<PAGE> 1
As filed with the Securities and Exchange Commission on December 15, 1995
Registration No. 33-
-----
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------
GATX CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 94-1661392
- ----------------------------------- ------------------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Four Embarcadero Center
San Francisco, California 94111
(415) 955-3200
------------------------------------------------------------------------
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
THOMAS C. NORD, Esq.
GATX Capital Corporation
Vice President and General Counsel
Four Embarcadero Center
San Francisco, California 94111
(415) 955-3200
------------------------------------------------------------------------
(Name, address, including zip code, and telephone number,
including area code, of agent for service of process)
Copies to:
THOMAS C. NORD, Esq. LINDA C. WILLIAMS, Esq.
Vice President and General Counsel BARBARA M. LANGE, Esq.
GATX Capital Corporation Pillsbury Madison & Sutro LLP
Four Embarcadero Center 235 Montgomery Street
San Francisco, California 94111 San Francisco, California 94104
Approximate date of commencement of proposed sale to the public: from time
to time after this Registration Statement becomes effective.
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/
<PAGE> 2
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>
================================================================================
Proposed Proposed
Title of Each Maximum Maximum
Class of Amount Offering Aggregate Amount of
Securities to to Be Price Offering Registration
Be Registered Registered Per Unit Price (1) Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Medium-Term $300,000,000 100% $300,000,000 $103,448
Notes,
Series D
</TABLE>
================================================================================
(1) Estimated solely for the purposes of determining the amount of the
registration fee.
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 the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<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 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.
PRELIMINARY PROSPECTUS
DATED _______________, 199_
SUBJECT TO COMPLETION
$300,000,000
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTES, SERIES D
Due from Nine Months to Fifteen Years from Date of Issue
GATX Capital Corporation ("GATX Capital" or the "Company") may offer from
time to time up to $300,000,000 aggregate principal amount of its Medium-Term
Notes, Series D (the "Notes"), which will bear interest at fixed or variable
rates ("Fixed Rate Notes" and "Floating Rate Notes," respectively). The
interest rate on the Fixed Rate Notes, which may be zero in the case of certain
Notes issued at a price representing a substantial discount from the principal
amount payable on maturity ("Zero Coupon Notes"), and the methods of
determining the interest rate on the Floating Rate Notes will be established by
the Company from time to time and will be set forth in supplements hereto
("Pricing Supplements"). Interest rates, the methods of determining interest
rates and issue prices are subject to change by the Company, but no such change
will affect any Note previously issued or as to which an offer to purchase has
been accepted by the Company. The Notes will have maturities ranging from nine
months to fifteen years from the date of issue. The Notes will be issued in
denominations of $100,000 or any amount in excess thereof which is an integral
multiple of $1,000, except as otherwise specified in the applicable Pricing
Supplement. Offers to purchase the Notes are being solicited from time to time
by Morgan Stanley & Co. Incorporated and Salomon Brothers Inc, as Agents, and
may be solicited from time to time by such other agents as may be identified in
the applicable Pricing Supplement (each, an "Agent" and collectively, the
"Agents") on behalf of the Company. Notes may also be sold to such firms acting
as principals for their own accounts. Unless otherwise specified in the
applicable Pricing Supplement, interest, if any, on Fixed Rate Notes will
accrue from their dates of original issue and will be payable semiannually on
each April 1 and October 1 and at maturity or, if applicable, upon redemption.
The interest rate on Floating Rate Notes will be determined by reference to the
"Commercial Paper Rate," LIBOR, the "Federal Funds Rate," the "Treasury Rate"
or other interest rate formula, and may be adjusted by a "Spread," all as
defined herein. Interest on Floating Rate Notes will accrue from their dates of
original issue and will be payable monthly, quarterly, semiannually or
annually, as set forth in the applicable Pricing Supplement, and at maturity
or, if applicable, upon redemption.
The Notes may be issued in whole or in part in the form of a certificate
issued in definitive form (a "Certificated Note") or in the form of one or more
global notes to be deposited with or on behalf of Depository Trust Company (the
"Depositary") (or such other depositary as is identified in the applicable
Pricing Supplement) and registered in the name of the Depositary's nominee (a
"Book-Entry Note"). Interests in Book-Entry Notes will be shown on, and
transfers thereof will be effected only through, records maintained by the
Depositary and its participants. Book-Entry Notes will be issuable only in
global form, except under the circumstances described herein.
On and after the Redemption Date, if any, fixed by the Company at the time
of sale and set forth in the applicable Pricing Supplement, a Note will be
subject to redemption by the Company, in whole or in part, at the price or
prices set forth in the applicable Pricing Supplement, together with interest
to the date of redemption. See "Description of Notes."
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.
<TABLE>
<CAPTION>
PRICE TO AGENTS' PROCEEDS TO
PUBLIC(1) COMMISSIONS(2) COMPANY(2)(3)
--------- -------------- -------------
<S> <C> <C> <C>
Per Note . . . . . . . 100% .125%-.625% 99.875%-99.375%
Total . . . . . . . . . $300,000,000 $375,000-$1,875,000 $299,625,000-$298,125,000
- ----------
</TABLE>
(1) Unless otherwise specified in the applicable Pricing Supplement, Notes
will be sold at 100% of their principal amount. If the Company issues any
Note at a discount from or at a premium over its principal amount, the
Price to Public of any Note issued at a discount or a premium will be set
forth in the applicable Pricing Supplement.
<PAGE> 4
(2) The commission payable to an Agent for each Note sold through such Agent
shall range from .125% to .625% of the principal amount of such Note. The
Company may also sell Notes to any Agent, as principal, for its own
account at negotiated discounts and for resale to investors and other
purchasers.
(3) Before deducting expenses payable by the Company estimated at $238,448.
Offers to purchase the Notes are being solicited from time to time by
Morgan Stanley & Co. Incorporated, and Salomon Brothers Inc, as Agents, on
behalf of the Company. The Agents have agreed to use best efforts to solicit
purchases of such Notes. The Company may also sell Notes to an Agent acting as
principal for its own account for resale to investors and other purchasers, to
be determined by such Agent. The Company may appoint additional agents for the
purpose of soliciting offers to purchase Notes. The Company reserves the right
to sell Notes directly to investors on its own behalf in those jurisdictions
where it is permitted to do so. No termination date for the offering of the
Notes has been established. The Company or an Agent may reject any order in
whole or in part. The Notes will not be listed on any securities exchange, and
there can be no assurance that the Notes offered hereby will be sold or that
there will be a secondary market for the Notes. See "Plan of Distribution."
MORGAN STANLEY & CO. SALOMON BROTHERS INC
INCORPORATED
_______ __, 1996
<PAGE> 5
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS (INCLUDING THE ACCOMPANYING PRICING SUPPLEMENT) IN CONNECTION WITH
THE OFFER CONTAINED HEREIN AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR BY ANY OF THE AGENTS. NEITHER THE DELIVERY OF THIS PROSPECTUS
(INCLUDING THE ACCOMPANYING PRICING SUPPLEMENT) NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCE, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE AS OF WHICH INFORMATION IS
GIVEN IN THIS PROSPECTUS (INCLUDING THE ACCOMPANYING PRICING SUPPLEMENT). THE
PROSPECTUS (INCLUDING THE ACCOMPANYING PRICING SUPPLEMENT) DOES NOT CONSTITUTE
AN OFFER OR A SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH AN OFFER OR SOLICITATION.
IN CONNECTION WITH THIS OFFERING, THE AGENTS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE NOTES AT A
LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and, in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's New York Regional Office, Seven World Trade Center, Suite
1300, New York, New York 10048 and its Chicago Regional Office, Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60611.
Copies of such material can be obtained from the Public Reference Section of
the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which are on file with the Commission, are
incorporated herein by reference and made a part hereof:
(a) The Company's most recently filed Annual Report on Form 10-K;
(b) The Company's Quarterly Reports on Form 10-Q filed since the end
of the Company's fiscal year covered by its most recent Annual Report on
Form 10-K; and
(c) The Company's Current Reports on Form 8-K filed since the end of
the Company's fiscal year covered by its most recent Annual Report on Form
10-K.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the 1934 Act subsequent to the date of this Prospectus and prior
to the termination of the offering covered by this Prospectus shall be deemed
to be incorporated herein by reference and shall be a part hereof from the
respective dates 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 statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
-2-
<PAGE> 6
The Company will provide without charge to each person, including any
beneficial owner, to whom a Prospectus is delivered, upon written or oral
request of such person, a copy of any and all of the information that has been
incorporated by reference in this Prospectus, other than exhibits to such
information (unless such exhibits are specifically incorporated by reference
into such information). Any such requests should be directed to Thomas C. Nord,
Esq., Vice President and General Counsel, GATX Capital Corporation, Four
Embarcadero Center, San Francisco, California 94111 (415) 955-3200.
-3-
<PAGE> 7
THE COMPANY
GATX Capital, directly and through subsidiaries and partnerships, provides
asset-based financing of primarily transportation and industrial equipment
through long term, full payout financing leases, secured equipment loans and
operating leases. The Company also provides related financial services
including arranging lease transactions for investment by other lessors and
management of leased equipment portfolios for third parties.
All common and preferred stock of the Company is owned by GATX Corporation
("GATX"). GATX founded the Company as GATX Leasing Corporation, a Delaware
corporation, in 1968 to own, sell and finance equipment independent of GATX's
own specialized equipment activities. During 1968 and 1969, the Company
emphasized the leasing of commercial jet aircraft. Since that time, it has
developed a portfolio of earning assets diversified across industries and
equipment classifications. At September 30, 1995, the Company had
approximately 650 financing contracts with approximately 450 customers,
aggregating $1.4 billion of investment before reserves. Of this amount, 47%
represented commercial jet aircraft, 15% railroad equipment, 11% warehouse and
production equipment, 8% marine equipment, 5% golf courses, and 14% other
equipment. The Company provides equipment financing, operating lease services
and residual guarantees and engages in lease and portfolio acquisitions and
management of leased equipment portfolios and lease underwriting activities
that provide fee income and residual value participation.
Except as expressly indicated or unless the context otherwise requires, as
used herein the "Company" or "GATX Capital" means GATX Capital Corporation and
its subsidiaries. The Company's principal office is located at Four Embarcadero
Center, San Francisco, California 94111, telephone (415) 955-3200.
RECENT DEVELOPMENTS
On November 16, 1995, the Company announced that, effective October 31,
1995, it had agreed to acquire over the next four years all of the outstanding
stock of Sun Financial Group, Inc., a technology-focused finance company based
in Tampa, Florida. Sun Financial Group has $140 million in assets, most of
which are deployed in client/server environments, providing a source of
increased diversification for the Company's investment portfolio. Mr. Clay M.
Biddinger, Sun Financial Group's founder, will continue as its president and
chief executive officer.
USE OF PROCEEDS
Many of the Company's lease and loan financing investments provide for a
fixed rate of return. These transactions are financed initially with internally
generated funds and the proceeds of the sale of commercial paper. Consistent
with its policy of matching funding on a portfolio basis whereby the Company
matches fixed rate assets with fixed cost funds and floating rate assets with
floating cost funds, the Company intends to apply the net proceeds from the
sale of the Notes primarily to reduce outstanding commercial paper and for
other general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratios of earnings to fixed
charges of the Company for the periods indicated:
-4-
<PAGE> 8
<TABLE>
<CAPTION>
Nine Months
Ended
September 30, Year Ended December 31,
-----------------------
1995 1994 1993 1992 1991 1990
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
1.98 1.85 1.86 1.17 1.74 1.71
</TABLE>
For the purpose of computing the ratio of earnings to fixed charges, (i)
earnings consist of net income plus fixed charges (other than interest
capitalized during the period) and estimated federal and other taxes on income
and (ii) fixed charges consist of interest on indebtedness (including
capitalized interest), amortization of debt discount or premium and a portion
of rental expense representative of an interest factor.
DESCRIPTION OF NOTES
GENERAL
The Notes constitute a single series of debt securities of the Company to
be issued under an Indenture dated as of July 31, 1989 as supplemented and
amended by Supplemental Indentures dated as of December 18, 1991 and
_____________ (together, the "Indenture"), between the Company and The Chase
Manhattan Bank (National Association), as trustee (the "Trustee"), each of
which is included as an exhibit to the Registration Statement of which this
Prospectus forms a part (the "Registration Statement"). The following summaries
of certain provisions of the Indenture and the Notes do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all provisions of the Indenture and the Notes, including the definitions
therein of certain terms. Certain capitalized terms are defined in the
Indenture. Section references in parentheses are to the Indenture.
The particular terms of the Notes issued under the Indenture will be
described in the Pricing Supplement relating to such Notes.
The Indenture does not limit the principal amount of debt securities which
may be issued thereunder and provides that debt securities may be issued
thereunder in one or more series up to the aggregate principal amount which may
be authorized from time to time by the Company, and the Company from time to
time, without the consent of the Holders of any debt securities, may provide
for the issuance of debt securities under the Indenture in addition to the
Notes authorized on the date of this Prospectus. Notes in an aggregate
principal amount of up to $300,000,000 may be offered pursuant to this
Prospectus.
The Notes will be offered on a continuing basis and will mature at par on
any Business Day (as hereinafter defined) from nine months to fifteen years
from the date of issue, as selected by the purchaser and agreed to by the
Company, and may be subject to redemption at the option of the Company or a
Holder prior to maturity at the price or prices and on or after the date or
dates specified in the applicable Pricing Supplement.
Unless otherwise specified in the applicable Pricing Supplement, the Notes
will be issued in fully registered form without coupons, in denominations of
$100,000 or any amount in excess thereof which is an integral multiple of
$1,000. No service charge will be made for any registration of transfer or
exchange of such Notes, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charges that may be imposed in
connection therewith.
Each Note will be issued initially as either a Book-Entry Note or a
Certificated Note. Except as set forth herein, Book-Entry Notes will be
issuable only as Global Notes. See "Book-Entry System."
The Notes will be unsecured and will rank pari passu with all other
unsecured and unsubordinated indebtedness of the Company.
-5-
<PAGE> 9
Unless otherwise specified in the applicable Pricing Supplement, principal
and interest, if any, will be payable, the transfer of the Notes will be
registerable, and Notes will be exchangeable for Notes bearing identical terms
and provisions, at the office of the Trustee in The City of New York designated
for such purpose. Payment of interest, other than interest payable at Maturity
(including on the date of redemption (the "Redemption Date"), if a Note is
redeemed at the option of the Company or a Holder prior to Maturity), may be
made by check mailed to the address of the person entitled thereto as shown on
the Security Register. Unless otherwise specified in the applicable Pricing
Supplement, the principal and interest payable at Maturity on each Note will be
paid upon Maturity in immediately available funds against presentation of the
Note at the office of the Trustee maintained for such purpose. Any other terms
with respect to a Note not inconsistent with the provisions of the Indenture
will be set forth in the applicable Pricing Supplement and in such Note.
INTEREST RATE
Each Note will bear interest from its date of original issue at either the
rate per annum which may be zero (a "Fixed Rate Note") or pursuant to the
interest rate formula (a "Floating Rate Note") stated therein and in the
applicable Pricing Supplement until the principal thereof is paid or made
available for payment. Interest, if any, will be payable on each Interest
Payment Date (as defined below) and at maturity or, if applicable, upon
redemption. The "Record Date" with respect to any Interest Payment Date for a
Fixed Rate Note shall be the March 15 or September 15 preceding such Interest
Payment Date and, with respect to any Interest Payment Date for a Floating Rate
Note, shall be the date fifteen calendar days immediately preceding such
Interest Payment Date, in either case, whether or not such date is a Business
Day. Interest will be payable to the person in whose name a Note is registered
at the close of business on the Record Date next preceding each Interest
Payment Date; provided, however, that interest payable at maturity or, if
applicable, upon redemption will be payable to the person to whom principal
shall be payable. The first payment of interest on any Note issued between a
Record Date and an Interest Payment Date will be made on the Interest Payment
Date following the next succeeding Record Date to the registered owner on such
next succeeding Record Date.
The applicable Pricing Supplement relating to a Note will designate, in
the case of a Fixed Rate Note, a fixed rate of interest per annum payable on
the applicable Note which may be zero in the case of certain Notes issued at a
price representing a substantial discount from the principal amount payable on
maturity (a "Zero Coupon Note") and, in the case of a Floating Rate Note, one
of the following interest rate formulas as applicable to the relevant Note: (a)
the Commercial Paper Rate (as defined below), in which case such Note will be a
"Commercial Paper Rate Note;" (b) LIBOR, in which case such Note will be a
"LIBOR Note;" (c) the Federal Funds Rate (as defined below), in which case such
Note will be a "Federal Funds Rate Note;" (d) the Treasury Rate (as defined
below), in which case such Note will be a "Treasury Rate Note;" or (e) such
other interest rate formula as is set forth in such Pricing Supplement. The
rate of interest on each Floating Rate Note will be reset daily, weekly,
monthly, quarterly, semiannually or annually (each an "Interest Reset Period"),
as specified in the applicable Pricing Supplement and in the applicable Note.
All percentages resulting from any calculations will be rounded, if
necessary, to the nearest one hundredth of a percent, with five one-thousandths
of a percent being rounded upwards.
If an Interest Payment Date with respect to any Note would otherwise fall
on a day that is not a Business Day with respect to such Note, such Interest
Payment Date will be the following day that is a Business Day with respect to
such Note, except that in the case of a LIBOR Note, if such day falls in the
next calendar month, such Interest Payment Date will be the preceding day that
is a Business Day with respect to such LIBOR Note. "Business Day" means (i)
with respect to any Note, any day that is not a Saturday or Sunday, and that,
in The City of New York, is neither a legal holiday nor a day on which banking
institutions or trust companies are authorized or obligated by law to close and
(ii) with respect to LIBOR Notes only, a London Banking Day. A "London Banking
Day" means any day on which dealings in deposits in U.S. dollars are transacted
in the London interbank market.
-6-
<PAGE> 10
FIXED RATE NOTES
Each Fixed Rate Note will bear interest, if any, from its date of original
issue at the rate per annum stated on the face thereof, until the principal
thereof is paid or made available for payment. The Interest Payment Dates for
Fixed Rate Notes will be on April 1 and October 1 of each year (each an
"Interest Payment Date") and at maturity (or on the Redemption Date, if a Fixed
Rate Note is redeemed at the option of the Company or a Holder). Interest will
be computed on the basis of a 360-day year of twelve 30-day months. Interest
rates are subject to change by the Company from time to time, but no such
change will affect any Fixed Rate Note theretofore issued or as to which an
offer to purchase has been accepted by the Company.
FLOATING RATE NOTES
The interest rate on each Floating Rate Note will be calculated by
reference to the specified interest rate formula, plus or minus a spread, if
any (the "Spread"). The Spread is the number of basis points specified in the
applicable Pricing Supplement as being applicable to the interest rate for such
Floating Rate Note and may be a fixed amount or an amount that increases or
decreases over time. A Floating Rate Note may also have either or both of the
following: (i) a maximum limitation, or ceiling, on the rate of interest which
may accrue during any interest period; and (ii) a minimum limitation, or floor,
on the rate of interest which may accrue during any interest period. In
addition to any maximum interest rate which may be applicable to any Floating
Rate Note pursuant to the above provisions, the interest rate on the Floating
Rate Notes will in no event be higher than the maximum rate permitted by New
York law, as the same may be modified by United States law of general
application. Under present New York law the maximum rate of interest, subject
to certain exceptions, for any loan in an amount less than $250,000 is 16% and
for any loan in an amount of $250,000 or more and less than $2,500,000 is 25%
per annum on a simple interest basis. This limit may not apply to Floating Rate
Notes issued in an aggregate principal amount of $2,500,000 or more.
The applicable Pricing Supplement will specify the interest rate formula,
the amount or amounts of the Spread, if any, and the maximum or minimum
interest rate limitation, if any, applicable to each Floating Rate Note. In
addition, such Pricing Supplement will define or particularize for each
Floating Rate Note the following terms, if applicable: Calculation Date,
Initial Interest Rate, Interest Payment Period, Interest Payment Dates, Record
Date, Index Maturity, Interest Determination Date, Interest Reset Period and
Interest Reset Date. "Index Maturity" means, with respect to a Floating Rate
Note, the period to maturity of the instrument or obligation on which the
interest rate formula is based, as specified in the applicable Pricing
Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, the date
or dates on which interest will be reset (each an "Interest Reset Date") will
be, in the case of Floating Rate Notes which reset daily, each Business Day; in
the case of Floating Rate Notes which reset weekly, the Wednesday of each week
(with the exception of weekly reset Treasury Rate Notes which will reset the
Tuesday of each week, except as specified below); in the case of Floating Rate
Notes which reset monthly, the third Wednesday of each month; in the case of
Floating Rate Notes which reset quarterly, the third Wednesday of March, June,
September and December; in the case of Floating Rate Notes which reset
semiannually, the third Wednesday of the two months specified in such Floating
Rate Notes; and, in the case of Floating Rate Notes which reset annually, the
third Wednesday of the month as specified in such Floating Rate Note; provided,
however, that (a) the interest rate in effect from the date of original issue
to the first Interest Reset Date with respect to a Floating Rate Note (the
"Initial Interest Rate") will be as set forth in the applicable Pricing
Supplement and (b) the interest rate in effect for the ten days immediately
prior to maturity will be that in effect on the tenth calendar day preceding
such maturity. If any Interest Reset Date for a Floating Rate Note would
otherwise be a day that is not a Business Day, such Interest Reset Date shall
be postponed to the next succeeding day that is a Business Day, except that, in
the case of a LIBOR Note, if such Business Day is in the next succeeding
calendar month, such Interest Reset Date shall be the next preceding Business
Day. In the case of weekly reset Treasury Rate
-7-
<PAGE> 11
Notes, if an auction of Treasury bills (as hereinafter defined) falls on a day
that is an Interest Reset Date for Treasury Rate Notes, the Interest Reset Date
will be the following day that is a Business Day.
The "Interest Determination Date" pertaining to an Interest Reset Date for
a Commercial Paper Rate Note (the "Commercial Paper Rate Interest Determination
Date") and for a Federal Funds Rate Note (the "Federal Funds Rate Interest
Determination Date") will be the second Business Day preceding the Interest
Reset Date with respect to such Note. The Interest Determination Date
pertaining to an Interest Reset Date for a LIBOR Note (the "LIBOR Interest
Determination Date") will be the second London Banking Day preceding such
Interest Reset Date. The Interest Determination Date pertaining to an Interest
Reset Date for a Treasury Rate Note (the "Treasury Interest Determination
Date") will be the day of the week in which such Interest Reset Date falls on
which Treasury bills of the Index Maturity specified in the applicable pricing
supplement would normally be auctioned. Treasury bills are usually sold at
auction on Monday of each week, unless the day is a legal holiday, in which
case the auction is usually held on the following Tuesday, except that such
auction may be held on the preceding Friday. If, as the result of a legal
holiday, an auction is so held on the preceding Friday, such Friday will be the
Treasury Interest Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week. If an auction falls on a day that is an
Interest Reset Date, such Interest Reset Date will be the next following
business day.
Interest on each Floating Rate Note will be payable monthly, quarterly,
semiannually or annually (the "Interest Payment Period"). Except as provided
below or in the applicable Pricing Supplement, the date or dates on which
interest will be payable (each an "Interest Payment Date") will be, in the case
of Floating Rate Notes which reset daily, weekly or monthly, on the third
Wednesday of each month or on the third Wednesday of March, June, September and
December of each year; in the case of Floating Rate Notes which reset
quarterly, on the third Wednesday of March, June, September and December of
each year; in the case of Floating Rate Notes which reset semiannually, on the
third Wednesday of the two months of each year specified in such Floating Rate
Notes; and in the case of Floating Rate Notes which reset annually, on the
third Wednesday of the month specified in such Floating Rate Notes and in each
case, at maturity or, if applicable, upon redemption.
Unless otherwise indicated in the applicable Pricing Supplement, interest
payments shall be the amount of interest accrued from, and including, the next
preceding Interest Payment Date in respect of which interest has been paid (or
from, and including, the date of original issue if no interest has been paid
with respect to such Floating Rate Note) to, but excluding, the Interest
Payment Date.
With respect to a Floating Rate Note, accrued interest from its date of
original issue or from the last date to which interest has been paid is
calculated by multiplying the face amount of such Floating Rate Note by an
accrued interest factor. Such accrued interest factor is computed by adding the
interest factors calculated for each day from the date of issue, or from the
last date to which interest has been paid, to the date for which accrued
interest is being calculated. The interest factor (expressed as a decimal
calculated to seven decimal places without rounding) for each such day is
computed by dividing the interest rate applicable to such day by 360, in the
case of Commercial Paper Rate Notes, Federal Funds Rate Notes and LIBOR Notes,
or by the actual number of days in the year, in the case of Treasury Rate
Notes.
The "Calculation Date," where applicable, pertaining to an Interest
Determination Date will be the tenth calendar day after such Interest
Determination Date or, if any such day is not a Business Day, the next
succeeding Business Day.
Unless otherwise provided in the applicable Pricing Supplement, The Chase
Manhattan Bank (National Association) will be the calculation agent (the
"Calculation Agent") with respect to the Floating Rate Notes. Upon the request
of the Holder of any Floating Rate Note, the Calculation Agent will provide the
interest rate then in effect and, if determined, the interest rate which will
become
-8-
<PAGE> 12
effective as a result of a determination made on the most recent Interest Reset
Date with respect to such Floating Rate Note.
