation (the "Company"), and the Company agrees to
sell to the undersigned
$
--------------
principal amount of the Company's [state title of issue] (the "Securities"),
offered by the Company's Prospectus dated _________, _____ and Prospectus
Supplement dated __________, ______, receipt of copies of which are hereby
acknowledged, at a purchase price of ___% of the principal amount thereof plus
accrued interest and on the further terms and conditions set forth in this
contract. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company Securities in the principal
amounts and on the delivery dates set forth below:
Delivery Principal Plus Accrued
Date Amount Interest From:
-------- --------- --------------
$
----------------- ----------------- -------------------
$
----------------- ----------------- -------------------
$
----------------- ----------------- -------------------
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by wire transfer
of immediately available funds or by such other manner of payment as may be
agreed upon by the Company and the undersigned at the office of __________,
New
York, N.Y. at 10:00 a.m. (
New York time) on the Delivery Date, upon delivery to
or as directed by the undersigned of the Securities to be purchased by the
undersigned on the Delivery Date, in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the juris diction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus
18
Supplement referred to above of, such part of the Securities as is to be sold to
them. Promptly after completion of sale and delivery to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties thereto and their respective successors, but will not be assignable by
either party hereto without the prior written consent of the other.
If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by and construed in accordance with the
laws of the State of
New York applicable to a contract executed and performed in
such State without giving effect to the conflicts of laws principles thereof.
Yours very truly,
(Purchaser)
By
(Title)
(Address)
Accepted:
GATX FINANCIAL CORPORATION
By
--------------------------
19
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print).
Telephone No.
(Including
Name Area Code) Department
---- ------------- ----------
------------------------ ------------------ ---------------------
------------------------ ------------------ ---------------------
------------------------ ------------------ ---------------------
------------------------ ------------------ ---------------------
EXHIBIT A
Opinion of ________,
Counsel for
GATX Financial Corporation
The opinion of _______________, to be delivered pursuant to Section
VI(b) of the document dated __________, 20__, and entitled
GATX Financial
Corporation Underwriting Agreement Standard Provisions (Debt Securities) shall
be 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 State of Delaware. The
Company has the corporate power and authority to own its property and to conduct
its business as described in the Prospectus. The Company is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or the ownership and leasing of its properties requires
such qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company and
its subsidiaries, considered as one enterprise.
(ii) Each Significant Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation. Each Significant Subsidiary has the corporate
power and authority to own its property and to conduct its business as described
in the Prospectus. Each Significant Subsidiary is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or the ownership or leasing of its property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise.
(iii) Each of the Company and each of its Significant Subsidiaries has
all necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease, license and use
its properties and assets and to conduct its business in the manner described in
the Prospectus, as amended or supplemented, except to the extent that the
failure to obtain or file would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
(iv) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement, the
Indenture and the Offered Securities will not contravene any provision of
applicable law or the certificate of incorporation or bylaws of the Company or
result in the creation or imposition of any lien, charge or encumbrance upon any
of the assets of the Company or any of its subsidiaries pursuant to the terms
of, or constitute a default under, any agreement or other instrument binding
upon the Company or any of its subsidiaries that is material to the Company and
its subsidiaries, considered as one enterprise, or, to the best of such
counsel's knowledge, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary, and, to
the best of such counsel's knowledge, no consent, approval or authorization of
any governmental body or agency is required for the performance by the Company
of its obligations under the Underwriting Agreement, the Indenture and the
Offered Securities, except such as have been obtained under the Securities Act,
the Exchange Act and the Trust Indenture Act and such as may be required under
the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Offered Securities.
2
(v) To the best of such counsel's knowledge, after due inquiry, there
are no legal governmental proceedings pending or threatened to which the Company
or any of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that is required to be described
in the Registration Statement or the Prospectus, as amended or supplemented, and
is not so described, or of any statute, regulation, contract or other document
that is required to be described in the Registration Statement or the
Prospectus, as amended or supplemented, or to be filed as an exhibit to the
Registration Statement or the Prospectus, as amended or supplemented, or to be
filed as an exhibit to the Registration Statement that is not described or filed
as required.
(vi) The [Senior] Indenture has been duly authorized, executed and
delivered by the Company and is a valid, binding and enforceable agreement of
the Company in accordance with its terms and has been duly qualified under the
Trust Indenture Act.
(vii) The Offered Securities have been duly authorized by the Company
and, when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters [or by institutional
investors, if any, pursuant to Delayed Delivery Contracts], will be valid,
binding and enforceable obligations of the Company in accordance with their
terms.
(viii) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
[(ix) The Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and binding
agreements of the Company in accordance with their respective terms.]
(x) The statements in the Prospectus under the captions "Description of
Debt Securities" and "Description of the [Offered Securities]" and the
statements in the Prospectus incorporated by reference from Item 3 of the
Company's most recent annual report on Form 10-K and from Part II - Item 1 of
the Company's most recent quarterly report on Form 10-Q, insofar as such
statements constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with respect to
such legal matters, documents and proceedings, and fairly summarize the matters
referred to therein.
(xi) Such counsel (1) is of the opinion that each document, if any,
filed pursuant to the Exchange Act (except as to financial statements and
schedules, as to which such counsel need not express any opinion) and
incorporated by reference in the Prospectus is appropriately responsive in all
material respects with such Act and the rules and regulations thereunder, (2)
believes that (except as to financial statements and schedules and the Statement
of Eligibility and Qualification of the Trustee on Form T-1, as to which such
counsel need not express any belief) each part of the Registration Statement
(including the documents incorporated by reference therein), filed with the
Commission pursuant to the Securities Act relating to the Offered Securities,
when such part became effective did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (3) is of the opinion
that the Registration Statement and Prospectus, as amended or supplemented, if
applicable (except as to financial statements and schedules and the Statement of
Eligibility and Qualification of the Trustee on Form T-1, as to which such
counsel need not express any belief) is appropriately responsive in all material
respects with the Securities Act and the applicable rules and regulations
thereunder and
3
(4) believes that (except as to financial statements and schedules and the
Statement of Eligibility and Qualification of the Trustee on Form T-1, as to
which such counsel need not express any belief) the Registration Statement and
the Prospectus on the date of the Underwriting Agreement did not, and the
Prospectus, as amended or supplemented, if applicable, on the Closing Date does
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 that such
counsel may state that his opinion and belief is based upon his participation in
the preparation of the Registration Statement and Prospectus and any amendments
or supplements thereto and upon review and discussion of the contents thereof,
but is without independent check or verification except as otherwise specified,
including without limitation, the independent check or verification of the
mathematical computations contained in the Registration Statement and the
Prospectus. With respect to clause (4), such counsel may state its opinion in
the negative.
(xii) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940, as amended.
The Registration Statement is effective under the Act, and to my
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued or proceedings therefor initiated by the Commission.
In rendering such opinion, such counsel may qualify any opinion as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the States of New York and
Illinois, the federal law of the United States and the Delaware General
Corporation Law (including the applicable provisions of the Delaware
Constitution and reported judicial decisions interpreting that Law) upon
opinions of other counsel (copies of which shall be delivered to each
Underwriter), who shall be counsel satisfactory to the Underwriters. Such
counsel may also state that, insofar as such opinion involves factual matters,
he has relied, to the extent he deems proper, upon certificates of officers of
the Company and its subsidiaries and certificates of public officials.