Commercial Paper Rate Notes. Commercial Paper Rate Notes will bear
interest at the interest rates (calculated with reference to the Commercial
Paper Rate and the Spread, if any) specified in the Commercial Paper Rate Notes
and in the applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement,
"Commercial Paper Rate" means, with respect to any Interest Determination Date,
the Money Market Yield (as defined below) on such date of the rate for
commercial paper having the Index Maturity specified in the applicable Pricing
Supplement as published by the Board of Governors of the Federal Reserve System
in "Statistical Release H.15(519), Selected Interest Rates" ("H.15(519)"), or
any successor publication, under the heading "Commercial Paper." In the event
that such rate is not published by the Calculation Date pertaining to such
Interest Determination Date, then the Commercial Paper Rate shall be the Money
Market Yield on such Interest Determination Date of the rate for commercial
paper of the specified Index Maturity as published by the Federal Reserve Bank
of New York in its daily statistical release, "Composite 3:30 P.M. Quotations
for U.S. Government Securities" ("Composite Quotations") under the heading
"Commercial Paper." If by 3:00 P.M., New York City time, on such Calculation
Date the rate for an Interest Determination Date is not yet published in either
H.15(519) or Composite Quotations, the rate for that Interest Determination
Date shall be calculated by the Calculation Agent and shall be the Money Market
Yield of the arithmetic mean of the offered rates, as of 11:00 A.M., New York
City time, of three leading dealers of commercial paper in The City of New York
selected by the Calculation Agent on that Interest Determination Date, for
commercial paper of the specified Index Maturity placed for an industrial
issuer whose bond rating is "AA," or the equivalent, from a nationally
recognized rating agency; provided, however, that if any of the dealers
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the Commercial Paper Rate in effect for the applicable period
will be the same as the Commercial Paper Rate for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset Period, the rate
of interest payable on the Commercial Paper Rate Notes for such period shall be
the Initial Interest Rate).
"Money Market Yield" shall be a yield calculated in accordance with the
following formula:
Money Market Yield = D X 360 X 100
-----------------
360 - (D X M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
LIBOR Notes. LIBOR Notes will bear interest at the interest rates
(calculated with reference to LIBOR and the Spread, if any) specified in the
LIBOR Notes and in the applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, LIBOR
will be determined by the Calculation Agent in accordance with the following
provisions:
(i) With respect to an Interest Determination Date, LIBOR will be
determined on the basis of the offered rates for deposits in U.S. dollars
having the Index Maturity specified in the applicable Pricing Supplement,
commencing on the second London Banking Day immediately following such
Interest Determination Date and may consist either of (a) the arithmetic
mean (rounded upward, if necessary, to the nearest one-sixteenth of a
percent), as determined by the Calculation Agent, of the offered rates for
deposits in U.S. dollars for the period of such Index Maturity which
appear on the Reuters Screen LIBO Page as of 11:00 A.M., London time, on
such Interest Determination Date, if at least two such offered rates
appear on the Reuters Screen LIBO Page ("LIBOR Reuters") or (b)
-9-
<PAGE> 13
the rate for deposits in U.S. dollars for the period of such Index
Maturity which appears on the Telerate Page 3750 as of 11:00 A.M., London
time, on such Interest Determination Date ("LIBOR Telerate"). "Reuters
Screen LIBO Page" means the display designated as Page "LIBO" on the
Reuters Monitor Money Rate Service (or such other page as may replace the
LIBO page on the service for the purpose of displaying London Interbank
offered rates of major banks). "Telerate Page 3750" means the display
designated as page "3750" on the Telerate Service (or such other page as
may replace the 3750 page in that service or such other service or
services as may be nominated by the British Bankers' Association for the
purpose of displaying London Interbank offered rates for U.S. dollar
deposits). If neither LIBOR Reuters nor LIBOR Telerate is specified in the
applicable Pricing Supplement, LIBOR will be determined as if LIBOR
Telerate had been specified. If fewer than two offered rates appear on the
Reuters Screen LIBO Page or if no rate appears on the Telerate Page 3750,
as applicable, LIBOR for such Interest Determination Date will be
determined as if the parties had specified the rate described in (ii)
below.
(ii) With respect to an Interest Determination Date on which fewer
than two offered rates appear on the Reuters Screen LIBO Page or if no
rate appears on the Telerate Page 3750, as applicable as described in (i)
above, LIBOR will be determined, on the basis of the rates at
approximately 11:00 A.M. London time on such Interest Determination Date
at which deposits in U.S. dollars having the Index Maturity specified in
the applicable Pricing Supplement are offered to prime banks in the London
interbank market by four major banks in the London interbank market
selected by the Calculation Agent, commencing on the second London Banking
Day immediately following such Interest Determination Date and in a
principal amount equal to an amount of not less than U.S. $1,000,000 that
is representative of a single transaction in such market at such time. The
Calculation Agent will request the principal London office of each of such
banks to provide a quotation of its rate. If at least two such quotations
are provided, LIBOR for such Interest Determination Date will be the
arithmetic mean (rounded upward, if necessary, to the nearest
one-sixteenth of a percent) of such quotations, as determined by the
Calculation Agent. If fewer than two quotations are provided, LIBOR for
such Interest Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 A.M., New York City time, on such LIBOR
Interest Determination Date by three major banks in The City of New York,
selected by the Calculation Agent (after consultation with the Company)
for loans in U.S. dollars to leading European banks, having the specified
Index Maturity, commencing on the second London Banking Day immediately
following such Interest Determination Date and in a principal amount equal
to an amount of not less than $1,000,000 that is representative of a
single transaction in such market at such time; provided, however, that if
any of the banks selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, LIBOR in effect for the applicable
period will be the same as LIBOR for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the rate of
interest payable on the LIBOR Notes for such period shall be the Initial
Interest Rate).
Federal Funds Rate Notes. Federal Funds Rate Notes will bear interest at
the interest rates (calculated with reference to the Federal Funds Rate and the
Spread, if any) specified in the Federal Funds Rate Notes and in the applicable
Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, "Federal
Funds Rate" means, with respect to any Interest Determination Date, the rate on
that day for Federal Funds as published in H.15(519) under the heading "Federal
Funds (Effective)" or, if not so published by the Calculation Date pertaining
to such Interest Determination Date, the Federal Funds Rate will be the rate on
such Interest Determination Date as published in Composite Quotations under the
heading "Federal Funds/Effective Rate." If neither of such rates is published
by 3:00 P.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the Federal Funds Rate for such Interest
Determination Date will be calculated by the Calculation Agent and will be the
arithmetic mean of the rates for the last transaction in overnight Federal
Funds arranged by three leading brokers of Federal Funds transactions in The
City of New York selected by the Calculation Agent as of 11:00 A.M., New York
City time, on
-10-
<PAGE> 14
such Interest Determination Date; provided, however, that if any of the brokers
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the rate of interest in effect for the applicable period will be
the same as the Federal Funds Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of interest
payable on the Federal Funds Rate Notes for such period shall be the Initial
Interest Rate).
Treasury Rate Notes. Treasury Rate Notes will bear interest at the
interest rates (calculated with reference to the Treasury Rate and the Spread,
if any) specified in the Treasury Rate Notes and in the applicable Pricing
Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, "Treasury
Rate" means, with respect to any Interest Determination Date, the rate for the
most recent auction of direct obligations of the United States ("Treasury
bills") having the Index Maturity specified in the applicable Pricing
Supplement as published in H.15(519), or any successor publication, under the
heading "U.S. Government Securities--Treasury bills-- auction average
(Investment)" or, if not so published by the Calculation Date pertaining to
such Interest Determination Date, the auction average rate (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States
Department of the Treasury. Treasury bills are usually sold at auction on
Monday of each week, unless that day is a legal holiday, in which case the
auction is usually held on the following Tuesday, except that such auction may
be held on the preceding Friday. In the event that the results are not
published or reported as provided above by 3:00 P.M., New York City time, on
such Calculation Date, or if no such auction is held in a particular week, then
the Treasury Rate shall be calculated by the Calculation Agent and shall be a
yield to maturity (expressed as a bond equivalent, on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) of the arithmetic
mean of the secondary market bid rates as of approximately 3:30 P.M., New York
City time, on such Interest Determination Date, of three leading primary United
States government securities dealers selected by the Calculation Agent (after
consultation with the Company) for the issue of Treasury bills with a remaining
maturity closest to the specified Index Maturity; provided, however, that if
any of the dealers selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, the Treasury Rate in effect for the
applicable period will be the same as the Treasury Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the rate of interest payable on the Treasury Rate Notes for such period
shall be the Initial Interest Rate).
ZERO COUPON NOTES
Zero Coupon Notes will be offered at a substantial discount from their
principal amount at maturity. There will be no periodic payments of interest.
The calculation of the accrual of original issue discount (as defined below),
in the period during which a Zero Coupon Note remains outstanding, will be on a
semiannual bond equivalent basis using a year composed of twelve 30-day months.
Upon maturity, original issue discount will cease to accrue on a Zero Coupon
Note. See "Certain United States Federal Income Tax Consequences."
Limitation of Claims in Bankruptcy. If a bankruptcy case is commenced in
respect of the Company, the claim of the Holder of a Zero Coupon Note with
respect to the principal amount thereof may, under Section 502(b)(2) of Title
11 of the United States Code, be limited to the issue price of the Zero Coupon
Note plus that portion of the original issue discount that is amortized from
the date of issue to the commencement of the proceeding.
REDEMPTION
Unless otherwise specified in the applicable Pricing Supplement, the Notes
will not have a sinking fund. Redemption Dates, if any, and whether such
redemption is at the option of the Company or a Holder, will be fixed at the
time of sale and set forth in the applicable Pricing Supplement and on the
applicable Note. If no Redemption Date is indicated with respect to a Note,
such Note will not be
-11-
<PAGE> 15
redeemable prior to maturity. On and after the Redemption Date, the related
Fixed Rate Note or Floating Rate Note will be redeemable in whole, or in part
increments of $1,000 (provided that any remaining principal amount of such Note
shall be at least $1,000), at the option of the Company or the Holder, as the
case may be, at the redemption price or prices set forth in the applicable
Pricing Supplement, together with interest thereon payable to the Redemption
Date (the "Redemption Price"), on notice given (i) to the Trustee not more than
60 nor less than 30 days prior to the Redemption Date with respect to
redemption at the option of the Company or (ii) to the Trustee and the Company
at least 60 days prior to the Redemption Date with respect to redemption at the
option of a Holder. (Sections 11.1 through 11.7)
REPURCHASE
The Company may at any time purchase Notes at any price in the open market
or otherwise. Notes so purchased by the Company may be held or resold or, at
the discretion of the Company, may be surrendered to the Trustee for
cancellation.
BOOK-ENTRY SYSTEM
Book-Entry Notes may be issued in whole or in part in the form of one or
more fully-registered global notes which will be deposited with, or on behalf
of, the Depositary and registered in the name of its nominee. Except as set
forth below, a Global Note may not be transferred except as a whole by the
Depositary to its nominee or by its nominee to such Depositary or another
nominee of the Depositary or by the Depositary or its nominee to a successor of
the Depositary or a nominee of such successor. (Sections 2.3 and 3.5)
The Depositary has advised the Company and the Agents as follows: the
Depositary 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 the provisions of Section 17A of the
1934 Act. The Depositary was created to hold securities of its participating
organizations ("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. The
Depositary's participants include securities brokers and dealers (including the
Agents expressly identified by name herein), banks, trust companies, clearing
companies, clearing corporations and certain other organizations, some of whom
(and/or their representatives) own the Depositary. Access to the Depositary'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. Persons who are not
participants may beneficially own securities held by the Depositary only
through participants.
Upon issuance of any Notes by the Company that will be represented by a
Global Note, the Depositary will credit on its book- entry system the
respective principal amounts of the Notes represented by such Global Note to
the accounts of participants. The accounts to be credited shall be designated
by the Agents or by the Company, if such Notes are offered and sold directly by
the Company. Ownership of beneficial interests in a Global Note will be limited
to participants or persons that may hold interests through participants.
Ownership of beneficial interests in a Global Note will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the Depositary's participants or persons that may hold interests through
participants. 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
a Global Note.
So long as the Depositary for a Global Note, or its nominee, is the
registered owner of a Global Note, such Depositary or nominee, as the case may
be, will be considered the sole owner or Holder of the Note represented by such
Global Note for all purposes under the Indenture. Except as provided
-12-
<PAGE> 16
below, owners of beneficial interests in a Global Note will not be entitled to
have Notes represented by Global Notes registered in their names, will not
receive or be entitled to receive physical delivery of Notes in definitive form
and will not be considered the owners or Holders thereof under the Indenture.
Principal and interest payments on the Notes registered in the name of the
Depositary or its nominee will be made by the Company to the Depositary or its
nominee, as the case may be, as the registered owner of a Global Note. Neither
the Company nor the Trustee will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Note or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests and each
of them may act or refrain from acting without liability on any information
provided by the Depositary. The Company expects that the Depositary, upon
receipt of any payment of principal or interest in respect of a Global Note,
will credit immediately the accounts of the participants with payment in
amounts proportionate to their respective holdings in principal amount of
beneficial interest in a Global Note as shown on the records of the Depositary.
The Company also expects that payments by participants to owners of beneficial
interests in a Global Note 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.
The applicable Pricing Supplement will specify whether a Note will be
issued initially as a Book-Entry Note or a Certificated Note. Except as set
forth in this paragraph, Book-Entry Notes will only be issued as Global Notes.
If the Depositary is at any time unwilling or unable or ineligible to continue
as depositary and a successor depositary is not appointed by the Company within
90 calendar days, the Company will issue Notes in certificated form in exchange
for all outstanding Global Notes. In addition, the Company (but not a Holder)
may at any time determine not to have Notes represented by a Global Note and,
in such event, will issue Notes in certificated form in exchange for all such
Global Notes. In any such instance, an owner of a beneficial interest in the
one or more Global Notes to be exchanged will be entitled to physical delivery
in definitive certificated form of Notes equal in principal amount to such
beneficial interest and to have such Notes registered in its name. Notes so
issued in certificated form will be issued in denominations of $100,000 and
integral multiples of $1,000 in excess thereof, except as otherwise specified
in the applicable Pricing Supplement, and will be issued in registered form
only, without coupons. (Section 3.5)
CERTAIN COVENANTS OF COMPANY
The debt securities are not secured by mortgage, pledge or other lien. The
Company covenants that neither it nor any Restricted Subsidiary (which the
Indenture defines as any subsidiary which is a consolidated subsidiary, in
accordance with generally accepted accounting principles, in the consolidated
financial statements of the Company) will subject any of its property, tangible
or intangible, real or personal to any lien unless the debt securities are
secured equally and ratably with other indebtedness thereby secured. There are
excepted from this covenant any liens existing on the date of the Indenture, as
well as certain other liens, and the extension, renewal or replacement thereof,
including without limitation, (i) liens on any property provided that the
creditor has no recourse against the Company or any Restricted Subsidiary
except recourse to such property or proceeds of any sale or lease therefrom;
(ii) liens on property existing at the time of acquisition (including
acquisition through merger or consolidation) or given in connection with
financing the purchase price or cost of construction or improvement of
property; (iii) other liens not permitted by clauses (i) and (ii) on property
then owned or thereafter acquired, provided no such lien shall be incurred
pursuant to clause (iii) if the aggregate amount of indebtedness secured by
liens incurred pursuant to clauses (ii) and (iii), including the lien proposed
to be incurred, shall exceed 30% of Net Tangible Assets; (iv) liens securing
certain intercompany indebtedness; (v) a banker's lien or right of offset; (vi)
liens arising under the Employee Retirement Income Security Act of 1974, as
amended, to secure any contingent liability of the Company; (vii) liens on
sublease interests held by the Company which liens are in favor of the person
granting the lease to the Company; (viii) various specified governmental liens
and deposits; and (ix)
-13-
<PAGE> 17
various other liens not incurred in connection with the borrowing of money
(including purchase money indebtedness) or the obtaining of advances or credit.
(Section 10.6). Net Tangible Assets is defined for this purpose as the total
assets of the Company less (x) current liabilities and (y) intangible assets.
In addition, the Company covenants that neither it nor any Restricted
Subsidiary will pay any dividends upon any of its stock of any class or make
any distribution of cash or property among its stockholders by reduction of
capital or otherwise (other than in stock of the Company) or purchase or redeem
any stock of any class of the Company unless the aggregate amounts of all such
payments and distributions after December 31, 1988 will not exceed the sum of
(i) the total of the accumulated consolidated net income of the Company and its
Restricted Subsidiaries during the period after December 31, 1988, (ii) any net
consideration received from the sale of the stock of any class of the Company
after December 31, 1988, (iii) the aggregate principal amount of any
indebtedness of the Company which shall have been converted into the stock of
any class of the Company and (iv) $25,000,000. Such restriction shall not apply
to (i) the payment of dividends on preferred stock or any payment to purchase
shares of preferred stock subject to a mandatory sinking fund, provided that
such payments are included in the foregoing calculations, (ii) the redemption
or retirement of any shares of capital stock of the Company by exchange for, or
out of the proceeds of a substantially concurrent sale of, other shares of
capital stock, (iii) the purchase of any shares of capital stock of the Company
pursuant to or in connection with any retirement, bonus, profit sharing,
thrift, savings, stock option or compensation plan for officers or employees of
the Company or (iv) the conversion of shares of any stock of the Company into
shares of any other stock of the Company. (Section 10.8)
MERGER AND CONSOLIDATION
The Indenture provides that the Company may consolidate or merge with or
into any other corporation and the Company may sell, lease or convey all or
substantially all of its assets to any corporation, organized and existing
under the laws of the United States of America or a State thereof, provided
that the corporation (if other than the Company) formed by or resulting from
any such consolidation or merger or which shall have received such assets shall
assume payment of the principal of (and premium, if any) and interest on the
Notes and the performance and observance of all of the covenants and conditions
of the Indenture to be performed or observed by the Company. (Sections 8.1 and
8.2)
MODIFICATION AND WAIVER
Modification and amendment of the Indenture may be effected by the Company
and the Trustee with the consent of the Holders of 66-2/3% in principal amount
of the Outstanding debt securities of each series affected thereby, provided
that no such modification or amendment may, without the consent of the Holder
of each Outstanding debt security affected thereby, (a) change the Stated
Maturity of any installment of principal of, or interest on, any debt security
or change the Redemption Price; (b) reduce the principal amount of, or the
interest on, any debt security or reduce the amount of principal which could be
declared due and payable prior to the Stated Maturity; (c) change the place or
currency of any payment of principal or interest on any debt security; (d)
impair the right to institute suit for the enforcement of any payment on or
with respect to any debt security; (e) reduce the percentage in principal
amount of the Outstanding debt securities of any series, the consent of whose
Holders is required to modify or amend the Indenture; or (f) modify the
foregoing requirements or reduce the percentage of Outstanding debt securities
necessary to waive any past default to less than a majority. Except with
respect to certain fundamental provisions, the Holders of at least a majority
in principal amount of Outstanding debt securities of any series may, with
respect to such series, waive past defaults under the Indenture and waive
compliance by the Company with certain provisions of the Indenture. (Sections
9.2 and 10.7)
-14-
<PAGE> 18
EVENTS OF DEFAULT, WAIVER AND NOTICE
An Event of Default with respect to any debt security of any series is
defined in the Indenture as being: default for 30 days in payment of any
interest on or any Additional Amounts payable in respect of any debt security
of that series; default in payment of principal (and premium, if any) on the
debt securities of that series when due either at maturity, upon optional or
mandatory redemption, as a sinking fund installment, by declaration or
otherwise; default in the performance or breach of any other covenant or
warranty of the Company in respect of the debt securities of such series in the
Indenture which shall not have been remedied for a period of 90 days after
notice; certain events of bankruptcy, insolvency and reorganization of the
Company; and any other Event of Default established for the debt securities of
such series set forth in the Pricing Supplement. (Section 5.1) The Indenture
provides that the Trustee may withhold notice to the Holders of the debt
securities of any default with respect to any series thereof (except in payment
of principal of, or interest on, the debt securities) if the Trustee considers
it in the interest of the Holders of the debt securities of such series to do
so. (Section 6.2)
The Indenture provides that (1) if an Event of Default due to the default
in payment of principal of, or interest on, any series of debt securities, or
due to the default in the performance or breach of any other covenant or
warranty of the Company applicable to the debt securities of such series but
not applicable to all outstanding debt securities, shall have occurred and be
continuing, either the Trustee or the Holders of 25% in principal amount of the
Outstanding debt securities of such series then may declare the principal of
all debt securities of such series, or such lesser amount as may be provided
for in the debt securities of that series, and interest accrued thereon to be
due and payable immediately and (2) if an Event of Default resulting from
default in the performance of any other of the covenants or agreements in the
Indenture applicable to all Outstanding debt securities and certain events of
bankruptcy, insolvency and reorganization of the Company shall have occurred
and be continuing, either the Trustee or the Holders of 25% in principal amount
of all Outstanding debt securities (treated as one class) may declare the
principal of all debt securities, or such lesser amount as may be provided for
in such securities, and interest accrued thereon to be due and payable
immediately, but upon certain conditions such declarations may be annulled and
past defaults may be waived (except a continuing default in payment of
principal of, or premium or interest on, the debt securities) by the Holders of
a majority in principal amount of the Outstanding debt securities of such
series (or of all series, as the case may be). (Sections 5.2 and 5.13)
The Holders of a majority in principal amount of the Outstanding debt
securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to debt
securities of such series provided that such direction shall not be in conflict
with any rule of law or the Indenture or shall not be unduly prejudicial to the
Holders not taking part in such direction. (Section 5.12) The Indenture
requires the annual filing by the Company with the Trustee of a certificate as
to the absence of certain defaults under the Indenture. (Section 10.5)
CONCERNING THE TRUSTEE
The Chase Manhattan Bank (National Association) is the Trustee under the
Indenture. The Trustee has substantial banking relationships with the Company,
GATX and certain other affiliates of the Company and is the trustee under the
Indenture with respect to other series of debt securities, under another
indenture with the Company and under certain equipment trust agreements with an
affiliate.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following general discussion summarizes certain United States Federal
income tax aspects of the ownership of the Notes. This discussion is a summary
for general information only and is not a complete analysis of the tax
considerations that may be applicable to a prospective investor. This
discussion also does not address the tax consequences of ownership of Notes not
held as capital assets
-15-
<PAGE> 19
nor those that may be relevant to particular categories of investors subject to
special treatment under certain United States Federal income tax laws, such as
dealers in securities, tax-exempt entities, banks, insurance companies and
foreign individuals and entities. In addition, it does not describe any tax
consequences arising out of the tax laws of any state, locality or foreign
jurisdiction.
This discussion is based upon the Internal Revenue Code of 1986, as
amended (the "Code"), existing and proposed regulations thereunder and current
administrative rulings and court decisions. All of the foregoing are subject to
change, and any such change could affect the continuing validity of this
discussion. Persons considering the purchase of Notes should consult their own
tax advisors concerning the application of United States Federal income tax
laws, as well as the laws of any state, local or foreign taxing jurisdictions
to their particular situations. Additional United States Federal income tax
consequences applicable to particular Notes may be set forth in the applicable
Pricing Supplement.
INTEREST INCOME
Except as set forth below, interest on a Note will be taxable to a holder
as ordinary interest income at the time it accrues or is received in accordance
with such holder's method of accounting for tax purposes.
ORIGINAL ISSUE DISCOUNT
Final U.S. Treasury Department Regulations (the "Regulations") regarding
the original issue discount ("OID") provisions of the Code were adopted in
February 1994. However, the Regulations are ambiguous in many respects and
their application to the Notes may require further guidance. The amount of OID,
if any, on a debt instrument is the difference between its issue price
(generally, the initial offering price to the public at which a substantial
amount of Notes are sold) and its Stated Redemption Price at Maturity, subject
to a statutory de minimis exception. A Note's Stated Redemption Price at
Maturity is equal to all payments to be received on the Note less payments of
interest ("qualified stated interest") payable at fixed periodic intervals of
one year or less at a fixed rate or a variable rate meeting certain conditions.
The portion of OID, if any, accrued (and recognized as income) with respect to
a debt instrument for each Accrual Period (ordinarily the periods ending with
each Interest Payment Date provided such periods are no longer than one year)
will be equal to the excess, if any, of (i) the Adjusted Issue Price at the
beginning of the accrual period (i.e., the original Issue Price plus previously
accrued OID) multiplied by the "yield to maturity" of a debt instrument
(determined on the basis of a constant interest rate adjusted to reflect the
length of each accrual period) over (ii) the sum of the amount of stated
interest, if any, payable during such Accrual Period. The resulting amount is
allocated ratably to each day in the Accrual Period, and the amount includible
in a Holder's income (whether on the cash or accrual method of accounting) with
respect to the debt instrument is the sum of the resulting daily portions of
OID for each day of the taxable year in which the Holder held the debt
instrument. Generally, the tax basis of a debt instrument in the hands of the
Holder will be increased by the amount of OID, if any, on the debt instrument
that is included in the Holder's income pursuant to these rules and will be
decreased by the amount of any payment received with respect to OID previously
included in income. Under the foregoing rules, Holders of Zero Coupon Notes
will be required to include in income increasingly greater amounts of OID in
successive accrual periods.
Under the Regulations, it is possible that a Note providing for annual
interest rate adjustments and issued between a Record Date and an Interest
Payment Date, where the first interest payment will be made on the next
succeeding Interest Payment Date, will have been issued with OID, because the
initial interest period will be longer than one year. It is also possible that
a Note will have been issued with OID because the manner of determining the
Note's rate of interest depends on an increasing Spread which may cause
interest on the Note to be other than qualified stated interest.
-16-
<PAGE> 20
Because the Regulations do not provide clear guidance in these and other
circumstances involving Notes, and due to the complex nature of the OID rules,
Holders are urged to consult their tax advisors concerning application of those
rules to the Notes.
SHORT-TERM OBLIGATIONS
In general, a cash method Holder of a Note that matures one year or less
from the date of issuance (a "Short-Term Note") is not required to accrue OID
unless such holder elects to do so. Holders who report income for United States
Federal income tax purposes on the accrual method and certain other Holders,
including banks and dealers in securities, are required to include OID on such
Short-Term Notes on a straight-line basis, unless an election is made (on an
obligation-by-obligation basis) to accrue the OID according to a constant
interest method based on daily compounding. In the case of a Holder who is not
required, and does not elect, to include OID in income currently, any gain
realized on the sale, exchange or retirement of the Short-Term Note will be
ordinary income to the extent of the OID accrued on a straight-line basis (or,
if elected, according to a constant interest method based on daily compounding)
through the date of sale, exchange or retirement. In addition, such
non-electing Holders which are not subject to the current inclusion requirement
described above may be required to defer deductions for any interest paid on
indebtedness incurred or continued to purchase or carry such Short-Term Notes
in an amount not exceeding the deferred interest income, until such deferred
interest income is realized. Any election by a Holder to include OID on a
Short-Term Note in income as it accrues, whether under the straight-line or
constant interest method, applies to all obligations maturing one year or less
from the date of issuance acquired by the Holder during the taxable year of the
election and all subsequent taxable years, unless the U.S. Internal Revenue
Service (the "Service") consents to a revocation of the election.
INFORMATION REPORTING
The Company is required to furnish certain information to the Service and
will furnish annually to record Holders of the Notes information with respect
to OID, if any, accruing during the calendar year (as well as interest paid
during that year). Because this information will be based upon the adjusted
issue price of the Notes, subsequent Holders who purchase the Notes for an
amount in excess of the adjusted issue price will be required to determine for
themselves the amount of OID, if any, they are required to report.
MARKET DISCOUNT AND PREMIUM
If the Notes are acquired at a Market Discount, some or all of any gain
realized upon a sale or other disposition, partial principal payment or payment
at Maturity, of such Notes may be treated as ordinary income, as described
below. For this purpose, Market Discount is generally the excess of (i) the
Stated Redemption Price at Maturity of the Note (or, in the case of a Note
issued with OID, its issue price plus previously accrued OID) over (ii) such
Holder's tax basis in such Note, subject to a statutory de minimis exception.
Any gain realized in any subsequent disposition of such Note (other than in
connection with certain nonrecognition transactions) or any partial principal
payment or payment at maturity with respect to such Note will be treated as
ordinary income to the extent of the Market Discount that is treated as having
accrued during the period such Note was held. In addition, if such Note is
disposed of by gift ordinary income will be recognized as if such Note had been
sold at its then fair market value.
The amount of Market Discount treated as having accrued will be determined
either (i) on a ratable basis by multiplying the Market Discount times a
fraction, the numerator of which is the number of days the Note was held by the
Holder and the denominator of which is the total number of days after the date
such Holder acquired the Note up to and including the date of its Maturity, or
(ii) if the Holder so elects, on a constant interest method. A Holder may make
that election with respect to any Note and such election is irrevocable. In
lieu of including accrued market discount income at the time of
-17-
<PAGE> 21
disposition, a Holder of such Note acquired at a Market Discount may elect to
include Market Discount in income currently, through the use of either the
ratable inclusion method or the elective constant interest method. Once made,
such an election applies to all Notes and other obligations of the Holder that
are purchased at a Market Discount during the taxable year for which the
election is made and all subsequent taxable years of the Holder, unless the
Service consents to a revocation of the election. If an election is made to
include Market Discount in income currently, the basis of the Note in the hands
of the Holder will be increased by the Market Discount thereon as it is
includible in income.
Unless a Holder who acquires a debt instrument at a Market Discount elects
to include market discount in income currently, such Holder may be required to
defer a portion of any interest expense that may otherwise be deductible on any
indebtedness incurred or maintained to purchase or carry such debt instrument
until the Holder disposed of the debt instrument in a taxable transaction.
If a Holder purchases a Note issued with OID at a "premium" (i.e., for an
amount in excess of all remaining payments on the Note other than qualified
stated interest), then the Holder does not include any OID in income. Further,
if a Holder purchases a Note issued with OID for an amount in excess of the
Note's Adjusted Issue Price but not at a "premium," then the OID which such
Holder must include in income will be reduced under the "acquisition premium"
rules of the Code. Under those rules, such excess is allocated to each day
beginning on the date of purchase and ending on the day before the stated
Maturity date of the Note so as to equal a constant percentage of the OID
allocated to each such day, and the excess so allocated to the days of the
taxable year on which the Note is held reduces the amount of OID included in
such Holder's income for that year.
SALE, EXCHANGE, REDEMPTION OR REPAYMENT OF THE NOTES
Upon the disposition of a Note by sale, exchange or redemption, the Holder
will have gain or loss equal to the difference between (i) the amount received
on the disposition and (ii) the Holder's adjusted tax basis in the Note. A
Holder's adjusted tax basis in a Note will equal the cost of the Note to such
Holder, increased by the amounts of any Market Discount and OID previously
included in income by the Holder with respect to such Note and reduced by any
amortized acquisition premium and any principal payments received by the Holder
and, in the case of a Zero Coupon Note, by the amounts of any other payments
that do not constitute qualified stated interest (as discussed above). Assuming
that the Note is held as a capital asset, such gain or loss will generally
(except to the extent that the short-term obligation or market discount rules
otherwise provide) constitute capital gain or loss and will be long-term
capital gain or loss if the Holder has held such Note for longer than one year.
BACKUP WITHHOLDING
Holders of the Notes may be subject to backup withholding at the rate of
31% with respect to interest paid on the Notes, unless such Holder (i) is a
corporation or comes within certain other exempt categories and, when required,
demonstrates this fact or (ii) provides a correct taxpayer identification
number, certifies as to no loss of exemption from backup withholding and
otherwise complies with the applicable requirements of the backup withholding
rules. A Holder of the Notes who does not provide the Company with his correct
taxpayer identification number may be subject to penalties imposed by the
Service. Any amount paid as backup withholding will be creditable against the
Holder's United States Federal income tax liability and may entitle such Holder
to a refund.
PLAN OF DISTRIBUTION
The Notes are being offered on a continuing basis by the Company through
the Agents expressly identified by name herein, each of which has agreed to use
its best efforts to solicit purchases of the Notes. The Company also may sell
Notes to any Agent, at a discount to be agreed upon at the time of sale, for
resale to one or more Dealers, Agents or investors at varying prices related to
prevailing market prices at the time of such resale, to be determined by such
Agent. The Company reserves the right to
-18-
<PAGE> 22
sell Notes directly on its own behalf and through other agents as may be
identified by name in the applicable Pricing Supplement. The Company will have
the sole right to accept offers to purchase Notes and may reject any proposed
purchase of Notes in whole or in part. Each Agent will have the right, in its
discretion reasonably exercised, to reject any offer to purchase Notes received
by it in whole or in part. The Company will pay an Agent, in connection with
sales of Notes resulting from a solicitation made or an offer to purchase
received by such Agent, a commission ranging from .125% to .625% of the
principal amount of each Note depending upon the stated maturity.
The Company may also sell Notes to an Agent as principal for its own
account at discounts to be agreed upon at the time of sale. Such Notes may be
resold to investors and other purchasers at prevailing market prices, or prices
related thereto at the time of such resale, as determined by such Agent or, if
so agreed, at a fixed public offering price. In addition, an Agent may offer
any Notes that it has purchased as principal to other dealers. An Agent may
sell Notes to any dealer at a discount and, unless otherwise specified in the
applicable Pricing Supplement, such discount allowed to any dealer will not be
in excess of the discount to be received by such Agent from the Company. After
the initial public offering of Notes to be resold to investors and other
purchasers, the public offering price (in the case of Notes to be resold at a
fixed public offering price), concession and discount may be changed.
The Company has reserved the right to sell the Notes directly to investors
on its own behalf, and may solicit and accept offers to purchase Notes directly
from investors from time to time on its own behalf. No commission will be
payable by the Company on Notes sold directly by the Company. The Company may
accept offers to purchase Notes through additional agents and may appoint
additional agents for the purpose of soliciting offers to purchase Notes, in
either case on terms substantially identical to the terms contained in the
Distribution Agreement. Such other agents, if any, will be named in the
applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, payment
of the purchase price of Notes will be required to be made in funds immediately
available in The City of New York.
The Agents may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"). The Company has
agreed to indemnify the Agents against or to make contributions relating to
certain civil liabilities, including liabilities under the Securities Act. The
Company has agreed to reimburse the Agents for certain expenses.
The Company does not intend to apply for listing of the Notes on a
national securities exchange, but has been advised by the Agents expressly
identified by name herein that they currently intend to make a market in the
Notes, as permitted by applicable laws and regulations. Neither Agent expressly
identified by name herein is obligated, however, to make a market in the Notes
and any such market-making may be discontinued at any time at the sole
discretion of such Agent. Accordingly, no assurance can be given as to the
liquidity of, or trading markets for, the Notes.
Each Agent expressly identified by name herein in the ordinary course of
its business engages from time to time in securities transactions with and
performs investment banking services for the Company, GATX and certain other of
their affiliates.
LEGAL OPINIONS
The validity of the Notes will be passed upon for the Company by Thomas C.
Nord, Esq., Vice President and General Counsel, GATX Capital Corporation.
Certain legal matters relating to the Notes will be passed upon for the Agents
by Pillsbury Madison & Sutro LLP, 235 Montgomery Street, San Francisco,
California 94104. Pillsbury Madison & Sutro LLP has acted and continues to act
as counsel in certain matters for the Company and certain of its affiliates.
-19-
<PAGE> 23
EXPERTS
The consolidated financial statements of the Company incorporated by
reference in the Company's Annual Report on 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.
-20-
<PAGE> 24
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth all expenses in connection with the issuance
and distribution of the securities being registered. All amounts shown are
estimates, except the SEC registration fee.
<TABLE>
<S> <C>
SEC registration fee . . . . . . . . . . . . . . . . . . . . . $103,448
Accounting fees and expenses . . . . . . . . . . . . . . . . . . 25,000*
Legal fees and expenses, including Blue Sky fees and
expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 20,000*
Printing and engraving fees . . . . . . . . . . . . . . . . . . 15,000*
Trustee's fees and expenses . . . . . . . . . . . . . . . . . . 15,000*
Rating agency fees . . . . . . . . . . . . . . . . . . . . . . 50,000*
Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . 10,000*
--------
Total . . . . . . . . . . . . . . . . . . . . . . . . .
$238,448*
========
</TABLE>
- ------------------------
* Estimated
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware, as
amended, empowers a corporation, subject to certain limitations, to indemnify
its directors and officers against the actual and reasonable expenses of
defending litigation against them in their capacities as directors and officers.
Article VI of the By-Laws of the Company provides in terms similar to those of
Section 145 of the Delaware General Corporation Law that the Company shall have
power to indemnify its directors and officers.
Reference is made to Section 6 of the Distribution Agreement filed as Exhibit
1 to this Registration Statement pursuant to which the agents may under certain
circumstances indemnify the officers and directors of the Company.
Under the terms of a Directors and Officers Liability and Company
Reimbursement Liability Policy, the directors and officers of the Company are
insured up to an aggregate liability in each policy year of $75,000,000 per
occurrence, against any loss incurred in connection with any claim made against
them or any of them for any actual or alleged breach of duty, neglect, error,
misstatement, misleading statement, omission or other act done or wrongfully
attempted, or any matter not excluded by the terms and conditions of the policy,
claimed against them solely by reason of their being directors or officers of
the Company. The foregoing statements are subject to the detailed provisions of
such policy.
II-1
<PAGE> 25
Item 16. Exhibits.
1 Form of Distribution Agreement.
4(a) Indenture dated as of July 31, 1989 between GATX Capital Corporation
(formerly named GATX Leasing Corporation) and The Chase Manhattan Bank
(National Association) (incorporated by reference to Exhibit 4(a) to
the Company's Form S-3 Registration Statement No. 33-30300).
4(b) Supplemental Indenture dated as of December 18, 1991 between GATX
Capital Corporation and The Chase Manhattan Bank (National
Association) (incorporated by reference to Exhibit 4(b) to the
Company's Form S-3 Registration Statement No. 33-64474).
4(c) Form of Supplemental Indenture dated as of ________ between GATX
Capital Corporation and The Chase Manhattan Bank (National
Association).
4(d) Form of Medium-Term Note, Series D (Fixed Rate).
4(e) Form of Medium-Term Note, Series D (Fixed Rate) in global form.
4(f) Form of Medium-Term Note, Series D (Floating Rate).
4(g) Form of Medium-Term Note, Series D (Floating Rate) in global form.
5 Opinion of Thomas C. Nord, Esq., Vice President and General Counsel of
GATX Capital Corporation.
12 Computation of Ratio of Earnings to Fixed Charges
23(a) Consent of Thomas C. Nord, Esq. (included in Exhibit 5).
23(b) Consent of Ernst & Young LLP.
24 Power of Attorney (included on page II-6).
25 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank (National
Association) (separately bound).
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
II-2
<PAGE> 26
amendment thereof) which, individually 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 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) shall 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 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 securities offered therein, and the
offering of such securities at the 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.
(4) 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 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.
(5) 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 referred to in Item 15 of this
registration statement, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act 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 Act and
will be governed by the final adjudication of such issue.
(6) The undersigned registrant hereby undertakes that:
II-3
<PAGE> 27
(i) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(ii) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
II-4
<PAGE> 28
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 San Francisco and State of California on the 15th day
of December, 1995.
GATX CAPITAL CORPORATION
(Registrant)
By /s/ JOSEPH C. LANE
--------------------------------------
Joseph C. Lane, President,
Director and Chief Executive Officer
II-5
<PAGE> 29
POWER OF ATTORNEY
We, the undersigned officers and directors of GATX Capital Corporation,
hereby severally constitute Thomas C. Nord and George R. Prince, and either of
them singly, our true and lawful attorneys with full power to them, and each of
them singly, to sign for us and in our names in the capacities indicated below,
any and all amendments to this registration statement on Form S-3 filed by GATX
Capital Corporation with the Securities and Exchange Commission, and generally
to do all such things in our name and behalf in such capacities to enable GATX
Capital Corporation to comply with the provisions of the Securities Act of 1933,
as amended, and all requirements of the Securities and Exchange Commission, and
we hereby ratify and confirm our signatures as they may be signed by our said
attorneys, or either of them, to any and all such amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ JAMES J. GLASSER Chairman of the Board December 15, 1995
- --------------------------
James J. Glasser
/s/ JOSEPH C. LANE President, Chief Executive Officer and December 15, 1995
- -------------------------- Director (Principal Executive Officer)
Joseph C. Lane
/s/ ALAN C. COE Executive Vice President and Director December 15, 1995
- --------------------------
Alan C. Coe
/s/ JESSE V. CREWS Executive Vice President and Director December 15, 1995
- --------------------------
Jesse V. Crews
/s/ FREDERICK L. HATTON Executive Vice President and Director December 15, 1995
- --------------------------
Frederick L. Hatton
/s/ DAVID M. EDWARDS Director December 15, 1995
- --------------------------
David M. Edwards
/s/ RONALD H. ZECH Director December 15, 1995
- --------------------------
Ronald H. Zech
/s/ MICHAEL E. CROMAR Vice President and Chief Financial Officer December 15, 1995
- -------------------------- (Principal Financial Officer)
Michael E. Cromar
/s/ CURT F. GLENN Vice President and Controller (Principal December 15, 1995
- -------------------------- Accounting Officer)
Curt F. Glenn
</TABLE>
II-6
<PAGE> 30
Index to Exhibits
1 Form of Distribution Agreement.
4(a) Indenture dated as of July 31, 1989 between GATX Capital
Corporation (formerly named GATX Leasing Corporation) and The
Chase Manhattan Bank (National Association) (incorporated by
reference to Exhibit 4(a) to the Company's Form S-3
Registration Statement No. 33-30300).
4(b) Supplemental Indenture dated as of December 18, 1991 between
GATX Capital Corporation and The Chase Manhattan Bank (National
Association) (incorporated by reference to Exhibit 4(b) to the
Company's Form S-3 Registration Statement No. 33-64474).
4(c) Form of Supplemental Indenture dated as of ________ between
GATX Capital Corporation and The Chase Manhattan Bank (National
Association).
4(d) Form of Medium-Term Note, Series D (Fixed Rate).
4(e) Form of Medium-Term Note, Series D (Fixed Rate) in global form.
4(f) Form of Medium-Term Note, Series D (Floating Rate).
4(g) Form of Medium-Term Note, Series D (Floating Rate) in global
form.
5 Opinion of Thomas C. Nord, Esq., Vice President and General
Counsel of GATX Capital Corporation.
12 Computation of Ratio of Earnings to Fixed Charges.
23(a) Consent of Thomas C. Nord, Esq. (included in Exhibit 5).
23(b) Consent of Ernst & Young LLP.
24 Power of Attorney (included on page II-6).
25 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of The Chase Manhattan Bank
(National Association) (separately bound).
<PAGE> 1
Exhibit 1
GATX CAPITAL CORPORATION
$300,000,000
Medium-Term Notes, Series D Due from
Nine Months to Fifteen Years from Date of Issue
DISTRIBUTION AGREEMENT
January __, 1996
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Salomon Brothers Inc
7 World Trade Center
42nd Floor
New York, NY 10048
Ladies and Gentlemen:
GATX Capital Corporation, a Delaware corporation (the
"Company"), confirms its agreement with the Agents with respect to the issue and
sale by the Company of up to $300,000,000 aggregate principal amount of its
Medium-Term Notes, Series D Due from Nine Months to Fifteen Years from Date of
Issue (the "Notes"). The Notes are to be issued under an indenture dated as of
July 31, 1989, as supplemented and amended by supplemental indentures dated as
of December 18, 1991 and __________ ___, (the "Indenture"), between the
Company and The Chase Manhattan Bank (National Association) (the "Trustee") and
will bear interest, if any, at rates and will have the terms to be provided in a
supplement to the Basic Prospectus referred to below. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all documents
filed by the Company with the Commission subsequent to the date of the Basic
Prospectus pursuant to the Securities Exchange Act of 1934 (the "Exchange Act")
that are deemed to be incorporated by reference in the Prospectus.
-1-
<PAGE> 2
Subject to the reservation by the Company of the right to sell
Notes directly to investors on its own behalf, the Company hereby appoints
Morgan Stanley & Co. Incorporated and Salomon Brothers Inc as its agents (the
"Agents") for the purpose of soliciting and receiving offers to purchase the
Notes from the Company by others and, so long as this Agreement shall remain in
effect with respect to either Agent, on the basis of the representations and
warranties contained herein, but subject to the terms and conditions herein set
forth, the Company agrees that if and whenever the Company determines to sell
Notes directly to either Agent as principal for resale to others it will enter
into a Terms Agreement relating to each such sale as defined in and in
accordance with the provisions of Section 2(b) hereof. The Company may from time
to time offer Notes for sale otherwise than through the Agents; provided,
however, that (i) so long as this Agreement shall remain in effect, the Company
shall not solicit or accept offers to purchase Notes through any agent other
than the Agents unless such other agent shall have entered into an agreement
with the Company containing terms substantially the same as those set forth in
this Agreement, and (ii) promptly following the acceptance by the Company of any
offer to purchase Notes through any other such agent, the Company shall provide
the Agents with notice in writing or by telecopy of the terms of such sale. In
acting under this agreement and in connection with the sale of any Notes by the
Company (other than Notes sold to an Agent pursuant to a Terms Agreement), each
Agent is acting solely as agent of the Company and does not assume any
obligation towards or relationship of agency or trust with any purchaser of the
Notes or assume any obligation towards, or any liability as the result of any
act or failure to act of, the other Agent.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Agents as of the Commencement Date (as
hereinafter defined), as of each date on which an Agent solicits offers to
purchase Notes, as of each date on which the Company accepts an offer to
purchase Notes including any purchase by an Agent as principal, pursuant to a
Terms Agreement or otherwise, as of each date the Company issues and sells
Notes, and as of each date the Registration Statement (as hereinafter defined)
or the Basic Prospectus (as hereinafter defined) is amended or supplemented, as
follows (it being understood that such representations, warranties and
agreements shall be deemed to relate to the Registration Statement, the Basic
Prospectus and the Prospectus (as hereinafter defined), each as amended and
supplemented to each such date):
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Securities Act") and has filed with the
Securities and Exchange
-2-
<PAGE> 3
Commission (the "Commission") a registration statement on Form S-3 (Registration
No. 33-_____) and such registration statement has become effective for the
registration under the Securities Act of the Notes. Such registration statement,
including the exhibits thereto, is hereinafter called the "Registration
Statement." The Indenture has been qualified under the Trust Indenture Act of
1939 (the "Trust Indenture Act") and the Company has duly authorized the
issuance of the Notes. The Registration Statement meets the requirements set
forth in Rule 415(a)(l)(x) under the Securities Act and complies in all other
material respects with said Rule. The Company proposes to file with the
Commission from time to time, pursuant to Rule 424 under the Securities Act,
supplements to the prospectus relating to the Registration Statement that will,
among other things, describe certain terms of the Notes. The prospectus in the
form in which it is first filed pursuant to Rule 424(b) under the Securities Act
is called the "Basic Prospectus." The term "Prospectus" means the Basic
Prospectus together with any amendments thereto and any prospectus supplements
(a "Prospectus Supplement"), as filed with, or included for filing with, the
commission pursuant to Rule 424 under the Securities Act. Any reference herein
to the Registration Statement, Basic Prospectus and Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 filed under the Securities Act.
(b) 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.
(c) (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
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder and (iv) the Registration Statement
and the Prospectus do not and, 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
-3-
<PAGE> 4
statements therein, in the light of the circumstances under which they were
made, not misleading, except that (A) the representations and warranties set
forth in this Section 1(c) do not apply (x) to statements or omissions in the
Registration Statement or the Prospectus based upon information concerning the
Agents furnished to the Company in writing by the Agents 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 and (B) the representations and warranties set forth in
clauses (iii) and (iv) above, when made as of the Commencement Date or as of any
date on which an Agent solicits offers to purchase Notes or on which the Company
accepts an offer to purchase Notes, shall be deemed not to cover information
concerning an offering of particular Notes to the extent such information will
be set forth in a Prospectus Supplement.
(d) 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.
(e) 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.
(f) Each of this Agreement and any applicable Terms Agreement
has been duly authorized by the Company and is a valid and binding agreement of
the Company, except as rights to indemnity hereunder or thereunder may be
limited under applicable law. Each of this Agreement and any applicable Written
Terms Agreement (as defined in Section 2(b)) has been duly executed and
delivered.
-4-
<PAGE> 5
(g) The 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 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 forms of Notes have been duly authorized and, when the
Notes 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 its 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, this Agreement, the
Indenture, the Notes and any applicable Terms Agreement will not contravene any
provision of applicable law or the certificate of incorporation or bylaws of the
Company or 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, the Notes
or any applicable Terms Agreement, except such as may be required by the
Securities Act, the Exchange Act, the Trust Indenture Act or the securities or
Blue Sky laws of the various states in connection with the offer and sale of the
Notes.
(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.
(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
-5-
<PAGE> 6
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.
2. Solicitations as Agents; Purchases as Principal.
(a) Solicitations as Agents. In connection herewith, each Agent
will use its best efforts to solicit offers to purchase Notes upon the terms and
conditions set forth in the Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Notes. Upon receipt of
telephonic notice confirmed in writing from the Company, the Agents will
forthwith suspend solicitations of offers to purchase Notes from the Company
until such time as the Company has advised them that such solicitation may be
resumed. During the period of time that such solicitation is suspended, the
Company shall not be required to deliver any certificates, opinions or letters
in accordance with Section 5; provided that if the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or supplement
providing solely for a change in interest rates, redemption provisions or
maturities offered on the Notes or for a change deemed immaterial in the
reasonable opinion of the Agents), the Agents shall not be required to resume
soliciting offers to purchase Notes until the Company has delivered such
certificates, opinions or letters as reasonably requested by any Agent.
-6-
<PAGE> 7
The Company agrees to pay each Agent, as consideration for the
sale of each Note resulting from a solicitation made by such Agent, a commission
in the form of a discount from the purchase price of each Note equal to between
.125% and .625% of the principal amount of such Note as more fully set forth in
Exhibit A hereto. The Agents are authorized to solicit offers to purchase Notes
only in principal amounts of $100,000 or any amount in excess thereof that is a
whole multiple of $1,000. Each Agent shall communicate to the Company, orally or
in writing, each offer to purchase Notes that should, in the reasonable judgment
of such Agent, be considered by the Company. The Company shall have the sole
right to accept offers to purchase Notes and may reject any such offer in whole
or in part. Each Agent shall have the right to reject in whole or in part, in
its discretion reasonably exercised, any offer received by it to purchase the
Notes, and any such rejection shall not be deemed a breach of its agreements
contained herein.
(b) Purchases as Principal. If requested by an Agent in
connection with a sale of Notes directly to such Agent as principal for its own
account, the Company will enter into a separate Terms Agreement that will
provide for the sale of such Notes to and the purchase by such Agent in
accordance with the terms of this Agreement and the Terms Agreement. Each Terms
Agreement shall take the form of either (i) a written agreement substantially in
the form of Exhibit B hereto or in the form of an exchange of any form of
written telecommunication between such Agent and the Company (any such written
agreement hereinafter a "Written Terms Agreement") or (ii) an oral agreement
between such Agent and the Company confirmed in writing by such Agent to the
Company. Such Agent's commitment to purchase Notes as principal, whether
pursuant to a Terms Agreement or otherwise, shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth. Each
agreement by an Agent to purchase Notes as principal (whether or not set forth
in a Terms Agreement) shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the maturity date thereof, the price
to be paid to the Company for such Notes, the interest rate or interest rate
formula, if any, applicable to such Notes and any other terms of such Notes.
Each agreement shall also specify any requirements for officers' certificates,
opinions of counsel and letters from the independent public accountants of the
Company. Each Terms Agreement shall specify the time and place of delivery of
and payment for such Notes. Unless otherwise specified in a Terms Agreement, the
procedural details relating to the issue and delivery of Notes purchased by an
Agent as principal and the payment therefor shall be as set forth in the
Procedures (as defined below). Each date of delivery of and payment for Notes to
be purchased by an Agent as
-7-
<PAGE> 8
principal, whether pursuant to a Terms Agreement or otherwise, is referred to
herein as a "Settlement Date."
(c) Procedures. Each of the Agents and the Company agree to
perform the respective duties and obligations specifically provided to be
performed by them in the Medium Term Notes Administrative Procedures (attached
hereto as Exhibit C) (the "Procedures"), as amended from time to time. The
Procedures may be amended only by written agreement of the Company and the
Agents.
(d) Delivery. The documents required to be delivered by Section
4 of this Agreement shall be delivered at the office of Pillsbury Madison &
Sutro, not later than 3:00 P.M. San Francisco time, on the date hereof, or at
such other time as the Agents and the Company may agree upon in writing, but in
no event later than the day prior to the earlier of (i) the date on which the
Agents begin soliciting offers to purchase Notes and (ii) the first date on
which the Company accepts any offer by an Agent to purchase Notes as principal.
The date of delivery of such documents is referred to herein as the
"Commencement Date."
(e) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
3. Agreements. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement or any Terms Agreement, the Company will not file any
Prospectus Supplement relating to the Notes or any amendment to the Registration
Statement unless the Company has previously furnished to each Agent a copy
thereof for its review and will not file any such proposed amendment or
supplement to which any Agent reasonably objects; provided that (i) 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 each Agent promptly after being mailed for filing with the
Commission and (ii) any Prospectus Supplement that merely sets forth the terms
or a description of particular Notes shall only be reviewed and approved by the
Agent or Agents offering such Notes. 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 each Agent (a) of the
filing of any amend-
-8-
<PAGE> 9
ment or supplement to the Basic Prospectus (except that the filing of an
amendment or supplement to the Basic Prospectus that merely sets forth the terms
or a description of particular Notes shall only be notified to the Agent or
Agents offering such Notes), (b) of the filing and effectiveness of any
amendment to the Registration Statement, (c) 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, (d) 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 (e) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes 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. If the Basic Prospectus is
amended or supplemented as a result of the filing under the Exchange Act of any
document incorporated by reference in the Prospectus, the Agents shall not be
obligated to solicit offers to purchase Notes so long as they are not reasonably
satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or condition
exists as a result of which (i) the Registration Statement or the Prospectus as
then amended or supplemented would include an 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 when the Prospectus, as then amended
or supplemented, is delivered to a purchaser, not misleading, or (ii) if, in the
opinion of the Agents 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 Agent by telephone (with confirmation in writing) to
suspend solicitation of offers to purchase Notes and, if so notified by the
Company, each Agent shall forthwith suspend such solicitation and cease using
the Prospectus as then amended or supplemented. If the Company shall decide to
amend or supplement the Registration Statement or Prospectus as then amended or
supplemented, it shall so advise the Agents promptly by telephone (with
confirmation in writing) and, at its expense, shall prepare and cause to be
filed promptly with the Commission 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 Agent in such quantities as such
Agent
-9-
<PAGE> 10
may reasonably request. If such amendment or supplement, and any documents,
certificates and opinions furnished to the Agents pursuant to paragraph (f)
below and Sections 5(a), 5(b) and 5(c) in connection with the preparation or
filing of such amendment or supplement, are satisfactory in all respects to each
Agent, upon the filing of such amendment or supplement with the Commission or
effectiveness of an amendment to the Registration Statement, such Agent will
resume the solicitation of offers to purchase Notes hereunder. Notwithstanding
any other provision of this Section 3(b), until the distribution of any Notes an
Agent may own as principal has been completed, if any event described above in
this paragraph (b) occurs, the Company will, at its own expense, forthwith
prepare and cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or Prospectus as then amended or
supplemented, satisfactory in all respects to such Agent, and will supply such
amended or supplemented Prospectus to such Agent in such quantities as such
Agent may reasonably request. If such amendment or supplement and any documents,
certificates, opinions and letters furnished to each Agent pursuant to paragraph
(f) below and Sections 5(a), 5(b) and 5(c) in connection with the preparation
and filing of such amendment or supplement are satisfactory in all respects to
such Agent, upon the filing of such amendment or supplement with the Commission
or effectiveness of an amendment to the Registration Statement, such Agent may
resume its resale of Notes as principal.
(c) The Company will make generally available to its security
holders and to each Agent 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 periods
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each sale of
Notes. 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 each Agent 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 3(b) above, as many copies of the
Prospectus, any documents incorporated by reference therein and any supplements
and amendments thereto as each Agent may reasonably request.
-10-
<PAGE> 11
(e) The Company will qualify the Notes for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Agent 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 Notes for investment
under the laws of such jurisdictions as either Agent may designate; provided
that the Company shall not be obligated to so qualify the Notes 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) During the term of this Agreement, the Company shall
furnish to each Agent 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 Notes, this Agreement, the Procedures, any Terms
Agreement and the performance by the Company of its obligations hereunder or
thereunder as either Agent may from time to time reasonably request and shall
notify each Agent promptly in writing of any downgrading or of its receipt of
any notice of (A) any intended or potential downgrading or (B) 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 Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms 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 Notes;
(iii) the fees and disbursements of the Company's counsel and accountants and of
the Trustee and its counsel; (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of Section 3(e),
including filing fees and the reasonable fees and disbursements of the Agents'
counsel in connection therewith and in connection with the preparation of any
Blue Sky memoranda ("Blue Sky Memoranda"); (v) the printing and delivery to each
Agent 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 each Agent
of copies of the Indenture and any Blue Sky Memoranda; (vii) any fees charged by
rating agencies for the rating of the Notes; (viii) any reasonable out-of-pocket
expenses incurred by such Agent with the approval of the Company;
-11-
<PAGE> 12
(ix) the fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc.; and (x) the reasonable fees
and disbursements of counsel for the Agents incurred in connection with the
offering and sale of the Notes, including any opinions to be rendered by such
counsel hereunder.
(h) Between the date of any agreement by an Agent to purchase
Notes as principal and the Settlement Date with respect to such agreement, the
Company will not, without the prior consent of each Agent, offer, sell, contract
to sell or otherwise dispose of any debt securities of the Company substantially
similar to the Notes (other than (i) the Notes that are to be sold pursuant to
such agreement, (ii) Notes 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.
4. Conditions of the Obligations of the Agents. Each Agent's
obligation to solicit offers to purchase the Notes as agent of the Company, each
Agent's obligation to purchase Notes as principal pursuant to any Terms
Agreement or otherwise and the obligation of any other purchaser to purchase
Notes will be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of the
Company's officers made in each certificate furnished pursuant to the provisions
hereof prior to or concurrently with any such solicitation or purchase, to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed (in the case of an Agent's
obligation to solicit offers to purchase Notes, at the time of such
solicitation, and, in the case of an Agent's or any other purchaser's obligation
to purchase Notes, at the time the Company accepts the offer to purchase such
Notes and at the time of purchase) and (in each case) to the following
additional conditions precedent when and as specified below:
(a) Prior to such solicitation or purchase, as the case may be,
(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 at the time of such
solicitation or at the time such offer to purchase was made, that, in
the reasonable judgment of the relevant Agent or such purchaser, as the
case may be, is material and adverse and that makes it, in the
-12-
<PAGE> 13
reasonable judgment of such Agent or such purchaser, impracticable to
market the Notes 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 generally on or by, as the case may be,
the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options
Exchange, the Chicago Mercantile Exchange 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 or (D) 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 relevant
Agent or such purchaser, as the case may be, is material and adverse
and, in the case of any of the events described in clauses (ii)(A)
through (D), such event, singly or together with any other such event,
makes it, in the reasonable judgment of such Agent or such purchaser,
as the case may be, impracticable to market the Notes on the terms and
in the manner contemplated by the Prospectus, as amended or
supplemented at the time of such solicitation or at the time such offer
to purchase was made;
(iii) There shall not have occurred any downgrading, nor shall
any notice have been given of (A) any intended or potential downgrading
or (B) 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;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to the relevant Agent in writing by the Company prior to such
solicitation or, in the case of a purchase of Notes, as disclosed to the
relevant Agent or such purchaser, as the case may be, before the offer to
purchase such Notes was made or (B) unless in each case described in (ii) above,
the relevant event shall have occurred and been known to the relevant Agent
prior to such solicitation or, in the case of a purchase of Notes, to the
-13-
<PAGE> 14
relevant Agent or such purchaser, as the case may be, before the offer to
purchase such Notes was made.
The Company acknowledges that no Agent shall have any duty or
obligation to exercise the judgment described in paragraphs (i), (ii) and (iii)
above on behalf of any purchaser of Notes other than such Agent.
(b) On the Commencement Date and, if called for by any
agreement by an Agent to purchase Notes as principal, on the corresponding
Settlement Date, the relevant Agents shall have received:
(i) The opinion, dated as of such date, of Thomas C. Nord, Vice
President and General Counsel for the Company, to the effect that:
(A) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the State of Delaware and 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.
(B) Each Significant Subsidiary has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation and 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.
(C) Each of the Company and its 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
-14-
<PAGE> 15
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.
(D) The Indenture 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, and
has been duly qualified under the Trust Indenture Act.
(E) The form of fixed rate note and the form of
floating rate note have been duly authorized and established in
conformity with the provisions of the Indenture and, when the
Notes have been executed and authenticated by the Trustee or
its duly appointed agent in accordance with the provisions of
the Indenture and delivered to and duly paid for by the
purchasers thereof, they will be valid and legally binding
obligations of the Company, enforceable in accordance with
their terms and will be entitled to the benefits of the
Indenture.
(F) Each of this Agreement and any applicable Terms
Agreement has been duly authorized by the Company and each of
this Agreement and any Written Terms Agreement has been duly
executed and delivered by the Company.
(G) The execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement, the Indenture, the Notes and any applicable Terms
Agreement will not contravene any provision of applicable law
or the certificate of incorporation or bylaws of the Company or
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 no consent, approval or
authorization of any governmental body or agency is required
for the performance by the
-15-
<PAGE> 16
Company of its obligations under this Agreement, the Indenture,
the Notes or any applicable Terms Agreement, except such as are
specified and have been obtained and such as may be required by
the Securities Act, the Exchange Act, the Trust Indenture Act
or the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes.
(H) The statements (1) in the Prospectus under the
captions "Description of Notes" and "Plan of Distribution"; (2)
in "Item 3--Legal Proceedings" of the Company's most recent
annual report on Form 10-K incorporated by reference in such
Prospectus and (3) in Item 15 of the Registration Statement, as
amended or supplemented, and in each case 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.
(I) To the best of such counsel's knowledge, after due
inquiry, there are no legal or 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.
(J) 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 except for that part of the
Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1)) and
-16-
<PAGE> 17
incorporated by reference in the Registration Statement and the
Prospectus, as amended or supplemented, complied when so filed
as to form in all material respects with such act and the rules
and regulations thereunder, (2) believes that (except as to
financial statements and schedules as to which such counsel
need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore
referred to) each part of the Registration Statement as
amended, if applicable when such part became effective or was
incorporated by reference into the Registration Statement, 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 included therein as to which
such counsel need not express any opinion and except for that
part of the Registration Statement that constitutes the Form
T-1 heretofore referred to), comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations thereunder and (4) believes that (except as to
financial statements and schedules as to which such counsel
need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore
referred to) the Registration Statement and the Prospectus, as
amended or supplemented, if applicable, as of the Commencement
Date or the date of any agreement by an Agent to purchase notes
as principal, as the case may be, and, as of the date such
opinion is delivered, do 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.
In rendering such opinion, such counsel may qualify any opinion
as to enforceability by stating that (x) such enforceability may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (y) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of
-17-
<PAGE> 18
general applicability. Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the States of New York
and California and the federal law of the United States, upon opinions
of other counsel (copies of which shall be delivered to each Agent),
who shall be counsel satisfactory to counsel to the Agents, in which
case the opinion shall state that such counsel believes the Agents and
counsel to the Agents are entitled so to rely. 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.
With respect to paragraph (J) in Section 4(b)(i) above, such counsel
need not express any opinion as to the information included under the
heading "Certain United States Federal Tax Consequences" and with
respect to clauses (3) and (4) of (J) in Section 4(b)(i) above, such
counsel may state that his opinion and belief are based upon his
participation in the preparation of the Registration Statement and the
Prospectus and any amendments or supplements thereto (other than the
documents incorporated by reference) and upon review and discussion of
the contents thereof (including documents incorporated by reference)
but are without independent check or verification except as specified.
(ii) The opinion dated as of such date, of Pillsbury Madison &
Sutro, special counsel for the Agents, covering the matters in
paragraphs (D), (E), (F) and (H) (with respect to statements in the
Prospectus under the captions "Description of Notes" and "Plan of
Distribution"), and clauses (3) and (4) of paragraph (J) in Section
4(b)(i) above. In rendering such opinions, Pillsbury Madison & Sutro
may qualify any opinions 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). With respect to
clause (4) of paragraph (J) in Section 4(b)(i) above, such counsel may
state its opinion in the negative and with respect to clauses (3) and
(4) of paragraph (J), such counsel may state that its opinion and
belief are based upon its participation in the preparation of the
Registration Statement and the Prospectus and any amendments or
-18-
<PAGE> 19
supplements thereto (other than the documents incorporated by
reference) and upon review and discussion of the contents thereof
(including documents incorporated by reference) but are without
independent check or verification except as specified.
(c) On the Commencement Date and, if called for by any
agreement by any Agent to purchase Notes as principal, on the corresponding
Settlement Date, the Company shall have furnished to each Agent a certificate,
dated such Commencement Date or Settlement Date, as the case may be, signed by
an executive officer of the Company to the effect that the representations and
warranties of the Company contained herein are true and correct as of such 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 before such date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any
agreement by any Agent to purchase Notes as principal, on the corresponding
Settlement Date, the Company's independent public accountants shall have
furnished to the relevant Agent a letter or letters, dated as of the
Commencement Date or such Settlement Date, as the case may be, in form and
substance reasonably satisfactory to each such Agent, containing statements and
the 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
Prospectus.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate further
information, certificates and documents as they may reasonably request.
5. Additional Agreements of the Company.
(a) Each time the Registration Statement or the Prospectus is
amended or supplemented (other than by an amendment or supplement providing
solely for a change in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes or for a change deemed immaterial
in the reasonable opinion of the Agents),
-19-
<PAGE> 20
the Company will deliver or cause to be delivered forthwith to any Agent
requesting it in writing, a certificate signed by an executive officer of the
Company, dated the date of such amendment or supplement, as the case may be, in
form reasonably satisfactory to each Agent, of the same tenor as the certificate
referred to in Section 4(c) relating to the Registration Statement or the
Prospectus as amended and supplemented to the time of delivery of such
certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a), the Company shall furnish or cause to be furnished forthwith to
each Agent a written opinion of counsel for the Company. Any such opinion shall
be dated the date of such amendment or supplement, as the case may be, shall be
in a form reasonably satisfactory to each Agent and shall be of the same tenor
as the opinion referred to in Section 4(b)(i), but modified to relate to the
Registration Statement or the Prospectus as amended and supplemented to the time
of delivery of such opinion. In lieu of such opinion, counsel last furnishing
such an opinion to each Agent may furnish to such Agent a letter to the effect
that such Agent may rely on such last opinion to the same extent as though it
were dated the date of such letter (except that statements in such last opinion
will be deemed to relate to the Registration Statement or the Prospectus as
amended and supplemented to the time of delivery of such letter).
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Registration Statement or the Prospectus, the Company shall
cause its independent public accountants forthwith to furnish to any Agent
requesting it in writing a letter, dated the date of such amendment or
supplement, as the case may be, in form reasonably satisfactory to such Agent,
of the same tenor as the letter referred to in Section 4(d), with regard to the
amended or supplemental financial information included or incorporated by
reference in the Registration Statement or the Prospectus as amended or
supplemented to the date of such letter.
-20-
<PAGE> 21
(d) In the event that the Company issues any Notes that are not
exempt from the usury provisions of Section 1 of Article XV of the California
Constitution ("California usury law"), the interest rate on such Notes shall
bear interest at a rate or rates not exceeding that permitted under California
usury law.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Agent and each person, if any, who controls such Agent 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 caused by any
untrue statement or allegedly untrue statement of a material fact contained in
the Registration Statement or in any amendment thereof or the Prospectus (as
amended or supplemented, if the Company shall have furnished any amendments or
supplements 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, in the light of the circumstances under which they were
made, 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 Agent expressly for use therein.
(b) Each Agent 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
Agent, but only with reference to information relating to such Agent furnished
in writing by such Agent 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
-21-
<PAGE> 22
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 or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. 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 mutually agreed upon by the Agents who are
parties to any such proceeding and designated in writing by either of the Agents
included in any such proceeding after consultation with such other Agents who
are parties to such proceeding, in the case of parties indemnified pursuant to
paragraph (b) above and by the Company in the case of parties indemnified
pursuant to paragraph (a) 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 such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in paragraph (a) or (b)
of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connec-
-22-
<PAGE> 23
tion with any offering of Notes, then 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 Agent or Agents, as the case may be, on the other from the offering
of the Notes 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 Agent or Agents, as the case may
be, 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 Agent or Agents, as the case may be, on the other in connection
with the offering of the Notes shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Notes (before
deducting expenses) received by the Company and the total discounts and
commissions received by the Agents in respect thereof, in each case as set forth
in the Prospectus, bear to the total aggregate public offering price of such
Notes. The relative fault of the Company on the one hand and of the Agent or
Agents, as the case may be, 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 Agents and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Company and the Agents agree that it would not be just
and equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Agents 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 6, no Agent shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes offered and sold to the
public through such Agent exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of such untrue or allegedly untrue
statement or
-23-
<PAGE> 24
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 6 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.
7. Position of the Agents. In acting under this Agreement and
in connection with the sale of any Notes by the Company (other than Notes sold
to an Agent as principal), each Agent is acting solely as agent of the Company,
and not as principal, and does not assume any obligation towards or relationship
of agency or trust with any purchaser of Notes. Each Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and accepted by the
Company, but such Agent shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Notes to a purchaser whose offer it has
accepted, the Company shall hold the relevant Agent harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to such Agent the commission such Agent would have
received had such sale been consummated.
8. Termination. This Agreement may be terminated at any time
either by the Company or, as to any Agent, by the Company or such Agent upon the
giving of written notice of such termination to the other parties hereto, but
without prejudice to any rights, obligations or liabilities of any party hereto
accrued or incurred prior to such termination. Any Terms Agreement shall be
subject to termination in the absolute discretion of each Agent on the terms set
forth therein. The termination of this Agreement shall not require termination
of any agreement by an Agent to purchase Notes as principal, and the termination
of any such agreement shall not require termination of this Agreement. If this
Agreement is terminated, the provisions of the third paragraph of Section 2(a),
Section 2(e), the last two sentences of Section 3(b) and Sections 3(c), 3(g), 6,
7, 9, 11 and 14 shall survive; provided that if at the time of termination an
offer to purchase Notes has been accepted by the Company but the time of
delivery to the purchaser or its agent of such Notes has not occurred, the
provisions of Sections 2(b), 2(c), 3(a), 3(e), 3(f), 3(h), 4 and 5 shall also
survive until such delivery has been made. If any Terms Agreement is terminated,
the provisions of Sections 3(c), 3(g), 6 and 9 and the last two sentences of
Section 3(b)
-24-
<PAGE> 25
(which shall be deemed to have been incorporated by reference in such Terms
Agreement) shall survive.
9. Representations and Indemnities To Survive. The respective
indemnity and contribution agreements, representations, warranties and other
statements of the Company, its officers and any of the Agents set forth in or
made pursuant to this Agreement or any agreement by any Agent to purchase Notes
as principal will remain in full force and effect, regardless of any
investigation made by or on behalf of any of the Agents or the Company or any of
the officers, directors or controlling persons referred to in Section 6 hereof,
and will survive delivery of and payment for the Notes.
10. Notices. Unless a notice is expressly required to be given
by telephone hereunder, all communications hereunder will be in writing and
effective only on receipt, and, if sent to the Agents, will be mailed, delivered
or telecopied and confirmed to Morgan Stanley & Co. Incorporated at 1585
Broadway, New York, New York 10036, Attention: Manager, Continuously Offered
Products (telecopy number: (212) 761-0783), with a copy to 1585 Broadway, New
York, New York 10036, Attention: Peter Cooper, IBD Information Center 34th Floor
(telecopy number: (212) 761-0260), and to Salomon Brothers Inc, 7 World Trade
Center, New York, New York 10048, Attention: Medium-Term Note Group (telecopy
number: (212) 783-2274); or, if sent to the Company, will be mailed, delivered
or telecopied and confirmed to it at Four Embarcadero Center, San Francisco,
California 94111, Attention: Treasurer (telecopy number: (415) 955-3493).
11. Successors. This Agreement and any Terms 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 6 and the purchasers of Notes (to the extent expressly
provided in Section 4), and no other person will have any right or obligation
hereunder.
12. Amendments. This Agreement may be amended or supplemented
if, but only if, such amendment or supplement is in writing and is signed by the
Company and each Agent; provided that the Company may from time to time, without
the consent of any Agent, amend this Agreement to add as a party hereto one or
more additional firms registered under the Exchange Act, whereupon each such
firm shall become an Agent hereunder on the same terms and conditions as the
other Agents that are parties hereto. The Agents shall sign any
-25-
<PAGE> 26
amendment or supplement giving effect to the addition of any such firm as an
Agent under this Agreement.
13. Counterparts. 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.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York.
15. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
-26-
<PAGE> 27
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and the Agents.
Very truly yours,
GATX CAPITAL CORPORATION
By ___________________________
Title _____________________
The foregoing Agreement is
hereby confirmed and accepted
as of the date first
above-written.
MORGAN STANLEY & CO. INCORPORATED
By _____________________________
Title _______________________
SALOMON BROTHERS INC
By _____________________________
Title _______________________
-27-
<PAGE> 28
EXHIBIT A
MEDIUM TERM NOTES COMMISSION SCHEDULE
<TABLE>
<CAPTION>
Term Commission Rate
---- ---------------
<S> <C>
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to and including 15 years .625%
</TABLE>
A-1
<PAGE> 29
EXHIBIT B
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTES
TERMS AGREEMENT
_____________, 19__
GATX Capital Corporation
Four Embarcadero Center
San Francisco, California 94111
Attention:
Re: Distribution Agreement
dated _________ January __, 1996
(the "Distribution Agreement")
The undersigned agrees to purchase the following principal amount of your
Medium-Term Notes: $
<TABLE>
<CAPTION>
Floating
Fixed Rate Rate
All Notes: Notes: Notes:
- ---------- ---------- ---------
<S> <C> <C>
Purchase Interest Base rate:
price: rate:
Settlement Amortization Index
date: schedule: maturity:
Place of Spread:
delivery:
Maturity Initial interest
date: rates:
Interest Initial interest
payment dates: reset date:
Original issue Interest reset
discount dates:
provisions:
Maximum rate:
Redemption
provisions: Minimum rate:
Other terms: Interest reset
period:
Calculation agent:
</TABLE>
B-1
<PAGE> 30
[The certificates referred to in Section 4(c) of the
Distribution Agreement, the opinion of the general counsel for the Company
referred to in Section 4(b)(i) of the Distribution Agreement and the
accountants' letter referred to in Section 4(d) of the Distribution Agreement
will be required.] [The following information, certificates and documents
referred to in Section 4(e) of the Distribution Agreement will be required:
____________________________.]
[Name of Agent]
By ___________________________
Title:
Accepted:
GATX CAPITAL CORPORATION
By ___________________________
Vice President
B-2
<PAGE> 31
EXHIBIT C
GATX CAPITAL CORPORATION
Medium-Term Note Administrative Procedures
Medium Term Notes, Series D (the "Notes") in the aggregate
principal amount of $300,000,000 are to be offered on a continuing basis by GATX
Capital Corporation (the "Company"). Morgan Stanley & Co. Incorporated and
Salomon Brothers Inc (the "Agents") have agreed to solicit purchases of the
Notes, as agents for the Company, or to purchase Notes, as principal, for their
own account. The Notes are being sold pursuant to a Distribution Agreement
between the Company and the Agents dated January __, 1996 (the "Agreement"). The
Notes have been registered with the Securities and Exchange Commission (the
"Commission") and will be offered pursuant to a Prospectus relating to the Notes
(the "Prospectus"). The Chase Manhattan Bank, N.A. (the "Trustee") is the
trustee under the Indenture dated as of July 31, 1989, as supplemented and
amended by the Supplemental Indentures dated as of December 18, 1991 and
________________, covering the Notes (the "Indenture"). Capitalized terms used
but not defined herein shall have the respective meanings set forth in the
Indenture and if not defined therein, then such capitalized terms shall have the
respective meanings set forth in the Notes (which in the case of Book Entry
Notes (as defined below) shall be the related global Note).
The Notes will either be issued (a) in book-entry form and
represented by one or more global Notes delivered to the Trustee as custodian
for The Depository Trust Company ("DTC") (or on behalf of such other depositary
as is identified in the applicable Pricing Supplement, provided that such
depositary shall execute a letter of representation and a medium-term note
certificate agreement with the Trustee with respect to the Notes), and recorded
in the book-entry system maintained by DTC and registered in the name of DTC's
nominee (each, a "Book-Entry Note"), or (b) in the form of a Certificate issued
in definitive form (a "Certificated Note").
Administrative procedures and specific terms of the offering
are explained below. Owners of beneficial interests in Book-Entry Notes will be
entitled to physical delivery of Certificated Notes equal in principal amount to
their respective beneficial interests only upon certain limited circumstances
described in the Prospectus.
General procedures relating to the issuance of all Notes are
set forth in Part I hereof. Additionally, Book-Entry Notes will be issued in
accordance with the administrative procedures set forth in Part II hereof and
Certificated Notes will be issued in accordance with the administrative
procedures set forth in Part III hereof.
C-1
<PAGE> 32
PART I: GENERAL
Date of Each Note will be dated as of the date of its authentication
Issuance/ by the Trustee. Each Note shall also bear an original issue
Authentication: date (the "Original Issue Date"). The Original Issue Date
shall remain the same for all Notes subsequently issued
upon transfer, exchange or substitution of an original Note
regardless of their dates of authentication.
Maturities: Each Note will mature on a date selected by the purchaser
and agreed to by the Company which is not less than nine
months nor more than fifteen years from its Original Issue
Date; provided, however, that Floating Rate Notes will bear
interest pursuant to the interest rate formula stated
therein and in the applicable Pricing Supplement and will
mature on an Interest Payment Date.
Price Each Note will be sold at 100% of principal amount (unless
To Public: otherwise agreed in a Terms Agreement as defined in the
Distribution Agreement).
Interest Payments: Each payment of interest on Fixed Rate Notes will include
interest accrued through the day preceding, as the case may
be, the Interest Payment Date or Stated Maturity (each
Stated Maturity is referred to herein as "Maturity"). Unless
otherwise indicated in the applicable Pricing Supplement,
interest payments on each Floating Rate Note (except in the
case of Floating Rate Notes which reset daily or weekly)
shall be the amount of interest accrued from, and including,
the next preceding Interest Payment Date in respect of which
interest has been paid (or from, and including, the date of
original issue if no interest has been paid with respect to
such Floating Rate Note) to, but excluding, the Interest
Payment Date. In the case of Floating Rate Notes on which
the interest is reset daily or weekly, however, the interest
payments shall include interest accrued from, but excluding,
the next preceding Regular Record Date in respect of which
interest has been paid (or from, and including, the date of
original issue if no interest has been paid with respect to
such Floating Rate Note) to, and including the Regular
Record Date next preceding the applicable Interest Payment
Date, except that
C-2
<PAGE> 33
the interest payment at Maturity will include interest
accrued to, but excluding, such date.
Regular The Regular Record Date with respect to any Interest Payment
Record Dates: Date for a Fixed Rate Note shall be the March 15 or
September 15 preceding such Interest Payment Date. The
Regular Record Date with respect to any Interest Payment
Date for a Floating Rate Note shall be the date 15 calendar
days (whether or not a Business Day) (as hereinafter
defined) preceding such Interest Payment Date.
Interest
Payment Dates: Interest payments will be made on each payment date
commencing with the first Interest Payment Date following
the Original Issue Date; provided, however, the first
payment of interest of any Note originally issued between a
Regular Record Date and an Interest Payment Date will occur
on the Interest Payment Date following the next succeeding
Regular Record Date to the registered owner on such next
succeeding Regular Record Date.
If an Interest Payment Date with respect to any Note would
otherwise fall on a day that is not a Business Day with
respect to such Note, such Interest Payment Date will be the
following day that is a Business Day with respect to such
Note, except that in the case of a LIBOR Note, if such day
falls in the next calendar month, such Interest Payment Date
will be the preceding day that is a Business Day with
respect to such LIBOR Note.
Fixed Interest payments on Fixed Rate Notes will be made
Rate Notes: semiannually on April 1 and October 1 of each year and at
Maturity.
Floating Unless otherwise stated in the applicable Pricing
Rate Notes: Supplement, interest will be payable, in the case of the
Floating Rate Notes which reset daily, weekly or monthly, on
the third Wednesday of each month or on the third Wednesday
of March, June, September and December of each year; in the
case of Floating Rate Notes which reset quarterly, on the
third Wednesday of March, June, September and December of
each year; in the case of Floating Rate Notes which reset
semiannually, on the third Wednesday of the two months of
each year specified in the Floating Rate Note; and in the
case of Floating Rate Notes which reset annually, on the
third Wednesday of the month
C-3
<PAGE> 34
specified in the Floating Rate Note and, in each case, at
Maturity or, if applicable, upon redemption or optional
repayment. For additional special provisions relating to
Floating Rate Notes, see the Prospectus.
Calculation
of Interest: In the case of Fixed Rate Notes, interest (including
payments for partial periods) will be calculated and paid on
the basis of a 360-day year of twelve 30-day months. In the
case of Floating Rate Notes, interest will be calculated and
paid on the basis of the actual number of days in the
interest period divided by 360 for Commercial Paper Rate
Notes, Federal Funds Rate Notes, and LIBOR Notes, and on the
basis of the actual number of days in the interest period
divided by the actual number of days in the year for
Treasury Rate Notes and on any other basis as set forth in
the applicable Pricing Supplement. Floating Rate Notes will
have daily, weekly, monthly, quarterly, semiannual or annual
resets of the rate of interest which will be specified in
the applicable Pricing Supplement and in the applicable
Note.
Acceptance
of Offers: The Company will have the sole right to accept offers to
purchase Notes. Each Agent will communicate, orally or in
writing, each reasonable offer to purchase Notes received by
it. The Company may reject any offer in whole or in part and
will promptly notify such Agent of any such rejection. Each
Agent may without notice to the Company reject any offer
received by it in whole or in part in its discretion
reasonably exercised.
Preparation
of Pricing If any offer to purchase a Note is accepted by the Company,
Supplements: the Company, with the approval of the Agent which presented
such offer (the "Presenting Agent"), will prepare a Pricing
Supplement reflecting the terms of such Note and file 10
Pricing Supplements relating to the Notes and the plan of
distribution thereof (the "Supplemented Prospectus"), with
the Commission in accordance with Rule 424 under the
Securities Act. The Presenting Agent will cause a stickered
Supplemented Prospectus to be delivered to the purchaser of
the Note.
In each instance that a Pricing Supplement is prepared, the
Agents will affix the Pricing Supplement to Supplemented
Prospectuses prior to their use. Outdated Pricing
Supplements,
C-4
<PAGE> 35
and the Supplemented Prospectuses to which they are attached
(other than those retained for files) will be destroyed.
Settlement: The receipt of immediately available funds by the Company in
payment for a Note and the authentication and delivery of
such Note shall, with respect to such Note, constitute
"settlement." All offers accepted by the Company will be
settled within three Business Days after the date of such
acceptance by the Company at a time as the purchaser and the
Company shall agree (but no earlier than the next Business
Day) pursuant to the timetable for settlement set forth in
Parts II and III hereof under "Settlement Procedures" with
respect to Book- Entry Notes and Certificated Notes,
respectively. If Settlement Procedures A and B with respect
to a particular offer are not completed on or before the
time set forth under the applicable "Settlement Procedures
Timetable," such offer shall not be settled until the
Business Day following the completion of Settlement
Procedures A and B or such later date as the purchaser and
the Company shall agree.
In the event of a purchase of Notes by any Agent as
principal, appropriate settlement details will be set forth
in the applicable Terms Agreements to be entered into
between such Agent and the Company pursuant to the
Distribution Agreement.
PART II: PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the administration of Book-Entry Note
procedures, the Trustee will perform the custodial, document control and
administrative functions described below, in accordance with its obligations
under a Letter of Representations from the Company and the Trustee to DTC, dated
January __, 1996 (the "Letter of Representations") and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form having the
same Interest Rate, Original Issue Date, Maturity Date,
Redemption Date and Prices, if any, Sinking Fund Dates and
Amounts, if any, and Original Issue Discount features, if
any (collectively, the "Fixed Rate Terms"), will be
represented initially by a single Book-Entry Note and all
Floating Rate Notes issued in book-entry form having the
same Original
C-5
<PAGE> 36
Issue Date, base rate upon which interest may be determined
(each, an "Interest Rate Basis"), which may be the
Commercial Paper Rate, the Federal Funds Date, the Treasury
Rate, LIBOR or any other rate set forth by the Company,
Initial Interest Rate, Index Maturity, Spread, if any,
Minimum Interest Rate, if any, Maximum Interest Rate, if
any, Redemption Dates and Prices, if any, Sinking Fund Dates
and Amounts, if any, Original Issue Discount features, if
any, Interest Reset Dates, Interest Payment Dates and
Maturity (collectively, "Floating Rate Terms") will be
represented initially by a single Book-Entry Note.
Each Book-Entry Note will be dated and issued as of the date
of its authentication by the Trustee. Each Book-Entry Note
will bear an Interest Accrual Date, which will be (a) with
respect to an original Book-Entry Note (or any portion
thereof), its Original Issue Date and (b) with respect to
any Book- Entry Note (or portion thereof) issued
subsequently upon exchange of a Book- Entry Note or in lieu
of a destroyed, lost or stolen Book-Entry Note, the most
recent Interest Payment Date to which interest has been paid
or duly provided for on the predecessor Book-Entry Note or
Notes (or if no such payment or provision has been made, the
Original Issue Date of the predecessor Book-Entry Note or
Notes), regardless of the date of authentication of such
subsequently issued Book-Entry Note. No Book-Entry Note
shall represent any Note issued in certificated form.
Identification: The Company has arranged with the CUSIP Service Bureau of
Standard & Poor's Corporation (the "CUSIP Service Bureau")
for the reservation of approximately 900 CUSIP numbers which
have been reserved for future assignment to Book-Entry Notes
representing Notes issued in book-entry form and the Company
has delivered to the Trustee and DTC an initial written list
of 900 of such CUSIP numbers. The Company will assign CUSIP
numbers to Book-Entry Notes as described below under
Settlement Procedure B. DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the Company
has assigned to Book-Entry Notes. The Trustee will notify
the Company at any time when fewer than 100 of the reserved
CUSIP numbers remain unassigned to Book-Entry Notes, and, if
it deems necessary, the Company will reserve additional
CUSIP numbers for assignment to Book-Entry Notes
C-6
<PAGE> 37
representing Notes issued in book- entry form. Upon
obtaining such additional CUSIP numbers, the Company will
deliver a list of such additional numbers to the Trustee and
DTC.
Registration: Each Book-Entry Note will be registered in the name of Cede
& Co., as nominee for DTC, on the security register
maintained by the Security Registrar under the Indenture.
The beneficial owner of a Note issued in book-entry form
(i.e., an owner of a beneficial interest in a Book-Entry
Note) (or one or more indirect participants in DTC
designated by such owner) will designate one or more
participants in DTC (with respect to such Note issued in
book-entry form, the "Participants") to act as agent for
such beneficial owner in connection with the book-entry
system maintained by DTC, and DTC will record in book-entry
form, in accordance with instructions provided by such
Participants, a credit balance with respect to such Note
issued in book-entry form in the account of such
Participants. The ownership interest of such beneficial
owner in such Note issued in book-entry form will be
recorded through the records of such Participants or through
the separate record of such Participants and one or more
indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in DTC)
acting on behalf of beneficial transferors and transferees
of such Book-Entry Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service Bureau
at any time a written notice specifying (a) the CUSIP
numbers of two or more Book-Entry Notes Outstanding on such
date that represent Book-Entry Notes having the same Fixed
Rate Terms or Floating Rate Terms, as the case may be (other
than Original Issue Dates), and for which interest has been
paid to the same date; (b) a date, occurring at least 30
days after such written notice is delivered and at least 30
days before the next Interest Payment Date for the related
Notes issued in book-entry form, on which such Book-Entry
Notes shall be exchanged for a single replacement Book-Entry
Note; and (c) a new CUSIP number, obtained from the Company,
to be assigned to such replacement Book-Entry Note. Upon
receipt
C-7
<PAGE> 38
of such a notice, DTC will send to its participants
(including the Trustee) a written notice to the effect that
such exchange will occur on such date. Prior to the
specified exchange date, the Trustee will deliver to the
CUSIP Service Bureau written notice setting forth such
exchange date and the new CUSIP number and stating that, as
of such exchange date, the CUSIP numbers of the Book-Entry
Notes to be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange such
Book-Entry Notes for a single Book-Entry Note bearing the
new CUSIP number and the CUSIP numbers of the exchanged
Book-Entry Notes will, in accordance with CUSIP Service
Bureau procedures, be cancelled and not immediately
reassigned. Notwithstanding the foregoing, if the Book-Entry
Notes to be exchanged exceed $200,000,000 in aggregate
principal amount, one or more replacement Book-Entry Note(s)
will be authenticated and issued, each to represent
$200,000,000 of principal amount of the exchanged Book-Entry
Notes and an additional Book-Entry Note or Notes will be
authenticated and issued to represent any remaining
principal amount of such Book-Entry Notes (see
"Denominations" below).
Denominations: Book-Entry Notes will be issued in denominations of $100,000
and any larger denomination which is an integral multiple of
$1,000. Book-Entry Notes will be denominated in principal
amounts not in excess of $200,000,000. If one or more Notes
issued in book-entry form having an aggregate principal
amount in excess of $200,000,000 would, but for the
preceding sentence, be represented by a single Book-Entry
Note, then one Book-Entry Note will be issued to represent
$200,000,000 principal amount of such Note or Notes issued
in book-entry form and an additional Book-Entry Note or
Notes will be issued to represent any remaining principal
amount of such Note or Notes issued in book-entry form. In
such a case, each of the Book-Entry Notes representing such
Note or Notes issued in book-entry form shall be assigned
the same CUSIP number.
Interest-General: Each payment of interest on each Book-Entry Note that is a
Fixed Rate Note will include interest accrued through the
day preceding, as the case may be, the Interest Payment Date
or Maturity Date. Unless otherwise indicated in the
applicable Pricing Supplement, interest
C-8
<PAGE> 39
payments on each Book-Entry Note that is a Floating Rate
Note (except in the case of Floating Rate Notes which reset
daily or weekly) shall be the amount of interest accrued
from, and including, the next preceding Interest Payment
Date in respect of which interest has been paid (or from,
and including, the date of issue if no interest has been
paid with respect to such Floating Rate Note) to, but
excluding, the Interest Payment Date. In the case of
Floating Rate Notes on which the interest is reset daily or
weekly, however, the interest payments shall include
interest accrued from, but excluding the next preceding
Regular Record Date in respect of which interest has been
paid to, and including the Regular Record Date next
preceding the applicable Interest Payment Date, except that
the interest payment at Maturity will include interest
accrued to, but excluding, such date. Interest payable at
Maturity of a Book-Entry Note will be payable to the Person
to whom the principal of such Note is payable. DTC will
arrange for each pending deposit message described under
Settlement Procedure C below to be transmitted to Standard &
Poor's, which will use the information in the message to
include certain terms of the related Book-Entry Note in the
appropriate daily bond report published by Standard &
Poor's.
Notice of On the first Business Day of March, June, September and
Interest Payments December of each year, upon request by the Company, the
and Regular Trustee will deliver to the Company and DTC a written list
Record Dates: of Regular Record Dates and Interest Payment Dates that will
occur during the six-month period beginning on such first
Business Day with respect to Floating Rate Notes issued in
book-entry form. Promptly after each Interest Determination
Date or Calculation Date, if applicable (including the first
initial Interest Determination Date) for Floating Rate Notes
issued in book-entry form, the Trustee will notify Standard
& Poor's of the interest rates determined on such Interest
Determination Date or Calculation Date, if applicable.
Payments of Promptly after each Regular Record Date, the Trustee will
Principal and deliver to the Company and DTC a written notice specifying
Interest-Payments by CUSIP number the amount interest to be paid on each
of of Interest Book-Entry Note on the following Interest Payment Date
Only: (other than an Interest Payment Date
C-9
<PAGE> 40
coinciding with Maturity) and the total of such amounts. The
Company will confirm with the Trustee and DTC the amount
payable on each Book-Entry Note on such Interest Payment
Date by reference to the daily bond reports published by
Standard & Poor's. On such Interest Payment Date, the
Company will pay to the Trustee, and the Trustee in turn
will pay to DTC, such total amount of interest due (other
than at Maturity), at the times and in the manner set forth
below under "Manner of Payment."
Payments
at Maturity: On or about the first Business Day of each month, the
Trustee will deliver to the Company and DTC a written list
of principal, interest and premium, if any, to be paid on
each Book-Entry Note maturing either at Stated Maturity or
on a Redemption Date or on an optional repayment date (if
any) in the following month. The Trustee, the Company and
DTC will confirm the amounts of such principal and interest
payments with respect to a Book-Entry Note on or about the
fifth Business Day preceding the maturity of such Book-Entry
Note. At such Maturity, the Company will pay to the Trustee,
and the Trustee in turn will pay to DTC, the principal
amount of such Note, together with interest and premium, if
any, due at such Maturity, at the times and in the manner
set forth below under "Manner of Payment." If any Maturity
of a Book-Entry Note is not a Business Day, the payment due
on such day shall be made on the next succeeding Business
Day and no interest shall accrue on such payment for the
period from and after such Maturity. Promptly after payment
to DTC of the principal, interest and premium, if any, due
at the Maturity of such Book-Entry Note, the Trustee will
cancel and destroy such Book-Entry Note and deliver to the
Company a certificate of destruction with respect to each
cancelled Note.
Manner of The total amount of any principal, premium, if any, and
Payment: interest due on Book-Entry Notes on any Interest Payment
Date or at Maturity shall be paid by the Company to the
Trustee in funds available for use by the Trustee as of 9:30
A.M., New York City time, on such date. The Company will
make such payment on such Book-Entry Notes by instructing
the Trustee to withdraw funds from an account maintained by
the Company at the Trustee. The Company will confirm such
instructions in writing to the
C-10
<PAGE> 41
Trustee. Prior to 10:00 A.M. on each Maturity Date, the
Trustee, upon the withdrawal of such funds, will pay by
separate wire transfer (using Fedwire message entry
instructions on a form previously specified by DTC) to an
account at the Federal Reserve Bank of New York previously
specified by DTC, in funds available for immediate use by
DTC, each payment of interest, principal and premium, if
any, due on a Book-Entry Note on such date. On each Interest
Payment Date, interest payments shall be made to DTC in same
day funds in accordance with existing arrangements between
the Trustee and DTC. Thereafter on such dates, DTC will pay,
in accordance with its SDFS operating procedures then in
effect, such amounts in funds available for immediate use to
the respective Participants in whose names such Notes are
recorded in the book-entry system maintained by DTC.
Neither the Company nor the Trustee shall have any
responsibility or liability for the payment by DTC of the
principal of, or interest on, the Book-Entry Notes to such
Participants.
Withholding The amount of any taxes required under applicable law to be
Taxes: withheld from any interest payment on a Note will be
determined and withheld by the Participant, indirect
participant in DTC or other Person responsible for
forwarding payments and materials directly to the beneficial
owner of such Note.
Acceptance and The Company shall have the sole right to accept offers to
Rejections of purchase Notes from the Company and may reject any such
Offers: offer in whole or in part. Each Agent shall promptly
communicate to the Company, orally or in writing, each
reasonable offer to purchase Book-Entry Notes from the
Company received by it, other than those rejected by such
Agent. The Agents shall have the right, in their discretion
reasonably exercised, without notice to the Company, to
reject any offer to purchase Notes in whole or in part.
C-11
<PAGE> 42
Settlement Settlement Procedures with regard to each Note in book-entry
Procedures: form sold by the Company through an agent, as Agent, will be
as follows:
A. The Agent will advise the Company by telephone of the
following Settlement information:
1. Taxpayer identification number of the
purchaser.
2. Principal amount of the Note.
3. Fixed Rate Notes:
(a) Interest Rate
(b) Redemption Dates, if any, and
redemption at whose option
Floating Rate Notes:
(a) Interest Rate Basis
(b) Initial Interest Rate
(c) Spread, if any
(d) Interest Rate Reset Dates
(e) Interest Rate Reset Period
(f) Interest Payment Dates
(g) Interest Payment Period
(h) Index Maturity
(i) Calculation Agent
(j) Maximum Interest rate, if any
(k) Minimum Interest rate, if any
(l) Calculation Date
(m) Interest Determination Dates
(n) Redemption Dates, if any, and
redemption at whose option
(o) Original Issue Discount features,
if any
(p) Sinking Fund Dates and Amounts, if
any
4. Price to public of the Note.
5. Trade date.
6. Settlement Date (Original Issue Date).
7. Maturity.
8. Net proceeds to the Company.
9. Agent's commission.
C-12
<PAGE> 43
B. The Company will advise the Trustee by telephone
(confirmed in writing at any time on the same date)
or by electronic transmission of the information set
forth in the above settlement information. The
Company will then assign a CUSIP number to the
Book-Entry Note representing such Note and advise
the Company of such number. Each such communication
by the Company shall constitute a representation and
warranty by the Company to the Trustee and the
Agents that (i) such Note is then, and at the time
of issuance and sale thereof will be, duly
authorized for issuance and sale by the Company,
(ii) such Note, and the Book-Entry Note representing
such Note, will conform with the terms of the
Indenture and (iii) upon authentication and delivery
of such Book-Entry Note, the aggregate initial
offering price of all Notes issued under the
Indenture will not exceed $300,000,000 (except for
Book-Entry Notes represented by global Notes
authenticated and delivered in exchange for or in
lieu of global Note pursuant to Sections 3.4, 3.5 or
3.6 of the Indenture and except for Certificated
Notes authenticated and delivered upon registration
of transfer of, in exchange for, or in lieu of
Certificated Notes pursuant to any such Sections).
C. The Trustee will communicate to DTC and the Agent
through DTC's Participant Terminal System, a pending
deposit message specifying the following settlement
information:
1. The information set forth in Settlement
Procedure A.
2. Identification as a Fixed Rate Book-Entry
Note or Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related record date for DTC
purposes (which shall be the Regular Record
Date, or, in the case of Floating Rate
Notes which reset daily or weekly, the date
which is five calendar days preceding the
Interest Payment Date) and, if then
calculable,
C-13
<PAGE> 44
the amount of interest payable on such
Interest Payment Date (which amount shall
have been Confirmed by the Trustee).
4. CUSIP number of the Book-Entry Note
representing such Note.
5. Whether such Book-Entry Note represents any
other Notes issued or to be issued in book-
entry form to the extent known at such time.
D. The Company will complete and deliver to the
Trustee a Book-Entry Note representing such Note
in a form that has been approved by the Company,
the Agents and the Trustee.
E. The Trustee will authenticate the Book-Entry Note
representing such Note.
F. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
G. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC
(i) to debit such Note to the Trustee's participant
account and credit such Note to the participant
account of the Presenting Agent maintained by DTC
and (ii) to debit the settlement account of the
Presenting Agent and credit the settlement account
of the Trustee maintained by DTC, in an amount equal
to the price of such Note less such Agent's
commission. Any entry of such a deliver order shall
be deemed to constitute a representation and
warranty by the Trustee to DTC that the Book-Entry
Note representing such Note has been
executed and authenticated.
H. The Presenting Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to the
Presenting Agent's participant account and credit
such Note to the participant account of the
Participants maintained by DTC and (ii) to debit the
settlement accounts of such Participants and credit
the settlement account of the Presenting Agent
maintained by DTC, in an
C-14
<PAGE> 45
amount equal to the initial public offering price of
such Note.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures G and H
will be settled in accordance with SDFS operating
procedures in effect on the Settlement Date.
J. The Trustee, upon receipt of such funds, will credit
to an account of the Company maintained at the
Trustee funds available for immediate use in the
amount transferred to the Trustee in accordance with
Settlement Procedure G.
K. The Agent will confirm the purchase of such Note to
the purchaser either by transmitting to the
Participant with respect to such Note a confirmation
order through DTC's Participant Terminal System or by
mailing a written confirmation to such purchaser.
Settlement For orders of Notes accepted by the Company, Settlement
Procedures Procedures "A" through "K" set forth above shall be completed
Timetable: as soon as possible but not later than the respective times
(New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A-B 11:00 A.M. on the trade date
C 2:00 P.M. on the trade date
D 3:00 P.M. on the Business Day before
Settlement Date
E 9:00 A.M. on Settlement Date
F 10:00 A.M. on Settlement Date
Settlement
Procedure Time
--------- ----
G-H No later than 2:00 P.M. on Settlement
Date
I 4:45 P.M. on Settlement Date
J-K 5:00 P.M. on Settlement Date
[If a sale is to be settled more than one Business Day after
the trade date, Settlement Procedures A, B and C may, if
necessary, be completed at any time prior to the specified
times on the first Business Day after such trade date.] In
connection with a sale which
C-15
<PAGE> 46
is to be settled more than one Business Day after the trade
date, if the initial interest rate for a Floating Rate Note is
not known at the time that Settlement Procedure A is
completed, Settlement Procedures B and C shall be completed as
soon as such rates have been determined, but no later than
11:00 A.M. and 2:00 P.M., New York City time, respectively, on
the second Business Day before the Settlement Date. Settlement
Procedure I is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other events
specified in the SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Book-Entry Note is rescheduled or
cancelled, the Trustee, upon receipt of notice of such
cancellation will deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such effect by no
later than 2:00 P.M., New York City time, on the Business Day
immediately preceding the scheduled Settlement Date.
Failure If the Trustee fails to enter an SDFS deliver order with
To Settle: respect to a Book-Entry Note pursuant to Procedure G, the
Trustee may deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal message
instructing DTC to debit such Note to the participant account
of the Trustee maintained at DTC. DTC will process the
withdrawal message, provided that such participant account
contains a principal amount of the Book-Entry Note
representing such Note that is at least equal to the principal
amount to be debited. If withdrawal messages are processed
with respect to all the Notes represented by a Book-Entry
Note, the Trustee will cancel and destroy such Book-Entry Note
and deliver to the Company a certificate of destruction with
respect to each cancelled Note. The CUSIP number assigned to
such Book-Entry Note shall, in accordance with CUSIP Service
Bureau procedures, be cancelled and not immediately
reassigned. If withdrawal messages are processed with respect
to a portion of the Notes represented by a Book-Entry Note,
the Trustee will exchange such Book-Entry Note for two
Book-Entry Notes, one of which shall represent the Book-Entry
Notes for which withdrawal messages are processed and shall be
cancelled immediately after issuance, and the other of which
shall represent the other Notes
C-16
<PAGE> 47
previously represented by the surrendered Book-Entry Note and
shall bear the CUSIP number of the surrendered Book-Entry
Note.
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the related Agent
may enter SDFS deliver orders through DTC's Participant
Terminal System reversing the orders entered pursuant to
Settlement Procedures G and H, respectively. Thereafter, the
Trustee will deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such
failure shall have occurred for any reason other than default
by the applicable Agent to perform its obligations hereunder
or under the Distribution Agreement, the Company will
reimburse such Agent on an equitable basis for its loss of the
use of funds during the period when the funds were credited to
the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures then in effect.
In the event of a failure to settle with respect to a Note
that was to have been represented by a Book-Entry Note also
representing other Notes, the Trustee will provide, in
accordance with Settlement Procedures D and E, for the
authentication and issuance of a Book-Entry Note representing
such remaining Notes and will make appropriate entries in its
records.
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Certificated Notes will be issued in denominations of $100,000
and integral multiples thereof.
Registration: Certificated Notes will be issued only in fully registered
form without coupons.
Transfers A Certificated Note may be presented for transfer or exchange
and Exchanges: at the corporate trust office of the Trustee.
C-17
<PAGE> 48
Interest: Each Certificated Note will bear interest in accordance with
its terms.
Payments of Upon presentment and delivery of a Certificated Note, the
Principal and Trustee will pay the principal amount of such Note at Maturity
Interest: and the final installment of interest in immediately available
funds. All interest payments on a Certificated Note, other
than interest due at Maturity, will be made by check drawn on
the Trustee and mailed by the Trustee to the person entitled
thereto as provided in such Note. Any payment of principal or
interest required to be made on an Interest Payment Date or at
Maturity of a Certificated Note which is not a Business Day
need not be made on such day, but may be made on the next
succeeding Business Day (except that in the case of a LIBOR
Note, if such day falls in the next calendar month, such
Interest Payment Date will be the preceding day that is a
Business Day with respect to such LIBOR Note) with the same
force and effect as if made on the Interest Payment Date or at
Maturity, as the case may be, and no interest shall accrue for
the period from and after such Interest Payment Date or
Maturity.
The Trustee will provide monthly to the Company a list of the
principal and interest to be paid on Certificated Notes
maturing in the next succeeding month. The Trustee will be
responsible for withholding taxes on interest paid as required
by applicable law, but shall be relieved from any such
responsibility if it acts in good faith and in reliance upon
an opinion of counsel.
Certificated Notes presented to the Trustee at Maturity for
payment will be cancelled by the Trustee. All such cancelled
Notes held by the Trustee shall be destroyed, and the Trustee
shall furnish to the Company a certificate with respect to
such destruction.
Settlement Settlement Procedures with regard to each Certificated Note
Procedures: purchased through any Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Company by telephone
of the following Settlement information with regard to each
Certificated Note:
C-18
<PAGE> 49
1. Exact name in which the Note is to be registered
(the "Registered Owner").
2. Exact address or addresses of the Registered
Owner for delivery, notices and payments of
principal and interest.
3. Taxpayer identification number of the Registered
Owner.
4. Principal amount of the Note.
5. Denomination of the Note.
6. Fixed Rate Notes:
(a) Interest Rate
(b) Redemption Dates, if any, and
redemption at whose option
Floating Rate Notes:
(a) Interest Rate Basis
(b) Initial Interest Rate
(c) Spread, if any
(d) Interest Rate Reset Dates
(e) Interest Rate Reset Period
(f) Interest Payment Dates
(g) Interest Payment Period
(h) Index Maturity
(i) Calculation Agent
(j) Maximum Interest Rates, if any
(k) Minimum Interest Rates, if any
(l) Redemption Dates, if any, and redemption
at whose option
(m) Original Issue Discount features, if any
(n) Sinking Fund Dates and Amounts, if any
7. Price to public of the Note.
8. Settlement Date (Original Issue Date).
9. Maturity Date.
10. Net proceeds to the Company.
11. Agent's Commission.
B. The Company shall provide to the Trustee, by telecopy
or other mutually acceptable method, the above
Settlement information received from the Agent and shall
cause the
C-19
<PAGE> 50
Trustee to execute, authenticate and deliver the Notes.
The Company also shall provide to the Trustee and the
Agent a copy of the applicable Pricing Supplement.
C. The Trustee will complete the preprinted four-ply Note
packet containing the following documents in forms
approved by the Company, the Presenting Agent and the
Trustee:
1. Note with Agent's customer confirmation.
2. Stub 1 - for Trustee.
3. Stub 2 - for Agent.
4. Stub 3 - for the Company.
D. With respect to each trade, the Trustee will deliver
the Notes and Stub 2 thereof to the Presenting Agent at
the following applicable address: in the case of Morgan
Stanley & Co. Incorporated, 1585 Broadway, New York,
New York 10036, Attention: Managing Director, Short and
Medium Term Financial Department; in the case of
Salomon Brothers Inc, The Bank of New York, One Wall
Street, 3rd Floor, New York, New York 10005, Attention:
Dealer Clearance. The Trustee will keep Stub 1. The
Presenting Agent will acknowledge receipt of the Note
through a broker's receipt and will keep Stub 2.
Delivery of the Note will be made only against such
acknowledgment of receipt. Upon determination that the
Note has been authorized, delivered and completed as
aforementioned, the Presenting Agent will wire the net
proceeds of the Note after deduction of its applicable
commission to the Company pursuant to standard wire
instructions given by the Company.
E. The Presenting Agent will deliver the Note (with
confirmations), as well as a copy of the Prospectus and
any applicable Pricing Supplement received from the
Company to the purchaser against payment in immediately
available funds.
F. The Trustee will send Stub 3 to the Company.
C-20
<PAGE> 51
Settlement For offers accepted by the Company, Settlement Procedures "A"
Procedures through "F" set forth above shall be completed on or before
Timetable: the respective times set forth below:
Settlement
Procedure Time
A-B 3:00 P.M. on Business Day prior to
settlement
C-D 2:15 P.M. on day of settlement
E 3:00 P.M. on day of settlement
F 5:00 P.M. on day of settlement
Failure In the event that a purchaser of a Certificated Note from the
To Settle: Company shall either fail to accept delivery of or make
payment for a Certificated Note on the date fixed for
settlement, the Presenting Agent will forthwith notify the
Trustee and the Company by telephone, confirmed in writing,
and return the Certificated Note to the Trustee.
The Trustee, upon receipt of the Certificated Note from the
Agent, will immediately advise the Company and the Company
will promptly arrange to credit the account of the Presenting
Agent in an amount of immediately available funds equal to the
amount previously paid by such Agent in settlement for the
Certificated Note. Such credits will be made on the Settlement
Date, if possible, and in any event not later than the
Business Day following the Settlement Date; provided that the
Company has received notice on the same day. If such failure
shall have occurred for any reason other than failure by such
Agent to perform its obligations hereunder or under the
Distribution Agreement, the Company will reimburse such Agent
on an equitable basis for its loss of the use of funds during
the period when the funds were credited to the account of the
Company. Immediately upon receipt of the Certificated Note in
respect of which the failure occurred, the Trustee will cancel
and destroy the Certificated Note, make appropriate entries in
its records to reflect the fact that the Certificated Note was
never issued, and accordingly notify in writing the Company.
C-21
<PAGE> 1
Exhibit 4(c)
SECOND SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE is entered into as of
________________ by and between GATX CAPITAL CORPORATION, a Delaware
corporation (formerly GATX Leasing Corporation) (the "Company") having its
principal office at Four Embarcadero Center, San Francisco, CA 94111 and THE
CHASE MANHATTAN BANK (NATIONAL ASSOCIATION), a national banking
association (the "Trustee"), amending and supplementing the indenture dated as
of July 31, 1989, as amended and supplemented by that supplemental indenture
dated as of December 18, 1991 (collectively the "Indenture").
RECITALS OF THE COMPANY:
The Company has duly authorized the execution and delivery of this
Supplemental Indenture, and all things necessary to make this Supplemental
Indenture a valid agreement of the Company have been done. This Supplemental
Indenture is entered into pursuant to Section 9.1(d) of the Indenture, to change
or eliminate any provision of the Indenture, provided that such change or
elimination does not apply to any Security Outstanding.
NOW, THEREFORE, this Supplemental Indenture witnesseth that it is
mutually covenanted and agreed that the final sentence of Section 10.6 shall be
amended in its entirety and restated to read as follows:
"For purposes of this Section with respect to Securities of the
series entitled Medium Term Notes -- Series A, Medium Term Notes --
Series B and Medium Term Notes -- Series C, which constitute all
Securities Outstanding as of the date hereof, the term 'Net Tangible
Assets' shall mean the excess of total assets over total liabilities as
shown on the Company's latest consolidated balance sheet prepared in
accordance with generally accepted accounting principles, minus
intangible assets. For purposes of this Section with respect to all
Securities other than such series, the term 'Net Tangible Assets' at
any date shall mean the total assets of the Company as they appear on
the most recently prepared consolidated balance sheet as of the end of
a fiscal quarter, less (i) all liabilities shown on such consolidated
balance sheet that are classified and accounted for as current
liabilities or that otherwise would be considered current liabilities
under generally accepted
<PAGE> 2
faccounting principles and (ii) all assets shown on such consolidated
balance sheet that are classified and accounted for as intangible
assets of the Company or that otherwise would be considered intangible
assets under generally accepted accounting principles, including,
without limitation, franchises, patents and patent applications,
trademarks, brand names and goodwill."
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective
-2-
<PAGE> 3
corporate seals to be hereunto affixed and attested, all as of the day and year
first above written.
GATX CAPITAL CORPORATION
By
-----------------------------
George R. Prince
Vice President and Treasurer
[Seal]
Attest
-----------------------------
Marty M. Linne
Assistant Secretary
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), as
Trustee
By
-----------------------------
Name
---------------------------
Title
--------------------------
[Seal]
Attest
-----------------------------
Name
-------------------------------
Title
------------------------------
-3-
<PAGE> 4
STATE OF CALIFORNIA )
) ss.
County of San Francisco )
On the ____ day of December, 1995, before me personally came George R.
Prince, to me known, who, being by me duly sworn, did depose and say that he is
the Vice President and Treasurer of GATX CAPITAL CORPORATION, a Delaware
corporation, one of the persons described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporation's seal; that it was so affixed by authority
of the Board of Directors of said corporation; and that he signed his name
thereto by like authority.
---------------------------------
Notary Public
[NOTARIAL SEAL]
-4-
<PAGE> 5
STATE OF NEW YORK )
) ss.
County of New York )
On the ____ day of December, 1995, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he is a Vice President of The Chase Manhattan Bank (National
Association), one of the persons described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporation's seal; that it was so affixed by authority
of the Board of Directors of said corporation; and that he signed his name
thereto by like authority.
---------------------------------
Notary Public
[NOTARIAL SEAL]
-5-
<PAGE> 1
Exhibit 4(d)
REGISTERED PRINCIPAL AMOUNT:
$
CUSIP
No. fxd-
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES D
(FIXED RATE)
Interest Rate: Redemption Date and Prices:
Original Issue Date: Sinking Fund Dates and Amounts:
Maturity Date: Total Amount OID:
Initial Accrual Period OID:
Yield to Maturity:
Redemption at Option of Company: Yes__ No__
Redemption at Holder's Option: Yes__ No__
GATX CAPITAL CORPORATION, a Delaware corporation (the "Company"), for value
received, hereby promises to pay to ____________________________________________
________________________________________________________________________________
, or registered assigns, the principal amount of ____________________________
DOLLARS, on the Maturity Date shown above, and to pay interest thereon at the
rate per annum shown above until the principal hereon is paid or duly made
available for payment. The Company will pay interest (computed on the basis of a
360-day year of twelve 30-day months) semiannually on April 1 and October 1 of
each year (each an "Interest Payment Date") commencing with the Interest Payment
Date next following the Original Issue Date specified above (the "Original Issue
Date") (provided that, if the Original Issue Date is later than March 15 or
September 15 and prior to the next succeeding Interest Payment Date, interest
shall be so payable commencing with the second Interest Payment Date following
the Original Issue Date) and on the Maturity Date or the date of redemption (the
"Redemption Date") on said principal amount, at the Interest Rate per annum
specified above. Interest on this Note will accrue from the most recent Interest
Payment Date to which interest has been paid or duly provided for or, if no
interest has been paid, from the Original Issue Date shown above until the
principal hereof has been paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture referred to on the reverse hereof, be paid to
the Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest,which shall be the March 15 or the September 15, whether or not a
Business Day (as defined on the reverse hereof), as the case may be, next
preceding such Interest Payment Date; provided, however,
-1-
<PAGE> 2
that interest payable on the Maturity Date shown above, or if applicable, upon
redemption, will be payable to the Person to whom the principal hereof shall be
payable and provided, further, however, that if such Interest Payment Date would
fall on a day that is not a Business Day, such Interest Payment Date shall be
the following day that is a Business Day. Any such interest which is payable,
but is not punctually paid or duly provided for on any Interest Payment Date,
shall forthwith cease to be payable to the registered holder on such Regular
Record Date, and may be paid to the Person in whose name this Note (or one or
more Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice of which shall be given to the Holder of this Note not less than
ten days prior to such Special Record Date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note shall be made at
the office or agency of the Trustee maintained for that purpose in the Borough
of Manhattan, The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debt; provided, however, that payment of interest on any
Interest Payment Date (other than the Maturity Date or Redemption Date, if any)
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register.
The principal hereof and interest due at maturity shall be paid upon
maturity in immediately available funds against presentation of this Note at the
office or agency of the Trustee maintained for that purpose in the Borough of
Manhattan, The City of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH ON THE FACE HEREOF.
This Note shall be governed by and construed in accordance with the law
of the State of New York.
This Note is one of the series of Medium-Term Notes, Series D of the
Company.
Unless the certificate of authentication hereon has been executed by
The Chase Manhattan Bank (National Association), the Trustee under the
Indenture, or its successor thereunder, by the manual signature of one of its
authorized signatories, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: GATX CAPITAL CORPORATION
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the By:
series designated therein referred to in ----------------------------
the within-mentioned Indenture. Chairman of the Board
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION) ATTEST:
as Trustee
By:
---------------------------- ----------------------------
Authorized Signatory Secretary
-2-
<PAGE> 3
[Reverse of Note]
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES D
(FIXED RATE)
This Note is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness (hereinafter called the "Securities") of the
Company of the series hereinafter specified, all such Securities issued and to
be issued under the indenture dated as of July 31, 1989, as supplemented and
amended by the Supplemental Indentures dated as of December 18, 1991 and
____________ (herein called the "Indenture") between the Company and The Chase
Manhattan Bank (National Association), Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and limitations of rights thereunder of the
Company, the Trustee and the Holders of the Securities, and the terms upon which
the Securities are, and are to be, authenticated and delivered. As provided in
the Indenture, Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest, if any, at different rates, may be subject
to different redemption provisions, if any, may be subject to different sinking,
purchase or analogous funds, if any, may be subject to different covenants and
Events of Default and may otherwise vary as in the Indenture provided or
permitted. This Note is one of a series of the Securities designated as
Medium-Term Notes, Series D (the "Notes"). The Notes of this series may be
issued at various times with different maturity dates, redemption dates and
different principal repayment provisions, may bear interest at different rates
and may otherwise vary, all as provided in the Indenture.
If so provided on the face of this Note, this Note may be redeemed at
the option of the Company or the Holder on and after the Redemption Date so
indicated on the face hereof. If no such date is set forth on the face hereof,
this Note may not be redeemed prior to maturity. On and after such date, if any,
from which this Note may be redeemed, this Note may be redeemed, in whole or in
part in increments of $1,000 (provided that any remaining principal amount of
this Note shall be at least $1,000) at option of the Company or a Holder, at the
redemption prices indicated on the face hereof, together with interest thereon
payable to the Redemption Date, on notice given (i) to the Trustee not more than
60 days nor less than 30 days prior to the Redemption Date with respect to
redemption at the option of the Company or (ii) to the Trustee and the Company
at least 60 days prior to the Redemption Date with respect to redemption at the
option of a Holder. With respect to redemption at the option of the Company, if
less than all the Outstanding Notes having such terms as specified by the
Company are to be redeemed, the particular Notes to be redeemed shall be
selected by the Trustee not more than 60 days prior to the Redemption Date from
the Outstanding Notes having such terms as specified by the Company are to be
redeemed, the particular Notes to be redeemed shall be selected by the Trustee
not more than 60 days prior to the Redemption Date from the Outstanding Notes
having such terms as specified by the Company not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate. Any
notice by the Trustee of such redemption at the option of the Company shall
specify which Notes are to be redeemed. In the event of redemption of this Note,
in part only, a new Note or Notes in authorized denominations for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
surrender hereof.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal thereof may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of each series,
to waive
-3-
<PAGE> 4
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note.
Holders of Securities may not enforce their rights pursuant to the
Indenture or the Securities except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Note or the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Note at the time,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar and this Note duly
executed by the Holder hereof or by his attorney duly authorized in writing, and
thereupon one or more new Notes of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form without coupons in
denominations of $100,000 or any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denomination as requested by
the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to the due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All capitalized terms used in this Note and not otherwise defined
herein or particularized on the face hereof shall have the meanings assigned to
them in the Indenture.
------------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT-- Custodian
------------------- ----------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
------------------------------
-4-
<PAGE> 5
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE
OF ASSIGNEE
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
Attorney
- ------------------------------------------------------------------------
to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Date:
------------------ -------------------------------------
Note: The signature to this
Assignment must correspond with the
name as written upon the face of this
Note in every particular without
alteration or enlargement.
-5-
<PAGE> 1
Exhibit 4(e)
<TABLE>
<S> <C> <C>
REGISTERED UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN PRINCIPAL AMOUNT:
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY $
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY, UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER CUSIP
STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
NO. FXD- REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE
TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
</TABLE>
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES D
(FIXED RATE)
Interest Rate: Redemption Date and Prices:
Original Issue Date: Sinking Fund Dates and Amounts:
Maturity Date: Total Amount OID:
Initial Accrual Period OID:
Yield to Maturity:
Redemption at Option of Company: Yes__ No__
Redemption at Holder's Option: Yes__ No__
GATX CAPITAL CORPORATION, a Delaware corporation (the "Company"), for value
received, hereby promises to pay to_____________________________________________
________________________________________________________________________________
, or registered assigns, the principal amount of ____________________________
DOLLARS, on the Maturity Date shown above, and to pay interest thereon at the
rate per annum shown above until the principal hereon is paid or duly made
available for payment. The Company will pay interest (computed on the basis of a
360-day year of twelve 30-day months) semiannually on April 1 and October 1 of
each year (each an "Interest Payment Date") commencing with the Interest Payment
Date next following the Original Issue Date specified above (the "Original Issue
Date") (provided that, if the Original Issue Date is later than March 15 or
September 15 and prior to the next succeeding Interest Payment Date, interest
shall be so payable commencing with the second Interest Payment Date following
the Original Issue Date) and on the Maturity Date or the date of redemption (the
"Redemption Date") on said principal amount, at the Interest Rate per annum
specified above. Interest
-1-
<PAGE> 2
on this Note will accrue from the most recent Interest Payment Date to which
interest has been paid or duly provided for or, if no interest has been paid,
from the Original Issue Date shown above until the principal hereof has been
paid or made available for payment. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Indenture referred to on the reverse hereof, be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest,which shall be the March
15 or the September 15, whether or not a Business Day (as defined on the reverse
hereof), as the case may be, next preceding such Interest Payment Date;
provided, however, that interest payable on the Maturity Date shown above, or if
applicable, upon redemption, will be payable to the Person to whom the principal
hereof shall be payable and provided, further, however, that if such Interest
Payment Date would fall on a day that is not a Business Day, such Interest
Payment Date shall be the following day that is a Business Day. Any such
interest which is payable, but is not punctually paid or duly provided for on
any Interest Payment Date, shall forthwith cease to be payable to the registered
holder on such Regular Record Date, and may be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice of which shall be given to the Holder of this
Note not less than ten days prior to such Special Record Date, or may be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note shall be made at
the office or agency of the Trustee maintained for that purpose in the Borough
of Manhattan, The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debt; provided, however, that payment of interest on any
Interest Payment Date (other than the Maturity Date or Redemption Date, if any)
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register.
The principal hereof and interest due at maturity shall be paid upon
maturity in immediately available funds against presentation of this Note at the
office or agency of the Trustee maintained for that purpose in the Borough of
Manhattan, The City of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH ON THE FACE HEREOF.
This Note shall be governed by and construed in accordance with the law
of the State of New York.
This Note is one of the series of Medium-Term Notes, Series D of the
Company.
Unless the certificate of authentication hereon has been executed by
The Chase Manhattan Bank (National Association), the Trustee under the
Indenture, or its successor thereunder, by the manual signature of one of its
authorized signatories, this Note shall
-2-
<PAGE> 3
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: GATX CAPITAL CORPORATION
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the By:
series designated therein referred to in -----------------------
the within-mentioned Indenture. Chairman of the Board
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION) ATTEST:
as Trustee
By:
----------------------- -----------------------
Authorized Signatory Secretary
-3-
<PAGE> 4
[Reverse of Note]
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES D
(FIXED RATE)
This Note is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness (hereinafter called the "Securities") of the
Company of the series hereinafter specified, all such Securities issued and to
be issued under the indenture dated as of July 31, 1989, as supplemented and
amended by the Supplemental Indentures dated as of December 18, 1991 and
____________ (herein called the "Indenture") between the Company and The Chase
Manhattan Bank (National Association), Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and limitations of rights thereunder of the
Company, the Trustee and the Holders of the Securities, and the terms upon which
the Securities are, and are to be, authenticated and delivered. As provided in
the Indenture, Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest, if any, at different rates, may be subject
to different redemption provisions, if any, may be subject to different sinking,
purchase or analogous funds, if any, may be subject to different covenants and
Events of Default and may otherwise vary as in the Indenture provided or
permitted. This Note is one of a series of the Securities designated as
Medium-Term Notes, Series D (the "Notes"). The Notes of this series may be
issued at various times with different maturity dates, redemption dates and
different principal repayment provisions, may bear interest at different rates
and may otherwise vary, all as provided in the Indenture.
If so provided on the face of this Note, this Note may be redeemed at
the option of the Company or the Holder on and after the Redemption Date so
indicated on the face hereof. If no such date is set forth on the face hereof,
this Note may not be redeemed prior to maturity. On and after such date, if any,
from which this Note may be redeemed, this Note may be redeemed, in whole or in
part in increments of $1,000 (provided that any remaining principal amount of
this Note shall be at least $1,000) at option of the Company or a Holder, at the
redemption prices indicated on the face hereof, together with interest thereon
payable to the Redemption Date, on notice given (i) to the Trustee not more than
60 days nor less than 30 days prior to the Redemption Date with respect to
redemption at the option of the Company or (ii) to the Trustee and the Company
at least 60 days prior to the Redemption Date with respect to redemption at the
option of a Holder. With respect to redemption at the option of the Company, if
less than all the Outstanding Notes having such terms as specified by the
Company are to be redeemed, the particular Notes to be redeemed shall be
selected by the Trustee not more than 60 days prior to the Redemption Date from
the Outstanding Notes having such terms as specified by the Company are to be
redeemed, the particular Notes to be redeemed shall be selected by the Trustee
not more than 60 days prior to the Redemption Date from the Outstanding Notes
having such terms as specified by the Company not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate. Any
notice by the Trustee of such redemption at the option of the Company shall
specify which Notes are to be redeemed. In the event of redemption of this Note,
in part only, a new Note or Notes in authorized denominations for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
surrender hereof.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal thereof may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of each series,
to waive
-4-
<PAGE> 5
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note.
Holders of Securities may not enforce their rights pursuant to the
Indenture or the Securities except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Note or the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Note at the time,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar and this Note duly
executed by the Holder hereof or by his attorney duly authorized in writing, and
thereupon one or more new Notes of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form without coupons in
denominations of $100,000 or any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denomination as requested by
the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to the due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All capitalized terms used in this Note and not otherwise defined
herein or particularized on the face hereof shall have the meanings assigned to
them in the Indenture.
------------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT-- Custodian
--------------- -------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
------------------------------
-5-
<PAGE> 6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE
OF ASSIGNEE
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
Attorney
- ------------------------------------------------------------------------
to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Date:
--------------------- -------------------------------------
Note: The signature to this
Assignment must correspond with the
name as written upon the face of this
Note in every particular without
alteration or enlargement.
-6-
<PAGE> 1
Exhibit 4(f)
REGISTERED PRINCIPAL AMOUNT:
$
CUSIP
No. fld-
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES D
(FLOATING RATE)
Original Issue Date: Interest Reset Date(s):
Maturity Date:
Interest Rate Basis: Interest Reset Period:
Initial Interest Rate: Interest Payment Date(s)
Index Maturity:
Spread (plus or minus): Interest Payment Period:
Redemption at option of Holder: Yes __ No __
Redemption at option of Company: Yes __ No __
Maximum Interest Rate: Redemption Dates and Prices:
Minimum Interest Rate: Sinking Fund Dates and Amounts:
________________________________________________________________________________
GATX CAPITAL CORPORATION, a Delaware corporation (the "Company"), for value
received, hereby promises to pay to ____________________________________________
________________________________________________________________________________
, or registered assigns, the principal amount of ___________________ DOLLARS, on
the Maturity Date shown above and to pay interest thereon at the rate per annum
equal to the Initial Interest Rate shown above until the first Interest Reset
Date shown above following the Original Issue Date shown above and thereafter at
a rate determined in accordance with the provisions on the reverse hereof under
the heading "Determination of Commercial Paper Rate," "Determination of LIBOR
Rate," "Determination of Federal Funds Rate" or "Determination of Treasury
Rate," depending upon whether the Interest Rate Basis is Commercial Paper Rate,
LIBOR, Federal Funds Rate or Treasury Rate, as indicated above, until the
principal hereof is fully paid or duly made available for payment. The Company
will pay interest monthly, quarterly, semiannually or annually as indicated
above on each Interest Payment Date shown above commencing with the first
Interest Payment Date shown above immediately following the Original Issue Date
shown above, and on the Maturity Date shown above, or, if applicable, upon
redemption; provided, however, that if the Original Issue Date shown above is
between a Regular Record Date (as defined below) and an Interest Payment Date,
interest payments will commence on the Interest Payment Date following the next
succeeding Regular Record Date; and provided, further, however, that if an
Interest Payment Date would fall on a day that is not a Business Day (as defined
on the reverse
-1-
<PAGE> 2
hereof), such Interest Payment Date shall be the following day that is a
Business Day, except that in the case the Interest Rate Basis is LIBOR, as
indicated above, if such next Business Day falls in the next calendar month,
such Interest Payment Date will be the preceding day that is a Business Day with
respect to such LIBOR Note. Except as provided above and in the Indenture
referred to on the reverse hereof, interest payments will be made on the
Interest Payment Dates shown above. The "Regular Record Date" shall be the date
whether or not a Business Day 15 calendar days immediately preceding such
Interest Payment Date.
The interest so payable, and punctually paid or duly provided for, on
the Interest Payment Dates referred to above, will, as provided in the
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest; provided, however, that interest payable on the
Maturity Date shown above, or if applicable, the date of redemption (the
"Redemption Date") will be paid to the Person to whom the principal of this Note
is payable. Any such interest which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on such Regular Record Date, and may be paid to the Person
in whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to the Holder
of this Note not less than ten days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture.
Payments of principal and interest shall be made at the office or
agency of the Trustee maintained for that purpose in the Borough of Manhattan,
The City of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debt; provided, however, that payment of interest on any Interest Payment Date
(other than the Maturity Date or Redemption Date, if any) may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The principal hereof and interest due at maturity will be paid upon
maturity in immediately available funds against presentation of this Note at the
office or agency of the Trustee maintained for that purpose in the Borough of
Manhattan, The City of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH ON THE FACE HEREOF.
This Note shall be governed by and construed in accordance with the law
of the State of New York.
This Note is one of the series of Medium-Term Notes, Series D, of the
Company.
Unless the certificate of authentication hereon has been executed by
The Chase Manhattan Bank (National Association), the Trustee under the
Indenture, or its successor thereunder by the manual signature of one of its
authorized signatories, this Note shall
-2-
<PAGE> 3
not be entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: GATX CAPITAL CORPORATION
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series
designated therein referred to in the By:
within-mentioned Indenture. -----------------------
THE CHASE MANHATTAN BANK Chairman of the Board
(NATIONAL ASSOCIATION)
as Trustee ATTEST:
By:
----------------------- -----------------------
Authorized Signatory Secretary
-3-
<PAGE> 4
[Reverse of Note]
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES D
(FLOATING RATE)
This Note is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness (hereinafter called the "Securities") of the
Company of the series hereinafter specified, all such Securities issued and to
be issued under the Indenture dated as of July 31, 1989, as supplemented and
amended by the Supplemental Indentures dated as of December 18, 1991 and
____________ (herein called the "Indenture") between the Company and The Chase
Manhattan Bank (National Association), Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture), to which
indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights and limitations of rights thereunder of the
Company, the Trustee and the Holders of the Securities, and the terms upon which
the Securities are, and are to be, authenticated and delivered. As provided in
the Indenture, Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest, if any, at different rates, may be subject
to different redemption provisions, if any, may be subject to different sinking,
purchase or analogous funds, if any, may be subject to different covenants and
Events of Default and may otherwise vary as in the Indenture provided or
permitted. This Note is one of a series of Securities designated as Medium-Term
Notes, Series C (the "Notes"). The Notes of this series may be issued at various
times with different maturity dates, redemption dates and different principal
repayment provisions, may bear interest at different rates and may otherwise
vary, all as provided in the Indenture.
The interest payable on this Note on each Interest Payment Date will
include accrued interest from and including the Original Issue Date set forth on
the face hereof (the "Original Issue Date") or from and including the last date
in respect of which interest has been paid, as the case may be, to, but
excluding, such Interest Payment Date; provided, however, that if the Interest
Reset Dates set forth on the face hereof (the "Interest Reset Dates") are daily
or weekly, interest payments shall include interest accrued only through and
including the Regular Record Date next preceding the applicable Interest Payment
Date except that the interest payment at maturity will include interest accrued
to but excluding such date. Accrued interest from the Original Issue Date or
from the last date to which interest has been paid is calculated by multiplying
the principal amount hereof by an accrued interest factor. Such accrued interest
factor is computed by adding the interest factors calculated for each day from
the Original Issue Date, or from the last date to which interest has been paid,
to the date for which accrued interest is being calculated. The interest factor
(expressed as a decimal calculated to seven decimal places without rounding) for
each such day is computed by dividing the interest rate applicable to such day
by 360, in the case of Notes with an interest rate determined by reference to
the "Commercial Paper Rate" (the "Commercial Paper Rate Notes"), the "Federal
Funds Rate" (the "Federal Funds Rate Notes"), and "LIBOR" ("LIBOR" Notes"), or
by the actual number of days in the year, in the case of Notes with an interest
rate determined by reference to the "Treasury Rate" (the "Treasury Rate Notes").
The interest rate in effect on each day will be (a) if such day is an Interest
Reset Date, the interest rate with respect to the Interest Determination Date
(defined below) pertaining to such Interest Reset Date or (b) if such day is not
an Interest Reset Date, the interest rate with respect to the Interest
Determination Date pertaining to the next preceding interest Reset Date;
provided, however, that (i) the interest rate in effect from the Original Issue
Date to the first Interest Reset Date will be the initial Interest Rate as
specified on the face hereof and (ii) the interest rate in effect for the ten
calendar days immediately prior to maturity will be that in effect on the tenth
calendar date preceding maturity. Notwithstanding the foregoing, the interest
rate hereon shall not be greater than the Maximum Interest Rate, if any, shown
on the face hereof (the "Maximum Interest Rate"), or less than the Minimum
Interest Rate, if any, shown on the face hereof (the "Minimum Interest Rate").
All percentages resulting from any calculations will be rounded, if necessary,
to the nearest one-hundredth of a percent, with five one-thousandths of a
percent being rounded upwards. In addition, the interest rate hereon shall in no
event be higher than the maximum rate, if any, permitted by applicable law.
-4-
<PAGE> 5
Commencing with the first Interest Reset Date shown on the face hereof
following the Original Issue Date, and thereafter on each succeeding Interest
Reset Date specified on the face hereof, the rate at which interest on this Note
is payable shall be adjusted daily, weekly, monthly, quarterly, semiannually or
annually as specified on the face hereof under "Interest Reset Date(s)." Each
such adjusted rate shall be applicable on and after the Interest Reset Date to
which it relates to but not including the next succeeding Interest Reset Date or
until the Maturity Date or, if applicable, the Redemption Date shown on the face
hereof (the "Redemption Date"). The Interest Reset Date will be, if this Note
resets daily, each Business Day; if this Note resets weekly, the Wednesday of
each week (with the exception of weekly reset Treasury Rate Notes which will
reset the Tuesday of each week, except as specified below); if this Note resets
monthly, the third Wednesday of each month; if this Note resets quarterly, the
third Wednesday of March, June, September and December; if this Note resets
semiannually, the third Wednesday of the two months specified on the face
hereof; and if this Note resets annually, the third Wednesday of the month
specified on the face hereof. Subject to applicable law and except as specified
herein, on each Interest Reset Date, the rate of interest on this Note shall be
the rate determined in accordance with the provisions applicable below, plus or
minus the Spread (as specified on the face hereof), if any. If any Interest
Reset Date would otherwise be a day that is not a Business Day, such Interest
Reset Date shall be postponed to the next succeeding day that is a Business Day,
except that in the case of a LIBOR Note, if such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the next preceding
Business Day. "Business Day" means (i) with respect to any Note, any day that is
not a Saturday or Sunday, and that, in The City of New York, is neither a legal
holiday nor a day on which banking institutions or trust companies are
authorized or obligated by law to close, and (ii) with respect to LIBOR Notes
only, a London Banking Day. A "London Banking Day" means any day on which
dealings in deposits in U.S. dollars are transacted in the London interbank
market. In the case of weekly reset Treasury Rate Notes, if an auction of
treasury bills falls on a day that is an Interest Reset Date for Treasury Rate
Notes, the Interest Reset Date will be the following day that is a Business Day.
The Interest Determination Date (the "Interest Determination Date")
pertaining to an Interest Reset Date will be, if the Interest Rate Basis
(defined below) is the Commercial Paper Rate or the Federal Funds Rate, the
second Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date will be, if the Interest
Rate Basis is LIBOR, the second London Banking Day next preceding such Interest
Reset Date. The Interest Determination Date pertaining to an Interest Reset Date
will be, if the Interest Rate Basis is the Treasury Rate, the day of the week in
which such Interest Reset Date falls on which Treasury bills (as defined below)
of the Index Maturity specified on the face hereof are auctioned. Treasury bills
normally are auctioned on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such action may be held on the preceding Friday. If, as a result of
a legal holiday, an auction is so held on the preceding Friday, such Friday will
be the Interest Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week. Interest payable hereon will be payable
monthly, quarterly, semiannually or annually (the "Interest Payment Period") as
specified on the face hereof. Unless otherwise shown on the face hereof,
interest will be payable. If this Note resets daily, weekly or monthly, on the
third Wednesday of each month or on the third Wednesday of March, June,
September and December of each year, if this Note resets quarterly, on the third
Wednesday of March, June, September and December of each year; if this Note
resets semiannually, on the third Wednesday of the two months of each year
specified on the face hereof; and if this Note resets annually, on the third
Wednesday of the month specified on the face hereof (each such date being an
"Interest Payment Date") and in each case, at maturity or, if applicable, upon
redemption.
DETERMINATION OF COMMERCIAL PAPER RATE. If the Interest Rate Basis
specified on the face hereof (the "Interest Rate Basis") is "Commercial Paper
Rate," the interest rate shall equal (a) the Money Market Yield (as defined
below) on the applicable Interest Determination Date of the rate for commercial
paper having the Index Maturity specified on the face hereof (i) as published by
the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates" ("H.15(519)"), or any successor publication,
under the heading "Commercial Paper" or (ii) in the event that such rate is not
published by the Calculation Date (as defined below) pertaining to such Interest
Determination Date, then as published by the Federal Reserve Bank of New York in
its daily statistical release. "Composite 3:30 P.M. Quotations for U.S.
Government
-5-
<PAGE> 6
Securities" ("Composite Quotations") under the heading "Commercial Paper" or (b)
if neither of such yields is published by 3:00 P.M., New York City time, on such
Calculation Date, the Money Market Yield of the arithmetic mean of the offered
rates as of 11:00 A.M., New York City time, of three leading dealers of
commercial paper in The City of New York selected by The Chase Manhattan Bank
(National Association) as calculation agent (or any successor calculation agent,
the "Calculation Agent") on that Interest Determination Date, for commercial
paper of the Index Maturity specified on the face hereof (the "Index Maturity")
placed for an industrial issuer whose bond rating is "AA," or the equivalent,
from a nationally recognized rating agency, in each of the above cases adjusted
by the addition or subtraction of the Spread, if any, specified on the face
hereof; provided, however, that if such dealers are not quoting as mentioned
above, the interest rate in effect hereon until the Interest Reset Date next
succeeding the Interest Reset Date to which such Interest Determination Date
relates shall be the rate in effect for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of interest for
such period shall be the Initial Interest Rate).
"Money Market Yield" shall be a yield calculated in accordance with the
following formula:
Money Market Yield = D x 360
------------ x 100
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
DETERMINATION OF LIBOR. If the Interest Rate Basis specified on the
face hereof is "LIBOR," commencing on the second London Banking Day immediately
following the applicable Interest Determination Date the interest rate shall be
equal to either (i) the arithmetic mean (rounded upward if necessary to the
nearest one-sixteenth of one percent) as calculated by the Calculation Agent, of
the offered rates for deposits in U.S. dollars having the Index Maturity
specified on the face hereof, which appear on the Reuters Screen LIBO Page (or
such other page as may replace the same), as of 11:00 A.M., London time, on such
Interest Determination Date or (ii) the rate for deposits in U.S. dollars having
the Index Maturity specified on the face hereof which appears on the Telerate
Page 3750 (or such other page or service as may replace the same) as of 11 A.M.,
London time, on such Interest Determination Date, in each case adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof;
provided, however, that if less than two such offered rates appear on the
Reuters Screen LIBO Page or if no rate appears on Telerate Page 3750, as
applicable, the Calculation Agent shall request the principal London Office of
each of four major banks in the London interbank market selected by the
Calculation Agent to provide a quotation of the rate at which such bank offered
to prime banks in the London interbank market at approximately 11:00 A.M.,
London time, on such Interest Determination Date, on deposits in U.S. dollars
having the Index Maturity specified on the face hereof commencing on the second
London Banking Day immediately following such Interest Determination Date and in
a principal amount equal to an amount not less than U.S. $1,000,000 that is
representative of a single transaction in such market at such time, and such
rate of interest hereon shall equal the arithmetic mean (rounded upward if
necessary to the nearest one-sixteenth of one percent) of (a) such quotations,
if at least two quotations are provided, or (b) if less than two quotations are
provided, the rates quoted at approximately 11:00 A.M., New York City time, on
such Interest Determination Date by three major banks in The City of New York,
selected by the Calculation Agent (after consultation with the Company) for
loans in U.S. dollars to leading European banks, having the Index Maturity
specified on the face hereof commencing on the second London Banking Day
immediately following such Interest Determination Date and in a principal amount
as aforesaid, in either case, adjusted by the addition or subtraction of the
Spread, if any, specified on the face hereof; provided, however, that if the
three banks selected as aforesaid by the Calculation Agent are not quoting as
mentioned above, the interest rate in effect hereon until the Interest Reset
Date next succeeding the Interest Reset Date to which such Interest
Determination Date relates shall be the rate in effect for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset Period,
the rate of interest for such period shall be the Initial Interest Rate).
DETERMINATION OF FEDERAL FUNDS RATE. If the Interest Rate Basis
specified on the face hereof is "Federal Funds Rate," the interest rate shall
equal (a) the rate on the
-6-
<PAGE> 7
applicable Interest Determination Date specified on the face hereof for Federal
Funds (i) as published in the H.15(519) under the heading "Federal Funds
(Effective)" or (ii) if such rate is not so published by the Calculation Date
pertaining to such Interest Determination Date, then as published in the
Composite Quotations under the heading "Federal Funds/Effective Rate" or (b) if
neither of such rates is published by 3:00 P.M., New York City time, on such
Calculation Date, the arithmetic mean (as calculated by the Calculation Agent)
of the rates for the last transaction in overnight Federal Funds arranged by
three leading brokers of Federal Funds transactions in The City of New York
selected by the Calculation Agent as of 11:00 A.M., New York City time, on such
Interest Determination Date, in each of the above cases, adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof;
provided, however, that if such brokers are not quoting as mentioned above, the
interest rate in effect hereon until the Interest Reset Date next succeeding the
Interest Reset Date to which such Interest Determination Date relates shall be
the rate in effect for the immediately preceding Interest Reset Period (or, if
there was no such Interest Reset Period, the rate of interest for such period
shall be the Initial Interest Rate).
DETERMINATION OF TREASURY RATE. If the Interest Rate Basis specified on
the face hereof is "Treasury Rate," the interest rate shall equal the rate for
the auction held on the applicable Interest Determination Date of direct
obligations of the United States ("Treasury bills") having the Index Maturity
specified on the face hereof as published in H.15(519), or any successor
publication, under the heading, "U.S. Government Securities-Treasury
bills--auction average (investment)" or, if not so published by the Calculation
Date pertaining to such Interest Determination Date, the auction average rate
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) as otherwise announced by the United
States Department of the Treasury, in either case, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof. In the event
that the results are not published or reported as provided above by 3:00 P.M.,
New York City time, on such Calculation Date, or if no such auction is held in a
particular week, then rate of interest herein shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) of the arithmetic mean of the secondary market bid rates as of
approximately 3:30 P.M., New York City time, on such Interest Determination
Date, of three leading primary United States government securities dealers
selected by the Calculation Agent (after consultation with the Company) for the
issue of Treasury bills with a remaining maturity closest to the Index Maturity
specified on the face hereof, adjusted by the addition or subtraction of the
Spread, if any, specified on the face hereof; provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned above, the interest rate in effect hereon until the Interest Reset
Date next succeeding the Interest Reset Date to which such Interest
Determination Date relates shall be the rate in effect for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset Period,
the rate of interest for such period shall be the Initial Interest Rate).
The Calculation Date pertaining to an Interest Determination Date shall
be the tenth calendar day after such Interest Determination Date or if any such
day is not a Business Day, the next succeeding Business Day. The Calculation
Agent shall calculate the interest rate hereon in accordance with the foregoing
and will confirm in writing such calculation to the Trustee and any Paying Agent
immediately after each determination. Neither the Trustee nor any Paying Agent
shall be responsible for any such calculation. At the request of the Holder
hereof, the Calculation Agent will provide to the Holder hereof the interest
rate hereon then in effect and, if determined, the interest rate which will
become effective as of the next Interest Reset Date.
If so specified on the face of this Note, this Note may be redeemed at
the option of the Company or the Holder on and after the Redemption Date so
indicated on the face hereof. If no such date is set forth on the face hereof,
this Note may not be redeemed prior to maturity. On and after such date, if any,
from which this Note may be redeemed, this Note may be redeemed in whole or in
part in increments of $1,000 (provided that any remaining principal amount of
this Note shall be at least $1,000) at option of the Company or a Holder, at the
redemption prices set forth on the face hereof, together with interest thereon
payable to the Redemption Date, on notice given (i) to the Trustee not more than
60 days nor less than 30 days prior to the Redemption Date with respect to
redemption at the option of the Company; or (ii) to the Trustee and the Company
at least sixty (60) days prior to the Redemption Date with respect to redemption
at the option of a Holder. With
-7-
<PAGE> 8
respect to redemption at the option of the Company, if less than all the
Outstanding Notes having such terms as specified by the Company are to be
redeemed, the particular Notes to be redeemed shall be selected by the Trustee
not more than 60 days prior to the Redemption Date from the Outstanding Notes
having such terms as specified by the Company not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate. Any
notice by the Trustee of such redemption at the option of the Company shall
specify which Notes are to be redeemed. In the event of redemption of this Note,
in part only, a new Note or Notes in authorized denominations for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
surrender hereof.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal thereof may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of each series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this Note.
Holders of Securities may not enforce their rights pursuant to the
Indenture or the Securities except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Note or the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Note at the time,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Security Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and this Note duly executed by the Holder
hereof or by his attorney duly authorized in writing, and thereupon one or more
new Notes of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $100,000 or any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denomination as requested by
the Holder surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to the due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All capitalized terms used in this Note and not otherwise defined
herein or particularized on the face hereof shall have the meanings assigned to
them in the Indenture.
-8-
<PAGE> 9
------------------------------------------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT-- Custodian
--------------- -------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
------------------------------------------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
Attorney
- -----------------------------------------------------------------------
to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Date:
------------------ -------------------------------------
Note: The signature to this
Assignment must correspond with the
name as written upon the face of this
Note in every particular without
alteration or enlargement.
-9-
<PAGE> 1
Exhibit 4(g)
REGISTERED UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PRINCIPAL AMOUNT:
PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY $
A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR CUSIP
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY, UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS
NO. FLD- REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE
TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES D
(FLOATING RATE)
Original Issue Date: Interest Reset Date(s):
Maturity Date:
Interest Rate Basis: Interest Reset Period:
Initial Interest Rate: Interest Payment Date(s)
Index Maturity:
Spread (plus or minus): Interest Payment Period:
Redemption at option of Holder: Yes __ No __
Redemption at option of Company: Yes __ No __
Maximum Interest Rate: Redemption Dates and Prices:
Minimum Interest Rate: Sinking Fund Dates and Amounts:
________________________________________________________________________________
GATX CAPITAL CORPORATION, a Delaware corporation (the "Company"), for value
received, hereby promises to pay to ____________________________________________
________________________________________________________________________________
, or registered assigns, the principal amount of ___________________ DOLLARS,
on the Maturity Date shown above and to pay interest thereon at the rate per
annum equal to the Initial Interest Rate shown above until the first Interest
Reset Date shown above following the Original Issue Date shown above and
thereafter at a rate determined in accordance with the provisions on the
reverse hereof under the heading "Determination of Commercial Paper Rate,"
"Determination of LIBOR Rate," "Determination of Federal Funds Rate" or
"Determination of Treasury Rate," depending upon whether the Interest Rate
Basis is Commercial Paper Rate, LIBOR, Federal Funds Rate or Treasury Rate, as
indicated above,
-1-
<PAGE> 2
until the principal hereof is fully paid or duly made available for payment.
The Company will pay interest monthly, quarterly, semiannually or annually as
indicated above on each Interest Payment Date shown above commencing with the
first Interest Payment Date shown above immediately following the Original
Issue Date shown above, and on the Maturity Date shown above, or, if
applicable, upon redemption; provided, however, that if the Original Issue Date
shown above is between a Regular Record Date (as defined below) and an Interest
Payment Date, interest payments will commence on the Interest Payment Date
following the next succeeding Regular Record Date; and provided, further,
however, that if an Interest Payment Date would fall on a day that is not a
Business Day (as defined on the reverse hereof), such Interest Payment Date
shall be the following day that is a Business Day, except that in the case the
Interest Rate Basis is LIBOR, as indicated above, if such next Business Day
falls in the next calendar month, such Interest Payment Date will be the
preceding day that is a Business Day with respect to such LIBOR Note. Except
as provided above and in the Indenture referred to on the reverse hereof,
interest payments will be made on the Interest Payment Dates shown above. The
"Regular Record Date" shall be the date whether or not a Business Day 15
calendar days immediately preceding such Interest Payment Date.
The interest so payable, and punctually paid or duly provided for, on
the Interest Payment Dates referred to above, will, as provided in the
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest; provided, however, that interest payable on the
Maturity Date shown above, or if applicable, the date of redemption (the
"Redemption Date") will be paid to the Person to whom the principal of this
Note is payable. Any such interest which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date shall forthwith cease
to be payable to the Holder on such Regular Record Date, and may be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to the Holder of this Note not less than ten days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Notes may be listed and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture.
Payments of principal and interest shall be made at the office or
agency of the Trustee maintained for that purpose in the Borough of Manhattan,
The City of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debt; provided, however, that payment of interest on any Interest Payment Date
(other than the Maturity Date or Redemption Date, if any) may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The principal hereof and interest due at maturity will be paid upon
maturity in immediately available funds against presentation of this Note at
the office or agency of the Trustee maintained for that purpose in the Borough
of Manhattan, The City of New York.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH ON THE FACE HEREOF.
This Note shall be governed by and construed in accordance with the
law of the State of New York.
This Note is one of the series of Medium-Term Notes, Series D, of the
Company.
Unless the certificate of authentication hereon has been executed by
The Chase Manhattan Bank (National Association), the Trustee under the
Indenture, or its successor thereunder by the manual signature of one of its
authorized signatories, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
-2-
<PAGE> 3
Dated: GATX CAPITAL CORPORATION
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series
designated therein referred to in the By:___________________________
within-mentioned Indenture. Chairman of the Board
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
as Trustee
By: ___________________________________
Authorized Signatory ATTEST:
______________________________
Secretary
-3-
<PAGE> 4
[Reverse of Note]
GATX CAPITAL CORPORATION
MEDIUM-TERM NOTE, SERIES D
(FLOATING RATE)
This Note is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness (hereinafter called the "Securities") of the
Company of the series hereinafter specified, all such Securities issued and to
be issued under the Indenture dated as of July 31, 1989, as supplemented and
amended by the Supplemental Indentures dated as of December 18, 1991 and
____________ (herein called the "Indenture") between the Company and The Chase
Manhattan Bank (National Association), Trustee (herein called the "Trustee,"
which term includes any successor trustee under the Indenture), to which
indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights and limitations of rights thereunder of
the Company, the Trustee and the Holders of the Securities, and the terms upon
which the Securities are, and are to be, authenticated and delivered. As
provided in the Indenture, Securities may be issued in one or more series,
which different series may be issued in various aggregate principal amounts,
may mature at different times, may bear interest, if any, at different rates,
may be subject to different redemption provisions, if any, may be subject to
different sinking, purchase or analogous funds, if any, may be subject to
different covenants and Events of Default and may otherwise vary as in the
Indenture provided or permitted. This Note is one of a series of Securities
designated as Medium-Term Notes, Series C (the "Notes"). The Notes of this
series may be issued at various times with different maturity dates, redemption
dates and different principal repayment provisions, may bear interest at
different rates and may otherwise vary, all as provided in the Indenture.
The interest payable on this Note on each Interest Payment Date will
include accrued interest from and including the Original Issue Date set forth
on the face hereof (the "Original Issue Date") or from and including the last
date in respect of which interest has been paid, as the case may be, to, but
excluding, such Interest Payment Date; provided, however, that if the Interest
Reset Dates set forth on the face hereof (the "Interest Reset Dates") are daily
or weekly, interest payments shall include interest accrued only through and
including the Regular Record Date next preceding the applicable Interest
Payment Date except that the interest payment at maturity will include interest
accrued to but excluding such date. Accrued interest from the Original Issue
Date or from the last date to which interest has been paid is calculated by
multiplying the principal amount hereof by an accrued interest factor. Such
accrued interest factor is computed by adding the interest factors calculated
for each day from the Original Issue Date, or from the last date to which
interest has been paid, to the date for which accrued interest is being
calculated. The interest factor (expressed as a decimal calculated to seven
decimal places without rounding) for each such day is computed by dividing the
interest rate applicable to such day by 360, in the case of Notes with an
interest rate determined by reference to the "Commercial Paper Rate" (the
"Commercial Paper Rate Notes"), the "Federal Funds Rate" (the "Federal Funds
Rate Notes"), and "LIBOR" ("LIBOR" Notes"), or by the actual number of days in
the year, in the case of Notes with an interest rate determined by reference to
the "Treasury Rate" (the "Treasury Rate Notes"). The interest rate in effect
on each day will be (a) if such day is an Interest Reset Date, the interest
rate with respect to the Interest Determination Date (defined below) pertaining
to such Interest Reset Date or (b) if such day is not an Interest Reset Date,
the interest rate with respect to the Interest Determination Date pertaining to
the next preceding interest Reset Date; provided, however, that (i) the
interest rate in effect from the Original Issue Date to the first Interest
Reset Date will be the initial Interest Rate as specified on the face hereof
and (ii) the interest rate in effect for the ten calendar days immediately
prior to maturity will be that in effect on the tenth calendar date preceding
maturity. Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, shown on the face hereof (the
"Maximum Interest Rate"), or less than the Minimum Interest Rate, if any, shown
on the face hereof (the "Minimum Interest Rate"). All percentages resulting
from any calculations will be rounded, if necessary, to the nearest
one-hundredth of a percent, with five one-thousandths of a percent being
rounded upwards. In addition, the interest rate hereon shall in no event be
higher than the maximum rate, if any, permitted by applicable law.
-4-
<PAGE> 5
Commencing with the first Interest Reset Date shown on the face hereof
following the Original Issue Date, and thereafter on each succeeding Interest
Reset Date specified on the face hereof, the rate at which interest on this
Note is payable shall be adjusted daily, weekly, monthly, quarterly,
semiannually or annually as specified on the face hereof under "Interest Reset
Date(s)." Each such adjusted rate shall be applicable on and after the Interest
Reset Date to which it relates to but not including the next succeeding
Interest Reset Date or until the Maturity Date or, if applicable, the
Redemption Date shown on the face hereof (the "Redemption Date"). The Interest
Reset Date will be, if this Note resets daily, each Business Day; if this Note
resets weekly, the Wednesday of each week (with the exception of weekly reset
Treasury Rate Notes which will reset the Tuesday of each week, except as
specified below); if this Note resets monthly, the third Wednesday of each
month; if this Note resets quarterly, the third Wednesday of March, June,
September and December; if this Note resets semiannually, the third Wednesday
of the two months specified on the face hereof; and if this Note resets
annually, the third Wednesday of the month specified on the face hereof.
Subject to applicable law and except as specified herein, on each Interest
Reset Date, the rate of interest on this Note shall be the rate determined in
accordance with the provisions applicable below, plus or minus the Spread (as
specified on the face hereof), if any. If any Interest Reset Date would
otherwise be a day that is not a Business Day, such Interest Reset Date shall
be postponed to the next succeeding day that is a Business Day, except that in
the case of a LIBOR Note, if such Business Day is in the next succeeding
calendar month, such Interest Reset Date shall be the next preceding Business
Day. "Business Day" means (i) with respect to any Note, any day that is not a
Saturday or Sunday, and that, in The City of New York, is neither a legal
holiday nor a day on which banking institutions or trust companies are
authorized or obligated by law to close, and (ii) with respect to LIBOR Notes
only, a London Banking Day. A "London Banking Day" means any day on which
dealings in deposits in U.S. dollars are transacted in the London interbank
market. In the case of weekly reset Treasury Rate Notes, if an auction of
treasury bills falls on a day that is an Interest Reset Date for Treasury Rate
Notes, the Interest Reset Date will be the following day that is a Business
Day.
The Interest Determination Date (the "Interest Determination Date")
pertaining to an Interest Reset Date will be, if the Interest Rate Basis
(defined below) is the Commercial Paper Rate or the Federal Funds Rate, the
second Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date will be, if the
Interest Rate Basis is LIBOR, the second London Banking Day next preceding such
Interest Reset Date. The Interest Determination Date pertaining to an Interest
Reset Date will be, if the Interest Rate Basis is the Treasury Rate, the day of
the week in which such Interest Reset Date falls on which Treasury bills (as
defined below) of the Index Maturity specified on the face hereof are
auctioned. Treasury bills normally are auctioned on Monday of each week,
unless that day is a legal holiday, in which case the auction is normally held
on the following Tuesday, except that such action may be held on the preceding
Friday. If, as a result of a legal holiday, an auction is so held on the
preceding Friday, such Friday will be the Interest Determination Date
pertaining to the Interest Reset Date occurring in the next succeeding week.
Interest payable hereon will be payable monthly, quarterly, semiannually or
annually (the "Interest Payment Period") as specified on the face hereof.
Unless otherwise shown on the face hereof, interest will be payable. If this
Note resets daily, weekly or monthly, on the third Wednesday of each month or
on the third Wednesday of March, June, September and December of each year, if
this Note resets quarterly, on the third Wednesday of March, June, September
and December of each year; if this Note resets semiannually, on the third
Wednesday of the two months of each year specified on the face hereof; and if
this Note resets annually, on the third Wednesday of the month specified on the
face hereof (each such date being an "Interest Payment Date") and in each case,
at maturity or, if applicable, upon redemption.
DETERMINATION OF COMMERCIAL PAPER RATE. If the Interest Rate Basis
specified on the face hereof (the "Interest Rate Basis") is "Commercial Paper
Rate," the interest rate shall equal (a) the Money Market Yield (as defined
below) on the applicable Interest Determination Date of the rate for commercial
paper having the Index Maturity specified on the face hereof (i) as published
by the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates" ("H.15(519)"), or any successor
publication, under the heading "Commercial Paper" or (ii) in the event that
such rate is not published by the Calculation Date (as defined below)
pertaining to such Interest Determination Date, then as published by the
Federal Reserve Bank of New York in its daily statistical release. "Composite
3:30 P.M. Quotations for U.S. Government
-5-
<PAGE> 6
Securities" ("Composite Quotations") under the heading "Commercial Paper" or
(b) if neither of such yields is published by 3:00 P.M., New York City time, on
such Calculation Date, the Money Market Yield of the arithmetic mean of the
offered rates as of 11:00 A.M., New York City time, of three leading dealers of
commercial paper in The City of New York selected by The Chase Manhattan Bank
(National Association) as calculation agent (or any successor calculation
agent, the "Calculation Agent") on that Interest Determination Date, for
commercial paper of the Index Maturity specified on the face hereof (the "Index
Maturity") placed for an industrial issuer whose bond rating is "AA," or the
equivalent, from a nationally recognized rating agency, in each of the above
cases adjusted by the addition or subtraction of the Spread, if any, specified
on the face hereof; provided, however, that if such dealers are not quoting as
mentioned above, the interest rate in effect hereon until the Interest Reset
Date next succeeding the Interest Reset Date to which such Interest
Determination Date relates shall be the rate in effect for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the rate of interest for such period shall be the Initial Interest
Rate).
"Money Market Yield" shall be a yield calculated in accordance with
the following formula:
D x 360
Money Market Yield = --------------- x 100
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
DETERMINATION OF LIBOR. If the Interest Rate Basis specified on the
face hereof is "LIBOR," commencing on the second London Banking Day immediately
following the applicable Interest Determination Date the interest rate shall be
equal to either (i) the arithmetic mean (rounded upward if necessary to the
nearest one-sixteenth of one percent) as calculated by the Calculation Agent,
of the offered rates for deposits in U.S. dollars having the Index Maturity
specified on the face hereof, which appear on the Reuters Screen LIBO Page (or
such other page as may replace the same), as of 11:00 A.M., London time, on
such Interest Determination Date or (ii) the rate for deposits in U.S. dollars
having the Index Maturity specified on the face hereof which appears on the
Telerate Page 3750 (or such other page or service as may replace the same) as
of 11 A.M., London time, on such Interest Determination Date, in each case
adjusted by the addition or subtraction of the Spread, if any, specified on the
face hereof; provided, however, that if less than two such offered rates appear
on the Reuters Screen LIBO Page or if no rate appears on Telerate Page 3750, as
applicable, the Calculation Agent shall request the principal London Office of
each of four major banks in the London interbank market selected by the
Calculation Agent to provide a quotation of the rate at which such bank offered
to prime banks in the London interbank market at approximately 11:00 A.M.,
London time, on such Interest Determination Date, on deposits in U.S. dollars
having the Index Maturity specified on the face hereof commencing on the second
London Banking Day immediately following such Interest Determination Date and
in a principal amount equal to an amount not less than U.S. $1,000,000 that is
representative of a single transaction in such market at such time, and such
rate of interest hereon shall equal the arithmetic mean (rounded upward if
necessary to the nearest one-sixteenth of one percent) of (a) such quotations,
if at least two quotations are provided, or (b) if less than two quotations are
provided, the rates quoted at approximately 11:00 A.M., New York City time, on
such Interest Determination Date by three major banks in The City of New York,
selected by the Calculation Agent (after consultation with the Company) for
loans in U.S. dollars to leading European banks, having the Index Maturity
specified on the face hereof commencing on the second London Banking Day
immediately following such Interest Determination Date and in a principal
amount as aforesaid, in either case, adjusted by the addition or subtraction of
the Spread, if any, specified on the face hereof; provided, however, that if
the three banks selected as aforesaid by the Calculation Agent are not quoting
as mentioned above, the interest rate in effect hereon until the Interest Reset
Date next succeeding the Interest Reset Date to which such Interest
Determination Date relates shall be the rate in effect for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the rate of interest for such period shall be the Initial Interest
Rate).
DETERMINATION OF FEDERAL FUNDS RATE. If the Interest Rate Basis
specified on the face hereof is "Federal Funds Rate," the interest rate shall
equal (a) the rate on the
-6-
<PAGE> 7
applicable Interest Determination Date specified on the face hereof for Federal
Funds (i) as published in the H.15(519) under the heading "Federal Funds
(Effective)" or (ii) if such rate is not so published by the Calculation Date
pertaining to such Interest Determination Date, then as published in the
Composite Quotations under the heading "Federal Funds/Effective Rate" or (b) if
neither of such rates is published by 3:00 P.M., New York City time, on such
Calculation Date, the arithmetic mean (as calculated by the Calculation Agent)
of the rates for the last transaction in overnight Federal Funds arranged by
three leading brokers of Federal Funds transactions in The City of New York
selected by the Calculation Agent as of 11:00 A.M., New York City time, on such
Interest Determination Date, in each of the above cases, adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof;
provided, however, that if such brokers are not quoting as mentioned above, the
interest rate in effect hereon until the Interest Reset Date next succeeding
the Interest Reset Date to which such Interest Determination Date relates shall
be the rate in effect for the immediately preceding Interest Reset Period (or,
if there was no such Interest Reset Period, the rate of interest for such
period shall be the Initial Interest Rate).
DETERMINATION OF TREASURY RATE. If the Interest Rate Basis specified
on the face hereof is "Treasury Rate," the interest rate shall equal the rate
for the auction held on the applicable Interest Determination Date of direct
obligations of the United States ("Treasury bills") having the Index Maturity
specified on the face hereof as published in H.15(519), or any successor
publication, under the heading, "U.S. Government Securities-Treasury
bills--auction average (investment)" or, if not so published by the Calculation
Date pertaining to such Interest Determination Date, the auction average rate
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) as otherwise announced by the United
States Department of the Treasury, in either case, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof. In the event
that the results are not published or reported as provided above by 3:00 P.M.,
New York City time, on such Calculation Date, or if no such auction is held in
a particular week, then rate of interest herein shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates as of approximately 3:30 P.M., New York City time, on such Interest
Determination Date, of three leading primary United States government
securities dealers selected by the Calculation Agent (after consultation with
the Company) for the issue of Treasury bills with a remaining maturity closest
to the Index Maturity specified on the face hereof, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting as mentioned above, the interest rate in effect hereon until the
Interest Reset Date next succeeding the Interest Reset Date to which such
Interest Determination Date relates shall be the rate in effect for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest for such period shall be the Initial
Interest Rate).
The Calculation Date pertaining to an Interest Determination Date
shall be the tenth calendar day after such Interest Determination Date or if
any such day is not a Business Day, the next succeeding Business Day. The
Calculation Agent shall calculate the interest rate hereon in accordance with
the foregoing and will confirm in writing such calculation to the Trustee and
any Paying Agent immediately after each determination. Neither the Trustee nor
any Paying Agent shall be responsible for any such calculation. At the request
of the Holder hereof, the Calculation Agent will provide to the Holder hereof
the interest rate hereon then in effect and, if determined, the interest rate
which will become effective as of the next Interest Reset Date.
If so specified on the face of this Note, this Note may be redeemed at
the option of the Company or the Holder on and after the Redemption Date so
indicated on the face hereof. If no such date is set forth on the face hereof,
this Note may not be redeemed prior to maturity. On and after such date, if
any, from which this Note may be redeemed, this Note may be redeemed in whole
or in part in increments of $1,000 (provided that any remaining principal
amount of this Note shall be at least $1,000) at option of the Company or a
Holder, at the redemption prices set forth on the face hereof, together with
interest thereon payable to the Redemption Date, on notice given (i) to the
Trustee not more than 60 days nor less than 30 days prior to the Redemption
Date with respect to redemption at the option of the Company; or (ii) to the
Trustee and the Company at least sixty (60) days prior to the Redemption Date
with respect to redemption at the option of a Holder. With
-7-
<PAGE> 8
respect to redemption at the option of the Company, if less than all the
Outstanding Notes having such terms as specified by the Company are to be
redeemed, the particular Notes to be redeemed shall be selected by the Trustee
not more than 60 days prior to the Redemption Date from the Outstanding Notes
having such terms as specified by the Company not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate. Any
notice by the Trustee of such redemption at the option of the Company shall
specify which Notes are to be redeemed. In the event of redemption of this
Note, in part only, a new Note or Notes in authorized denominations for the
unredeemed portion hereof shall be issued in the name of the Holder hereof upon
the surrender hereof.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal thereof may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to
the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of 66-2/3% in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of each
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Note.
Holders of Securities may not enforce their rights pursuant to the
Indenture or the Securities except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Note or the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Note at the time,
place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the Security
Register of the Company, upon surrender of this Note for registration of
transfer at the office or agency of the Company in the Borough of Manhattan,
The City of New York, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and this Note duly executed by
the Holder hereof or by his attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $100,000 or any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, this Note is exchangeable for a like aggregate
principal amount of Notes of different authorized denomination as requested by
the Holder surrendering the same.
No service charge will be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to the due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
All capitalized terms used in this Note and not otherwise defined
herein or particularized on the face hereof shall have the meanings assigned to
them in the Indenture.
-8-
<PAGE> 9
____________________________________________________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT--_______________ Custodian _____________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_________________________________
(State)
Additional abbreviations may also be used though not in the above list.
_______________________________________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________
________________________________________________________________________________
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
________________________________________________________________________Attorney
to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Date: __________________ __________________________________________________
Note: The signature to this Assignment must
correspond with the name as written upon the face
of this Note in every particular without
alteration or enlargement.
-9-
<PAGE> 1
Exhibit 5
GATX CAPITAL CORPORATION
Four Embarcadero Center
San Francisco, CA 94111
December 15, 1995
Board of Directors
GATX Capital Corporation
Four Embarcadero Center
Suite 2200
San Francisco, CA 94111
Registration Statement on Form S-3
Gentlemen:
You have requested my opinion in connection with the registration,
pursuant to a registration statement on Form S-3 (the "Registration
Statement"), of $300 million aggregate principal amount of Medium-Term Notes
Series D of GATX Capital Corporation, a Delaware corporation (the "Company"),
with maturities from nine months to fifteen years from date of issue (the
"Notes").
I have examined (i) the Distribution Agreement in the form included as
Exhibit 1 to the Registration Statement (the "Distribution Agreement"), (ii) a
copy of the Indenture, dated as of July 31, 1989, as supplemented and amended
by the Supplemental Indenture dated as of December 18, 1991 between the Company
and The Chase Manhattan Bank (National Association), as trustee (the
"Trustee"), pursuant to which the Notes are to be issued, incorporated by
reference to Exhibit 4(a) to the Company's Form S-3 Registration Statement No.
33-30300 and to Exhibit 4(b) to the Company's Form S-3 Registration Statement
No. 33-64474 included as Exhibits 4(a) and 4(b) to the Registration Statement,
respectively (collectively the "Indenture"), (iii) a copy of the form of
Supplemental Indenture between the Company and the Trustee included as Exhibit
4(c) to the Registration Statement (the "Second Supplemental Indenture") which
Second Supplemental Indenture is intended to become, upon execution, part of
the Indenture, (iv) the proposed form of the Notes included as Exhibits 4(d),
4(e), 4(f) and 4(g) to the Registration Statement, and (v) originals or copies
certified or authenticated to my satisfaction of the Company's Restated
<PAGE> 2
Board of Directors
GATX Capital Corporation
December 15, 1995
Page 2
Certificate of Incorporation, its By-laws and records of certain of its
corporate proceedings. In addition, I have made such other examinations of law
and fact as I considered necessary to form a basis for the opinions hereinafter
expressed.
In rendering this opinion, I assume (i) that the Indenture has been
duly authorized, executed, and delivered by the Trustee and is the legal,
valid, and binding obligation of the Trustee, (ii) that the Second Supplemental
Indenture will be duly authorized, executed and delivered by the Trustee and
will be the legal, valid and binding obligation of the Trustee, and (iii) that
the Notes to be executed and delivered by the Company will be substantially in
the respective forms filed as exhibits to the Registration Statement. In
addition, I have assumed the genuineness of all signatures, the authenticity of
documents submitted as originals, the conformity with originals of all
documents submitted to me as copies thereof and the legal capacity of all
persons who have executed any of such documents, which facts I have not
independently verified.
Based on the foregoing, I am of the opinion that, when duly authorized
by the Board of Directors of the Company or a duly authorized committee
thereof, duly executed and delivered by proper officers of the Company, issued
and paid for as contemplated in the Registration Statement, a related Pricing
Supplement, the Indenture and the Distribution Agreement, and duly
authenticated by the Trustee under the Indenture, the Notes will be legal,
valid, and binding obligations of the Company enforceable against the Company
in accordance with their terms, except as such enforceability may be limited by
bankruptcy, reorganization, insolvency or moratorium, and other laws relating
to or affecting enforcement of creditors' rights or by general equitable
principles (whether considered in a proceeding in equity or at law), and except
that the remedy of specific performance and injunctive and other forms of
equitable relief are subject to certain equitable defenses and to the
discretion of the court before which any proceeding therefore may be brought.
The opinions expressed above are limited to the laws of the State of
New York, the federal laws of the United States of America and the General
Corporation Law of the State of Delaware. My opinions are rendered only with
respect to the laws, and the rules, regulations, and orders thereunder, which
are currently in effect.
I consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to my name under the caption "Legal
Opinions" in the Prospectus included in the
<PAGE> 3
Board of Directors
GATX Capital Corporation
December 15, 1995
Page 3
Registration Statement. In giving this consent, I do not thereby admit that I
come within the category of persons whose consent is required by the Securities
Act of 1933, as amended, or the rules enacted thereunder.
Very truly yours,
/s/ THOMAS C. NORD
Thomas C. Nord
Vice President and
General Counsel
<PAGE> 1
Exhibit 12
GATX CAPITAL CORPORATION
Computation of Ratio of Earnings to Fixed Charges
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Nine Months
ended
September 30
, 1995 Year Ended December 31,
-----------------------------------------------------------------------------
1994 1993 1992 1991 1990
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Fixed Charges:
Interest on
indebtedness and
amortization of
debt discount and
expense $ 49,988 $ 62,744 $ 65,454 $ 71,889 $ 71,374 $ 57,167
Capitalized interest 848 292 279 731 2,549 7,574
Portion of rents
representing
interest factor
(assumed to
approximate 33%) 4,431 5,120 3,012 2,440 1,346 1,201
-------- -------- -------- -------- -------- --------
Total fixed charges $ 55,267 $ 68,156 $ 68,745 $ 75,060 $ 75,269 $ 65,942
======== ======== ======== ======== ======== ========
Earnings available for fixed
charges:
Net income (loss) $ 29,209 $ 24,851 $ 21,525 $ (7,197) $ 28,485 $ 31,603
Income taxes (benefit) 21,607 18,785 21,361 (9,849) 22,549 22,693
Cumulative effect of
accounting changes -- -- -- (9,456) -- --
Equity in net earnings
of joint ventures,
net of dividends
received 3,974 14,322 16,222 40,161 7,109 --
Fixed charges
(excluding capitalized
interest) 54,419 67,864 68,466 74,329 72,720 58,368
======= ======== ======== ======== ======== ========
Total earnings available
for fixed charges $109,209 $125,822 $127,574 $ 87,988 $130,863 $112,664
======== ======== ======== ======== ======== ========
Ratio of earnings to
fixed charges 1.98 1.85 1.86 1.17 1.74 1.71
======== ======== ======== ======== ======== ========
</TABLE>
<PAGE> 1
Exhibit 23(b)
Consent of Independent Auditors
Board of Directors
GATX Capital Corporation
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of GATX Capital
Corporation for the registration of $300,000,000 Medium-Term Notes, Series D
and to the incorporation by reference therein of our report dated January 24,
1995, with respect to the consolidated financial statements of GATX Capital
Corporation incorporated by reference in its Annual Report (Form 10-K) for the
year ended December 31, 1994, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
San Francisco, California
December 14, 1995
<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)
---------------
GATX CAPITAL CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
94-1661392
(I.R.S. Employer Identification No.)
FOUR EMBARCADERO CENTER
SAN FRANCISCO, CA
(Address of principal executive offices)
94111
(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.
- ---------------------
<PAGE> 3
*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> 4
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 14th day of December, 1995
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By: /s/ VALERIE DUNBAR
-----------------------------
Valerie Dunbar
Vice President
-------------
2
<PAGE> 5
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.
CHARTER NUMBER 2370 COMPTROLLER OF THE CURRENCY NORTHEASTERN DISTRICT
STATEMENT OF RESOURCES AND LIABILITIES
<TABLE>
<CAPTION>
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.
(Signed) Thomas G. Labrecque
(Signed) Arthur F. Ryan Directors
(Signed) Richard J. Boyle
